Tip of the Iceberg

Prisoner advocates argue that the Waikeria Uprising has revealed the tip of an inhumane iceberg in New Zealand’s prisons. In the last two months alone, prison officers have reportedly gas bombed cells with pepper spray to extract prisoners, causing potentially life-threatening harm.

Because the gas flows into surrounding cells, this tactic constitutes a form of collective punishment. Despite the existence of international conventions prohibiting such punitive measures, Ardern’s minister has categorically refused to intervene to end gas bombing. He labeled it an “operational matter.”

Recent investigations by human rights observer Dr Sharon Shalev has documented the use of seclusion and restraint in New Zealand’s prisons:

Prisoners have described having to resort to putting their head down the toilet in order to get fresh air when a neighboring cell was gassed. One person said: “Your main thing is to try and breathe … you start spewing, pleading with them [staff] to decontaminate us.”

Shalev also discovered that placing prisoners in prolonged solitary confinement has become more frequent over the last three years and is disproportionately used against people of Māori background.

For a generation, advocates have meticulously documented the broken system, issuing similar findings time and again. So far, Ardern’s government — like those of her predecessors — has done nothing to change the situation.

Mass Incarceration and Poverty

New Zealand has the 5th highest incarceration rate in the OECD, trailing only the United States, Israel, Chile and Turkey. Worse still, the criminal justice system is a key driver of structural racism against Māori.

While Māori make up 16.5 percent of New Zealand’s total population, they account for no less than 52.9 percent of its prison population. One in five Māori men will have been imprisoned by the age of 35, compared to one in twelve as a proportion of the overall population. At almost every point in the criminal justice system, Māori endure more punitive outcomes than non-Māori.

The consequences extend well beyond prison. Imprisonment affects prisoners’ families too — when a breadwinner is incarcerated, the loss of income can further impoverish already struggling communities. On release, people find it extremely difficult to secure a legal source of income. Even a short jail sentence can entrench intergenerational poverty and immiseration.

The tens of thousands of children of incarcerated people feel this most acutely. According to recent studies, they grow up with high levels of deprivation, extremely poor health and education outcomes, and a high risk of developing post-traumatic stress disorder that stems from parental separation. It’s from this generation that New Zealand will recruit its future prison population.

Mass incarceration has expanded over the last two decades under both center-left Labour and center-right National governments. The most recent uptick in the prison population largely arose from changes to bail laws that have consigned more people to prison while awaiting trial. The new laws, in effect, defined homeless people and those without secure housing as a security risk, imprisoning them without trial. Progressive icon Jacinda Ardern voted in favor of the policy.

She did so despite ample evidence that the prison system is not rehabilitative. In fact, within two years, 61 percent of people released from prisons face reconviction. Like prisons worldwide, New Zealand’s system of incarceration fundamentally does not serve to reduce recidivism and may well exacerbate violent offending.

Rhetoric and Reality

In the past, Ardern has advocated transformation of the criminal justice system. In 2018, on New Zealand’s national day, Waitangi Day, the newly elected PM recognized the disproportionate rate of Māori incarceration, encouraging Māori to “hold us to account” on this and other issues.

Nearly three years later, Ardern has little to show for her rhetoric. While the number of people in prison may have plateaued (and even decreased slightly following the COVID-19 lockdown), Ardern’s government has done nothing to substantially reverse the long-term trend.

On many fronts, the Labour-led government has moved backward. Against advice from criminal justice experts, Ardern’s government announced in 2018 that it would create a mega-prison at Waikeria. Instead of trying to wean the criminal justice system off its reliance on incarceration, Ardern chose to expand jail capacity.

More recently, the NZ Police launched a trial of Armed Response Teams (ARTs), sending officers in SWAT gear with military-grade assault rifles to patrol predominantly working-class and Māori neighborhoods in armored cars. For a mostly unarmed police force, this was a major expansion of militarization.

Rather than call for an end to ARTs, Ardern allowed the trial to continue without government intervention, describing them as “operational decisions.” After grassroots organizing from groups like People Against Prisons Aotearoa and strong public opposition, the police eventually scrapped the trial — but this was no thanks to Ardern.

Ardern’s approach to criminal justice is defined by inaction. She has given no indication that she plans to repeal or amend the new bail laws. The Labour Party also hasn’t repealed the draconian “Three Strikes Law,” an American import that has given rise to cases such as one in which a man received a seven-year sentence for grabbing a prison officer’s bottom.

In 2020, New Zealand voters narrowly voted against legalizing cannabis by a vote of 50.7 to 48.4 percent. After the votes were in, Ardern claimed that she still supported cannabis legalization. In the wake of the results, even leading anti-legalization campaigners came out in support of decriminalization. Yet Labour followed up with an announcement that all drug law reform was off the table indefinitely.

Ardern’s Surrender to Penal Populism

Some people may be willing to give Ardern the benefit of the doubt. The criminal justice system is complex, after all, and policy solutions are hard to come by. But this should be no excuse.

Ardern’s government has already commissioned and received a series of reports recommending potentially transformative policies, from a transition away from prisons to drug decriminalization and increased funding for mental health services. As things stand, Ardern has given no indication that her government plans to implement any of these recommendations, even though her party has an outright majority in parliament — a rare privilege in New Zealand politics.

During Ardern’s last term, Labour supporters portrayed its coalition partner, NZ First, as a “handbrake” on progressive policy reforms. The 2020 election removed that alleged handbrake from parliament altogether, yet Ardern’s government is still more interested in ruling out reform than pursuing it.

This is partly because New Zealand — contrary to its liberal reputation — is a bastion of tough-on-crime politics. The criminologist John Pratt has described New Zealand’s criminal justice policy as being defined by “penal populism” rather than scientific evidence or human rights.

As part of this penal populism, New Zealand’s two governing parties have sought to outbid each other with tough-on-crime policies. For decades, both parties have assumed that a progressive criminal justice reform agenda would expose them to electorally damaging accusations of being soft-on-crime. Although Labour didn’t campaign on a punitive platform in the 2020 election, this context, as well as Ardern’s risk-averse approach, makes any government-led reform unlikely.

A failure to transform the broken system will result in worse treatment of prisoners, further degradation of their conditions, a growing prison population, further impoverishment of communities that suffer inflated levels of incarceration — and most likely, to more prison uprisings.

The alternative is resistance. During the Waikeria Uprising, prisoners and their families shifted the narrative and brought inhumane conditions to the fore. Recent successful efforts to end militaristic police patrols have demonstrated that we can win real victories if the organized left stands in solidarity with those at the sharp end of “penal populism” and works to shift public opinion.

Ardern may not be willing to follow the advice of experts or respond to human rights concerns about New Zealand prisons. But if the issue becomes a threat to her personal popularity, she may decide that the costs of blocking reform outweigh the benefits. It’s up to us to force that calculation upon her.