Mary Spiers Williams is a former legal practitioner in criminal law and lectures at the ANU College of Law in subjects concerning criminal law, social justice, ethics, evidence, law reform and Indigenous perspectives on state law.

This short piece is a polemic, a provocation. The aim is to challenge some of our ‘common sense’ about imprisonment and the criminal justice system more generally, to disturb our fatalism about the numbers of people that we put into penal penitentiary type institutions favoured in Australian states and territories, and to disrupt complacency about the Indigenous Australians who are entangled by the criminal justice system.

What is our problem with imprisonment?

In Australia, the rates at which we incarcerate people is at an all-time high and increasing. At any one time, there are almost 40000 people in prisons and 12500 of them have not been convicted.

The conditions of custody are consistent with the volume of people we imprison: they are punitive. Not every inmate is held in a penal penitentiary style prison, but every jurisdiction in Australia has at least one such facility, and that is where the greatest proportion is imprisoned. These prisons are concrete and steel secure facilities, with no natural horizon. Personal autonomy is nugatory, and daily routines are highly regimented and include long periods locked overnight in shared cells. Overcrowding is a persistent issue. Personal possessions are strictly limited, occupation is participation in prison industry production lines. Education, welfare and other social services tend to be limited. Contact with family is strictly controlled and limited. That we deprive liberty of so many people and additionally punish so many of them in inhumane conditions raises some serious questions about what sort of a society Australia is.

Punishing Indigenous people

Indigenous peoples in Australia are now an estimated about two per cent of the Australian population – unless you are in a prison, in which case it is 28 per cent of the prison population, or worse in a women’s prison where it is now 34 per cent. And if you are a youth detention centre: 54 per cent of detainees are Indigenous. In the Northern Territory, 97 per cent of the children detained are Aboriginal. At any one time in Australia, there are almost 11000 Indigenous people imprisoned; more than 3200 of them are not convicted.

Indigenous people are overrepresented at every stage of the criminal justice system: over-surveillance and contact by police, proportionately more are charged and prosecuted for offences generally but especially in relation to petty public order offences, and so imprisoned without conviction. More Indigenous people are imprisoned than any other cohort – not for longer terms but more often. That this happens ‘systematically’ veils the fact that this system is driven by the discretionary choices of people: it is police who surveil and decide whether to charge, prosecutors determine charges, defence lawyers legitimise the process, judicial officers convict and sentence including order imprisonment, and corrections staff imprison. These people (and I am one of them) can usually justify our decisions and actions within the limited frame of this system.  All this is done by these criminal justice actors for us.

What can these numbers mean?

The overrepresentation of Indigenous Australians in the criminal justice system is so gross that it amounts to racial discrimination. These criminal justice statistics demonstrate consistent and increasing discrimination that negatively affects Australians descended from the original Australians. This type of racism is anti-Indigenous. Discrimination against Indigenous peoples here has been the subject of repeated criticism by human rights organisations and investigators, such as Amnesty International and United Nations Special Rapporteur on the Rights of Indigenous Peoples as recently as April 2017.

The rate of removal of children and the proportion of Indigenous children that are detained in the juvenile justice system is deeply shameful. Detention has a shattering effect on the young person, their families and communities, and will continue to reverberate for future generations. The lived reality that juvenile statistics represent is only just starting to penetrate the awareness of mainstream Australia, as images from Don Dale Detention centre disrupt the complacent and fatalistic discourse that normally accounts for this situation. That discourse is more effective at soothing our conscience about adult prisoners, because of our deeply ingrained ideas about responsibility that are inflected with pejorative attitudes about Indigenous people’s capacity to work, reliability, sobriety, morals, etc. The common sense of this is not so easy to apply to children, for whom we all are responsible.

Making sense of overrepresentation

Many scholars make sense of Indigenous overrepresentation by narrowing their consideration on whether the individual was culpable or deserved to be punished. The criminal justice system is predicated on liberal reasoning, which tends to examine an individual’s culpability for an offence in a limited context. Law is a product of its culture. The frame and perspective of state legal systems in Australia reflect Western mainstream perspectives and tend to privilege the position of the coloniser-settler, and subordinate that of others.

Focussing on the individual so closely allows one to ignore the scale and the pattern of discrimination that is clear when one expands the frame of one’s consideration: the scale of criminalisation of Aboriginal people is startling.  Liberal accounts of individual responsibility cannot explain away the racist effect of criminal justice processes. Criminal justice cannot be considered in isolation from larger social systems and forces that also tend to marginalise Indigenous people, but this is not a reason to deny its racist effect.

Other scholars have expanded their field of inquiry and observed that coincident with criminal offending are poverty, ill health, unemployment, low levels of education (in mainstream schools), and being a victim to crime.  But this scholarship does not explain why as a cohort Indigenous people are so overrepresented. It also does not address the other obvious question – why is it that Indigenous peoples, including those not entangled by the criminal justice system, experience the greatest extremes of that social marginalisation?

Some critical criminologists argue that criminal justice processes are criminogenic, in particular, the use of the prison and the juvenile detention centre. These arguments are complex and are contested by influential conservative criminologists who maintain that the criminal justice system does not criminalise, and rather point to social marginalisation. These concerns in relation to deep social and economic marginalisation of Indigenous peoples are legitimate, but they do not explain coincidences of imprisonment.

The Australian Bureau Statistics found that of all the prisoners released in 2011-2012, 40 per cent of them were sentenced to prison again by June 2013; 46 per cent of them were caught up again in the criminal justice system, and were subject to punishment that was not imprisonment.  It is not possible to say definitively that the penitentiary-style prison causes reoffending; at best, we should be concerned that prison has little impact on diverting people from the criminal justice system, and at worst may even contribute to it.

Prisons cost us more than money

Prisons are extraordinarily costly. We spend $292 per day for each inmate’s on costs. This figure does not include the infrastructure cost. Released inmates suffer poor health, are impoverished and dependent, struggle to reintegrate, de-skilled and institutionalised. Many die soon after release. Their families experience strain and related social dysfunction. This is costly to all of us.

Why do we imprison so many people and why in penitentiary-style prisons?

We know then that prisons are costing us a lot. Why, then, do we persist with the penitentiary -type institution? Are we so addicted to punishment and revenge? Are we bent on perpetuating the deep social marginalisation of those we imprison? Are we prepared to do this even if it means that those we imprison are more likely to reoffend and more seriously? Is it because we feel like we have no other choice, or can’t we imagine any other option?

Imagining an alternative future

This is not an argument about abolition of imprisonment; we need to be able to incapacitate some people for a period, compulsorily removing them from their ordinary social environment when necessary.

This is an invitation to think about how and to what degree we imprison. Do we need to incarcerate as many people as we do?  Do we need to incarcerate the groups of people that we imprison the most, and why do we discriminate most against Indigenous peoples?  Lastly: do the conditions of the penal penitentiary type prison or detention centre cause us and those we imprison more harm than good?

How we answer these questions will say a lot about who are, and who we want to be to each other.