AUCKLAND, New Zealand — It’s midmorning on a Friday in Manukau’s Youth Court, and Judge Philip Recordon is sitting behind the bench, speaking to Thomas, a young teenage boy (his name has been changed to protect his privacy). The others in the room, including police prosecutor Sgt. Richard Spendelow, a lawyer, and representatives from Child, Youth and Family (CYF), are discussing Thomas’ case while he stands quietly.
Recordon tells Thomas he can sit down, then sets his curfew: He isn’t allowed out between the hours of 7 p.m. and 7 a.m. unless he’s with his mother or aunt, and he’s not allowed any contact with the friends he was with when he got into trouble. Thomas’ mother sits behind him, her forehead furrowed. They’ve recently lost their house, and though they have short-term, emergency housing, the stress of that situation is clearly compounded by her son’s court case.
Spendelow looks at her and asks that if her son breaches curfew, she call the police. She nods.
Spendelow turns back toward Thomas.
“You can tell the judge whether your mom’s going to have to make the call that will break her heart,” he says.
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Thomas’ charges are for trespassing, burglary and using threatening language. That they landed him in court mean they’re considered serious — experts estimate that only 15 to 20 percent of youth offenders end up in court. For the remainder of the cases, which are often petty, opportunistic crime, police have the flexibility to make decisions based on the context and details of the case, with a focus both on diverting young people from entering the court system and involving their families and communities in the rehabilitative process.
“You often get a young person where things go wrong; there might be divorce at home or someone dies or there’s some kind of crisis and they might commit a lot of minor persistent offending over a couple of weeks or a couple of months,” said Nessa Lynch, senior lecturer at Victoria University School of Law. “The New Zealand system allows police officers to really use their discretion and their common sense to deal with that situation.”
Nearly two months later, Thomas has transitioned to Te Kooti Rangatahi (youth court, in Māori). Though in many ways the court setup is similar — the same laws apply, and lawyers, lay advocates, a police prosecutor and social workers operate under a presiding judge — Te Kooti Rangatahi is specifically for Māori, a group that makes up 62 percent of young offenders who appear in court, and approximately 16 percent of the overall population.
Held on the marae, which is a Māori community space, the Rangatahi court incorporates tikanga Māori (roughly, Māori culture) into the court process. Since 2008, when the first Rangatahi court opened in Gisborne, New Zealand, 13 more have opened around the country. There are also two Pasifika courts in Auckland, focused on incorporating cultural practices from various Pacific Islands.
In addition to the cultural aspects (including a pōwhiri, or welcoming ceremony, to begin the day), the main difference is the involvement of Māori elders, who sit on a couch along the wall and take turns speaking after the judge.
In court, Thomas introduces his mother to Judge Gregory Hikaka, the presiding judge, as he did in Judge Recordon’s court. This time though, he introduces himself with his pepeha, a recitation of his ancestry. The introduction serves to tell the court who he is and where he comes from, with the goal of rooting him further into his culture.
“Hopefully it’s a way to make them proud of who they are,” said Judge Frances Eivers, who also presides over Rangatahi courts.
In 1985, then-Minister of Social Welfare Ann Hercus commissioned a report on her ministry, asking a committee to examine how well it worked with Māori. The result was a damning report called Pauo-te-Ata-tu (Daybreak) that focused on institutionalized racism targeting Māori.
Partially in response, in 1989, the Children Young People and Their Families Act overhauled the processes in place, which largely still looked at the justice system as a way to care for children in need. The new act emphasized the importance of family and culture in the youth justice system, and shifted the focus toward diverting offenders from formally entering the system.
While CYF (which is currently transitioning to the title “Ministry for Vulnerable Children”) and the Ministry of Justice partner in administering youth justice, the police department is perhaps the biggest player in the system, as the first and often last line of defense. They are required to handle as many cases as possible outside of the courts.
Ross Lienert, youth manager for the New Zealand Police, says the majority of young offenders are “adolescent limited,” meaning that their offending is limited to their teen years, and they won’t continue to commit crimes past adolescence.
