Skip to text
You are here: Cabinet PapersUnintended Consequences of Discretion in the Criminal Justice System

Paper 14: Unintended Consequences of Discretion in the Criminal Justice System

Purpose

  1. This paper addresses the Cabinet directive [Rec 119, CAB Min (06) 27/3A refers] to report back to POL by 30 September 2006 with:
  • an overview of the likely nature and magnitude of any unintended consequences of discretion at various levels of the criminal justice system and the unevenness of decision making, and their implications for consistency and fairness for Māori and Pacific peoples; and
  • a recommended programme of work that addresses any issues arising out of the overview, where it has been found that there are unintended consequences that have resulted in implications for consistency and fairness for Māori and Pacific peoples, including resource and scope issues associated with such a proposed programme of work.
  1. The paper notes some of the existing work that aims to ensure greater consistency in the application of discretion. It proposes that further work on "bias in the exercise of discretion" be undertaken within the broader Effective Interventions programmes of action for Māori and Pacific peoples (due for Cabinet consideration in early and mid 2007). It also proposes that officials from the Ministry of Justice, Police, Department of Corrections, and Ministry of Social Development, in consultation with Te Puni Kōkiri and the Ministry of Pacific Island Affairs, report back by 31 March 2007 on the nature of any further research on the impact of the way that discretionary powers in the criminal justice system (adult and youth) are exercised, taking into account ethnicity (particularly Māori and Pacific peoples).

Executive summary
  1. There are data showing differences in outcomes across population groups at various points in the criminal justice system. There are concerns that these differences may be influenced by biases, or unintended consequences of discretion, within the decision making process. Research on this is dated and is limited to analyses of the impact of discretion by ethnicity, gender, age, or socio-economic status (but rarely all four variables), at particular points in the formal criminal justice process. Further, the methodology is frequently not suited to quantifying the magnitude of the impact of discretion.
  1. As the criminal justice system relies on the application of discretion, it is vital that the public have confidence in the consistent, and unbiased application of that discretion. There are a range of checks and balances across the justice process intended to bring about consistency and fairness in the use of these discretionary powers (ranging from appeals against judicial decisions through to standards and manuals to guide the operations of personnel such as police officers or youth justice workers).
  1. Further work is underway to ensure greater consistency and fairness in the application of discretion.
  1. It is proposed that officials examine ways to improve the fairness and consistency of discretion within the wider context of the Effective Interventions programmes of action for Māori and Pacific peoples. These wider programmes of action are due for report back to POL by 31 March 2007 (Māori) and 30 June 2007 (Pacific peoples) [Rec 116, CAB Min (06) 27/3A refers].
  1. It is also proposed that officials report back by 31 March 2007 on the nature of any further research on the impact of the way that discretionary powers in the criminal justice system (adult and youth) are exercised, taking into account ethnicity (particularly Māori and Pacific peoples);

Background

  1. Māori and Pacific peoples are over-represented across the criminal justice system, as victims and offenders. For instance, differences among ethnic groups are particularly striking when presented as rates, as the following table shows:

Ethnic differences from apprehension to prison, 2003 (rates per 100,000)

European

Māori

Pacific

Total NZ

Police apprehensions

3,500

15,500

6,600

5,300

Police prosecutions

2,000

9,700

4,000

3,200

Remand in prisons

10

110

40

30

Convictions

1,400

6,300

2,700

2,400

Custodial sentence

110

770

250

210
  1. There is a concern that, relative to other groups of comparable socio-economic status, Māori and Pacific peoples' over-representation may be influenced by biases, or unintended consequences of discretion, within the decision making process.
  1. This paper provides a snapshot of extant information about the application of discretion within the criminal justice system that may result in inconsistency and unfairness in decision-making that disadvantages Māori. Research identified to date includes virtually no commentary on the application of discretion that may disadvantage Pacific peoples.

