End legalised racism
By Sean Healy
The Northern Territory and Western Australia's mandatory sentencing laws have provoked an enormous public outcry. And so they should: the laws are punitive, draconian and racist. Yet mandatory sentencing laws are only the more obvious signs that something is deeply wrong with the "justice" system.
Australia's Aborigines are among the most imprisoned peoples in the world. In 1998, Aboriginal adults were 11 times more likely to be imprisoned than non-Aborigines. In the same year, Aboriginal juveniles were 18 times more likely to be imprisoned than non-Aboriginal juveniles.
Aborigines make up 2% of the country's population but 19% of all those imprisoned.
Like all other advanced capitalist nations, Australia's prison population has increased dramatically in the last decade. In 1988, 12,321 people were imprisoned, a rate of 100.4 prisoners per 100,000 people of imprisonable age. By 1998, that figure had jumped to 19,906, or 139.2 prisoners per 100,000 of imprisonable age, a 61% increase.
Aborigines suffered more than non-Aborigines from this prison "boom". The number of indigenous prisoners grew more rapidly than non-indigenous prisoners both nationwide and in every state and territory.
According to a November report of the Australian Institute of Criminology, between 1988-98, the number of Aboriginal prisoners more than doubled. The indigenous prison population increased from 1809 in 1988 (a rate of 1233.9 prisoners per 100,000 of imprisonable age) to 3750 (a rate of 1557.9). The indigenous prison populations grew most rapidly in NSW, Queensland, Victoria and South Australia.
A commonly presented explanation of the cause of this massive over-representation of indigenous people in prison blames Aborigines' social conditions. For example, the Australian Institute of Criminology's director, Adam Graycar, in his introduction to the November report, mentions two possible reasons for the disproportion: "differences in levels and patterns of offending compared to other Australians; and lifestyle differences, with Aboriginal and Torres Strait Islander people being socially and economically disadvantaged relative to the rest of the population".
Social and economic circumstances are one of the most important causes of criminal behaviour and Aborigines are considerably worse off than non-Aborigines. The indigenous unemployment rate is four times the national average, indigenous household income is half the national average and their health and education levels are well below those of non-Aborigines.
It would be bad enough if entrenched Aboriginal disadvantage was causing more Aborigines to be sent to jail, rather than receiving better health and education services, more jobs and more chances for well-being. But, scandalously, that's only part of the story.
The major cause of the huge disproportion is far more brutal and direct: the massive over-policing of the Aboriginal population and the double standards in how Aborigines and non-Aborigines are treated by the criminal justice system.
"I wouldn't deny that Aboriginal social conditions such as unemployment play a role, they help make it socially and economically necessary for many Aborigines to commit crime", Chris Cunneen, the director of the University of Sydney's Institute of Criminology, told Green Left Weekly. "But the increasing rates at which Aborigines end up in prison, that's a result of policing and sentencing policy. The increases in the Northern Territory, in NSW and elsewhere are because policy decisions have been made; it can't just be blamed on social conditions."
Mandatory sentencing laws have certainly contributed to the growing imprisonment of Aborigines in WA and the NT because these laws target petty property crimes (like break and enter and criminal damage) that are more likely to be committed by Aborigines.
Three-quarters of the 88 cases tried under the mandatory sentencing law in WA have involved Aborigines. The NT government won't reveal this data on mandatory sentencing cases, but there's no doubt Aborigines have suffered from it more than whites.
Throughout the "justice" system, Aborigines are treated far more harshly than non-Aborigines, by police, magistrates and prison authorities.
One example of this was provided by WA police on February 21 who arrested and held overnight in Perth a 16-year-old Aboriginal boy for trying to steal 40 cents from a public telephone. According to Dennis Eggington, the principal legal officer for the Aboriginal Legal Service of WA, such incidents are commonplace in WA. "We get cases every day of Aborigines being arrested for trivial public order offences, offences which whites wouldn't be arrested for", he told Green Left Weekly.
David Bamber, the principal legal officer for the Central Australian Aboriginal Legal Aid Service, based in Alice Springs, gives another example. "A lot of Aboriginal people we deal with do time for failing to turn up to court", Bamber told Green Left Weekly. "They've brought in these new on-the-spot fines in Alice Springs, so Aboriginal people will be stopped for swearing or not wearing a seat belt.
"If they don't agree with the fine, they have a month to write a reply. If within a month, they haven't done so and haven't paid the fine, they're sent a courtesy letter. If they don't reply to that, a warrant is issued for their arrest.
"But many people out here can't read or they move around a lot or they just can't afford the fine. Too bad. We've got heaps of people in prison for petty things. It's that easy", he said.
Karen Fletcher from the Prisoners' Legal Service in Queensland gives yet another example. In Queensland, there are tens of thousands of outstanding warrants for unpaid fines, but police choose to enforce them largely on Aborigines.
"Police could stand outside the local Rotary and arrest people coming out for unpaid tickets, but they don't. They have discretion as to who they arrest on these things and they arrest Aborigines", she told Green Left.
"We had a case this week of an Aboriginal woman arrested on a warrant while she was breastfeeding a three-month-old baby. Police chased an Aboriginal kid to a house where there were a few other Aboriginal people. The cops checked each person there for outstanding warrants and arrested her for not paying a train ticket.
"They left the baby at the house and we had to ring the watch-house and argue with them before they would reunite the baby with its mother.
"Another Aboriginal man was imprisoned for failing to vote. He was on a prawn trawler during the election, but that didn't matter", she said.
