10 October 2005

Offender Assessment Policies Report

The Waitangi Tribunal has today released its report on certain policies and procedures used by the Department of Corrections in relation to the assessment of offenders.

Offender Assessment Policies Report considers two specific assessment tools (tests) that have been designed and used by the Department. The tools help to identify and assess offenders who are at high risk of reoffending, and are intended to assist the development of programmes that can work on reducing Mâori reoffending.

Claimant Mr Tom Hemopo, on behalf of Ngâti Kahungunu, claimed that the assessment tools disadvantaged Mâori offenders in terms of the type and length of sentences they receive. He also alleged deficiencies in the Department’s consultation with Mâori, and in the design, implementation and use of the tools.

The Tribunal concludes there is insufficient evidence to establish that any prejudice has been or is being caused to Mâori offenders. The Tribunal recognises that the Department has acted in good faith in order to reduce reoffending and believes that some aspects of the assessment tools are groundbreaking.

Nevertheless, it believes that the ‘MaCRNs’ tool, which focuses on Mâori offenders’ cultural responsiveness, requires more testing and independent evaluation. The Tribunal also identifies Treaty breaches in the way that the Department developed that tool without consulting Mâori communities, and in its monitoring of the tool’s use and effects. It considers that Mâori communities, including Ngâti Kahungunu, have significant interests in the goal of reducing Mâori offending and the use of Mâori culture to help achieve that goal. The Department’s responses to Mâori reoffending should therefore be developed and monitored in a manner that is consistent with those interests.

In its summing up, the Tribunal says it believes that the parties may not be far apart regarding a way forward that builds on the important work that has been done.

Notes
The first and last chapters of the Offender Assessment Policies Report are available on the Tribunal’s website, www.waitangi-tribunal.govt.nz.

Due to the complex nature of the evidence it is advisable to consult the website.

See also summary material.

Summary Material
Waitangi Tribunal
Offender Assessment Policies Report (Wai 1024)

Due to the complex nature of the evidence it is advisable to consult the Tribunal’s website, www.waitangi-tribunal.govt.nz for the first and final chapters of the report.

When was the claim brought and what is it about?
The urgent claim was brought to the Waitangi Tribunal by Tom Hemopo, of Ngâti Kahungunu. The claim was heard in December 2004.

The claim focused on the Risk of (Re)conviction and Risk of Imprisonment (RoC*RoI) tool and the Mâori Culture-Related Needs (MaCRNs) tool. Both are just two aspects of the Department of Corrections’ Integrated Offender Management system. This system identifies and assesses offenders who are at high risk of reoffending for the purpose of allocating resources in order to address the factors that are linked to their offending.

Mr Hemopo claimed that the RoC*RoI and MaCRNs tools disadvantaged Mâori offenders in terms of the type and length of sentences they receive. In brief, there were alleged deficiencies in:

- the consultation engaged in by the Department of Corrections during the tools’ development;
- the conceptual bases of the tools;
- the training provided in respect of MaCRNs;
- the use of the tools; and
- the monitoring of the effects of the tools’ use.

BACKGROUND ON THE TWO TOOLS AT ISSUE

Mâori Culture-Related Needs (MaCRNs) tool
The Mâori Culture-Related Needs (MaCRNs) tool is part of a psychologically based assessment process known as the Criminogenic Needs Inventory (CNI). The CNI is applied to offenders who are considered to have a medium or higher risk of reoffending and is designed to identify factors that should be targeted to reduce that risk.

The MaCRNs part of the CNI assessment is applied only to offenders who identify as Mâori. Its purpose is to improve the department’s understanding of the context in which Mâori offending occurs and to identify interventions most likely to be effective in promoting behavioural change among Mâori offenders.

What aspects of the MaCRNs tool were claimed to be prejudicial to Mâori
Mr Hemopo claimed that disadvantage flowed to Mâori offenders because:
- the MaCRNs tool classified positive aspects of Mâori culture and family as causing crime or as aggravating factors for sentencing;
- it failed to acknowledge that the cultural criteria it used were equally applicable to other cultures and ethnic groups in New Zealand; and
- the outcome of a MaCRNs assessment influenced the sentencing, sentence management, and sentence termination processes.

What did the Tribunal say about MaCRNs tool and the claim of prejudice to Mâori?

The Tribunal notes the significant efforts that have gone into making the Department more efficient and responsive. The MaCRNs tool is groundbreaking: no other country has moved to tailor its assessment policies and practice in such a way. (This is an international issue: indigenous peoples are over-represented in prisons in Australia, the USA and Canada, for example.)

Regarding the MaCRNs tool, the Tribunal simply could not determine conclusively whether or not prejudice has been or is being caused because there is, as yet, no reliable way of gauging the tool’s effects. However, it ruled out the likelihood of any prejudicial effect resulting in longer sentences for Mâori offenders. It found that the tool’s use may be prejudicing Mâori communities’ interests in reducing Mâori reoffending and in the use of Mâori culture to achieve that goal, but that more evidence and evaluation is required before any such prejudice could be identified.

