A stint in jail

It is often said that it’s time to “come down tough on” juvenile offenders, that a stint in jail would teach these young hooligans a good lesson; that it would teach them respect; that they would learn all about consequences.  But has it been considered just which lessons are taught to young offenders while in prison?

As background:

There are times when things arise from necessity.  In the late 1990s, lawyer David Heilpern was defending a young person and put the argument forward that this young person should not be given a custodial sentence, due to the probability that this young man would be sexually assaulted while in prison.***  The judge requested that Heilpern provide actuarial evidence.  No such study then existed for Australia.

As a consequence David wrote Fear or Favour, this being based on his Honours Thesis.  David’s findings included that 1/4 of male prisoners aged 18 – 25 years had been sexually assaulted, half had been threatened with sexual assault, 2/3rds were fearful of sexual assault, younger prisoners were at greater risk; that most sexual assaults were perpetrated by other prisoners; and that the incidents went largely unreported.  Approximately 66% of all prisoners are aged between 20 and 39 years.

These statistics are horrendous enough, but can you imagine if there was a particular demographic within Australia who are imprisoned at a rate 14 times higher than the white population, this demographic comprising less than 5% of the population (estimated). Now imagine that 59% of juveniles detained in Australia were from this same demographic, meaning that these same juveniles were 28 times more likely to be given a custodial sentence than white juveniles.

Late June last year a report was tabled to the House of Representatives:  Doing Time – Time For Doing.  As well as the above, this report includes that:

  • Between 2000 and 2009, the incarceration rate for Indigenous Australians rose by 66%.
  • Between 2000 and 2010, the actual number of Aboriginal men in prisons rose by 55%, and the number of women rose by 47%.
  • 70% of remote Indigenous adults have hearing loss or problems, but that Australian Hearing, “which provides free treatment for children under the Hearing Services Program, doesn’t visit juvenile detention centres”.                                                    

So why are Indigenous young people imprisoned at 28 times the rate as white kids?  Creative Spirits provides the following:

Non-Aboriginal indifference

Police remain hard-hearted and indifferent to prison rates and, in some cases, to Aboriginal prisoners themselves. The Children’s Court is often being told imprisonment is the only option due to lack of accommodation.

“Incredibly trivial offences”

There is evidence to suggest that police treat Aboriginal people differently for trivial offences, for example some Aboriginal people end up in jail because they did not get the postal notifications of court dates after which bench warrants are issued and bail is unlikely.  Another example is being caught with 1.5 litres of any alcohol including beer in a restricted area carries with it a 18 month jail term.

Peter Collins, Legal Director of Aboriginal Legal Services in Western Australia (ALSWA): 

“Every day of the week we act for Aboriginal people who’ve been charged with disorderly conduct. “Their crime: To swear at the police. They use the F word, they use the C word. Often they’re drunk or affected by drugs or both, or they’ve got a mental illness or they’re homeless or whatever. But it seems to me the only people in this day and age who are offended by the use of the F word and the C word are police. And so these [Aboriginal] people are hauled before the courts for these incredibly trivial offences.”

Lack of understanding of white law

More than 90% of people in Arnhem Land, NT, could not answer basic legal questions.  95% of Yolngu people could not explain the 30 most commonly used English legal terms, such as ‘bail’, ‘commit’, ‘arrest’ or even ‘guilty’. Even 90% of community leaders, school teachers and council representatives had no understanding of these legal terms.

This might explain why in 2008 over 80% of the Northern Territory prison population was Aboriginal. Many of them might as well be innocent because they didn’t understand what ‘guilty’ meant.

Richard Trudgen, CEO of the Aboriginal Resource and Development Services:

“People thought that pleading guilty actually got them through the court quickly and they didn’t go to jail. When they realised what the term guilty meant they were able to identify some of the things that they were convicted of that they never had anything to do with.”

Another reason why Aboriginal people make ‘false’ statements in court is that they are hearing-impaired through a cycle of poor health. There is a clear relationship between hearing loss and early Indigenous justice problems – 90% of Indigenous inmates in Darwin Correctional Centre suffer from hearing loss.

