Ministry of Justice: Publications and Reports: 2005: Guidance for Agencies Predicting the Impact on the Prison Population of Proposed Policies to Create or Amend Offences or Penalties

See also:

Guidance for Agencies Predicting the Impact on the Prison Population of Proposed Policies to Create or Amend Offences or Penalties, July 2005

For:	All Public Sector Agencies
By:	Ministry of Justice
Date:	April 2008
Subject:	Predicting the Impact on the Prison Population of Proposed Policies to Create or Amend Offences or Penalties (PDF Adobe Acrobat v5 44KB)

What this Guidance Covers

This guidance includes:

Background information on Cabinet’s 2005 directive that agencies predict the impact of a policy proposal on the prison population;

The purpose of Cabinet’s directive;

Information on forecasting the prison population;

Information on the current process for creating or amending penalties and offences;

Suggestions for how to predict the impact of a policy proposal on the prison population; and

Case studies.

Background

Over recent years the prison population has increased steadily. This growth is forecast to continue.[1] The justice sector has dedicated significant time and resources to managing the prison population. This work has included a number of reports to Cabinet, including the recent papers resulting from the Effective Interventions project.

On 16 March 2005, the Cabinet Policy Committee considered a report on credible options for reducing future inmate numbers. It was agreed ‘that agencies proposing policies that are introducing new offences or increased penalties be required to make a prediction of the likely impact on the prison population prior to obtaining Cabinet approval for those policies’ [POL Min (05) 6/2]. This decision was subsequently confirmed by Cabinet [CAB Min (05) 10/4].

Purpose of the Cabinet Directive

The purpose of identifying the likely impact on the prison population of policy proposals that introduce new offences or amend existing penalties is to:

Ensure that Cabinet is informed of the estimated impact of the policy proposals under consideration on the prison population; and

Enable comprehensive information to be incorporated into the annual update of the forecasts of the prison population produced by the Ministry of Justice.

Forecasting the Prison Population

The justice sector updates the forecasts of the prison population annually. The forecasts are used by the Department of Corrections to determine the capacity required at corrections facilities to house offenders remanded in custody or sentenced to a term of imprisonment. This includes determining if, and when, new corrections facilities will have to be commissioned to meet estimated future demand.

The construction of new correction facilities, and the care and management of inmates, is an area of significant Government expenditure. The accuracy of the forecasts is therefore critical. Under-estimating future growth in inmate numbers means that the Government may be faced with significant unplanned expenditure. It also impacts on the Department of Corrections’ ability to safely and appropriately manage prison inmates.

Government policy is not incorporated into the forecasts until it has been implemented either operationally or through legislation. However, it is important that information about the impact of a policy is provided well in advance to inform the assumptions underlying the prison population forecasts when the policy is in place.

Creating or Amending Offences and Penalties: Current Requirements

There are a range of requirements that agencies must comply with when developing policy proposals that will introduce or amend criminal offences or penalties. These include:

LAC Guidelines

All papers to the Cabinet Legislation Committee requesting approval for introduction for a Bill must state whether the draft Bill complies with the LAC Guidelines (see paragraphs 5.37-5.38 of The Cabinet Manual). Chapter 12 of the LAC Guidelines provides guidance on the factors that should be taken into account when considering whether to create a new offence, and the nature of the penalty that is to be attached to that offence.

Penalty Vetting by the Ministry of Justice

All agencies are required to consult the Ministry of Justice on all proposals to create or alter criminal offences or penalties (see paragraph 5.21 of The Cabinet Manual). This requirement is in place to ensure that all proposals are vetted for consistency and appropriateness with other offences and penalties within the criminal law.

Bill of Rights Vetting

All Bills must be vetted by the Ministry of Justice for consistency with the New Zealand Bill of Rights Act 1990 (see paragraph 5.39 of The Cabinet Manual). The Bill of Rights Act contains several provisions relating to penalties including the right not to be subjected to disproportionately severe treatment or punishment, various procedural rights, the right to be presumed innocent, and protection from retroactive penalties and double jeopardy. Guidelines on the Bill of Rights Act are on the Ministry’s website www.justice.govt.nz.

In addition, any proposal to create a new offence or to amend existing penalties will have an impact on the operation of the justice system generally, for example, demand on courts services, on Corrections facilities (prison numbers) or on the Collections Unit if it is a new infringement offence. The impacts of such proposals should be discussed with the Ministry of Justice as soon as possible (i.e. during their development phase rather than at the Cabinet paper stage).

Contact details for representatives within the Ministry of Justice who can assist with the above requirements are provided in Appendix one.

Predicting the Likely Impact on the Prison Population

The likely impact of a proposal on the prison population should be considered where an agency proposes to:

Create an offence that will have a maximum penalty of imprisonment; or

Amend the penalty for an existing offence to include imprisonment; or

Remove, increase or decrease the maximum sentence of imprisonment on an existing offence.

