The dissapeared

Editor’s note: This article contains descriptions of abuse which some readers may find distressing.

Shane was locked in a concrete box at Hokio Beach School in Levin in the early 1980s. The only sentient creature he could talk to for the whole day was a spider. Even for this innocent and desperate amusement he was punished.

“I had him hidden in a bone type thing and then a couple of the screws there found the spider. And boy did that become the torment.”

He was already severely damaged when he got there. The state picked up where his parents left off, inflicting harm and trauma repeatedly throughout his life as a child and continuing into his adulthood. And central to that harm has been solitary confinement.

“I remember getting a lot of beatings from both my parents. Most of the time I took the blame for my siblings and took their punishment too. I can recall being belted with a jug cord or the belt buckle end of a belt. I can also remember being chained to a leg of the dining room table by my parents and being forced to eat from a dog dish.

“I can recall my sister being thrown against a mantlepiece. I think that she has suffered an intellectual disability as a result. She had webbed fingers. I think one was cut open with scissors.

“I remember being thrown into a shed that sat on the rear of our section, after being beaten, and locked in it. It was full of rubbish, dog faeces and mice. Our pet dog had her throat cut. Her name was Lassie, and she was in there, dead.

Eventually Shane was put in the dog kennel.

“I was locked in a kennel with a black and white dog. I used him for warmth. I think I was in there for a week… I heard someone coming up the gravel driveway and yelled out. An old Maori lady came around and found me locked in the kennel. I heard her say, ‘Oh my god’. She unlocked the gate of the kennel and I crawled out and ran away. Despite her calling to me to come back, I ran and kept going.”

The Department of Social Welfare stepped in and took Shane from his parents. If the premise of the state’s intervention was to make his life better, it failed.

“I got to Epuni Boys Home, at the age of nine. You strip, you shower. I can remember having kerosene poured on my hair and wearing a grey uniform. And they threw me into a cell. Even though I didn’t have a good mother and a good father, I spent all weekend crying out for them.”

The use of solitary confinement as a common practice goes back at least to the 18th century as a replacement for capital punishment and torture as a public spectacle in Britain and Europe. The practice had a religious logic, in that it was thought solitary seclusion would give prisoners time to reflect on their sins and change their behaviour. But it was quickly found to be its own kind of torture, a psychological one. If the core of being a human being is a relational, sensory creature living in space and time, solitary confinement attacks that core. It often destroys it.

Nowadays the practice is justified as a risk management tool, in prisons, youth justice facilities and mental health units. Where people are deemed to be a risk to staff or other residents, or at risk from others, such as rival gang members or in the case of child sex offenders (often regarded as “fair game” in prisons), isolation is seen to minimise that risk. It can also be a “holding pen” when inmates first arrive, fresh from police cells, perhaps coming off drugs, awaiting medical assessment, or after an incident of violence. “Time out” for adults.

The UN has adopted the Nelson Mandela Rules which define when, in situations of legal detention, “restrictions or disciplinary sanctions amount to torture or other cruel, inhuman or degrading treatment or punishment”. Solitary confinement is defined as “the confinement of prisoners for 22 hours or more a day without meaningful human contact”.

The rules state, “Solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorisation by a competent authority…The imposition of solitary confinement should be prohibited in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures… Prolonged solitary confinement… for a time period in excess of 15 consecutive days counts as torture.”

The question is, when does a temporary expedient cross the line, in our overstretched, under-staffed and often under-scrutinised institutions, especially when the individuals subjected to it have histories of trauma and mental illness. How quickly, how seamlessly, does risk-management turn into callousness, cruelty, abuse and even torture?

