There's Some Hope Behind a Horrifying New Report on Indigenous Incarceration

On June 10, Amnesty International released a report that compiles and analyzes studies, interviews, and testimony on Indigenous youth in the Western Australian justice system.

As the headlines have generally agreed, the report is damning. Its pages detail the ways in which, from arrest to sentencing, WA's justice system is harmfully unfair to young Indigenous Australians. The truth is that no Australian state or territory can describe its justice system as anything but prejudiced. The reason being that Indigenous people are over-represented in every prison population, as well as all other forms of detention.

It's just that certain factors make Western Australia the worst offender. In the 2012/13 period, 62 percent of all young people arrested by police were Aboriginal, and at least 77 Aboriginal boys were in detention at any given time.

The biases of the system are apparent from the very first encounter a young person has with police. This comes through in the way Western Australia deals differently with Indigenous and non-Indigenous lawbreakers. Although the state requires police to consider whether no action, a formal caution, or referral to a Juvenile Justice team is more appropriate than arrest (unless the alleged offense is particularly severe), police members seem to err on the side of doubt far more regularly for Aboriginals.

The 2014 study on Overcoming Indigenous Disadvantage reports that, between 2008 and 2013, non-Aboriginal young people were issued 22,451 cautions and 4,224 were referred to a Juvenile Justice team, while 18,747 were arrested. Amongst Indigenous youths, 10,186 were cautioned and 3,732 were referred to a Juvenile Justice team—leaving 26,837 who were arrested.

A 2008 Australian Institute of Criminology (AIC) study on police cautions and use of diversion programs found that a non-Indigenous offender is less than half as likely to be diverted even when all other factors (aside from identifying as Indigenous) have been taken into account. It also noted that it's "impossible to say" whether or not this is due to discriminatory practices on the part of police.

VICE spoke to Julian Cleary, an Amnesty International Australia campaigner for Indigenous Rights, and asked him if, when it came to this matter, the Western Australian police are guilty of racism. "On the data that we have it looks like there's discriminatory practices being exercised," he said. "But we can't say that for sure."

"We made a recommendation about implementing 'failure to caution' notices because then you have some accountability. Because, okay, maybe there is a very good reason why there's this discrepancy [between non-Indigenous and Indigenous youths] but you actually need to demonstrate that this is not a discriminatory practice."

Not only that but in WA, from 2012-13, the police refused bail for Aboriginal young people 43 percent of the time (37 percent for non-Aboriginal youths). The courts refused bail 25 percent of the time (19 percent for non-Aboriginal youths).

Part of the problem is that, for a child, release can only be granted if a "responsible" person signs an undertaking that the child will comply with the conditions of the bail. In 2013 the AIC noted that this provision disadvantages children from remote and regional areas and "is outside the control of the young alleged offender."

The Amnesty International report outlines the frequent refusal of the Department of Child Protection and Family Support to sign bail undertakings for youth offenders when called upon to do so, even though the Department is empowered to give such undertakings in cases where a suitable adult cannot be found. Department caseworkers effectively refused bail after the magistrate granted it, meaning they second-guess the only opinion that legally matters.

"That's a problem that comes back to resourcing for them." Justin Cleary explained. "[The kids] have got complex needs and the department itself doesn't have access to some of the quite positive supervised bail facilities that exist."

A lack of resources devoted to preventing and diverting offenders away from detention is a common theme throughout the report. In the 2013/14 financial year, WA spent $46.8 million on detention and only $7.83 million on alternatives.

Both major parties of Western Australian politics have sought to stake out a "tough-on-crime" position as it's seen as a vote winner. A big part of the push, and one that draws ire from the Amnesty report, is mandatory minimum sentences for certain crimes.

Mandatory minimums in Australia were called racist by the UN in 2008 as, seemingly like everything else in the justice system, they disproportionately affect Indigenous people. In the US it is fast becoming a truism on both sides of politics that mandatory minimums are unfair and ineffective. Yet when Labor proffered an amendment in WA that would allow a judge to have discretion to ignore the mandatory minimum in cases where the defendant has a mental illness, the Liberal party saw a political wedge to hammer.

Yet despite how this all sounds completely hopeless, the title of the report begins "There is always a brighter future," and its purpose is to inspire hope—to possibly even offer solutions to the endless circle of institutionalized racism.

The broad theory behind Justice Reinvestment strategies is that money and manpower are more effective if deployed through preventative and diversionary programs.

For example, the WA police actually told Amnesty that they're coming into contact with children as young as eight for being out in the streets alone or for low-level theft, in some cases stealing small amounts of food. According to the report, this kind of early contact "increases the likelihood of criminality in adulthood, and the more intensive and restrictive the justice intervention, such as detention, the greater the likelihood of adult criminality and judicial intervention." Therefore, the solution is to divert youths from the justice system early.

The Amnesty report features several case studies of Aboriginal run programs, including an instance where a magistrate in Fitzroy Crossing bailed 15 boys so they could attend a camp run by community Elders of the Yiriman Project. Described as more relevant and intensive than a regular Juvenile Justice order, positive outcomes were detected by the Elders, the families, the magistrate, and the local police. The Elders went on to sit next to the magistrate during sentencing for the 15 boys.

And although Corrective Services have long avoided funding the Yiriman Project and other programs like it, there have been positive talks and a movement towards change.

For people like Justin Cleary, it's these forward movements that offer some hope. "In the Fitzroy Valley for example, the community has brought in everyone from all the different language groups in that area and they're thinking about things in a very holistic way," he says. "This is the benefit of the justice reinvestment approach. It's actually about what happens before contact with the justice system—it looks to the underlying issues."

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