Racism in Australia’s criminal justice system

The clock has been turned back on racial progress in America, though scarcely anyone seems to notice. All eyes are fixed on people like Barack Obama and Oprah Winfrey who have defied the odds and achieved great power, wealth and fame

Michelle Alexander

Michelle Alexander former director of the Racial Justice Project of the American Civil Liberties Union (ACLU) argues persuasively in her recent book The New Jim Crow: Mass Incarceration in the Age of Colorblindness the majority of young black men in large American cities are “warehoused in prisons” (their labor no longer needed in the globalized economy) or, after having criminal records and labeled as “felons”, permanently trapped in a second-class status. The communities of color are targeted and decimated by the U.S criminal justice system, with the War on Drugs being the primary tool chosen by the establishment intent on continuation of many of the traditional and new forms of discrimination, discrimination, which according to the conventional point of view, had mostly ended with the Civil rights movement reforms of the 1960s.

The fact that more than half of the young black men in any large American city are currently under the control of the criminal justice system (or saddled with criminal records) is not – as many argue – just a symptom of poverty or poor choices, but rather evidence of a new racial caste system at work

Alexander sees the masses of ordinary African Americans as being relegated to the status of a “racial caste”, even though the official approach to dealing with the minorities has been redesigned, to avoid explicit use of racial attributes. According to Alexander, the forms of “racial control” evolve as required by changing political circumstances and contemporary standards, with the current “criminal justice” activities replacing the Jim Crow laws, which in turn had replaced slavery.

Jim Crow was the name of the racial caste system which operated in the United States primarily between 1877 and the mid-1960s. Jim Crow was more than just a series of rigid anti-Black laws. It was a way of life. Under Jim Crow, African Americans were relegated to the status of second class citizens. Jim Crow represented the legitimization of anti-Black racism. Jim Crow mandated de jure racial segregation in all public facilities in Southern states of the former Confederacy, with a supposedly “separate but equal” status for black Americans. The separation led to treatment, financial support and accommodations that were usually inferior to those provided for white Americans, systematizing a number of economic, educational and social disadvantages. De jure segregation mainly applied to the Southern United States. Northern segregation was generally de facto, with patterns of segregation in housing enforced by covenants, bank lending practices, and job discrimination, including discriminatory union practices for decades.

In January 1964, President Lyndon Johnson met with civil rights leaders. On January 8, during his first State of the Union address, Johnson asked Congress to “let this session of Congress be known as the session which did more for civil rights than the last hundred sessions combined.” On June 21, civil rights workers Michael Schwerner, Andrew Goodman, and James Chaney disappeared in Neshoba County, Mississippi. The three were volunteers aiding in the registration of African-American voters as part of the Mississippi Summer Project. Forty-four days later, the Federal Bureau of Investigation recovered their bodies, which had been buried in an earthen dam. The Neshoba County deputy sheriff, Cecil Price and 16 others, all Ku Klux Klan members, were indicted for the crimes; seven were convicted.

On the back of the events in Neshoba County President Lyndon B. Johnson pushed Congress to pass the Civil Rights Act of 1964. On July 2, President Johnson signed into force the Civil Rights Act which invoked the commerce clause to outlaw discrimination in public accommodations (privately owned restaurants, hotels, and stores, and in private schools and workplaces). This use of the commerce clause was upheld in Heart of Atlanta Motel v. United States 379 US 241 (1964). This was followed by The Voting Rights Act of 1965 which ended legally sanctioned state barriers to voting for all federal, state and local elections. It also provided for Federal oversight and monitoring of counties with historically low voter turnout, as this was a sign of discriminatory barriers. Thus died Jim Crow, but did it?

Alexander argues and justifiably so, that Jim Crow has been replaced by the criminal justice system which is used to remove young black males and other ‘undesired’ elements from white society and ‘warehouse’ them in the country’s prisons which in turn become a de facto tool for racial control. What relevance does this have for Australia?

The biggest crime in the Australian criminal justice system is that it is a race-based institution where Aboriginal and Torres Strait Islander (“ATSI”) Australians are directly targeted and punished in a much more aggressive way than white people. Saying the Australian criminal system is racist may be politically controversial in some circles. But the facts are overwhelming. No real debate about that. Below I set out numerous examples of these facts.

The question is – are these facts the mistakes of an otherwise good system, or are they evidence that the racist criminal justice system is working exactly as intended? Is the Australian criminal justice system operated to marginalize and control Australia’s ATSI population?

