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Opinion article

Costs, consequences and alternatives to imprisoning First Nations people

University of Technology Sydney Faculty of Law Professor, Dr Thalia Anthony, writes that “the momentum of the First Nations Deaths in Custody movement in Australia has provided an opportunity to consider the costs and consequences of incarceration and pave a new path.”

The momentum of the First Nations Deaths in Custody movement in Australia has provided an opportunity to consider the costs and consequences of incarceration and pave a new path.
 
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) pointed out that deaths in custody are intimately connected to the disproportionately high numbers of First Nations people in prisons and police custody.[i]
 
Since then, the proportion of First Nations people in prison has doubled, increasing from 14 per cent of the prison population in 1991 to 28 per cent in 2019.[ii] First Nations people are the most incarcerated people in the world, at rates higher than African American people in the United States.[iii] First Nations lives unnecessarily and tragically taken in custody,  a total of 437 since RCIADIC, are only one feature of the harm and costs of the prison system.[iv] 
 

Imprisonment as a cost to First Nations wellbeing

 
Imprisonment has a deleterious effect on the wellbeing of First Nations people. Incarceration results in “significantly higher morbidity and mortality” as well as “high rates of chronic illness, communicable and non-communicable diseases, poor mental health and substance dependence”.[v] Research by Professor Juanita Sherwood and her colleagues identifies how Indigenous women’s social, cultural and emotional wellbeing is undermined by imprisonment.[vi] The disruptive implications of prison extend to First Nations children and families of incarcerated parents.[vii]
 

Imprisonment as a bar to Closing the Gap

 
The imprisonment of First Nations people is a major obstacle to achieving Close the Gap objectives in Aboriginal and Torres Strait Islander health and education.[viii] A study found that the one in five Aboriginal and Torres Strait Islander males who are imprisoned or have previously been imprisoned suffer from poorer socio-economic outcomes. By contrast, “never-incarcerated Indigenous males yielded aggregate proportions across numerous variables that approximated or matched general Australian population estimates.” Therefore, incarceration is a major factor compromising better outcomes for First Nations people.
 

Economic costs

 
It costs $302 per day to detain one person in prison, whereas it cost $23 per day to sentence a person on a community corrections order. Nationally in 2017-18, expenditure on corrective services was $3.4 billion for prisons, and $0.6 billion for community corrections.[ix] This operating cost excludes in excess of one billion dollars spent on new prisons and youth detention facilities since 2018.[x] During the same period, only $193.3 million was spent on State Owned and Managed Indigenous Housing.[xi]
 

Strategies for reducing imprisonment and strengthening First Nations communities

 
Justice targets
 
The Federal Minister for Indigenous Australians, Ken Wyatt, has reacted to the increasingly publicised harms and costs flowing from imprisonment by commencing a process, initially in consultation with the Coalition of Aboriginal and Torres Strait Islander Community-Controlled Peak Organisations, to set justice targets as part of the Closing the Gap measures.[xii] This implements Recommendation 16–1 of the 2017 Australian Law Reform Commission’s (ALRC) Inquiry into Indigenous Incarceration Rates. News emerging that the target will achieve parity in prison rates by 2093 saw it criticised as “meaningless”.[xiii]
 
Yet the rapid reduction in incarceration rates due to the threat that COVID-19 poses to prisons, resulting in significant drops in prison numbers, demonstrates that with political will the reduction can be rapid and safe.[xiv] It requires reforms, at every stage of the criminal justice system (drafting of laws, policing, bail, sentencing) and resourcing non-custodial, Aboriginal-owned and support-based options.
 
Strategies to clamp down on systemic racism in the criminal justice system
 
Reducing the imprisonment of First Nations people requires strategies to combat systemic racism that contributes their over-representation. On the one hand, this involves introducing monitoring bodies to oversee, hold to account and prevent racism in the police force, the judiciary, the legal profession, in juries, probation and parole and corrections.
 
