Still paying for the BMR

Back in 2004, a group of inmates at Auckland Prison took the Department of Corrections to court, alleging that the Department's "Behaviour management Regime" (BMR) amounted to cruel, degarding and inhuman treatment. When they won damages in 2004, the then-Labour government responded by passing (with the assistance of the Greens, who they then screwed over) the excreable Prisoners’ and Victims’ Claims Act, which attempted to prevent and deter such awards. But the victims weren't deterred, and went on to win hundreds of thousands of dollars.

But that's not all - because the original claiments weren't the only victims of the BMR. 72 others have since lodged claims, and yesterday, the first of them won their case:

The first six of 72 prisoners unlawfully held in solitary confinement 20 years ago will finally be paid out by the government.

[...]

The first six have been offered $87,500 to be shared among all of them.

Assuming similar offers are made for the remaining 66, a final payout would exceed $1 million.

It has taken fifteen years, apparently because Corrections has refused to consider settlement until now. Meanwhile, none of the Corrections managers who oversaw the BMR faced any employment consequences, despite costing their department more than a million dollars fifteen years ago. And with the amount of time that has passed, there seems absolutely no hope of them being held accountable now.

Update: Clarified that the current payments are settlements. The obvious question is why Corrections waited 15 years to make an offer - and how much they wasted on legal fees in the interim.

Cruel and degrading

The Chief Inspector of Corrections has launched an investigation after the Ombudsman complained about a prisoner being tied to a bed:

The Chief Inspector of Corrections has been called in after the prisoner was strapped to the bed following several self-harm incidents.

Tie-down bed restraints are available to prison staff, but can only be used following the approval of a medical officer and must be reviewed regularly.

It is understood several staff were uneasy about the treatment of the man, who was restrained on the bed by his ankles, wrists and head every night and unable to move.

During the day his restraints were relaxed, but he was watched by a large number of staff at every moment.

Reading the investigations terms of reference, it appears that the prisoner was in this situation, tied down every night, for two months. The charitable interpretation is overstretched, poorly-trained Corrections staff failing utterly to deal properly with a severe mental health issue that should have seen the prisoner transferred to an appropriate facility for treatment (something Corrections seems institutionally opposed to, and its not as if our mental health services are funded to cope with the huge number of prisoners with such issues). The uncharitable interpretation is that they unlawfully conflated punishment with measures to ensure prisoner safety. I'm sure the investigation will get to the bottom of that. Either way, though, this clearly constitutes cruel and degrading treatment, if not torture.

Such treatment is of course outlawed by the Bill of Rights Act and other legislation, not to mention international law, and the prisoner almost certainly has a strong case for compensation. But thanks to a gutless Labour party, they will never be able to receive any, even for what sounds to be a manifest case of ill-treatment such as this. Sadly, the effects of legally classifying prisoners as subhuman and outside the law on their treatment is beyond the investigations terms of reference. And the chances of any Corrections officer ever being prosecuted for mistreating a prisoner is about the same as that of police: zero.

So much for that good human rights record

One of the things we like to think about New Zealand is that we have a good record on human rights. But according to the report of the United Nations Working Group on Arbitrary Detention after visiting New Zealand, its a lie. The working group visited to review our detention ystem; they visisted 16 prisons and consulted extensively with officials. And they found serious infringements of international law. The summary from Rethinking Crime and Punishment:

The Public Safety (Public Protections Orders) Bill, currently before Parliament, breached international law; prisoners who have served their sentence cannot be further detained under the label of civil preventive detention;

The 2005 Prisoners’ and Victims’ Claims Act 2005 was in breach of international law. This Act prevents a prisoner who makes a successful claim against the Crown, from keeping any compensation received.

There were indications of systemic bias against Maori at all levels of the criminal justice system. The Working Party urged a review into the degree of inconsistency and systems bias, including the impact of recent legislative reform. It noted that four previous UN reports have identified the same issue.

Seventeen year old offenders continue to be treated as adults, despite recommendation from the UN that the protection measures available under the Children, Young Persons and Their Families Act 1989 be extended to this age group.

