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“Institutional racism”. Warning: label may smudge with over-use.

Today we heard, courtesy of Radio New Zealand, that a UN delegation visiting NZ prisons has urged our government to consider the extent to which our system creates systemic bias against Māori (http://www.radionz.co.nz/news/te-manu-korihi/240995/un-critical-over-maori-jail-numbers)

The problem with a phrase like ‘institutional racism’ (the term used most often to describe this notion of systemic bias) is that it creates a distance between people and the problem. The problem is well documented. We all know that Māori are over-represented at all stages of the criminal justice system, from arrests to court appearances, to sentencing, to prison population. http://aic.gov.au/publications/current%20series/tandi/421-440/tandi421.html .

 
Do these statistics really point to a systemic problem? Commentators tend to fall into two kinds of camps. There are those who point to the monolithic nature of the system, the racism of Pākehā, lack of Māori values evident in the system, the history of colonialism and the breakdown of Māori legal institutions, the displacement of Māori autonomy over their own lives and so on as setting the scene for, and justifying the name of, institutional racism. Māori have no investment in this system, and until they do there will be no substantive change. A kind of systemic revolution is necessary to roll back the stats (Moana Jackson is probably still the leading commentator in this camp, as discussed in the JustSpeak paper http://justspeak.enspiral.info/wp-content/uploads/2012/06/JustSpeak-Maori-and-the-Criminal-Justice-System-A-Youth-Perspective.pdf  )

The other camp tends to focus less on the racism and culpability of Pākehā, and the system itself, instead pointing to sociological/individual explanations that underpin Māori over representation. Māori over-representation occurs by and large because Māori offend more. Identify the drivers of Māori crime, address those, and the problem will sort itself out. The system is not to blame, as far as any system can be, the criminal justice system is neutral, and upholds and reflects the primary values of the community (including Māori) appropriately. Sure there could be changes to make the system more ‘Māori friendly’, but the solutions lie within Māori decisionmaking, Māori families, Māori individuals. Criminologist Greg Newbold represents this perspective to some degree, seen here in conversation with Moana Jackson on Native Affairs: https://www.facebook.com/justspeaknz/posts/515353868520154. Another quite strident view from this camp can be seen here: http://www.nzcpr.com/institutional-racism/

My own perspective falls somewhere in between the two camps. In my view the term ‘institutional racism’ has become a kind of label that cloaks the nature of what really goes on in the criminal justice system, and within society more generally. The nature of what really goes on cannot be divorced from the individuals that make up the system. This system is a human artifact and cannot be value free. The law is not neutral, we made it, and we infused it, and the system that upholds it, with values.

I remember hearing one of New Zealand’s high profile judges speaking frankly about the dilemmas he is confronted with when sitting on the bench when Māori offenders come before him. He acknowledged that a decision about giving bail, for example, could go differently depending on whether the offender before him was Māori or not, NOT because of ethnicity, but because almost inevitably the Māori offenders had less stable home circumstances and less support to help them keep to their bail conditions, were more likely to breach, and more likely to end up back in court for the breach. Therefore, such Māori offenders might be more likely to receive bail than their Pākehā counterparts who usually had more obvious home support and more stable home circumstances. What was he, as a judge, to do? Grant bail, and see that offender back in front of him for breach, almost inevitably, lengthening the already negative contact between that offender and the system (including the police), usually resulting in jail anyway, or refuse it, thereby expediting the CJ process but sending the offender to jail more quickly (if the court process ended up in a finding of guilt). Which values does he call upon in the making of that decision? As he observed (and I’m paraphrasing), “if these are the moments of discretionary power I have as a judge, what about all those other moments before the offender even gets to me?” Indeed. Social workers, case workers, teachers, parents, family members, police, probation officers, lawyers, all of them will have had moments of discretion they exercised that impact upon our theoretical Māori individual as she progresses through life, let alone the criminal justice system. All of the ‘discretionary moments’ intersect with the decisions made by this person; what are the nature of the choices she makes in her life? How might she have been ushered into making those decisions, some of which could see her enter into the system? 

Māori are agents, not just victims, and a term like ‘institutional racism’ does two things, it denies Māori agency, but it also points to the sum total of those discretionary moments exercised by all those who have decision-making power within the Criminal Justice System. Perhaps the first step to undermining the phenomenon of systemic or institutional racism, or just over-representation of Māori within that system, is to ask those individuals what decisions they made today. And those same questions should also be asked of the whānau and friends. Ultimately, I think we are all collectively responsible for Māori over-representation in the criminal justice system.

 As for a remedy? Well, I think Jackson is partly right. Māori must have decision-making power over Māori lives, and they must also see themselves reflected in the systems of this country in a way that normalises rather than demonises them. So structural change can achieve some of that. And the capacity of Māori to create and implement useful dispute resolution processes, perhaps using the marae more often, is exciting, and growing recognition of Māori customary law and processes offers fantastic room for growth. There are also international developments in sentencing law that New Zealand could look to in the recognition of culture and background in the sentencing process. We already have this capacity in NZ law (by virtue of ss8 and 27 of the Sentencing Act 2002), the Courts have basically declined to use it to address disproportionality in similar ways that have been done in Canada, for example. (see the Court of Appeal decision in the case of Mika v R, and some interesting commentary here: http://maorilawreview.co.nz/2014/01/criminal-law-sentencing-and-ethnicity-mika-v-r-sensible-or-superficial/.

But I also think that the focus on the institution cannot be at the expense of the focus we place upon ourselves. The battle to stop our young people going to jail starts at home in the everyday discretionary decisions we make as parents, whāea, mātua, tuakana, teina, and finally, as mokopuna ourselves, to live a life outside the criminal justice  institution and well away from any of its tatty labels.

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About Sparrowhawk/Kārearea

Legal academic and writer, Wellington. (Te Rarawa, Ngāti Pākeha. Nō te Hāhi Mihinare hoki)

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