The number of indigenous adults held in the nation’s jails has increased for the 11th year in a row, despite the nation’s prisoner population falling for the first time in a decade.

According to the latest Australian Bureau of Statistics data, the indigenous prisoner population increased by 1% in the year to June 2011 while the total prisoner population dropped by 2%. The gap between indigenous and non-indigenous imprisonment rates grew by 0.1%, with indigenous Australians now 14.3 times more likely to be incarcerated than non-indigenous Australians. Today, about one in four prisoners are indigenous even though indigenous Australians make up just 2.5% of the general population.

While the reduction in the national prisoner population makes a welcome change, the fact remains that it has expanded by 30% over the past decade despite falling crime rates across the nation. At first glance, this doesn’t make sense: crime rates have decreased dramatically in the past decade (see the complete data) while incarceration rates — especially indigenous incarceration rates — have continued to climb.

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The problem lies in the common assumption that punishment is a direct outcome to criminal behaviour, says Chris Cunneen, Professor of Justice and Social Inclusion at James Cook University and a criminologist with more than 20 years’ experience in indigenous criminal justice. “Sentencing and imprisonment is not related to crime. It’s a function of government policy,” he told Crikey. “The fact that we’re locking up more people is … really about changes to law and practice.”

Australia is a part of a worldwide trend towards more punitive law and order regimes, Cunneen says. In recent decades Australia has witnessed numerous changes to the criminal justice system, which have helped to push more people into prison than at any other time in history. Among them, the introduction of tougher sentencing laws and practices, limits to bail eligibility and constraints on judicial discretion, while non-custodial sentencing options have been curtailed, rehabilitative programs cut and post-release services reduced.

A 2009 NSW Bureau of Crime Statistics and Research study draws the same conclusions. It found that the rate of indigenous incarceration in NSW (which holds more than one third of the national prisoner population) rose 48% between 2001 and 2008 while the rate of indigenous court appearances and the rate of indigenous convictions both fell in the same period. It concluded that none of the rise was the result of any change in patterns of indigenous offending. Rather, the entire increase could be explained by the increased use of imprisonment (rather than non-custodial options), longer prison sentences, increased rates of bail refusal and longer periods on remand. In other words, more people being jailed and people spending longer in jail.

But there is a bigger picture here that is more just the sum of each of these developments.

“All of these changes in sentencing law or judicial discretion or bail eligibility — things that have had some impact in increasing prison numbers — need to be contextualised within the broader shift of what’s referred to as ‘governing through crime’,” Cunneen said.

Societies governed through crime are driven by a “risk agenda” that concentrates on the risk of crime occurring, not just actual crime. In this society of increased surveillance and heightened fear, “the problem of crime” becomes a central focus. Public “debate” resembles a kind of echo chamber as politicians on all sides converge on the same goal: how best to “get tough” on crime. Punishment, which is increasingly targeted at those at the margins, becomes the most politically expedient response: it allows politicians to look like they’re doing something without the need to consider the longer-term repercussions.

This shift toward the use of crime and punishment as tools of social policy is closely tied to the ascendancy of neoliberalism, according to Cunneen: “The neoliberal approach is one that focuses on retribution and deterrence. It focuses on individual responsibility and accountability, and it downplays any reference to social welfare and social democracy. That focus on individual responsibility and accountability translates very easily to the greater use of imprisonment for longer periods of time.”

The most strongly neoliberal societies — like Australia, New Zealand, Britain and the United States — have sustained some of the highest rises in imprisonment rates since the late 1980s, he says. Meanwhile social democracies with co-ordinated economies — like the Scandinavian countries, for example — have maintained low imprisonment rates through a more welfare-aligned, rehabilitative approach.

“It’s that contradiction about strongly market-driven economies being more likely to have greater levels of unemployment and concentrated disadvantage, and less levels of social welfare support … [It] means they generate a population that’s likely to have high levels of contact with criminal justice agencies,” Cunneen said. “So what do you do … with so-called ‘problem’ populations if you’re ideologically not prepared to take a social democratic, social welfare response?”

The apparent answer and its consequences do not paint a pretty picture. Among them, a grossly inflated inmate population, expanding custodial budgets, deteriorating prison conditions, increasing deaths in custody and spiralling rates of recidivism (55% of prisoners have been previously incarcerated, while 58% of indigenous and 35% of non-indigenous offenders are re-imprisoned within 10 years).

