Why can’t all courts be like this?

Kingi Snelgar, a criminal defence lawyer working in South Auckland, has been caught up and worn down by a justice system that’s functioned as a brown prison pipeline. Here he asks if change is really coming and whether it will be enough.

 

When Hone* was a teenager, I was his lawyer for three years. He’s 20 years old now and still calls me every now and again to check in. He’s always extremely polite, with a dash of cheekiness, and I enjoy hearing about the courses he’s doing and the progress he’s making. We’re both Ngāpuhi and our daughters were born around the same time. 

He was so proud on the day he introduced me to his baby outside the court. We walked inside and he said ‘bye to his daughter from the dock. He was taken into custody, then to prison.

Before Hone was born, his mum drank enough booze to damage his brain. She was in an abusive relationship and was also addicted to methamphetamine. Hone was on CYFS’ radar while he was still in the womb. His mum had been in CYFS care herself. 

Hone was taken away as a baby and placed in foster care. When he started getting into trouble as a seven-year-old, he was diagnosed with foetal alcohol syndrome. He was moved to so many different placements that I lost track while reading the hundreds of pages in his CYFS file. 

He’d often run away back to his mum. He was the oldest sibling and felt obligated to be there to protect the younger ones. By 11, he was stealing cars, shoplifting and drinking alcohol until he blacked out. This helped blur the pain of seeing his mother and siblings abused, and from coping with his own abuse. He loved his mother dearly and committed crime to support her and her addiction. By 15, he was robbing liquor stores with others who had similar stories to his own. 

He was nearly always drunk or high during his crimes. When he first talked to me about his offending, he was embarrassed and regretful.  

“I’m really sorry for what I did to those people,” he’d say, the bravado now gone. 

Hone has been in state care nearly all of his life and he’s now in adult prison. I often think about whether kids like Hone can ever be pulled out of the prison pipeline. 

With the way our justice system works, was his destiny predetermined?

I work as a criminal defence lawyer in South Auckland and I’ve dealt with hundreds and hundreds of these kids. Nearly all of them are sinking under histories of abuse, addiction, neglect, or disabilities inflicted on them before birth. Instead of medical help and mental health treatment, most of them end up locked away for mainly dishonesty offences. Others are among our most serious youth offenders. 

My clients are brown, mostly Māori. Representing a Pākehā defendant is rare in Manukau. I’ve done it just once in the last five years. I also hardly ever walk out of court with a defendant who’s properly understood what’s just happened. 

Courts are spaces dominated by complex language which is inaccessible to the very person we’re there to discuss. So they don’t participate at all. They don’t speak. They’re a brown object in the room while the lawyers and judge do the talking, and most of the lawyers and judges are Pākehā. 

These professionals have no connection to South Auckland besides maybe working here for a few years. Many drive European cars from suburbs like Ponsonby and Remuera to administer “justice” in South Auckland. 

What real understanding can they — or I — possibly have of life for the people who appear in court in the South Auckland community? 

***

Māori remain one of the most incarcerated groups in the western world, and billions are spent locking us up. Plus, Aotearoa takes the prize for the country with the highest rate of incarcerating Indigenous women. 

My clients are being swept along a brown prison pipeline through a legal system that pumps our jails full of Māori. It’s this same legal system that stole our land, took our children and placed them in state care, often to be abused there, and now it’s removing generations of us from society and into prisons.

Seeing this reality day in and day out has worn me down. I don’t understand how some of my colleagues are able to stay in this job for so long. The stories and realities are horrific, and I can’t help but carry those histories home with me.

When my daughter was born, I couldn’t stop thinking about what some of my clients had gone through as babies. Many were in state care and living with strangers by the time they were toddlers. 

At two years old, my baby is so innocent and she soaks up and mimics all that I do. I feel sick thinking about what would happen if she were to experience the horrors that my clients have. I’ve seen how abuse and state care reverberates over a lifetime. 

I think about my clients now who are mainly serving lengthy custodial sentences. How the justice system took those damaged kids and hardened them into the serious criminals they needed to be in order to survive in those places.

***

In November last year, the first Māori Chief Judge Heemi Taumaunu announced a new approach to criminal courts in Aotearoa. This approach is Te Ao Mārama.  It answers a decades-long cry from justice advocates saying: We can’t keep doing things in the same Pākehā way. 

It’s the first time in my career I’ve been genuinely excited about where our justice system can go. A “by-Māori, for-Māori” approach seems to be happening.

The chief judge is a pioneer. He established Te Kooti Rangatahi in 2008 in the Youth Court jurisdiction. There are now nearly two dozen of these marae-based youth courts changing how we treat young offenders. The feedback from those who attend Te Kooti Rangatahi is overwhelmingly positive. It allows communities to participate in justice and brings humanity to the system.

Te Ao Mārama is a much bigger fish, as it’s trying to bring adults into a similar model. It aims to move away from the archaic and inaccessible nature of the court system by using Māori values and focusing on the underlying causes of offending. The intent is to understand more about why the crime happened so we can stop it happening again, and to ask whether there can be a restoration between offender and victim.