Comment

Multiplicity of discretionary points and powers

  1. Discretion is a central feature of every decision made in the criminal justice system. For example, in a report on the Brixton Disorders, (1981) Lord Scarman stated that: "... Discretion is the art of suiting action to particular circumstances". The system must consider issues of fairness, justice, accountability, and consistency as well as wider community interests and expectations when deciding how to proceed. There are a range of checks and balances across the justice process intended to bring about consistency and fairness in the use of these discretionary powers (ranging from appeals against judicial decisions through to standards and manuals to guide the operations of personnel such as police officers or youth justice workers).
  1. The points of discretion across the justice sector are numerous and varied. Moreover, discretion occurs at both formal and informal stages of the criminal justice system. Standard research methodology used for investigating discretion (and its impact) frequently obscure bias by virtue of only looking at one or two formal stages of the process and overlooking informal stages.[1] In New Zealand, where the significant role of diversion in youth justice means that many youth justice cases are not dealt with in the formal criminal justice system, it is particularly important to look at both formal and informal stages of the system.
  1. There are also differing levels of discretion that impact upon decision-making - direct decision-making power (e.g. arrest, prosecution, sentencing), powers to influence decisions (e.g. pre-sentence reports, referring offenders for Criminogenic Needs Inventory assessments, and advice to the Parole Board) and powers that indirectly impact on outcomes (e.g. access to rehabilitative services while undergoing a sentence).
  1. Discrete points at which discretion is exercised may have only small discriminatory impacts. However, the cumulative effect of each agency exercising their particular powers in an inconsistent or unfair manner can lead to a very substantial disadvantage.
  1. Preliminary analysis, which requires further consideration as part of the subsequent programmes of work, reveals that the main areas where an inconsistent application of discretion could have a distorting effect are around the:
  • reporting of crimes (public);
  • deployment of police resources - preventive and response policing (Police);
  • arrest and the laying of charges - the nature and seriousness of any charge (Police and other enforcement agencies);
  • prosecutorial decisions, including access to alternative resolution processes, e.g. the police adult diversion scheme or restorative justice (Police and other prosecuting agencies);
  • access to legal services and advice at first appearance (including timely access to the Duty Solicitor) (Legal Services Agency);
  • the decision to remand in custody or grant bail (Judiciary, Police and other prosecuting agencies);
  • jury selection and decisions (Courts; public);
  • conviction (Judiciary and juries);
  • consideration of sentencing options (including the impact of pre-sentence reports by Corrections' community probation staff) (Corrections; Judiciary);
  • nature and length of any sentence and other court dispositions (including fines, imprisonment, community-based sentences, home detention) (Judiciary; Corrections); and
  • granting of parole (Parole Board).

New Zealand Evidence of Bias at Particular Stages

Reporting

  1. Implicit bias on the part of the public in the reporting of crimes may distort the representation of Māori and Pacific peoples as both victims and offenders in the criminal justice system. For instance there is some evidence of discrepancies in the reporting of offences committed against Māori and Pacific peoples.[2] Violent crimes committed against Māori (where the offender is not well-known to the victim) are only about half as likely to come to Police notice as similar crimes against Europeans. However, an ethnic difference was not consistent across all classes of offences (e.g. property crimes had little variation[3]).

Police

  1. The deployment decisions of Police have consequences for the profile of Māori and Pacific peoples in the criminal justice sector. When Police resources are directed to areas with high concentrations of Māori and Pacific peoples, their rates of reported offending are artificially inflated relative to those groups who have not been selected for increased police scrutiny.[4] It is not accurate to classify such targeting of resources to particular areas as bias, given that it is based on current recorded crime statistics and Police intelligence around 'hot' offenders or 'hot' locations.[5] The deployment of Police in responding to public requests for service (a significant component of current policing) is less likely to involve bias (on the part of the Police) given the priority ranking of calls.
  1. A series of studies[6] have found that, even accounting for the higher levels of self-reported offending by a particular cohort of Māori and their individual characteristics (e.g. socio-economic status, education levels), part of the explanation for higher rates of conviction for Māori was bias in the arrest and conviction process.[7] The Report of the Advisory Committee on Legal Services (1986),[8] Jackson (1988)[9] and, to a much lesser extent, the MRL research group's surveys[10] and Te Whaiti and Roguski (1998)[11] revealed that Māori saw the police as a racist institution, were distrustful of them, and were resigned to the belief that their concerns about crime and the criminal justice system would not be adequately addressed. These concerns were fuelled by specific allegations of police racism and harassment. Recent trust and confidence surveys undertaken by Police suggest significant improvements in relationships between Police and Māori over the last six years.