There were insufficient protection measures available to persons with mental or intellectual disabilities, who were detained.

They also had serious concerns about the advice Parliament is getting about our international human rights obligations. But its clearly not a question of bad advice - its a question of Parliament systematically ignoring it and violating those rights when politicians think they can gain politically by doing so. It is a conscious, deliberate crime of successive governments. It would be good if there was a working international system to hold them to account for it.

The Working Group's full report is here [PDF].

Inconsistent

Just before the election, in a fairly transparent display of kicking criminals for votes, the government introduced the Prisoners' and Victims' Claims (Redirecting Prisoner Compensation) Amendment Bill to the House. As the title suggests, the bill amends the Prisoners' and Victims' Claims Act to remove any possibility of abused prisoners receiving financial compensation, regardless of the severity of the abuse. As convicted criminals, they will have no rights.

Today, the Attorney-General found that to be inconsistent with the Bill of Rights Act [PDF] and with our obligations under international law. Their reasoning is worth repeating:

Enjoyment of the basic human rights is the entitlement of every citizen. Denial of an effective remedy to a particular group of society excludes that group from the protection of the Bill of Rights Act.

The exclusion of prisoners from the protections of the rights affirmed in the Bill of Rights Act is objectionable. Prisoners are subject to the day to day control and exercise of coercive power by the state, and as such are especially vulnerable to misuse of state power.

This group's position is recognised by rights relating to those in custody in s23(5), which provides that everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person. Denying prisoners the effective protection of the rights affirmed in s 23, specially enacted for their protection, is unjustifiable.

Sadly, I expect the National Party, driven by a desire to grub votes by pandering to the "hang 'em high" brigade, will ignore this. Which neatly highlights the problem with the Bill of Rights Act: it is predicated on MPs doing their jobs, and taking s7 reports seriously as a warning to stop and think before passing a law. They don't. Very few debates on bills subject to a s7 report engage with the human rights concerns raised, and Ministers seem to regard such reports as a sign they're "tough", a badge of honour rather than an indictment.

If Parliament won't do its job as the guardian of our rights, its time we took it off them and gave it to the courts by entrenching the BORA as supreme law. Politicians have shown that they cannot be trusted. Judges can be. At the least, they have to give reasons - which is more than our politicians ever do.

Kicking criminals for votes

Back in 2005 the then-Labour government passed the Prisoners' and Victims' Claims Act. The law was a response to a prisoner winning compensation for being treated in a cruel, inhuman or degrading manner while in Corrections' custody, and was designed to prevent prisoners from suing for mistreatment in future. In addition to erecting a number of procedural hurdles designed to prevent cases, the law tried to make them pointless by requiring that any compensation awarded be diverted to the prisoner's victims. But apparently this wasn't enough - victims weren't coming forward to claim the money, while some mistreated prisoners were imprisoned for victimless crimes. So, in an effort to get some cheap "tough on crime" headlines in the leadup to the election, National has announced that it will be amending the law to ensure that any residual money goes to the government's victim support fund rather than abused prisoners.

There are a number of problems with this. The most obvious one is that it continues Labour's policy of placing prisoners outside the protection of the law and allowing them to be abused and victimised with impunity by the state. Worse, it creates a perverse financial incentive for such abuse: beat a prisoner, and victims benefit! But it is also contrary to our international human rights obligations. The Universal Declaration of Human Rights, the ICCPR and Convention Against Torture all require people to have an effective remedy or explicit compensation for violations of fundamental human rights. In the case of the latter two, that can be enforced by international oversight mechanisms. This law will put us in breach of those obligations and further undermine our international reputation as a defender of human rights.

But since when has National (or Labour) cared about that? There's an election to win, and hate to whip up. And since they can't victimise Maori anymore, they just have to kick criminals instead.