Between 2000 and 2008, the imprisonment rate for Indigenous Australians increased by 34.5 percent (Australian Bureau of Statistics 2008). In 2000, the imprisonment rate was 1,653 prisoners per 100,000 Indigenous adult population, which increased to 2,223 prisoners per 100,000 Indigenous adult population in 2008. The increase in imprisonment rates for Indigenous people was almost seven times that of non-Indigenous people in the same period. This represents a five percent rise in incarceration rates for non-Indigenous people when comparing the two groups and an increase from 123 per 100,000 adult population in 2000 to 129 per 100,000 adult population in 2008. In 2000, Indigenous people were 13.5 times more likely to be incarcerated than non-Indigenous people and this rose to 17.2 times more likely in 2008.

The situation for Indigenous Australian’s hasn’t improved in the intervening four years between 2008 and 2012. Aboriginal social justice commissioner Mick Gooda is reported in yesterday’s Herald Sun newspaper as saying that indigenous youth incarceration rates were particularly dire.

It’s going through the roof in this country, and if we don’t do anything about it we’ll lose another couple of generations

Mr Gooda highlighted Western Australia as a jurisdiction that was jailing scores of Aboriginal people for minor traffic offences or not paying fines.

When was the last time a white Australian was jailed for not paying a fine or for a minor traffic offence? My guess would be a long time ago! What does society gain by jailing people for minor infractions? The same thing that the United States achieves by jailing large numbers of African-Americans – the ‘warehousing’ of society’s undesired elements away from mainstream society. This is nothing short of a de facto form of racial control. It’s a non-subtle way of saying “we don’t want those people here!” only problem, unlike refugees, we were here first, we can’t be sent to a remote atoll in the Indian Ocean leaving the only viable alternative as incarceration.

In fact, at the same time that the western Australian criminal justice system is jailing scores of Aboriginal people for minor traffic offences or not paying fines, the Australian Capital Territory criminal justice system and the Australian Federal Police are actively protecting white Australians accused of much more serious crimes than minor traffic offences or not paying fines. In February 2000 Cathy Kosmidis, then a personnel officer with the Australian Capital Territory Department of Urban Services wrote to the former Commissioner for ACT Revenue stating in part:

Specifically you are reminded that you cannot use any information you gained in the course of your employment regarding the possible illegal transfer of ACT Government assets to the Marrickville Branch of the Australian Labor Party, [a named Sydney brothel] or the New South Wales [named NSW Minister of the Crown].

(Cathy Kosmidis, Personnel Section, ACT Urban Services
Page 1 of 2 & Page 2 of 2)

While Western Australia is jailing scores of Aboriginal people for minor traffic offences or not paying fines, the criminal justice system in Australia’s capital sees fit to protect white Australians accused of stealing government assets for party political purposes. Which do you think is the more serious crime?

The de facto Antipodean Jim Crow, or perhaps de jure is the more correct term for it, doesn’t just stop with the incarceration of our people; it goes well beyond that. Indeed the de jure Antipodean Jim Crow is enshrined in the Australian Constitution which fails to mention Australia’s Indigenous people except in the negative. The negative includes not counting us in the census and making provision for the Commonwealth to make discriminatory laws affecting our place in society.

In 1999 the Australian Government held a referendum which proposed to alter the Constitution so that Australia became a republic and insert a new preamble. It was proposed that the new preamble would read as follows:

With hope in God, the Commonwealth of Australia is constituted as a democracy with a federal system of government to serve the common good.

We the Australian people commit ourselves to this Constitution:

proud that our national unity has been forged by Australians from many ancestries;

never forgetting the sacrifices of all who defended our country and our liberty in time of war;

upholding freedom, tolerance, individual dignity and the rule of law;

honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country;

recognising the nation-building contribution of generations of immigrants;

mindful of our responsibility to protect our unique natural environment;

supportive of achievement as well as equality of opportunity for all;

and valuing independence as dearly as the national spirit which binds us together in both adversity and success.

Constitution Alteration (Preamble) 1999

The result was a no vote for both amendments. Amending The Constitution to recognize Aborigines and Torres Strait Islanders as the nation’s first people is again on the table. Perhaps as a nation we have moved on from 1999; only time can tell us if and if so, how far. What is noteworthy on this point is that Canada, a nation which shares a number of similarities with Australia, achieved way back in 1982 that which Australia failed to achieve in 1999. In 1982 the Canadian Constitution was amended to the effect that “the existing aboriginal and treaty rights of the Aboriginal Peoples of Canada are hereby recognized and affirmed.” The existing aboriginal and treaty rights are hereby recognized. This clause goes much further than anything that is currently being discussed in Australia. Perhaps the similarities between Australia and Canada don’t run as deep as I first thought!