Comment: We are fast approaching a fundamental change in prisons. As the number of people on custodial remand looks to overtake the number of sentenced prisoners, the main function of prisons in New Zealand may become incarcerating unsentenced people who may not be guilty of offending.
We have already reached this point for women and young people.
In December 2023, 54 percent of female prisoners were on remand—a three-fold increase from 18 percent a decade ago. Seventy percent of these women were Māori. In April 2023, 89 percent of imprisoned young people were on remand.
Remandees in male prisons comprise 42 percent of prisoners (up from 19 percent in 2013). The number of remand prisoners is projected to equal sentenced prisoners in 2032.
Eight years might seem too far away to worry about this but the high number of remand prisoners is already comprehensively felt. One government response is the Corrections Amendment Bill and its associated Amendment Paper No. 17, which will increase rehabilitation and reintegration programmes for remand prisoners.
But the real problem is our high use of remand.
Remand should be short with speedy access to the courts. Instead, 43 percent of New Zealand prisoners are unsentenced and awaiting court processes. This is an anomaly internationally. It contrasts with rates in comparative countries such as Australia (36.6 percent), Norway (29.1 percent), Germany (20.6 percent), and the United Kingdom (18.3 percent).
It is clear we are doing something wrong—that we haven’t got the right balance of protecting conflicting rights of freedom, justice, and safety. The numbers suggest we are overly risk-averse.
In 2018, 50.1 percent of people remanded in custody did not receive a prison sentence. Of those sentenced to imprisonment, the majority (55.5 percent) have low- or minimum-security risk classifications.
This disparity is further reflected in prison architecture and how it is used. Only about five percent of prison architecture is designed for low or minimum security and most remand prisoners are housed in high security settings. This breaches the UN’s Nelson Mandela Rules—which state “unconvicted prisoners are presumed to be innocent and shall be treated as such”—and means far too many prisoners have an overly restrictive regime in overly militant buildings.
Justice sector research attributes 43 percent of the growth in remand (from 2014 to 2020) to changes in the Bail Act 2000. These introduced a presumption of detention for accused people charged with new offences while on bail. A further expansion of this reverse onus occurred with the Bail Amendment Act 2013 that some law experts have described as eroding human rights.
Additionally, the average time spent on remand has grown, increasing from 56 days in 2011/12 to 78 days (or 11 weeks) in 2021/22. Some people spend much longer on remand. From January to August 2022, the average of the ten longest remand times was 1,148 days (or three years, 7.5 weeks). In 2022, Newsroom reported a person had spent five years on remand.
We have no maximum limit to the time you can spend on remand meaning there are few, if any, safeguards preventing prolonged remand incarceration.
These long remand times cause harm. Victims of crime in particular suffer. As Kim McGregor, the Chief Victims Advisor to Government, has said, many victims “feel their lives are on hold and they have to remember details of their evidence sometimes for years”.
There is also a financial cost.
The cost of a person on custodial remand has almost doubled since 2016 (from $239 a day to $452). This is $3,164 per week—more than 3.4 times superannuation for a couple ($922.82) or the adult minimum wage ($908), and 5.4 times the Jobseeker Support benefit ($576.91, sole parent).
Research published in the Boston University Law Review in 2017 concluded that using a cost-benefit model (of defendant risk and potential crime cost versus detention expenditure) could result in significant societal benefits and 28 percent fewer people remanded in custody, saving Americans an estimated US$78 billion.
Perhaps more significant is research showing that, for low- and moderate-risk defendants, custodial remand longer than two days will increase the likelihood of reoffending, with a significant increase after 30 days.
By instituting programmes for remand prisoners, we avoid addressing these core problems and are instead putting in place measures to sustain a failing system. We are moving remand further away from being an exceptional use of detention for the shortest possible time prior to trial. This undermines one of our fundamental rights in the New Zealand Bill of Rights Act 1990—the right to be tried without undue delay.
The Corrections Amendment Bill is currently progressing through Parliament with submissions on Amendment Paper No. 17 closing on 19 March. This is an important time to stop and think—do we really want the prime role of our prisons to be housing people on remand?
This article was originally published on Newsroom.
Christine McCarthy is a senior lecturer in the School of Architecture at Te Herenga Waka—Victoria University of Wellington and a former president of the Wellington Howard League for Penal Reform.