An estimation of the likely impact of a proposal on the prison population will be informed by standard policy concerns, for example, the rationale or objectives of the proposal, the nature and size of the policy issue being addressed, and the group/s that the proposal aims to target.

Factors relevant to the nature and operation of the criminal justice system may also inform the analysis. These factors include:

The number of prosecutions historically for similar offences (if a new offence is being created) or for the actual offence (if a penalty of an existing offence is being amended). This assessment should also provide an indication of the impact the proposal may have on demand for court services.

The proportion of defendants likely to be remanded in custody. This assessment can be informed by the nature of the offence and the provisions of the Bail Act 2000.

The proportion of prosecutions that is likely to result in a conviction. This proportion varies across offence types. For example, 81% of prosecutions for traffic offences and 49% of prosecutions for violent offences resulted in a conviction in 2005.[2]

The potential sentencing outcomes where a conviction is secured. The Court must impose the least restrictive outcome that is appropriate in the circumstances (section 8(g) of the Sentencing Act 2002). The proportion of convictions that result in a sentence of imprisonment will vary by offence type. For example, 17% of convictions for property offences and 17% of convictions for drug offences resulted in a sentence of imprisonment in 2005.

The likely length of a sentence of imprisonment where it is imposed. Under the Sentencing Act 2002 (section 8(c)), the maximum penalty for an offence is ‘reserved’ for the most serious cases. Sentence length will also vary by offence type –for example, the average length of a custodial sentence for offences against the administration of justice was 2.8 months and 26.1 months for violent offences in 2005.

Agencies may find it useful to refer to the principles and purposes of sentencing identified in the Sentencing Act 2002. The Act also specifies the purposes of the different disposition options – for example, discharge without conviction, conviction and discharge, monetary penalties, community-based sentences, home detention and imprisonment.

Where assessing the impact of proposals on the prison population is complicated, the Ministry of Justice recommends that rather than attempting to do the calculations yourself, that you contact the Research and Data modelling team as soon as possible (contact details for the team leader and the director of Research, Evaluation and Modelling are provided in Appendix 1).

Case studies of papers that have made a prediction of the likely impact of the proposed policy are provided below. The Ministry of Justice also prepares annual conviction and sentencing reports, which may be of use. These reports are available on the Ministry’s website (www.justice.govt.nz).

Incorporating the Impact on the Prison Population in a Cabinet Paper

The assessment of the likely impact of a policy proposal on the prison population, and other justice sector services such as courts, is an integral part of the policy development process. Therefore, it is appropriate to incorporate the assessment of the likely impact of a particular proposal throughout the body of the Cabinet paper. However, to ensure that the likely impact is explicit, this information should also be included in the paper’s financial implications and recommendations sections.

Case Studies

Case studies 1 and 2 are taken from actual Cabinet papers, and case study 3 is a hypothetical example. The case studies are examples of how policy proposals to amend penalties or offences were assessed for their likely impact on the prison population, and how these assessments can be incorporated into Cabinet papers. They are not intended as a standard format for agencies to follow.

Case Study 1 – Implementation of the United Nations Convention Against Corruption

Prison Population Implications

Although this proposal recommends the creation of two new criminal offences, and increasing the penalty in the Secret Commissions Act 1910, it is expected that this will have a negligible affect on the prison population.

The proposed bribery/corruption offences are required to allow New Zealand to ratify an international convention as opposed to a reaction to an increase in this behaviour.

Transparency International’s Corruption Perception Index 2004 ranks New Zealand as the second country with the lowest perception of corruption (New Zealand was joint third in 2003).

Police only have one offence code (7111) which covers all types of bribery and corruption, such as of juries, witnesses and officials etc. and the total number of convictions involving all types of bribery/corruption are detailed below:-

Description	2000	2001	2002	2003
Bribe / Corrupt Jury / Witness / officials etc	8	4	3	6

It is therefore anticipated that the proposed creation of new bribery offences which relate solely to foreign public officials accepting bribes or other people accepting bribes to use influence to obtain undue advantage, will have a negligible affect on the total prison population.

The Serious Fraud Office convicted only three people under the Secret Commissions Act 1910 in 2001-2002 and it is therefore anticipated that the proposed increase in the penalty levels in the Act will have a negligible affect on the total prison population.

Recommendations

Note that it is anticipated that the proposals will have a negligible affect on the prison population.

Case Study 2 - Films, Videos, Publications Classification Amendment Act 2005

Financial Implications

The policies to increase the maximum penalties for offences involving objectionable material under the Act, expand the scope of trading/commercial offences, and provide a search warrant power for possession of objectionable publications will affect the …. Department of Corrections.

