Removing s27 ‘cultural reports’ has implications

A written "cultural report" can help restore balance, advocates say. PHOTO: GETTY IMAGES
A written "cultural report" can help restore balance, advocates say. PHOTO: GETTY IMAGES
Section 27 "cultural reports" serve a valuable purpose, Tara Oakley and Rebecca Cupples write.

Section 27 background or "cultural" reports are threatened as the National Party commits to removing funding for written reports.

National’s policy appears based on their interpretation of s27 reports as having been "weaponised" by the previous government "in an attempt to meet its goal of reducing the prison population". The policy further posits s27 reports as "designed to influence judges to deliver lighter sentences".

This discourse fails to acknowledge the purpose and intents of both the Sentencing Act and the reports. S27 (and its predecessor, s16 of the Criminal Justice Act 1985) arose from a clear and urgent need to address inequitable criminal justice outcomes for Māori, recognise that prison was failing to prevent recidivist offending, and to prioritise options for rehabilitation and community-based redress where possible.

Mr Luxon is correct. The Act initially envisioned whānau addressing judges directly in court. Consequently, from 1985-2017, when written reports were first utilised, s27 of the Sentencing Act sat essentially dormant. Judges, for one, disliked the uncertainty of whānau speaking in court. Whānau experiences of abuse, oppression, and discrimination within and by state systems stymied their capacity to trust and participate in criminal justice system processes. Those facing sentencing often had no whānau willing, or capable of, speaking in court on their behalf.

Written s27 reports subsequently became a functioning part of the sentencing process, facilitating the representation of whānau voice and experiences in court. Well-written reports include, to the greatest extent possible, verification and insight from whānau and community. They incorporate medical, social, and state records, and are subject to stringent peer review. This enables informed identification and discussion of the myriad causative factors of an individual’s behaviours and planning for appropriate redress and rehabilitation.

National’s description of s27 report writers as "individuals without expertise or qualifications" is incorrect. Sentence Equality writers, for example, are a collective of graduates from the fields of law, criminology, sociology, anthropology, education, and health. They have experience in both private and public sectors, in academic, political, and professional environs, alongside, crucially, a capacity to engage with offenders in a manner conducive to gaining sensitive qualitative data.

Reports seek reasons, not excuses, for offending behaviours. They propose action, not sentencing discounts. They are invaluable sources of critical biopsychosocial data regarding key drivers of offending,

Among offenders, substance abuse disorders, mood disorders, personality disorders, neurodivergence, learning difficulties, illiteracy, brain injuries, poverty, and trauma abound. One third of children placed in state care between 1950-99 were incarcerated as adults; for Māori, this figure increased to more than 40%.

Proposing that defunding written reports is "victim-centric" policy hides the high concentration of historic family, sexual, and violent victimisation among prisoners. Department of Corrections findings indicate extraordinary rates of trauma exposure in this populace. That the state was often party to violent and sexual offending makes independent insight essential.

With funding removed, reports are accessible only to those with private resources. Māori, therefore, would be largely restricted from access to the same level of representation in court as wealthier groups.

Written s27 reports are available to and used by all ethnicities. However, the ongoing tragedy of Māori over-representation in court means defunding these reports has a disparate, negative impact for Māori who will suffer significant harm by the incoming government’s proposed actions.

— Tara Oakley and Rebecca Cupples are report writers for Sentence Equality.