“They would stop offending if we did nothing at all, so the response is generally pretty light — reparation, an apology, some form of closure,” he said.
In addition to punitive measures, part of the police’s work is to remove the need to commit these offenses again. A teen who has committed a minor assault may be required to attend anger management classes; one who is driving without a license may be supported to get his or her license. Depending on whether or not victims are involved, this may be enough. Otherwise, the case is escalated.
“Legally we’re required to deal with the underlying causes, but we also need to hold the child or young person accountable for their offending and deal with the victims,” Lienert said.
One of the tactics that goes hand-in-hand with court is the Family Group Conference (FGC). When a case is too serious to be dealt with by the police alone, it will be sent to an FGC. FGCs are the core of the youth justice system, and nearly all offenders who commit a serious offense will be required to attend one. If a child is arrested, they will first go to court, then an FGC.
In the conference, a facilitator, offenders, their families and other professionals meet to discuss a plan. The first step is to discuss the offense and for the young person to admit their wrongdoing. Next, everyone except for the family leaves the room, and the family and offender develop a plan to hold him or her accountable. This could include community service, drug and alcohol counseling or even parenting programs for the offender’s family. In the final step, everyone meets again to discuss the plan and assign roles and responsibilities to everyone in the room.
In FGCs, the victim is entitled to be there. Although not all conferences involve the victim, the ones that do fall under the restorative justice category. While definitions of restorative justice vary, the main theme is the idea that providing a healing process for the victim and the offender allows the offender a better chance of rehabilitation, and the victim a greater sense of justice.
“The theoretical idea is that you’re supposed to be be returning the power of the offense to the people who are most affected by it,” Lynch said.
Paul Hapeta, a Family Group Conference facilitator who works in Wellington, has seen lots of success come from the FGCs. One that stands out for him is a conference where a young boy had done a “smash and grab” from a local shop, stealing valuable merchandise. As part of FGC plans, many young offenders are required to do community work. Instead, he was sentenced to work in the victim’s shop after school for three months, learning valuable skills in addition to working toward reparations. After he completed the service, the shop owner offered him a job.
“The victim feels satisfied that he’s part of the solution and the young person gets to experience something they otherwise would not have experienced, and they don’t see the victim as being a faceless person any more,” Hapeta said.
For cases more serious, like Thomas’, offenders will end up back in court after the FGC, but that doesn’t mean the charge will always stay on their record. Depending on the charge’s severity, and whether the teen meets the requirements, the judge can decide to give a “282 discharge,” which in effect clears their record, meaning that they go into adult life without a criminal history. For Thomas, this can mean the ability to travel out of the country in a few years to pursue his dreams.
As she does every time an offender receives a 282 discharge, Te Miharo Munro, one of the four elders, stands up to sing a song of appreciation and respect to Thomas.
Te aroha (Love)
Te whakapono (Faith)
Me te rangimarie (Peace)
Tatou tatou e (For us all)
“You’ve grown in stature. Do you know what that means?” Judge Hikaka asks, and for the first time, Thomas smiles.
“It means you’ve grown to be a more responsible young man.”
This column was written for The Crime Report.
Concern about how the next administration will deal with criminal justice reform is well-justified. But possibly the most troubling clue to the policies of a Trump administration is contained in the attitudes of the president-elect to science.
Donald Trump does not appear to have much regard for scientific evidence. He believes, for example, that climate change is a hoax.
If he applies that know-nothing mindset to the evidence-based practices that have begun to inform new thinking about incarceration and sentencing policies, reformers are going to be in for a bumpy ride.
So far, we have been given bits and pieces of Trump’s positions, but little in terms of explicit policy statements. And what we do know of his thinking is rife with contradictions.
Trump branded himself as the “law and order” candidate during the GOP convention last summer. Earlier, in a November 2015 interview on MSNBC, he called himself “a believer in tough on crime,” and compared urban neighborhoods afflicted with violence to “the Wild West.”