Dr Stuart Grassian, an expert on the impacts of solitary confinement and a former staff member of Harvard Medical School, is among an international group of experts who have identified multiple damaging aspects to the practice. Grassian writes: “A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”

Dr Hua Akin, Professor of Neuroscience and Psychiatry at the University of Michigan, writes: “Given that the brain is a learning machine shaped by the environment, and given the vital importance of social context for brain health, solitary confinement offers the most impoverished and damaging conditions possible. It starves the brain from key elements essential for its healthy functioning — visual and other perceptual stimulation, normal lighting conditions, and lack of human interactions and support. The price of such starvation is a change in fundamental biology of this very critical organ. The consequences of this neuropathology are seen plainly in the form of severe depression, increased sensitivity to stimulation, lack of affective control, or burnt-out, flattened affective state.”

As an adult Shane and hundreds of others in New Zealand prisons have been subjected to, and continue to, be subjected to solitary confinement. In some cases those periods have been for more than 900 days. This abuse has been reported on by the UN, the Ombudsman, the Prison Inspectorate and the Human Rights Commission, but New Zealand continues to inflict solitary confinement on people.

After Epuni Shane went through a series of “family homes” — foster homes sponsored by Social Welfare that took in a number of children — and ended up running away and getting into trouble to survive, which led him to do several stints at Hamilton Boys Home. There was always solitary confinement and he was soon sent down the road to Kohitere Boys’ Training Centre.

“The secure unit at Kohitere was sort of square shaped,” Shane explains. “It had cells down the two sides and across one end and in the middle layers of wire over the top of the courtyard. At the front was grilles and a door that you entered the unit through. The bed was fixed to the floor of your cell and you had a steel basin and toilet and a bench. Some cells had a bit of daylight, others had none.”

Shane’s time in solitary confinement in Kohitere escalated from a few days, to weeks and months. In his file it appears — although the record is unclear whether he might have been out for brief stints — that he did a period of nearly 14 months in solitary confinement.

A memo on his file includes that he punched the walls when returned to his cube, complained of headaches, squinted when spoken to and appeared to become depressed. “He could be learning that there is a price to pay if he is to continue this negative behaviour,” concludes the note. He was 14 years old.

Towards the end of his time at Kohitere, Shane was sent with other kids to a boot camp at the army base in Waiouru. One of the other kids in the “platoon” was Antonie Dixon, who would later be convicted of an attack on two women using a samurai sword and the shooting murder of a man he didn’t know. He eventually committed suicide in prison.

Shane, Antonie and several others were put through military training and then taken out onto the army base. “Suddenly, out of nowhere Skyhawk Air Force jets appeared overheard. The roar was deafening. They began firing air-to-surface missiles. They fired down onto an area known as zone 13. Simultaneously, engineers blew up bridges. All rounds were live fire and perhaps 100–200 metres away from our position.” While all of this was going on, someone forgot to let off red smoke grenades to let the air force know that they were only kids, and not to fire in their direction. “I could feel the shockwaves ring through the side of the riverbank where I was situated in a trench.”

Shane and Antonie were “captured” and put through a “mock” interrogation. “We hadn’t eaten, we were sleep deprived and we were getting yelled at and slapped around the head. My chair was kicked over while I was strapped to it, all the time trying to remember my name, recruit status and fake number. Eventually, 20 to 30 minutes or so later we were taken outside and Sergeant Wilkinson was there to congratulate both me and Antonie for a job well done. We didn’t crack under pressure. Probably because I’d been through much worse before.”

Forensic psychiatrist Dr Erik Monastario worked in a prison environment for more than 20 years, and notes that the trauma that runs from the child welfare institutions into jails is blatantly obvious. “We see people in prison that have been through Epuni boy’s home, and any number of what used to be called borstals in the old days. They’re ending up in prison, and ending up in ISUs.”

“A prison is a place which captures people who’ve got histories of trauma and adversity. Probably 70 to 80% of the people I would see in a prison setting would have come from a background history of trauma, abuse, neglect and institutional care … to put somebody who’s got a history of trauma and a serious mental disorder in solitary confinement will almost always guarantee a bad outcome.”