Priscilla Collins, North Australian Aboriginal Justice Agency (NAAJA):  “Half the time our clients break the law because they don’t understand it”.
 

*** Note:  this young offender was given a custodial sentence, was raped while in jail and killed himself upon his release. 

The horrors experienced by many young inmates, particularly those who are convicted of non-violent offences, border on the unimaginable. Prison rape not only threatens the lives of those who fall prey to their aggressors, but it is potentially devastating to the human spirit. Shame, depression, and a shattering loss of self-esteem accompany the perpetual terror the victim thereafter must endure.

Heilpern, David M, “Sexual Assault of Prisoners: Reflections” [2005] UNSWLawJI 17; (2005) 28(1) University of New South Wales Law Journal 286

23 comments on “A stint in jail

  1. Another excellent thought provoking post from Min. 🙂

    I can’t stay today Min, but would add this article to your post.

    Housing and income confusion haunt communities
    http://www.abc.net.au/news/2012-02-21/20120221-ombudsman-on-indigenous-issue-confusion/3842168

    When communities have to deal with profound and complex disadvantage, the last thing their young people need is to be sent to jail at a rate 28 times higher than the rest of the community,

    Sadly the statistics also reflect a higher rate of suicides.

  2. Peter Collins, Legal Director of Aboriginal Legal Services in Western Australia (ALSWA):

    “Every day of the week we act for Aboriginal people who’ve been charged with disorderly conduct. “Their crime: To swear at the police. They use the F word, they use the C word. Often they’re drunk or affected by drugs or both, or they’ve got a mental illness or they’re homeless or whatever. But it seems to me the only people in this day and age who are offended by the use of the F word and the C word are police. ……”

    Well, our Minister for Foreign Affairs uses that sort of language all the time it seems. Maybe he should be arrested for disorderly conduct too. A stint in jail might get him to watch his tongue.

    Sorry, Min, didn’t mean to trivialise your message here. I had lots of Aboriginal kids in my school some thirty years ago. They seemed to me then to get the rough end of justice, but with nothing like the disproportionate rate of imprisonment you’ve quoted here. At the time of the Black Deaths in Custody report I seem to remember the rate of imprisonment for Aborginal people was some fourteen times that of other Australians. Hasn’t that Royal Commission made any difference at all?

  3. Patricia, the answer to that question is no, it hasn’t. This article is from April last year.

    The president of the Northern Territory Law Society says the failure to reduce Aboriginal imprisonment over the last 20 years shows Indigenous disadvantage is the real cause of crime.

    “Many of the recommendations of the Royal Commission were implemented, yet we still see an increase in the incarceration of Indigenous people,” The society’s president Matthew Storey said.

    http://www.abc.net.au/news/2011-04-15/aboriginal-deaths-in-custody-lessons-not-heeded/2614616

  4. Pip, thank you for that link. I saw an interesting article a while back, sorry I’ve forgotten the location. There were 2 newly constructed housing estates (same developer), one had the usual concrete curbing and channeling, nicely presented naturestrips, parks, the houses in the majority brick and tile – the other a gravel road with no curbing or drainage and no naturestrips, the toilets were half done, and the materials used in construction cheap. Guess which one was for the Aboriginal community.

  5. It’s long past time that those that protest the attitude of the Police, get out there and accompany the police in their duties, not for a week or two, but six months to a year, and then give us their appraisal.

  6. Chris, we have a two-fold problem here. Firstly the fact that police are far more likely to send an errant white youngster home in a taxi whereas and indigenous young person will be thrown into the back of the paddy wagon.

    The 2nd is, and this is factual information, not just an opinion, but the sentencing judges are also at fault in handing out custodial sentences regularly to young indigenous people whereas the white youth is given a non-custodial sentence – for the same offence. Some of this is historical, in that often Aboriginals often have extreme difficulty fulfilling bail conditions such as being able to report to police 3 times a week – often due to having little access to reliable transport.