Juries

  1. In looking at whether juries are broadly representative of the populations from which they are drawn, the Ministry of Justice[12] researched the demographics of potential jurors compared with the populations of jury districts, as well as the use of peremptory challenges and their effects on jury composition. Overall, they found that the jury selection process results in some groups (including Māori women) being under-represented in the pool of potential jurors, and on juries, when compared with their proportions in jury district populations. In particular, they found a comparatively high proportion of challenges on Māori men.

Legal representation

  1. There are four critical stages where the absence of legal representation could have an impact on the outcome for defendents - at the initial taking of a statement by the Police, the time of pleading to a charge, at trial and at sentencing. There is no current research around the adequacy of legal representation provided to Māori and Pacific defendants to establish whether or not there is an issue.
  1. The Legal Services Agency (which is responsible for legal aid) statistics show that 92% of Māori defendants who applied for legal aid were successful (in the year to June 2005), and the majority (70.3%) went on to choose their own lawyers. While this suggests a degree of active engagement in the justice processes, future research could further understanding of the effects a lack of adequate representation has on outcomes.

Conviction

  1. Analysis of selected offences by the Ministry of Justice researchers on 2004 and 2005 data shows no discernable difference between Maori and non-Maori in the rates at which they plead guilty. For example, of those convicted for property offences in 2005, 97% of Māori and 96% of non-Māori pleaded guilty. Similarly, for drug offences, there was no difference in the rate at which both ethnic groups pleaded guilty (94%), as the following table shows:

Number of convicted cases for Māori and non-Maori by offence type and guilty plea, 2005

Offence type

Māori Guilty
plea

%

non-Māori
Guilty plea

%

Violence

4,334

91%

4,530

88%

Other against persons

652

93%

818

91%

Property

7,197

97%

7,602

96%

Drug

1,819

94%

2,623

94%

Against justice

5,504

97%

5,038

97%

Good order

3,347

96%

4,074

96%

Traffic

10,607

97%

15,862

96%

Miscellaneous

1,233

98%

1,708

97%

Total

34,693

96%

42,255

95%

Sentencing

  1. There is very little New Zealand information on whether ethnicity has a demonstrable effect on sentencing rates for similar types of offending. One study[13] has investigated whether defendants' race and gender related to sentencing independently of other variables. While it was a small sample and based on limited court file data, the study found no evidence on discrimination between Māori and Pakeha.
  1. A useful area for a future work programme, therefore, lies in providing a robust evidence-base on whether there is a need for concern about the application of discretion in sentencing. Analysis and research could identify whether there are any variations in sentencing around ethnicity and the reasons for any such variations.

Corrections

  1. The development, implementation, and outcomes of two Department of Corrections' assessment tools were examined by the Waitangi Tribunal in 2005[14]. The tools inform pre-sentence reports provided to the Courts, and the development of management plans for offenders under the supervision of the Department. The Tribunal looked at the use of ethnicity as an influencing factor in earlier versions of the assessment tool and the possibility of differential outcomes for Māori offenders through the use of a specific assessment tool related to cultural matters. From the evidence before the Tribunal, it was unable to conclude that any inconsistencies it had found in these tools had caused any material disadvantage to Māori offenders. However, the Tribunal did provide suggestions on how the Department of Corrections could, through consultation and communication, engage with Māori more effectively in the development of such tools.