Prisoners' and Victims' Claims Act extended

Last month I noted that the government was trying to break their deal with the Greens regarding the Prisoners' and Victims' Claims Act 2005 by hiding a clause extending the sunset period in their Criminal Justice Reform Bill. The clause was removed by the Select Committee, but the government put up a Supplementary Order Paper [PDF] to reinsert it. That SOP just passed 64 - 57, with National, the Greens, ACT, and Gordon COpeland voting against. So, the Act will now be extended - and the government enjoy virtual impunity for its misbehaviour and violation of human rights - until 30 June 2010.

This is what you get for voting Labour: redneckery and viciousness under the name of "justice".

Breaking deals

Two years ago today, the Green party made a deal with the Labour government: they would agree to support the Prisoners' and Victims' Claims Bill to stop it from getting any worse, provided the bill had a sunset clause.

Today, I noticed that the government had tried to go back on the deal. A little-noticed part of the Criminal Justice Reform Bill proposed to extend the life of the (now) Prisoners' and Victims' Claims Act to 2010. The clauses have been removed by the select committee, but in the report the government made sour comments about their disappointment that Green and National MPs opposed an extension, and there's some possibility that they will seek to re-introduce it via a Supplementary Order Paper.

This IMHO would be violating the original deal with the Greens that the Act would have a limited life, after which it would expire. And I think it would be appropriate for the Greens to remind the government that they expect them to keep to their agreements. Otherwise, there's no reason for the Greens to keep theirs - for example, the one that keeps the government in power.

BMR: counting the cost of mismanagement

Last year, the High Court entered a landmark judgement against the Department of Corrections, ruling that the department's Behaviour Management Regime (BMR) was unlawful and inhumane, and awarding compensation to five current and former inmates for their treatment. Since then, a further fourty inmates have filed claims - and the government has passed draconian legislation aimed at letting Corrections off the hook for its failure to abide by fundamental human rights standards.

I've spent the last ten months trying to squeeze information out of Corrections on how the BMR was developed and who was responsible for its development and implementation. In the process, I've uncovered some remarkable facts - that the legality of the scheme was not even considered during its development, that prisoners were placed in the scheme without any documentation (and that this is now being used as an excuse to deny claims), and that no Department of Corrections staff have been disciplined in any way, despite the fiasco having cost the department well over a million dollars. As with the "goon squad" incident, there has been no accountability; management at Corrections get to make poor decisions which violate the law and cost the taxpayer money - and they get to keep their jobs (or even get promoted).

Finally, though, I've got the information I was seeking: how much each of those responsible for assigning prisoners to the BMR has cost us. This will be an underestimate, as only 40 out of an estimated 200 inmates subjected to the BMR have filed claims, only 12 of them can actually be linked to a specific manager (paperwork for the rest being incomplete or entirely absent), and there being no estimate of legal fees (over $650,000 in the Taunoa case and still rising) - but it is a start. And the sums involved, while not enormous, are certainly enough to raise the question of whether these managers should be receiving their annual bonuses.

According to the judge in the Taunoa case, a month on the BMR is valued at $2500. On this basis, the cost of Corrections' mismanagement if current claims are successful works out as follows:

• Phil McCarthy (General Manager of the Public Prisons Service) placed 3 inmates for a total of 27 months. Total cost: $67,500.
• Bryan Christy (Site Manager) placed 4 inmates for a total of 47 months. Total cost: $117,500.
• Kelly Puohotaua (current position unknown, but at the time held a position as superintendent or deputy superintendent of Auckland Prison) placed 5 inmates for a total of 56 months. Total cost: $140,000.
• 15 other inmates for whom the responsible manager could not be ascertained were placed for a total of 221 months. Total cost: $552,500.

All up, this policy could cost almost $900,000, plus legal fees. And while the new Prisoners' and Victims' Claims Act will almost certainly reduce that, the fact remains that these managers have presided over appalling negligence and exposed their department to significant financial risk. Shouldn't they be held accountable for that?

A fatal compromise?