  7. This thread demonstrates another major flaw in our education, training and development systems for a particular group (or maybe the nation) …

    One effective approch would be for courts, police, schools and workplaces, to design and arrange “scenarios and courts” with “experts” to demonstrate and discuss law, terminology, actions and consequences? And then engage parents and children in “roles” … they then begin to “learn” …

    Or group seminars along the lines of … Jeffrey Roberstson’s Hypothetical …

    … my own approach to learning has always been … that people learn best by doing …

    However, if people DO know right from wrong, then it becomes a process of supervision NOT learning …

  8. TB, I would agree with that. The law is certainly an important part of our society and all young people should have at least an overview of how it works. Moot courts are part of criminal law commencing Yr1, therefore a simplified version for senior high school students would work well I think.

  9. Some Aboriginal communities have introduced a very effective form of sentencing: Circle Sentencing.

    Instead of facing the courts they face their family, their elders and the victims. The offender sits in the middle, circled by the ‘tribunal’. It’s a far more harrowing experience that facing a court. It is also far more humiliating. It has acted as a deterrent.

    Having said that, I’m not saying these kids are angels. A lot of them aren’t. I’ve spoken to many Aboriginal elders who are at their wit’s end over the behavior and attitudes of their younger generation. They are appalled at their lack of respect. It is so uncustomary.

  10. Migs, and a deterrent is exactly the “why” for any punishment. Aboriginal people also have a far higher recindivism rate than the white population, which provides proof that jail is not the answer.

  11. Min, the records show that many Aboriginal people are incarcerated for reasons that would not see a white person jailed. Namely, drunkenness.

    I’m sure the colour of my skin has saved me on many occasions, that being the case. :mrgreen:

  12. A few years back the Aboriginal community in Ceduna were frustrated with the anti-social/delinquent bahaviour of their teenangers and worked closely with the community and the police to try and set some initiatives in place.

    Nothing worked.

    They eventually came up with a novel idea. They decided to send for some Kadachi (spelling?) men from the Western Desert, or ‘featherfoots’ as they’re often called to come down and scare the living shits out of these kids. Kadachi are what we might wrongly refer to as witchdoctors. The plan was, that these blokes would drive around until they saw a gang of kids roaming the streets, follow them and do nothing but stare.

    The kids knew who they were. They’d shit themselves and stay home. Problem solved. Crime stopped.

    But then the local cops did a stupid thing. They arrested the Kadachi men one night for drunkedness and they ended up in jail.

    Juvenile crimes started again.

  13. I agree that Aboriginal people are treated differently by the police and the court system. I have phoned the police to report seeing people fighting on the side of the road, and that somebody will end up seriously hurt. The police ask if they are black or white. What should that have to do with it? As it turns out they were black, and the police took their time.

    @ Miglo, good story about the Kadachi men at Ceduna. There should be more Kadachi men doing that to stop anti-social/delinquent behaviour.

  14. Jan, thank you for that. This is the same experience as my daughter in law tells me about. Young kids having an argument and the police will target the indigenous ones.

    It gets to a case of expectations, the black kids already expect to be picked on by the police and so there isn’t much incentive to behave. Mind you Great Nanny Lyn is as good as any Kadachi man, if you’re in strife you have to explain yourself to Great Nanny.

  15. Sadly, once again in the news.

    ABORIGINAL youths are 25 times more likely to be imprisoned than their non-indigenous counterparts, a figure Aboriginal legal activists have called ”shameful”.

    They are also much more likely to be the subject of child abuse notifications and protection orders.

    Australian Bureau of Statistics figures also show that adult prisoners are 18 times more likely to be indigenous than non-indigenous, more than double the figure 20 years ago.

    Here is another reason.

    ”Our people are being on remand for periods of up to 12 or 18 months, waiting for psychiatric assessment, and when they come back to be sentenced, they would never have been sentenced to imprisonment in the first place.”

    http://www.theage.com.au/national/indigenous-jail-rate-shameful-20120305-1ueb4.html#ixzz1oHMlwwWg

  16. Pingback: Abbott picks his priorities | Café Whispers

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