The Tribunal focused on the role Mâori communities can bring to addressing reoffending. It notes that

‘The sheer scale of Mâori offending can be seen as eroding Mâori potential and capacity and impeding iwi development. The rebuilding of Mâori communities, both urban and rural, particularly those affected by economic restructuring, educational under achievement and low socio-economic status is inevitably compromised by the high rate of Mâori offending. Not only is an essential part of the Mâori male population unable to contribute to hapû and iwi rebuilding - let alone New Zealand society in general - but limited tribal resources are diverted into support and rehabilitation efforts for both the offender, his whânau and those affected by his actions.

The inevitable outcome is often the erosion of the basic structures of hapû and iwi, the decline in drawing on the values and strengths of Mâori culture and a rejection of any pride in Mâori identity. Yet, despite the obvious difficulties mentioned, there is still considerable scope for iwi and hapû involvement in the identifying and intervention processes in terms of Mâori offending and the desire to participate in the rehabilitation of those affected.’

The Tribunal finds that the Department of Correction’s threshold for consultation with Mâori communities was misplaced in relation to the development of the MaCRNs tool: fuller consultation may have highlighted or addressed the issues that led to the claim being lodged.

And, while the Department has recognised the shortcomings in earlier communications about this very complex tool, the Tribunal raises further concerns regarding its use, implementation and monitoring. In the absence of proven prejudice, the Tribunal does not recommend any remedial action to the Crown but it considers, and believes the parties agree, that independent expert evaluation of the MaCRNs tool is needed urgently.

Risk of (Re)conviction and Risk of Imprisonment (RoC*RoI)

The Risk of (Re)conviction and Risk of Imprisonment (RoC*RoI) tool has been developed from statistical information about many thousands of New Zealand offenders. It is an actuarial tool that does not assess for factors that cause crime.

It uses mathematical formulae to calculate from a number of static, or unchangeable, facts about an offender (e.g., age at first conviction) and each offence they have committed (e.g., type of sentence imposed), the likelihood that he or she will, in the next five years, be reconvicted of a crime and imprisoned. The resulting risk prediction score is used to help the Department of Corrections identify higher-risk offenders to be prioritised for rehabilitative programmes, in contrast to previous measures that did not necessarily target those offenders.

What aspects of the RoC*RoI predictive tool were claimed to be prejudicial to Mâori
It was alleged that the RoC*RoI tool disadvantaged Mâori because:
- the tool used offender ethnicity as a relevant variable;
- it accorded a greater weighting to Mâori ethnicity than to any other ethnicity; and
- the outcome of a RoC*RoI assessment, particularly when it leads to a CNI assessment, influenced the sentencing, sentence management, and sentence termination processes.

In the time between the filing and the hearing of Mr Hemopo’s claim, the RoC*RoI tool was reviewed and the ethnicity variable altered so that it no longer contributed to the predictive power of the tool. As a result, at the hearing, the claimant gave less emphasis to the RoC*RoI aspect of his claim.

What did the Tribunal say about RoC*RoI tool and the claim of prejudice to Mâori?
The report details the tool and the claim in detail. In brief, the Tribunal concludes there is no evidence that the operation of the RoC*RoI tool causes prejudice to any Mâori individual or group. The only areas in which RoC*RoI’s effects are not yet fully certain are not areas that can be said, in the words of section 6 of the Treaty of Waitangi Act 1975, to be ‘likely’ to cause any disadvantage to Mâori offenders.

Conclusion

Overall, the Tribunal recognises there is much of value in the tailored approach to reducing reoffending by Mâori: one size does not fit all and there are no simple answers. As the report concludes:

‘Mâori offending rates are unacceptably high. The erosion of latent Mâori potential and capacity, and the deleterious effects on the wider community remain a cause for deep concern. No society concerned with the future well being of all its citizens can be content with the status quo. There can be no doubt that serious measures must be taken to arrest this mounting crisis… the causes of that situation are complex.

In short, there are no simple answers and potential remedies must continually be explored. But the essential point is that where there are genuine, sincere and legitimate attempts to find solutions to this seemingly insoluble dilemma, caution is necessary to avoid dispensing with potentially sound approaches that have suffered from poor presentation and consultation.

We do not say that the Department’s efforts are without criticism – that is clearly not so – but we do think that many of the ideas deriving from the general IOM framework and MaCRNs and their application may yet assist the common goal of reducing offending by all sections of New Zealand society.’

These tools, their context and development, are described in detail in the report. The first and last chapters are on the Tribunal’s website: www.waitangi-tribunal.govt.nz.

ENDS

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