In the long-term it could drastically reduce the use of prisons as a merry-go-round full of repeat customers. Many of the lessons from Kooti Rangatahi are likely to be included.

The last time I represented a young tāne Māori in Te Kooti Rangatahi, he was terrified of going onto a marae. “There’s no way I’m going there,” he told me.

I eventually managed to convince him. Once we were there, his behaviour was very different. He didn’t posture the way he did in the regular courthouse. There was a sense of humility and quietness that I hadn’t really seen before.

He was acknowledged as a descendant of the Tainui waka. Kaumātua from his hapū and iwi were there. He was welcomed not as an offender, but as a nephew and whānau member. We sat in the wharenui, and he spoke more than I’ve ever heard him speak before.

Afterwards, we all gathered for a cup of tea and kai. The judge, the kaumātua, the lawyers, all shared the same table, and my client was treated as a person, not a dangerous criminal, in that moment. 

That aroha benefits us all. Treating people with humanity is good for everyone. Especially when someone hasn’t seen much humanity in their life.

Later, he asked me: “Why can’t all courts be like that?”

In some countries, they are. In Norway, the justice system is built around principles of restorative justice. Over 20 years, they’ve sharply cut reoffending rates. Most people who go to prison there go only once. 

The catchphrase of their system is: These are your future neighbours. They operate open prisons that ensure medium and low-risk prisoners remain involved in the community. They aren’t isolated from society in places where you go to become a better criminal.

For some people, though, rehabilitative justice is a difficult concept. They’ll ask: “Well, where was the aroha for the victims when your client committed the crime?” They want to see punishment. They want to see accountability in harsh terms. 

And a problem for us in Aotearoa is that punishment as the starting point for justice remains firmly embedded in our system. 

So, while Te Ao Mārama court seeks change, it’s change to just one section of the brown prison pipeline. It’s not a transformation of the entire system. There’s still policing and corrections to confront.

The police may have branded themselves as a more culturally competent entity, but labelling police cars “pirihimana” is a far cry from a fundamental shift in the bias and differential treatment Māori receive. 

My clients are far more likely than Pākehā to be stopped by the police for “traffic stops”, they’re less likely than Pākehā to receive diversion, and, to date, none have been accepted to appear before Te Pae Oranga iwi community panels that were heralded as a major shift in preventing reoffending. 

At the other end of the pipeline is Corrections. Our punitive incarceration model required $1.8 billion in public money in the last financial year. Yet we’re not made safer by locking up more Māori. 

The vast majority of those in prison are there for minor crimes and will soon be released back into the community. They will be someone’s neighbour. But short-term prisons stints don’t offer rehabilitative courses. 

We know that up to 90 percent of those in custody suffer from drug or alcohol addiction or a diagnosable mental health condition. In the absence of help for these conditions, courts like Manukau, where I work, end up being packed every week with the same faces and whānau. Report after report from Corrections promises change but, on the ground, nothing has happened.

I’m tempted to romanticise the positives in Te Ao Mārama because I know how desperately it’s needed. But I also know it won’t be effective unless there’s a major overhaul so that police and Corrections are on the same waka. And they aren’t there yet.

Just as important to the success of this new court will be the role that iwi and hapū play. Will they be bystanders brought in for mihi and karakia, or will they participate throughout the process? Will iwi social services be the lead provider for programmes like drug rehabilitation and anger management programmes across Aotearoa? Will they help connect that person with whakapapa and a support network? 

Te Ao Mārama is such a promising start.  The proof will be in how it’s rolled out. Permitting a haka and waiata in court before sending another Māori to jail is not the Ao Mārama we need. A true Ao Mārama will start with bringing humanity, aroha and whānau to processes in a meaningful way. 

As a criminal lawyer, what gives me the most hope are my clients themselves. They have the most complex, difficult backgrounds. They’ve had no one who’s consistently in their corner. But despite that, a lot of them are trying so hard. Many of them are young parents and they want so badly to do better for their kids.

One of them, a young woman, recently said to me: “How do you do that? How do you become a lawyer?” And a lot of lawyers would be thinking: Well, that’s just not possible for you. 

But, actually, she’d make a great lawyer. If we had a system that prioritised understanding where our criminals have come from, and that centred manaaki, then she’d make an excellent lawyer. 

She’d know, from her own experience, that the way we’ll make our communities safer is by giving those who enter the justice system the help they need to move from darkness to light. Kia puta mai i te pō ki te whai ao, ki te ao mārama.

 

*Name and some details have been changed for privacy.

Kingi Snelgar (Ngāpuhi, Te Whakatōhea, Ngāti Whakaue, Ngāi Tahu) is a barrister based in Manukau. He specialises in criminal defence and appears in the Youth Court. Before starting as a defence lawyer, he worked as a crown prosecutor and completed a Master of Laws at Harvard Law School.

© E-Tangata, 2021