On the other hand, it requires governments and institutions supporting alternatives to standard criminal justice responses. For instance, supporting:
  • Aboriginal Community Patrols, which have a long history in Australia, dating back to the 1980s, of upholding the safety and wellbeing of Aboriginal communities
  • First Nations sentencing courts, which exist in small pockets in most states and territories. These courts engage First Nations Elders, family, victims and support people to determine appropriate outcomes for defendants, including support programs and access to services. They have been proven to lower rates of imprisonment for First Nations people in NSW. However, there is a need for their expansion, including by heeding calls for a Walama Court in the NSW District Court
  • Aboriginal Community Justice Reports that are prepared by First Nations organisations and provide background information on the First Nations person, their family and community, including their experiences of systemic racism, and account for their social, cultural, emotional and physical needs. The ALRC Inquiry into Indigenous Incarceration recommended that these reports be established in partnership with relevant Aboriginal and Torres Strait Islander organisations.
 
Justice reinvestment
 
Justice Reinvestment diverts expenditure from criminal justice to measures to strengthen communities. It has been described in the United States as a model that is “fiscally-sound” and “data driven”, and is directed towards breaking the cycle of criminalisation and making communities safer.[xv] In Australia, Aboriginal organisations have led justice reinvestment initiatives that promote “early intervention, prevention, diversionary and other community development programs.” With limited funding, they have run programs in communities in New South Wales, Western Australia, South Australia and the Northern Territory.
 
The Maranguka Justice Reinvestment program in Bourke NSW in 2017 resulted in government savings of $3.1 million, improved outcomes for young people (e.g. school retention rates increased by 31 per cent) and reduced engagement of Aboriginal people in the criminal justice system, with police charges for young people falling 38 per cent, adult bail breaches by 14 per cent and days spent in custody by 42 per cent.
 
The ALRC Inquiry recommended that justice reinvestment bodies be established under First Nations leadership and be funded to promote “community-led, place-based initiatives” as an alternative to imprisonment. Like all recommendations of the ALRC Inquiry and RCIADIC, they need to be implemented holistically, across governments and in a spirit that promotes First Nations self-determination.
 
[i] http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol1/2.html
[ii]https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0~2019~Main%20Features~Aboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20characteristics%20~13
[iii] https://theconversation.com/factcheck-qanda-are-indigenous-australians-the-most-incarcerated-people-on-earth-78528
[iv] https://www.theguardian.com/australia-news/2020/jun/09/black-lives-matter-protesters-referred-to-our-count-of-432-aboriginal-deaths-in-custody-its-now-437
[v] https://onlinelibrary.wiley.com/doi/pdf/10.1111/1753-6405.12892
[vi] https://www.tandfonline.com/doi/abs/10.5172/conu.2013.46.1.83
[vii] https://www.parliament.nsw.gov.au/ladocs/submissions/67286/Submission%20%2011%20-%20Aboriginal%20Legal%20Service%20%20Limited%20-%20Support%20for%20Children%20of%20Imprisoned%20Parents%20in%20NSW.pdf
[viii] https://www.researchsquare.com/article/rs-2563/v1
[ix] https://www.pc.gov.au/research/ongoing/report-on-government-services/2019/justice/corrective-services/rogs-2019-partc-chapter8.pdf
[x] https://www.researchsquare.com/article/rs-2563/v1; https://www.abc.net.au/news/2020-06-25/australias-largest-prison-opens-in-grafton-nsw/12389622 ; http://statements.qld.gov.au/Statement/2019/4/30/palaszczuk-government-announces-historic-new-investment-in-youth-justice-reform
[xi] https://apo.org.au/sites/default/files/resource-files/2019-01/apo-nid217376_0.pdf
[xiii] https://croakey.org/beyond-meaningless-targets-calling-for-real-action-on-prisons-policing-and-injustice/
[xiv] https://www.theage.com.au/national/victoria/shrinking-prison-population-prompts-call-to-rethink-bail-laws-20200617-p553ey.html; https://www.bocsar.nsw.gov.au/Pages/Pub_Summary/BB/Summary-COVID-19-pandemic-and-crime-trends-in-NSW-BB147.aspx
[xv] https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=255505
About the authors
TA

Thalia Anthony

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Dr Thalia Anthony is a professor in the University of Technology Sydney's Faculty of Law. Her expertise is in the areas of criminal law and procedure and Indigenous people and the law, with a particular specialisation in Indigenous criminalisation and Indigenous community justice mechanisms. She has developed new approaches to researching and understanding the role of the criminal law in governing Indigenous communities and how the state regulates Indigenous-based justice strategies. Dr Anthony provides advice and research for High Court cases, appellate court sentencing and bail applications, child protection matters, and United Nations human rights, racial discrimination and torture prevention committees.

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