Monastario grew up in Bolivia, New Zealand and Argentina and has memories of regular military coups and dictatorships. He has no illusions about how solitary confinement is used in such regimes. “The thing to bear in mind is that sensory deprivation in solitary confinement is actually utilised as a form of torture. There are various repressive regimes all around the world that have figured out what’s the best way to break someone psychologically.

“I’m not for a second suggesting that ISUs (Intervention and Support Units) in New Zealand have been designed to break people. We’re using them when we know that they will break people.”

Whilst some of the more extreme practices in the 1970s and 1980s appear to be mercifully absent in current day institutions, the use of “secure” rooms and units for children persists and continues to be a source of grave concern. Report after report from the likes of the Ombudsman, the Prison Inspectorate, the Human Rights Commission, the Children’s Commission have made consistent criticisms that New Zealand is breaking the law.

In 2023, a Children’s Commission report on Korowai Manaaki Youth Justice Residence, found that a high use of secure and restraints, which the commission said had not improved since its last visit. “Secure care or seclusion runs contrary to international human rights law which prohibits its use on those under 18 years of age … Staff are not actively managing and de-escalating mokopuna behaviour and the result is admission to secure care.”

The Ombudsman’s office published a report in 2017 on the use of restraints in prisons. One prisoner, the report notes, “spent 37 consecutive nights secured on the tie-down bed at Auckland Prison from 28 February to 5 April 2016. We observed (via video footage) a spit-hood being applied to the prisoner’s head on at least one occasion.”

“Since 2001,” the Ombudsman writes, “the prison population has risen from approximately 6000 to over 10,000. The prison population has risen by 7% this year and is forecast to rise by a further one per cent annually for the next nine years. Forensic beds appear not to have increased at the same rate, which would suggest lengthier waiting times for prisoners.” (Note: this report pre-dated the ccoalition Government’s plans to increase the prison population to around 11,000.)

While the report is critical, is there a point at which someone should be prosecuted for torture? To recommend that would then trigger a requirement in the Crimes of Torture Act that charges can only be laid with the approval of the Attorney General.

“I’m somewhat cynical about prosecutions,” says Ombudsman Peter Boshier. “They’re not the be all and end all. We probably achieve more here for people than happens a lot of the time through the courts. That’s a pretty courageous thing for me to say, but I feel it and I believe it.”

The other institution that has responsibility for oversight of prisons is the Prison Inspectorate, where the chief inspector is Janis Adair. She has been in the role since 2017 and in that time she has overseen several critical reports that are related to solitary confinement. Does she think New Zealand is in breach of the Convention Against Torture?

“I have by default referenced that something is likely to amount to a breach of the convention, but not made a breach. That’s only because jurisdictionally I don’t have the mandate to do that. My jurisdiction is principally within the Corrections Act and Corrections Regulations.”

“We’ve got 9400 people in prison today, so I’m not able to say how many of those people shouldn’t be in prison, but there are certainly individuals who we know are significantly unwell.

“In some cases we’re warehousing people who shouldn’t be in prisons. But there’s no gateway or channel for them to go into a forensic mental health facility or some other facility where they would be more appropriately cared for than being in prison.”

One of the cases Adair found particularly distressing was that of three women in prison who were not only in solitary confinement, but were subjected to other abuse and humiliation. They were made to lie face down with their arms in front of them to get food, and if they didn’t comply they didn’t receive a meal. They were also hit with a particular nasty pepper spray in the cells and were subdued by gangs of prison guards.

The case only came to Adair’s attention when a complaint was made by lawyer Amanda Hill, who started to hear through the prison grapevine that something wasn’t right. “One of them called me about an unrelated issue and then continued to stay in contact. As their conditions deteriorated they sort of kept me informed. And it took a while, I think, for the whole picture to form. You hear some wild stuff and you sort of go, surely not. And then you talk to the other two and you go, ‘oh shit’.”

One of the wāhine self-harmed. “I told the manager,” she said, “I told the PCO, I told the staff — they were asking me, ‘How are you?’ and I’m like ‘bro, I just wanna die’.”