Human rights are a key plank for the Green party, and the main reason why I support them. They have been the most consistent advocates for human rights this Parliamentary term, standing up for Civil Unions, for Ahmed Zaoui, for prostitution reform and against torturing despotisms. So you can imagine my surprise when I found out that they had agreed to support the excreable Prisoners' and Victims' Claims Bill, which they had previously vigorously opposed. Is this a fatal compromise of their ideals? Not quite. Reading their press release on the matter, it seems entirely justified by the circumstances.

United Future's Marc Alexander had put up a pair of amendments to the bill. The first would have made all compensation awarded to a prisoner payable to Victim Support, effectively removing any possibility of compensation. The second would have barred the courts from awarding financial compensation, and in addition prevented a prisoner from accessing the courts for any redress whatsoever unless they had first "made reasonable use of" existing complaints processes (which the Ministry of Justice has found to be biased and ineffective). This wouldn't just be letting Corrections off the hook - it would be writing them a blank cheque! Worse, it would undermine Habeas Corpus and prevent those detained illegally from seeking their freedom through the courts. Talk about knee-jerk legislation...

United Future had threatened to pull the plug on the bill unless the government voted for these amendments. While I would have liked to see the bill go down in flames, it was more likely that the government would bow to United Future's demands and legislate an even harsher regime than the one it proposed. By stepping in and offering to support the bill, the Greens prevented that. In the process, they managed to gain both an independent prison inspectorate (as recommended by the Ministry of Justice) and a sunset clause on the bill, which is some small consolation.

So, rather than being a fatal compromise of the Greens' ideals, this is an attempt to make the best of a bad deal and prevent our human rights from being undermined even further. It's not good, but at least its not making things any worse than they were going to be anyway...

Prisoner compensation: virtually unchanged

The Justice and Electoral Committee has reported back on the Prisoners' and Victims' Claims Bill. While there has been some tinkering around the edges, the bill is being sent back virtually unchanged. Convicted criminals will still be subject to significant barriers designed to deter them from seeking compensation for abuse by agents of the state. They will still be punished retrospectively by being treated unequally by the courts. Corrections is still being let off the hook. And despite the government's claims to the contrary, the bill still violates our international human rights obligations. This is not a bill we should pass. Unfortunately, the government is going to pass it anyway.

What is interesting in the Select Committee report is the attitudes on display from our right-wing parties. Neither National, NZ First, United Future or ACT believe that the international human rights instruments we have signed (which, among other things, demand that compensation be made available to the victims of abuse) are in any way binding on the government. But United Future goes even further:

The intent of the bill is further inhibited by the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment signed in 1986 and ratified in 1989. Whilst no country should ever sanction the use of torture or cruel mistreatment of its inmates, the extension of a ban on punishments ought not to restrain individual nations from the right to ascertain for themselves the appropriate use of such remedies in concert with their overall criminal justice aims.

The only way to read this peculiar piece of doubletalk is that United Future think that we should be allowed to torture prisoners. And these are the people who are effectively writing our criminal justice policy?

Prisoner compensation: underlying axioms

Today's Herald coverage of the select committee hearings into the Prisoners' and Victims' Claims Bill provides a perfect example of the underlying axioms of those who oppose compensating abused prisoners. Speaking before the committee, Ida Hawkins, the mother of murdered 15-year old Colleen Burrows, opposed compensating her daughter's murderer for the systematic abuse he suffered at the hands of prison guards because:

He murdered my daughter ... because my daughter refused to have sex with him. He ran her over and booted her and kicked her all over her body

To which my response is that that is precisely why he is in jail - and furthermore, that his conviction does not give others the right to do the same to him, or deprive him of the protection of the law generally against crimes committed against him.

As Tony Ellis said later on, there are not two classes of victims. Prisoners can also be victims of crime, committed by other prisoners, guards, or the state. And those crimes are equally deserving of punishment.

What those opposing prisoner compensation are saying is that we should establish a class of persons - convicted criminals - against which crimes can be committed with impunity. That people with criminal convictions should be allowed to be beaten, raped, abused, and subjected to psychological torture, without having any protection from the law. There are words for these sorts of underclasses denied legal sanctuary. "Helots" is one. "Niggers" is another. Is that really what New Zealand stands for?

