Instead of debating why our judges and politicians should stay off each others’ turf, we need to tackle the real problem – a prison system that isn’t achieving correction.

There should be tension and debate between our judges and politicians. Let us have far more of it. Forget the conventions. Those who administer the law have as much right to voice their concerns as those who make the law. Those who make the law should speak about how it should be applied. Both function best with our informed consent.

On balance, Chief Justice Sian Elias seems to have won more applause for speaking up than Justice Minister Simon Power has for telling her to shut up about our prison capacity crisis.

The only problem with this contest is that it diverts attention from the real issue: why the policy of longer lock-ups for more criminals is not going to produce the results we want.

The Chief Justice knew she was being provocative when she raised the issue of prison overcrowding. She even flagged it with the comment “my last suggestion may be controversial”, before plunging ahead.

“We need to look at direct tools to manage the prison population if overcrowding is not to cause significant safety and human rights issues. Other countries use executive amnesties to send prisoners into the community early to prevent overcrowding. Such solutions will not please many. And I am not well placed to assess whether they are feasible. But the alternatives and the costs of overcrowding need to be weighed.”

While most media attention focused on the reference to “executive amnesties”, the Chief Justice’s more serious warning was about “significant safety and human rights issues”. Those issues are going to land squarely on her bench if they are not addressed.

It is well nigh impossible to conceive of our current government promoting the use of executive amnesties to avoid overcrowding the prisons, or that the voters would let it survive very long if it changed its mind.

The tragic experience of the murderous Graeme Burton ’s rampage on parole and the damning Auditor General’s report on the failure of the Community Probation and Psychological Services to adhere to its own policies for managing parolees are too fresh in the public mind.

Building new prisons is never a popular approach, even in times of prolonged economic growth, but it may be a more appropriate answer than executive amnesties or crowding the cell-blocks.

What prison building we have seen – and we have seen quite a bit of it in recent years – has been insufficient to accommodate the growth in the prison population that was projected to occur by government officials a decade ago, and five years ago.

Corrections Minister Judith Collins faces a problem that will not wait for new prisons to appear. She says:

“Short-term needs will be met by double bunking and prefabricated or modular cells. These include converted shipping containers which could be bought and installed for as little as $53,000 to $63,000 a head.”

Unfortunately, doubling up inmates in existing cells, clipping on extra cells and extending lock-down hours does not expand the core capacity of a prison to cope with more inmates. They do not increase washroom availability, kitchen capacity, exercise space, heating or ventilation, health care, drug rehabilitation, psychiatric services space, or facilities to support the increased numbers of staff required to provide custody and care.

The bulk of prison research literature suggests we will be building a time-bomb by cramming our prisons, and the inevitable explosion is just as likely to occur outside the walls when prisoners return to the community as it is inside.

A research summary produced by the British Columbia Civil Liberties Association in 1996 provides a grim forecast of what we are likely to see.

“Overcrowding in general, and multiple bunking in particular, have negative impacts on the social relations and interactions within the prison environment. Perceptions about fair and consistent rule enforcement and inmate satisfaction are less favorable… Rule and disciplinary infractions increase as social density increases. Inmate assaults on inmates and staff increase as population increases. Inmates who live in double or multiple cells… have an increased number of illness complaints. Crowded institutions have higher rates of suicide, self-mutilation, homicides and psychiatric commitments….”

Earlier this year, the United Nations received a report on human rights issues likely to arise from New Zealand ’s current approach to the capacity crisis in our prisons. It came from The New Zealand Human Rights Commission and was presented to the UN Committee Against Torture.

Our Human Rights Commission reported that it has “urged the Government to commit to specific targets and timelines for reducing the high levels of imprisonment”, and also advised that “complex issues around people in prison who require mental health care pose significant challenges and need urgent attention”.

New Zealand judges may be confronting safety and human rights issues arising from the capacity crisis in our prisons sooner rather than later.

The Corrections Association of New Zealand, the union representing prison officers, is building a case against its employer, the Corrections Department, over the prison cramming plan.

Their first stop is the Employment Authority, because a condition in their employment agreement is that their place of work is to be fit for purpose.

The Corrections Department has already admitted that “some [prison] facilities can no longer be regarded as fit for purpose, with some being at risk of non-compliance with building standards.”

Chief Justice Elias can say “I did warn you about those safety and human rights issues”. But that will not be much comfort for the inmates, the staff, and the victims of those who graduate from the prisons that we are about to crowd.

Unfortunately, too many of us are missing her main message.