Current work by agencies

  1. Feedback from Māori and Pacific communities has resulted in positive changes among criminal justice sector agencies in their responsiveness to Māori, Pacific peoples, and other ethnic groups. A future work programme should include research around measuring the impact of those programmes on criminal justice outcomes for Māori and Pacific peoples, and to identify any areas for further improvement.

Police

  1. Police is aware of its responsibility to provide an environment that complements the use of discretion and to remain as responsive as possible through modifying policy and guidelines to remove any possible unfairness or inconsistency.
  1. Police is working to develop and implement a national best practice model, ensuring greater clarity and transparency of access to the Police Adult Diversion Scheme as well as considering the formalisation of the Scheme. A report is due to the Minister of Police by March 2007 [Rec 22.11, POL (06) 48, 20 March 2006 refers]. Police has a partnership with Mana Social Services Trust to facilitate the Police Adult Diversion Scheme in the Rotorua area, focussing on Maori and making diversion more responsive to community interests. This is being evaluated to determine the potential for contributions of Maori focus groups.
  1. Over the last 10 years, Police has undertaken a major programme of work to address the over-representation of offending by Māori and victimisation of Māori. A Responsiveness to Māori strategy was developed to identify, design and implement strategies in consultation with Māori to reduce offending by and victimisation of Māori. This included increasing the capacity for Māori to be involved in policing as decision makers for operational procedures. The establishment of Māori Advisory Boards in each Police District has ensured that major issues likely to impact on Māori will be addressed.

Legal Services Agency

  1. For the Legal Services Agency, discretion exists around access to legal aid, and therefore legal representation. A Duty Solicitor is available to all offenders at first Court appearance. Guidelines and rules have been set down to govern this. It should be noted that access to legal aid has diminished in recent times, particularly in cases where the offence is not deemed serious.

Justice

  1. Within the judicial system, the proposed Sentencing Council will set sentencing parameters for offences, improving consistency and transparency in sentencing and thereby helping to address the possibility of bias.
  1. Discretion by judges in terms of the decision to remand an offender in custody or grant bail is guided by the Bail Act 2000 and includes consideration of such things as the risk of flight, the risk of re-offending, the risk of interfering with witnesses or evidence. Another consideration is family and community capability to manage the offender while on bail.
  1. The sentencing decisions of the judiciary are also influenced by the pre-sentence reports/assessments and comments on the offender, which are provided by Corrections' Community Probation Service staff subsequent to conviction.[15]

Corrections

  1. The Department of Corrections has established a system of principles and processes that aim to reduce the likelihood of over-representation of Māori in the criminal justice system due to unintended consequences of discretion in Corrections. These principles and processes include:
  • a clear sets of rules in the form of manual procedures that guide decision making, including quality control processes;
  • placing succeeding for Māori at the center of all policy and service development work in the Department, and by taking a similar approach in reviews of operational systems; and,
  • developing and applying the Framework for the Reduction of Māori Offending (FREMO) system which provides a process for developing work in a manner that maximises appropriateness for Māori. This prompts staff to reflect on the best means for reflecting Māori perspectives, including the involvement of kaumātua and kuia.
  1. The Department of Corrections has a range of projects underway that focus on improving outcomes for Māori and addressing any inadvertent biases, including:
  • a study of Māori over-representation in the criminal justice system - a report on this is to be provided to the Minister of Corrections by 31 December 2006;
  • a programme to monitor the use of home detention and investigate the causes of any differences in the use of the sentence and rate of breach for Maori and Pacific peoples (as opposed to other ethnicities). There is to be a report back to POL by 30 June 2007, on ways to address any disparities; and,
  • an investigation of existing policy in a project that looks at prisoner induction processes at Waikeria prison to improve outcomes for Maori.