Hill says the footage showing the use of pepper spray in the cells was particularly harrowing. “You can hear them screaming; it looks like a f…ing exorcism. She was having a seizure while they were restraining her.”

“The official position from Corrections is that directed segregation is a risk management tool and not a punishment,” continues Hill, “but the line between those two things is almost non-existent. And so segregation is very much viewed as a punishment because you’re being taken away from everybody else, you’re being separated. More often than not, you bounce down to minimum entitlements.

“Corrections get a lot of leeway about what the good order, safety and security of the prisoner looks like. So, we can, on the one hand, be complying with the act and the regulations, and still have people being harmed and still being held in solitary confinement.”

“It’s not a term that’s found in our law anywhere. There’s no reference to solitary confinement in the Corrections Act, in the Bill of Rights Act, anywhere. Solitary confinement comes from the Nelson Mandela rules — 15 days without meaningful interaction with other humans is solitary confinement. So you have a real issue when you can be, in theory, following the rules and having your paperwork in order and still breaching the Mandela Rules definition for solitary confinement. Those two things are not mutually exclusive.”

With all these cases where there are documented reports from official bodies, is there a prima facie case that the use of solitary confinement means the Crown is committing torture on a regular basis?

“Our courts have been very, very reluctant to find anything that meets the torture requirement. If we’d gone to court and had a full hearing, could I guarantee that the court would have said torture had occurred? I can’t, because the courts are so conservative about what they say is torture. The T word seems to almost be off limits for the courts. The tie-down bed is what I keep coming back to in the Ombudsman’s report, 37 nights on a tie-down bed. If that’s not torture, show me what is.”

The use of tie-down beds was banned as a result of a report from the Ombudsman, but the criticisms were really around technicalities such as how the straps were used or the lack of documentation. The use of the tie-down bed wasn’t illegal in itself.

Tracey McIntosh, Criminologist at the University of Auckland, has regular contact with men and women in prison and knows the three women in the inspectorate report. She has seen first-hand the impacts the prison environment has had on them. “There’s always just this fallback position, how dangerous people are, but you put them into places that make them more dangerous.”

She finds there’s also a reluctance legally to call solitary confinement what it is — torture — because the word has legal implications and liabilities the country is not willing to face up to.

“It’s the whole ‘tantamount to torture’, we’re not going to actually say it’s torture. It’s like genocide. As soon as you say that a genocide is happening, you are obligated to respond in particular ways. Every nation state who has ratified the Genocide Convention has to act. So they’ll use words like genocidal acts. They won’t use genocide. Because under international law you have to act.”

And she believed New Zealand’s naïve belief that is above reproach is a self-delusion. “When we compare ourselves with other countries that we’re used to comparing ourselves with, why do we use solitary, restraint and segregation to a far greater level in youth justice and the prisons? What is it about us that means we use them far more than the UK, Canada and Australia?”

There are numerous answers, numerous mutually-reinforcing factors that create what the International Association for the Prevention of Torture calls a “pipeline” that pushes staff at the frontline to feel they have no alternatives to solitary confinement in its various forms. Chronic under-staffing, inadequate screening and diagnosis of mental and physical health issues, inadequate training in how to recognise and deal with trauma and mental distress, frequent movement of inmates (making it hard for inmates to maintain contact with family and friends and hard for staff to develop the kind of relationships that can de-escalate tension and distress), limited access to health care, and facilities that provide few, if any, alternative options.

Add overcrowding to the mix and the result is inevitable: short term risk-management decisions that are made simply to get through another day without incident. Back on the slipway from expediency to abuse. This is where the architecture of incarceration becomes crucial.

Amongst the repeated themes of Shane’s story is ending up in dismal, cold, poorly-lit cells in grey, concrete and steel buildings far from civilisation. These are examples of what Professor Yvonne Jewkes, an expert in prison design and author of the recent book, An Architecture of Hope, calls “f… you” architecture, which embodies mistrust, fear and aggression, de-humanising both inmates and staff and undermining any attempts at therapy and healing.

