Thursday, August 15, 2019

Nazis, prisons and mail

Everyone was outraged yesterday to learn that the Christchurch shooting accused had been able to send mail from prison to his Nazi fans, apparently pushing more hate. "How could this possibly happen", people asked. Simple: because New Zealand is a civilised country, and so we let prisoners send and receive mail.

The right of prisoners to send and receive mail is stated very clearly in the Corrections Act: "A prisoner may send and receive as much mail as the prisoner wishes". In fact the law goes further, because the Corrections Regulations state that the prison must pay for postage for up to three standard letters per week (plus another three to prison inspectors or the Ombudsman). We do this for simple and obvious reasons: firstly, simple freedom of speech, which prisoners retain despite being in prison. Secondly, because communication with the outside world helps prisoners maintain their social relationships, and that's one of the key drivers of reoffending (in that if they don't have any beyond the prison walls, they tend to reoffend). For the same reason, we let prisoners make phone calls (I have no idea if they're allowed to receive email, but they should be allowed to do that too, given the way social relationships have all moved online).

This right isn't a blank cheque. Mail is monitored. It may be opened and read. Incoming or outgoing mail (or items in it) can be withheld for various reasons, including consent, court orders, and preventing the commission of further offences. In particular, it can be withheld if it appears to "promote or encourage the commission of an offence, or involve, or facilitate the commission or possible commission of, an offence". The letter in question may fall into that category. So, the first lesson here is Corrections fucked up. Because the letter was marked as having been screened, and they let it through.

Corrections' immediate response to publicly fucking up is to ban the prisoner from sending or receiving any more mail. Which I guess protects them from fucking up again, but it is simply illegal. The right to send or receive mail is not a privilege that can be withheld, but a minimum entitlement specified in law. It can be withheld only under narrow, legally defined circumstances. The closest one is probably s69(2) - that there is an emergency in the prison, a threat to the prison's security or to someone's health or safety. But I think even the latter is pushing shit uphill, and in any case the ban must be for no more time than is reasonable in the circumstances. And in this case, the amount of time that is reasonable in the circumstances is zero, because the correct response to Corrections failing to screen mail properly is not to ban someone from sending anything, but to do their fucking job properly.

The longer-term response is the real problem. Firstly, because the government is apparently reviewing the law and threatening to change it, and that law exists for good reasons. If they move to amend it, it'll be a perfect example of hard cases making bad law, and long-term interests around rehabilitation being threatened by the short-term ones of politicians around re-election.

(While we're on politicians, journalists are badgering both the Minister and Corrections for details of what mail has been sent. But its a criminal offence to tell them, and indeed, a criminal offence for the prison manager to tell anyone higher up the food chain, and in particular, the Minister. And if they've done the latter, then they need to be prosecuted - because prison officers, like police, must obey the law, and must be held strictly accountable when they do not, to prevent the whole institution from going rotten).

Secondly, the Minister has told Corrections "this can not happen again". Which means that every prisoner's mail is now going to be subject to the "front page of the Dom-Post" test by overenthusiastic Corrections officers, resulting in more stuff being unlawfully withheld for an essentially political purpose of "avoiding embarrassing the Minister". Corrections, being natural arseholes, will have no problem with that whatsoever. But its both illegal and stupid, in that it undermines long-term rehabilitation (and remember: we're not barbarians, so everyone in a New Zealand prison eventually gets out. Everyone. Yes, even the Nazi shooting accused, if he is convicted). Fortunately, this is probably self-correcting, because prisoners can complain to the Ombudsman, and the Ombudsman will force Corrections to obey the law. And if that fails, Arthur Taylor will sue them and win.