And still paying for it

In 1998, in the wake of the Paremoremo Prison riot, the Department of Corrections established the "Behaviour Management Regime". Prisoners were locked in their cells for 22 or 23 hours a day, with no fresh air, no exercise, no social contact, no entertainment, and in some cases no clothes and no toilet paper. Over 200 people were treated like this, all for a minimum of 2 weeks, and some for years. The BMR was eventually ruled to violate the right to be treated with humanity and dignity, and in some cases to constitute cruel, degrading, or disproportionately severe treatment or punishment, in violation of both the Bill of Rights Act and the Convention Against Torture, and the Supreme Court ruled that damages should be paid to its victims.

That was in 2007. And now, 13 years on, we're still paying for it, with over $820,000 offered in settlements (and probably many times that in legal fees). What's appalling is that it has taken this long - Corrections apparently refused to even consider settling until last year. And meanwhile, none of the Corrections managers who oversaw the BMR have faced any employment consequences, despite their clear malfeasance and its huge public cost. There has not even been an inquiry. Its as if Corrections thinks it should be allowed to torture prisoners, ignore the courts, and face no accountability for it whatsoever. And we really need to ask why successive Ministers have let them get away with it.

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.

BMR index

Posts relating to the Department of Corrections Behaviour Management Regime:

• 30/09/2020 And still paying for it.
  
• 24/10/2019 Still paying for the BMR.
  
• 29/08/2005 BMR: counting the cost of mismanagement.
  
• 01/08/2005 BMR: No way to run a prison system.
  
• 07/02/2005 Accountability.
  
• 25/01/2005 Not even considered
  
• 16/10/2004 Answers on the BMR.
  
• 04/09/2004 Paying the bill

(This is an index page so I have a central location to point to in future).

BMR: No way to run a prison system

Over the past ten months, I've been engaged in a lengthy series of OIA requests with the Department of Corrections aimed at establishing a few facts about the Department's Behaviour Management Regime (BMR) so that those responsible for it can be held accountable. A couple of months ago, after a long delay due to the information not yet having been compiled, I finally received a list of all 40 inmates and former inmates currently pursuing legal action against the government for placement on the BMR. I then sent a followup request aimed at eliciting the part of my request they had conveniently "forgotten": the name of the manager in each case who had approved the inmate's placement. Last month I received the following response:

...placement on the BMR was authorised by the Superintendent of a Deputy Superintendent at Auckland Prison. The Department was of the view that this could be done without any requirement for the formal documentation used for placing inmates on non-voluntary segregation to be completed, as it was the Department's position that inmates on the BMR were not on non-voluntary segregation. Having now reviewed the prison files for all the inmates concerned, it has become clear that in a number of cases there is no formal documentation approving placement on the BMR on file, as this was not considered necessary at the time.

Where the name of the manager who approved an inmate's placement on the BMR is known from file information, this is denoted on the attached list withthe initials of that manager recorded next to the inmate's name (eg Bryan Christy (BC); Kelly Puohotaua (KP) and Phil McCarthy (PMcC)). Where we have been unable to ascertain which of the four Auckland Prison Managers concerned approved the placement, this has been denoted as (U/A) ("unable to ascertain")...

(Emphasis added; you'll see why in a minute)

According to the attached list, 4 of the inmates had been placed by Bryan Christy, 5 by Kelly Puohotaua, and 3 by Phil McCarthy. But the manager responsible for placement could not be ascertained for a staggering 15 of the named inmates. Which seems to be Corrections in a nutshell: no responsibility, and no accountability. Inmates can be thrown in solitary confinement and forced to live like animals for two years, without any documentation being required, and without anyone having to "own" the decision or its consequences. This is no way to run a prison system - and if the management at Corrections believes that it is, they should be looking for new jobs.

But it gets worse. Four plus five plus three plus fifteen is less than 40; what happened to the other inmates? Here we see the true sadistic beauty of Corrections' "no documentation" system:

Lastly, you will see that (N/A) appears beside the names of 13 people on the attached list. This is because our review of their prison files has revealed no documentary evidence to support their claims that they were ever on the Behaviour Management Regime...

So having run a system where no formal documentation is required to place someone on the BMR, Corrections is now trying to use the absence of such documentation to deny people's claims of ever having been placed. It's a staggering attempt to use bureaucratic ineptitude as a legal defence, and hopefully the courts will treat it with the contempt it deserves.

Answers on the BMR

Last month I submitted an Official Information Act request to the Department of Corrections seeking answers to some questions regarding the Behaviour Management Regime and whether anybody had been held responsible for the poor decisions which had cost the government (at that stage) a little over half a million dollars. The following is a summary of the response.

• The BMR was introduced and implemented by Auckland Prison management. Its introduction was approved by Phil McCarthy, the General Manager of the Public Prisons Service.
  
• The Site Manager / Superintendent of Auckland Prison was originally responsible for decisions to place inmates on the scheme. They were guided in this by "established criteria for placement" and recommedations from prison management. A recommendation from the Chief Ombudsman in October 2001 resulted in the decisions being moved to the Public Prisons Service's National office, where they were made by Phil McCarthy.
  
• The BMR was suspended indefinitely following the court judgement.
  
• The total legal cost to Corrections of defending its unlawful and inhumane system of imprisonment was $635,914.87. As the Herald pointed out, this takes the total cost of the BMR fiasco to over a million dollars.
  
• Bringing the Department into disrepute, failing to comply with the law, or costing the Department over a million dollars in legal fees and compensation payouts may not necessarily result in disciplinary action. Such action requires "deliberate actions" amounting to "serious misconduct".
  
• Finally, and most importantly, no Department of Corrections staff have been disciplined in any way for this fiasco.

It's the last point which is truly staggering. Prisoners have been subjected to inhumane conditions, the law has been broken, and the taxpayer faces a bill of over a million dollars, and no-one has been held responsible. Where is the accountability?

Paying the bill

The government could have to pay up to $4.5 million to prisoners imprisoned under the Corrections Department's "Behavioural management Regime". This is what happens if you run an unlawful and inhumane system of imprisonment, and if the government wants to avoid such payouts, it should put its fucking house in order.

As for the Sensible Sentencing Trust's position that "it was absurd for the inmates to claim they had been psychologically tortured by the strict solitary confinement after the way they had treated their victims", it is simply wrong. Inhumane and degrading treatment in prison is wrong. So is murder. Being a murderer does not remove your fundamental human rights, and it does not mean that you can be victimised at will because crimes against you "don't count". The Sensible Sentencing Trust and Phil Goff would obviously disagree, but by doing so they are not standing for justice - they are standing for the Hobbesean war of all against all.

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.