John Sheldon, the legal policy manager for the North Australian Aboriginal Legal Aid Service, believes the problem is not simply policing attitudes but extends throughout the criminal justice system. "There's grown this very lax attitude to the imprisonment of Aborigines throughout the legal system", he told Green Left Weekly. "Prison isn't seen as an option of last resort and is turned to far too early: in policing, in sentencing and even in bail conditions."
Sheldon points to magistrates' willingness to impose bail conditions which very easily turn into jail sentences. "Someone will appear before a magistrate on some minor offence and be granted $1000 bail on their own recognisance", he said.
"They don't have to pay it on the spot, only if they don't show up. But that basically sets up the bail to be defaulted. If they don't turn up, they generally can't pay and they end up in jail for 20 days, which is far harsher than what they would have suffered for the original offence."
Nor is this relentless over-policing only a problem of particular "redneck" states. Sarah Hopkin, the deputy principal solicitor for the Redfern Aboriginal Legal Service, believes it to be the case in metropolitan Sydney also.
"Police have discretion as to when they use their powers, such as telling people to 'move on'. But they appear to exercise that discretion more against young Aborigines than against non-Aborigines", she told Green Left.
"And as soon as that contact is established, an officer asks a young person to move on from a door-step, say, it escalates. The young person might respond angrily because they think (rightly) that their civil rights are being violated. Suddenly, they're being arrested for offensive language, maybe for resisting arrest or assaulting police. We get 'trifecta' cases all the time."
According to Eggington, "The connection between the police and our kids starts early and gets stronger. They'll get stopped for anything. They can be standing in front of their parents' new car and police will stop and question them, thinking they're about to steal the car."
"For our young people, the policing regime is harsh to begin with", Bamber said. "Ten- or 11- or 12-year-olds will be prosecuted here but white kids of the same age committing similar offences, that will be seen as a welfare issue."
"Then there's no special children's court here, so Aboriginal kids get held in the same detention cells as the adults and appear before the same magistrates. Going to jail just becomes a part of life for Aboriginal young people; that's how they see it."
Bamber and Hopkin both said that, in their experience, Aboriginal youth are offered diversions from the court system, such as cautions or conferencing, far less often than non-Aborigines.
Introducing Aboriginal young people into the criminal justice system early has an enormous, detrimental effect.
"It carries through", Fletcher said. "Once they're in as juveniles, the chances are vastly increased that they'll never really get out. Imprisonment becomes normalised, both for the Aborigines and for the police."
And it seems to be getting worse, as politicians rely more heavily on rhetoric about "getting tough on crime" and as police forces expand their field of operations.
In February 1999, Cunneen wrote a paper for the Aboriginal and Torres Strait Islander Commission in which he criticised politicians' willingness to embrace the harsh "zero tolerance policing" model of the New York Police Department. He said that Aborigines would bear the brunt of a NY-style crackdown on public order offences, just as African-Americans have borne the brunt of it there. This is exactly what has happened.
Bamber says that while zero tolerance policing hasn't officially been introduced in the NT, it may as well have been. Close policing of Aboriginal young people, use of "move on" powers and operations to "clean up the mall" have all increased. "The overall attitude is harsher, more punitive", he said.
"Police have been given a go-ahead by the politicians", Fletcher points out. "Prison is now seen as the answer, and police and magistrates have been given carte blanche to crack down."
Eggington compares the public sympathy for Aborigines at the time of the 1967 referendum on citizenship to now. "We've become scapegoats", he argues. "Our young people, especially, have been labelled as the main cause of social destabilisation and crime."
Eggington points to the WA government's willingness to blame Aboriginal young people for violence on Perth's trains as an example. "They weren't the problem", he says. "The problem was that the government had removed guards on trains, but the story that it was our kids distracted people and the media ran with it."
Deaths in custody
The ever-harsher policing is making life hell for many Aborigines. And it's costing lives.
Sheldon says he and his colleagues had discussed the probability that, as a result of the rising indigenous imprisonment rate, some day there would be a suicide in custody as a result of the NT's mandatory sentencing law. He wasn't surprised when, on February 10, a 15-year-old Aboriginal youth hanged himself in the Don Dale Juvenile Detention Centre.
Just as the indigenous imprisonment rate has increased, so too has the number of Aboriginal deaths in custody. According to an October report by the Australian Institute of Criminology, there were 120 deaths in custody between May 31, 1989 and September 30, 1999. By contrast, the Royal Commission into Aboriginal Deaths in Custody investigated 99 deaths between 1980 and May 31, 1989.
The number of deaths in prison has doubled during the 1990s, from 39 between 1980-89 to 88 from 1990-99. In the decade before the royal commission, 12.1% of deaths in custody were Aboriginal; in the decade after, this figure was 14.7%.
Ray Jackson has just completed a report on Aboriginal deaths in custody for the NSW Deaths in Custody Watch Committee. He believes the increase in deaths is directly attributable to "law and order" policies such as mandatory sentencing, which are directly contrary to the recommendations of the royal commission.
The commission called for major changes to the way Aboriginal people connect with the criminal justice system, including using prison as a last resort, using non-custodial sentences more as alternatives to incarceration, ending imprisonment for minor offences and empowering Aboriginal communities to have their own say on justice matters.
"The royal commission's recommendations have hit a brick wall", Jackson told Green Left Weekly. "For all intents and purposes, the recommendations do not exist, they may as well have never been written. Governments have lost the plot and lost the will to carry them out."
But according to Bamber, "The increasing incarceration of Aborigines is not an unfortunate side effect. The laws which enact these [tougher law and order] policies were introduced in full knowledge that they would increase the numbers in jails and that the vast majority of the increase would be Aborigines.
"I've even read Office of Corrections documents which predict exactly that. They've just built a new prison in Alice Springs and they seem determined to fill it."