If we wish to have any moral basis for punishing criminals, then we must ensure that the protection and sanction of the law applies to everyone. Otherwise what we have is not a system of law, but the depradations of an organised gang.

Correction: That is of course Colleen, not Coral, Burrows. Thanks to davidr for pointing this out.

Against the Prisoners' and Victims' Claims Bill

I'm currently working on my submission on the Prisoners' and Victims' Claims Bill and trying to hone down my sense of raw outrage into the sorts of points I can make to a Parliamentary Select Committee. The key ones I think are these:

• For all practical purposes, the bill removes the right of prisoners and former prisoners to sue the government for mistreatment while under the government's care. Yes, the formal right remains, but by demanding that all other avenues of complaint are first exhausted (no matter the fact that those avenues are closed to prisoners), and ensuring that no matter the justice of their claim, they will not receive any financial redress (or their abusers any financial punishment), the bill effectively ensures that such suits will never be brought. There is no point in complaining to a tribunal which is stacked against you. This denial of natural justice will both give our prison officers a free hand for sadism, and encourage prisoners to seek their own justice by their own means.
• The alteration in prisoners' and former prisoners' rights in the court system constitutes an arbitrary and retrospective punishment imposed by Parliamentary fiat. It is a central principle of any justice system that a prisoner is only liable to serve the sentence handed down at conviction, unless convicted of another crime in the interim. But if this bill is passed, every prisoner currently in jail, and every former prisoner who has recently been released, will have something added to their sentence.
• The above is inconsistent with the New Zealand Bill of Rights Act 1990 and various international human rights instruments to which this country is a party. The removal of the practical ability to sue the government violates section 27 of the NZBORA, Articles 8 and 10 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights, and Article 14 of the Convention Against Torture. The retrospective increase in sentences violates Article 26 (2) (and 25 (g)) of the NZBORA, Article 11 of the Universal Declaration of Human Rights, and Article 15 of the International Covenant on Civil and Political Rights. It also violates our fundamental values of justice and fairness which these legal instruments encode.
• With such a strong focus on limiting prisoner's ability to gain financial redress, it is difficult to escape the conclusion that the primary purpose of the bill is limiting the crown's financial exposure for its agents' wrongdoing, rather than ensuring justice for all New Zealanders.
• There is a better way. If the government is truly concerned about ensuring that victims of crime are properly compensated for their suffering, it should encourage greater use of reparations at sentencing and make victims creditors (or even preferred creditors). Reparations could then be recovered through the court system, with the government offering legal aid to reduce costs to victims. Alternatively, it could establish a scheme for repayment through the tax system, similar to that used for repayment of student loans. This avoids gross infringements of human rights, though it may require some tinkering with bankruptcy laws.

Anything I seem to have missed?

Discarding natural justice

Pandering to the "hang 'em high" brigade has reached a new low, with Stephen Franks committing an unwitting act of self-parody by calling the government's proposed law on prisoner compensation "wussy". But Don Brash's reaction is worse. In the 70's, he took a lead role in organising funding for Amnesty International in New Zealand. Now he's suggesting that people be denied a right of reply in legal proceedings against them:

Dr Brash is also concerned by a clause that will allow some of our worst rapists and murderers to see, and respond to, any claim by their victims on court-ordered compensation for alleged 'mistreatment'.

"Not only will victims have to revisit some of their worst nightmares by jumping through legal hoops to get their case for compensation heard, their applications will be forwarded to the offender for a response.

"In other words, the man who brutally raped and attacked a woman in her own home will be given access to the victim's personal thoughts with a right to reply.

The problem here is a little thing called "natural justice", affirmed in our Bill of Rights Act and regarded by judges as the basis of our legal system. Part of this is the doctrine of audi alteram partem - literally, "hearing the other side". In order for our adversarial legal system to work, both sides must be able to effectively put their case. This means that hearings must be notified, relevant material must be disclosed, and the opposing party given a chance to respond to it. If this is not followed, the system simply fails to work; rather than the stronger argument winning, victory goes to whoever the deck is stacked in favour of.