He criticized the Obama administration’s decision to approve the early release of approximately 600 low-level drug offenders from federal prison. Not letting the facts get in his way, Trump declared that “Obama is even releasing violent criminals from the jails, including drug dealers, and those with gun crimes. And they’re being let go by the thousands. By the thousands. …”
And he went further: “Obama pushed for changes to sentencing laws that released thousands of dangerous, drug-trafficking felons and gang members who prey on civilians.”
Commentators have pointed out that Trump has changed many of his beliefs over the course of the campaign. While he once appeared to defend a woman’s right to choose, he has since become a staunch pro-lifer. But his “tough on crime” beliefs have been largely unchanged.
His 2000 book “The America We Deserve” rejected arguments made by social scientists and criminologists that suggested strong links between criminal offending and poverty or childhood maltreatment, insisting that such explanations are “soft on crime.”
As his campaign ratcheted up this fall, he strengthened the point.
“Tough on crime policies are the most important form of national defense,” he has claimed. ”Aggressive anticrime policies are the best social program.”
Advocates of reducing America’s overcrowded prisons are, similarly, unlikely to get a warm reception in the Trump White House or Justice Department. Trump is an avid advocate of imprisonment, apparently showing no concern for current levels of incarceration and a clear disdain for the recent, ever-so-modest reform efforts made at the state level.
Moreover, legislation supported by a bipartisan coalition that proposed modest changes to federal sentencing has been languishing in Congress for over two years. One of its most vocal opponents has been Alabama Republican Sen. Jeff Sessions — a key Trump ally who has been touted as a possible cabinet member.
It’s probably safe to conclude that the prospects of such legislation being resurrected under President Trump are bleak.
Most of the criminologists and policymakers who have examined the current research in criminal justice policy are aware that the scientific evidence overwhelmingly supports reducing punitive policies, and of implementing comprehensive, evidence-based clinical intervention and rehabilitation programs.
But this growing intellectual consensus is not likely to persuade a Trump administration committed to the law-and-order, tough-on-crime rhetoric that excited crowds during the recent campaign.
The early speculation is that former New York Mayor Rudy Giuliani is Trump’s first choice for attorney general. Giuliani remains one of the foremost defenders of the stop-and-frisk policing strategies which he instituted in New York — and which have since come under both legal and scholarly attack.
Trump, a native New Yorker who often refers to the city’s high-crime era of the 1990s, has long been a Giuliani fan. While his justice views have undoubtedly been influenced by the ex-mayor, he also appears willing to go even further in denying the validity of scientific research — or even evidence.
He argues for instance that the so-called Central Park Five — five young men imprisoned for a notorious attack on a jogger and eventually released when DNA evidence proved their innocence — are guilty. The fact that someone else actually confessed to the crime appears to have eluded him.
Evidence-based strategies are already influencing policies at the state level. There have been some state- level rollbacks of tough-on-crime policies, especially in terms of sentencing laws and prison populations. Fiscal pressures may keep some states headed in that direction; but to reiterate, this is very modest change.
The bigger challenge of criminal justice reform is much more extensive and comprehensive than what has transpired or been considered to date. For example, the recidivism rate of mentally ill prisoners is 80 percent. That screams revolving-door and should serve as a clue about diverting to clinical treatment many of the 40 percent of prison inmates with mental health issues.
So, too, for the vast majority who have a substance-use disorder, as well as those with neurocognitive and intellectual impairment and deficits.
But such evidence-based strategies may come to a dead stop in a Trump administration.
While much of criminal justice policymaking is local, the federal government has a huge impact on setting priorities through its funding power.
I fear a federal tough-on-crime agenda will increase the political risk associated with current reform efforts, in turn keeping any surviving reform efforts piecemeal and modest. And when it comes to extensive, comprehensive criminal justice reform, the prospects are even bleaker.
Reform requires effective leadership. From the evidence available to us so far, that’s not likely to come from a science-hostile Trump White House.
William R. Kelly is a professor of sociology at the University of Texas at Austin. He is the author of three recent books on criminal justice reform, Criminal Justice at the Crossroads: Transforming Crime and Punishment, The Future of Crime and Punishment: Smart Policies for Reducing Crime and Saving Money and From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice.
This column originally appeared in The Crime Report.
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