Next Steps

  1. Officials propose the following actions to further agency understanding of, and responsiveness to, unintended consequences of discretion throughout the criminal justice process:
  • Identifying further work to address bias and options for improving the consistency of decision-making in key discretionary areas, to be undertaken within the wider Effective Interventions work programmes to develop an empirical evidence base about practical initiatives that address Māori and Pacific peoples offending, due for report back to Cabinet in March 2007 (Māori) xxxxxxxxx s9(2)(f)(iv) xxxxxxxxxxxxxx Such work will require agencies to explore the nature and magnitude of any biases that exist at the discretion points identified in paragraph 15 and provide commentary on current and planned work related to points of discretion.
  • A report back by 31 March 2007 by officials from the Ministry of Justice, Police, Department of Corrections, and Ministry of Social Development, in consultation with Te Puni Kōkiri and the Ministry of Pacific Island Affairs on the nature of any further research on the impact of the way that discretionary powers in the criminal justice system (adult and youth) are exercised, taking into account ethnicity (particularly Māori and Pacific peoples);

Consultation

  1. A cross-agency team has been considering this issue and contributed to this paper. The team includes Police (lead), Te Puni Kōkiri, Ministry of Justice, Ministry of Social Development and the Department of Corrections.
  1. Other agencies that were consulted were the Ministry of Pacific Island Affairs, Treasury, State Services Commission and Department of Prime Minister and Cabinet.

Financial implications

  1. There are some financial implications associated with this paper. They revolve around the availability of resources in agencies to commit to subsequent programmes of action, including the research exercise. Those implications will be clearer once the programmes of action are confirmed. At that time, officials will report back to Cabinet on more robust financial implications.

Human rights implications

  1. It will be important, in developing any future operational guidelines and policies associated with the use of discretion, to ensure that rights and obligations are fully considered by the relevant agencies. Access to justice, enshrined in the Bill of Rights, may become an issue if further evidence of bias is found.

Treaty of Waitangi implications

  1. It is clear from the WAI1024 report referred to in this paper (paragraph 25), that Crown responsiveness to Māori, and efforts to include Māori in criminal justice decision-making processes, could be improved. It is important to ensure, through further investigation that involves Māori, that all policies and procedures in the criminal justice system involving discretionary powers do not have any unintended consequences for Māori.

Gender implications

  1. While women make up a relatively small proportion of the prison population, Māori women are significantly overrepresented (even more so than Māori men), accounting for 58 percent of sentenced female inmates in 2003 (Pacific women 6 percent)[16]. Therefore, the unintended consequences of discretion are just as relevant for them as for Māori men, if not more so. Yet, research to date has typically failed to take account of gender and ethnicity. It is vital that work programmes going forward do not repeat this mistake.

Disability perspective

  1. Although no significant disability issues have emerged so far in examining issues on the use of discretionary powers in the criminal justice system, some may arise at the interface of the mental health and criminal justice systems. Officials working on the relevant papers will be alerted to this.

Recommendations

  1. It is recommended that the Committee:
  1. note that there is limited evidence available to determine conclusively whether there is a significant degree of bias associated with the use of discretionary powers within the criminal justice system;
  1. direct officials from the Ministry of Justice (lead), Police, Department of Corrections, and Ministry of Social Development, in consultation with Te Puni Kōkiri and the Ministry of Pacific Island Affairs, to report back by 31 March 2007 on the nature of any further research on the impact of the way that discretionary powers in the criminal justice system (adult and youth) are exercised, taking into account ethnicity (particularly Māori and Pacific peoples);
  1. agree that current and future work by agencies to address bias in the use of discretion and options for improving the consistency of decision-making in key discretionary areas be identified within the wider Effective Interventions work programmes to develop an empirical evidence base about practical initiatives that address Māori and Pacific peoples offending (Rec 116.6 of CAB Min (06) 27/3A); and
  1. note that the above Effective Interventions work programmes are due for report back to Cabinet in March 2007 (Māori) xxxxxxxxxxxxx s9(2)(f)(iv) xxxxxxxxxxxx

Hon Annette King
Minister of Police

Footnotes

1 Russell-Brown, K. (2004) Underground Codes: Race, Crime and Related Fires. New York: New York University Press.

2 New Zealand National Survey of Crime Victims, 2001.

3 For example, although violent crimes against Maori are notified less, when it comes to offences relating to individual property there is no significant difference on ethnicity grounds, 30-38% of such crimes come to Police notice (34% European, 38% Māori, 30% Pacific and 30% Other (National Survey of Crime Victims, p114).