The problems are unlikely to vanish any time soon, since the ballooning prison population has led to more and larger prisons, which in turn has meant fewer custodial and health staff per inmate; greater reliance on technology and electronic modes of surveillance; less human contact; and reduced access to programs aimed at improving inmates’ skills, education and ability to reintegrate — not to mention the repercussions of incarceration for intergenerational dysfunction and cycles of offending.

Ironically, this trend towards mass imprisonment began about 20 years ago, about the same time government pledged to achieve the exact opposite: to drastically reduce levels of incarceration in line with the recommendations of the Royal Commission into Aboriginal Deaths in Custody. “The Royal Commission into Aboriginal Deaths in Custody reported at a time when the ground had already moved towards more punitive approaches to law and order, and I think that’s a major reason why it’s never had any impact on imprisonment rates,” Cunneen said.

What is clear is that the rise of control through crime has had a profoundly racial dimension in Australia, and the indigenous population has borne the brunt of this, he adds. Although incarceration rates for all Australians have risen over the past decade, the indigenous rate has outstripped the non-indigenous rate by a factor of 11, soaring more than 47% between 2001 and 2011, while the non-indigenous rate grew 4% in the same period.Notably, the two jurisdictions with the highest imprisonment rates — the Northern Territory and Western Australia — also have the largest proportion of indigenous residents. In the NT, where one in three people (32%) are indigenous, the imprisonment rate has risen 46% in the past decade, from 523 prisoners per 100,000 adults (one in 191) in 2001 to 762 prisoners per 100,000 (one in 131) in 2011. In WA, where indigenous people make up 3.8% of residents, indigenous residents are 23 times more likely to be locked up than non-indigenous residents, with one in 26 indigenous adults now behind bars.

Racialised punishment is not unique to Australia but its ferocity surpasses some of the most notorious international examples. In South Africa in 1993, just before the collapse of apartheid, the rate of incarceration for black men was 851 per 100,000 (or one in 118). In Australia today, the imprisonment rate for indigenous men is five times as high, at 4228 per 100,000 (one in 24).

In the US — the world’s leading jailer, where more than one in 100 American adults are imprisoned —  African Americans make up less than 13% of the population, but 38% of the prisoner population (an over-representation factor of three). In Australia, indigenous people make up just 2.5% of the population, but 26% of the prison population (an over-representation factor of 10.4). In the NT, the indigenous population makes up 82% of the prison population; in WA, 38%.

In societies governed through crime, race is a marker of “risk”, a label identifying certain groups as dangerous and therefore deserving of different forms of control and punishment.

“Mass incarceration has been used to frame African-American incarceration in the US … So if they have mass incarceration, what do we have? We have hyper-mass incarceration of indigenous people,” said Charandev Singh, a paralegal and campaigner against racialised punishment and deaths in custody, who has worked with indigenous and non-indigenous families in coronial inquests for about 18 years. “We have the most incarcerated indigenous people in the world.

“This is about the intensity of racialised punishment in Australia and the denial of the racialised nature of that punishment … Every regime of law and order, from mandatory sentencing to the expansion of prisons to expansion of police powers and then the expansion of [NT] intervention laws, is really a form of racialised politics — predatory racialised politics — that has a long and continuing history in this country.”


Incomprehensibly, under current Closing the Gap policy arrangements, the “strategic area of action” most relevant to indigenous incarceration and justice — called the Safe Communities “building block” — is the only one out of seven that is not supported by specific targets or a National Partnership Agreement, and therefore has no funding.

“Federal government policy is about closing the gap in terms of health and mortality, but issues around the criminal legal system and its devastating impact on indigenous people’s lives, health, education and employment don’t form part of that policy equation. They must,” Singh said. “There’s nothing more devastating than being a victim of family violence and then going to prison and being a victim of state violence, and then being spat out again.”

Despite repeated promises to reduce indigenous over-representation in prisons — the latest federal commitment made last month — the solution actually offered by government is just more of the problem itself, Singh says.

“Predatory race politics positions more incarceration as a response to the harm of mass incarceration, and greater levels of intervention and control as a response to the harms of dispossession and dislocation … so naturally, things are going to get worse,” he said.

Tomorrow: “governing through crime” and how policies actually target indigenous people

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Peter Fray
Peter Fray
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