It is also physically damaging, often remarkably quickly, as demonstrated by Shane’s acquired squint, or the harm caused by prolonged sitting (increased risk of obesity, hypertension, and type-2 diabetes) and walking only on hard flat surfaces (fallen arches, knee, hip and lower back pain).

A decade ago Jewkes was part of the design team for the replacement to the notorious supermax East Wing at Auckland Prison at Paremoremo (“a hell hole”, she says, “truly shocking, as grim as you can imagine”), and describes her initial optimism at getting a brief to create a facility that would support, rather than thwart, prisoner rehabilitation.

“It was the best team of architects and engineers I’d ever worked with,” she says in a recent BBC podcast, and they created something as radical and humane as possible, drawing on successful examples in Catalonia, Ireland and Scandinavia. “But when we gave [Corrections] the finished design they got cold feet and they said, ‘We thought this was what we wanted, but now we’ve seen it we realise that what we actually wanted was a newer, shinier version of the supermax that we already had’.”

As well as a failure of imagination, Jewkes blames the outcome on two impulses that come up repeatedly in designing secure facilities. First “future proofing”, which means building to a higher security specification even when the intended residents are medium and low-security prisoners, on the grounds that the mix of inmates may change in future. That results in holding vulnerable people in hard architecture, with lots of razor wire, iron gates and high concrete walls, when there is no need for the added expense and no rationale for the reduced functionality in, for example, arranging meaningful family visits or providing regular outdoor exercise.

The second impulse is “value engineering”, in which cost-sensitivity leads to stripping out softer elements, such as trees and green spaces on security grounds (for example, preserving uninterrupted sight lines for surveillance), removing “nice-to-have” things, such as pleasant views, recreational areas, libraries, pleasant spaces for staff recreation, family visits or cultural events, and in general opting for larger capacity, warehouse-style prisons rather than smaller units where a sense of community can be encouraged. Jewkes’ “dream-team” was disbanded. She went home “with my tail between my legs”.

Among the 150 projects listed for approval under the Government’s new “fast track” legislation is a proposed expansion to double the capacity of the Auckland Prison to accommodate the forecast increase in the prison population of some 1000-plus inmates due to more stringent sentencing laws. There is no indication yet of the design brief; however, an early concern is the possible impact on the low-security facilities at Paremoremo, including a drug treatment unit, which feature humanising and therapeutic features such as gardens and beehives. Will these be compromised by having to squeeze another supermax warehouse onto the site, with its razor wire and observation towers and its cells for segregation?

“The second time when I got out of Invercargill prison,” Shane says, “straight from out of secure, down in the basement, they let me out onto the street. I said, ‘I don’t even have a place to stay’. ‘Not our problem.’ ” He couldn’t cope being outside of prison and was soon back in. And the process starts over again.

“My time in state care has never worn off and there has never been closure. I’ll never forget till the day I die that black and white dog in the kennel in Masterton. That dog gave me more warmth, cuddles and licks (or kisses) than any one person in an institution. It even cleaned blood from me. Hokio and Kohitere created gashes. When I left Kohitere I came to prison and I have essentially been here ever since. As a result, the Hokio and Kohitere wounds are still open.”

Many of those he went through Hokio and Kohitere with are now dead. “I’m probably one of five outta that (bootcamp) platoon that’s alive today. The rest have committed suicide.” Another friend was stood over for drugs and retaliated by taking out a gang member with a hammer.

“Some of these, the memory of these fellas, they just stay with you,” he says, his voice cracking. The 10-year-old boy talking to a spider in a concrete box on his own is now a man in a prison cell with that same little boy haunting him. “I have been told so many times, ‘shut up’, ‘do your time’, ‘tell someone who cares’, ‘you’re beyond it’ … The Crown has given me the label of “extremely dangerous” and I have taken that label and hid behind it. That label has kept me safe and helped me to survive.

‘I do not see men or women and I have no interaction with other humans, I only see keys and uniforms. I am now a dangerous man.”