This principle of hearing the other side is arguably what lies at the heart of the Ahmed Zaoui case. Here we have a man whose fate will be decided by secret evidence which he is forbidden to hear, and which therefore he will have no chance to effectively rebut. Don Brash has quite rightly voiced his objection to the unfairness of this procedure, but seems quite happy to apply similar conditions to criminals facing claims for compensation from their victims. But then, hasn't he already more than shown his willingness to ignore consistency (and simple human decency) for political advantage?

Calm like a bomb

Having read the government's policy announcement on prisoner compensation, I could talk about a number of things. I could talk about its terrible thinness, how it's not so much a policy as a flag to say "see, we're doing something". I could point out that their talk about extracting reparations from those who win lotto or publish books is simply hot air, and how almost anything other than an award from a court judgement can be protected by a few hours with a cheap lawyer. I could talk about the government's dangerous penchant for changing the law and undermining the jurisdiction of the courts to prevent claims against it (as it did over the foreshore, and as it is planning to do here), and how this is grossly unconstitutional. I could point out that by limiting access to the legal system, the government is encouraging prisoners to seek their own justice by other means. I could quote Locke on how excessive and cruel punishments constitute a declaration of war against the punished, and provide a moral justification for violence every bit as valid as that which we would claim against a thief or a murderer, or talk about how the purpose of an organised criminal justice system is not to protect us against criminals, but to protect them from our lust for revenge. But instead I'll say this:

This is a policy founded on spite and vindictiveness. Neither is a proper basis for public policy. It violates article 11 of the Universal Declaration of Human Rights, article 15 of the International Covenant on Civil and Political Rights, and section 26 (2) of the New Zealand Bill of Rights Act, all of which ban additional punishment being heaped on a prisoner after conviction. The attempt to deny damages for claims and to limit their filing is at root an attempt to prevent prisoners from suing the crown for mistreatment, violating the right to justice affirmed by section 27 of the BORA, while the attempt to establish an "independent body" to hear claims by victims smacks of stacking the legal deck in their favour (ordinary judges being too likely to pay attention to the concerns mentioned above).

These are not "legal technicalities", they are the very core of what makes us a decent society and distinguishes us from places like China or Burma or Zimbabwe. We abandon them at our peril.

And I'll also say this: those who support human rights should not support Labour. If you believe that justice and human rights apply to all, and not just to some, or that our justice system should not be based on spite and vindictiveness then you should support a party which actually promotes those values - such as the Greens or the Progressive Coalition. As long as Phil Goff is Minister of Justice, Labour is unworthy of our votes.

Those who support human rights should not support Labour

So, Phil Goff finds it "personally offensive" that prisoners can go to court and win damages from the crown when they are grossly mistreated by the Corrections Department?

Well, fuck it, I find it personally offensive that Phil Goff thinks that keeping people in solitary confinement for extended periods of time and forcing them to live in their own filth is acceptable treatment. I find it personally offensive that he believes that there is a group of New Zealanders who are not entitled to equal justice under the law or to the fundamental protections enshrined in the Bill of Rights. And I find it personally offensive that he wants to "solve" this "problem" by trying to retrospectively punish these people for the crown's crimes.

What the Department of Corrections did to these prisoners was unlawful, and it was wrong. They are therefore deserving of compensation. If the government believes it is appropriate for violent offenders to pay reparations to their victims, then it should give judges the option to impose such at sentencing. But to impose them post facto, in an unlimited fashion and without the oversight of a judge is grossly unjust (not to mention a fairly transparent effort to insulate the crown from liability for future misbehaviour). If justice is to mean anything, it must apply equally, to everyone - even prisoners and criminals.

As for Goff, he symbolises everything that is wrong with the Labour Party today. He has compromised on its fundamental values of human rights in favour of arbitrary state power and pandering to the vicious vindictiveness of the "hang 'em high" brigade. As long as he holds his ministerial warrant, those who support human rights should not support Labour.