The following table tracks prosecutions for offences involving objectionable publications for the 2001/02 and 2002/03 years and sets out projections for a full year under the new regime when it is fully operational (by 2005/06):

Year	Type of case	Type of charge	guilty plea	Guilty plea	trial	Jury trial	Prison sentence	Classified by OFLC	Review of OLFC decision	Court appeals
2001/02	Trading - 24 Possession - 4	Summary - 28 Indictable - 0	1	27	28	0	3	1	0	0
2002/03	Trading - 21 Possession - 6	Summary - 27 Indictable - 0	0	6	27	0	2	1	0	0
2005/06	Trading - 24 Possession - 4 Plus Additional possession - 20	Summary - 26 Indictable - 2 Plus Summary - 20	9	39	44	4	12	6	2	2-3

It is expected that the availability of search warrants for possession offences could result in additional charges for that offence. Total charges for the production and supply of objectionable material are not expected to increase. However, it is envisaged that with the availability of higher maximum penalties, there will be a marginal increase in the number of defended hearings for these cases. Some cases may be more complex because of the technical issues associated with some evidence about computer use.

Based on these provisional projections, the Ministry of Justice, the Crown Law Office and the Department of Corrections do not expect the additional cases to have a significant fiscal impact and therefore agencies would meet any costs associated with the proposals within existing baselines. … Corrections would expect any projected impacts on the prison muster to be reflected in the annual forecasting process. The impact on legal aid expenditure is also expected to be small.

Recommendations

Note that the new offence regime would have a small fiscal impact on the activities of … the Department of Corrections (a small increase in the prison muster)…

Case Study 3 – Increasing the maximum penalty for X

The proposal to increase the maximum penalty for X from five years to seven years acknowledges recent concerns over the incidence of this offence. Judges already use the maximum penalty in a substantial proportion of cases which indicates that there is some concern that the available penalties are not high enough.

At present there are about 2500 convictions for X per year. Of these, 1000 attract a custodial sentence, with 200 of these being given the maximum of five years. It is expected that a proportion of these cases will attract sentences up to the new higher maximum penalty when it comes into force. The impact on the prison population is calculated from the assumption that 50 offenders get seven years and 40 offenders get six years. A further assumption is that both groups spend an average of 66% of their imposed sentence in prison (a figure drawn from the current average for longer sentences).

Starting with those moving from five years to six years: these offenders currently spend 66% of 5 years in prison: 39 months. This will increase to 66% of six years: 48 months. 40 offenders spending an extra 9 months each translates to 360 person-months or 30 beds.

Now those moving from five years to seven years: the increase here, calculated similarly, is from 39 to 55 months. 50 offenders spending an extra 16 months each is 800 person-months or 67 beds.

So the total additional beds required would be 30 + 67 – in round terms, 100. The impact would not be felt until about 3½ years after the maximum penalty change, and would take a little over a year to phase in to full effect.

It is likely that there would be other changes in the distribution of imposed sentences across the full range of the increased maximum penalty, so this can only be taken as a broad indication.

Recommendations

Note that increasing the maximum penalty for X from five years to seven years could result in 100 additional beds being required approximately 4 ½ half years after the change is implemented.

Appendix One: Contact Details for the Ministry of Justice

Contact details for the Ministry of Justice are as follows:

Postal: P O Box 180 Phone: 04 918 8800

Wellington

Email: reception@justice.govt.nz

For further information on the penalty and offence vetting process please contact:

Manager, Criminal Law Team

Email: malcolm.luey@justice.govt.nz

Phone: 04 473 2120

Fax: 04 494 9917

For further information on the Bill of Rights vetting process please contact:

Manager, Human Rights/ Bill of Rights Team:

Email: stuart.beresford@justice.govt.nz

Phone: 04 494 9777

Fax: 04 494 9859

For further information on operational impacts in the justice system please contact:

Acting Manager, Criminal and Youth Jurisdiction

Email: maria.mcDonald@justice.govt.nz

Phone: 04 918 8853

Fax: 04 918 8820

For further information on analysing the impacts of new proposals on the prison population please contact:

Director, Research, Evaluation and Modelling

Email: david.turner@justice.govt.nz

Phone: 04 913 9163

Fax: 04 913 9229

Team Leader, Data Analysis & Modelling

Email: wiebe.zwaga@justice.govt.nz

Phone: 04 913 9162

Fax: 04 913 9229

Footnotes

1 The Ministry of Justice has forecast that the prison population will increase by a further 15.6% over the next seven years, to a baseline prison population of 9028 in June 2014 (inclusive of the estimated impact of Effective Interventions and 1250 additional Police staff). See Ministry of Justice (2007) Justice Sector Prison Population Forecast 2006: Technical Report.

2 See Ministry of Justice (2006) Conviction and Sentencing of Offenders in New Zealand: 1996 to 2005.