4 See, for example, Auckland Committee on Racial Discrimination (ACORD, 1974) Task Force: An Exercise in Oppression. Auckland: Auckland Committee on Racism and Discrimination.

5 Of course, if bias does exist in the system then these sources will merely reflect that. Using flawed sources merely compounds the problem.

6 Fergusson, D. M., Donnell, A. and Slater, S. W. (1975) The Effects of Race and Socio-Economic Status on Juvenile Offending Statistics. Research Report No. 2. Wellington: Joint Committee on Young Offenders (JCYO).

Fergusson, D. M., Horwood, L. J., and Lloyd, M. (1991) A Latent Class Model of Child Offending. Criminal Behaviour and Mental Health, 1, pp. 90-106.

Fergusson, D. M., Horwood, L. J., and Lynskey, M. T. (1993) Ethnicity, Social Background and Young Offending: A 14 Year Longitudinal Study. Australian and New Zealand Journal of Criminology, Vol. 26, July, pp. 155-70.

Fergusson, D. M., Horwood, L. J., and Lynskey, M. T. (1993) Ethnicity and Bias in Police Contact Statistics. Australian and New Zealand Journal of Criminology, Vol. 26, December, pp. 193-206.

Fergusson, D. M., Horwood, L. J. and Swain-Campbell, N. (2003) 'Ethnicity and Criminal Convictions: Results of a 21-year Longitudinal Study', The Australian and New Zealand Journal of Criminology, Vol 36(3), pp 354-367.

Lovell, R. and Norris, M. (1990) One in Four: Offending from Age Ten to Twenty-four in a Cohort of New Zealand Males. Study of Social Adjustment Research Report No. 8. Wellington: Department of Social Welfare.

7 Base conviction rates for Māori were found to be 4.1 to 5.9 times higher than for non-Māori, and while the study found that Māori offended at a higher rate, the study suggested that even taking into account the higher rates of offending and individual characteristics, young Māori had rates of conviction of 1.6 to 1.8 times non-Māori (Fergusson et al., 2003).

8 Report of the Advisory Committee on Legal Services (1986) Te Whainga I te Tika: In Search of Justice. Wellington: Department of Justice.

9 Jackson, M. (1988) The Maori and the Criminal Justice System: He Whaipaanga Hou - A New Perspective, Part 2. Wellington: Department of Justice.

10 MRL Research Group Police Attitudes Towards Policing. Wellington: New Zealand National Police Headquarters (1993) and (1995).

MRL Research Group (1995) Public Attitudes Towards Policing. Wellington: New Zealand National Police Headquarters.

11 Te Whaiti, P. and Roguski, M. (1998) Maori Perceptions of the Police. A Report to the New Zealand Police and the Ministry of Maori Development (Te Puni Kokiri). Wellington: He Parekereke /Victoria Link, Victoria University of Wellington.

12 Dunstan, S., Paulin, J. and Atkinson, K-A. (1995) Trial By Peers? The Composition of New Zealand Juries. Wellington: Department of Justice.

13 Deane, H (1995) Race, gender, and the sentencing process in a New Zealand District Court, in 'Perceptions of justice: issues in indigenous and community empowerment' (Edited by Kayleen Hazlehurst), Sydney, pp 95-118.

14 WAI 1024, The Offender Assessment Policies Report, Waitangi Tribunal Report, 2005.

15 See, for example, Gibson, R. E. (1973) Recommending Sentence - N.Z. Probation Officer's Pre-Sentence Reports. The Australian and New Zealand Journal of Criminology, 6, December, pp. 231-239, and, Jeffries, S. (2001: 17-22) Gender Judgements: An Investigation of Gender Differentiation in Sentencing and Remand in New Zealand, PhD Thesis, University of Canterbury, New Zealand

16 2003 Census of Prison Inmates and Home Detainees.