The drivers of stratospheric rates of Indigenous incarceration

                                                            I have been studying how I may compare

This prison where I live unto the world.

Richard II, Act five, Scene one.

 

The Australian Institute of Criminology has just published a research report authored by academics Don Weatherburn, Michael Doyle, Tegan Weatherall and Joanna Wang titled Towards a theory of Indigenous contact with the criminal justice system (link here). In my view, this report represents the most important policy relevant research paper published in relation to Indigenous Australia in recent memory.

 

Over one third of the nation’s prisoners at any point in time are Indigenous. The ABS reports that at any one time, there are around 42, 000 people in prison in Australia, a rate of just over 200 per hundred thousand. Of these, some 14,400 prisoners are Indigenous, a rate of 2,549 per hundred thousand (link here). These data lead inexorably to a conclusion that Indigenous incarceration rates are a national disgrace.

 

Extremely high levels of Indigenous incarceration are directly and indirectly expensive for taxpayers, and impose extraordinary personal costs on those who are imprisoned and their families and on communities. These costs include diminished and constrained life opportunities; the economic and social ramifications of imprisonment; ongoing mental and physical health impairments to prisoners and their families; and ongoing intergenerational trauma. In addition, the opportunity costs (which we might conceptualise as the lost opportunities of high levels of incarceration) on both the Indigenous and mainstream Australian communities, while largely unmeasured and intangible, are bound to be substantial. In these circumstances, addressing over-incarceration of First Nations people should be a major policy priority for governments at all levels. 

 

Of course, under the National Agreement on Closing the Gap, the parties have determined that there is a target to reduce Indigenous incarceration rates. Using a baseline of incarceration levels in 2019, Target 10 aims to reduce the rate of Aboriginal and Torres Strait Islander adults held in incarceration by at least 15% by 2031. This is a pathetically unambitious target, as (on my calculation) it merely aims to reduce the incarceration rate from 2549 per 100k down to 2167 per 100k. This extreme lack of ambition raises serious questions regarding whether the Commonwealth (and its state and territory government partners) were ever serious about addressing the underlying disadvantages arising from this target that the Closing the Gap framework claims to be focussed on.

 

Even so, according to the Productivity Commission (PC) dashboard (link here), incarceration rates nationally have worsened since 2019, albeit there has been improvement in some jurisdictions. Of greater concern, incarceration rates nationally are projected by the PC to continue to rise through to 2031. Given the lack of progress, it is unsurprising to observe that governments have singularly failed to outline a comprehensive methodological model (or hypothesis) underpinning their actions directed at decreasing incarceration rates for Indigenous people.

 

These concerning trends, and the concomitant social and economic pain that they impose on First Nation communities, provide an unassailable rationale for further policy reform and action by governments at all levels. The key question then is what should those policy changes focus on?

 

The AIC Research Paper is framed quite narrowly as a statistical exercise aimed at testing a particular hypothesis. The Abstract to the research paper describes it in the following terms:

The Australian Indigenous imprisonment rate is currently 16.7 times the non-Indigenous imprisonment rate. The leading proximate cause of this over-representation is a high rate of Indigenous arrest. In this report we develop and test a model of Indigenous arrest in which the primary drivers of risk are substance use, stress and trauma, adverse social environment, exposure to arrest, human/economic/social capital, and state/territory of residence. We test the model using data from the 2014–15 National Aboriginal and Torres Strait Islander Social Survey (emphasis added).

 

The following paragraphs are extracts from the Research Paper designed to elucidate its major findings. I strongly recommend that interested readers look at the Research Paper as there is much nuance and detail (including a detailed account of the statistical analyses undertaken) that I have passed over.

 

From the Executive Summary:

Though the point is often overlooked, most Indigenous Australians are never arrested or imprisoned. It is impossible to understand Indigenous over-representation in prison without coming to grips with the factors that differentiate those who are arrested and, in many cases, imprisoned, and the majority who are not. In this report we outline and evaluate a preliminary theory of Indigenous arrest. The explanation we give treats Indigenous arrest as the interplay of two sets of factors, one of which increases the risk of arrest and the other of which reduces that risk. The first set includes factors such as age, gender, psychological distress, membership of the stolen generation, illicit drug use, alcohol use and state and territory laws and policies. The second (protective) set includes social embeddedness, income, school completion, marital status and living conditions that reduce contact with police. We evaluate the theory using the National Aboriginal and Torres Strait Islander Survey (NATSIS), a large nationally representative survey of Indigenous Australians. The results are largely consistent with the explanation we put forward. The risk of arrest is higher for males than females, rises to a peak around 21–30 years, and declines rapidly thereafter. Illicit drug and alcohol use increases the risk of arrest, as does a high level of psychological distress, being a member of the stolen generation, living in a problem-affected neighbourhood and having a higher level of exposure to police. The risk of arrest is lower among Indigenous Australians who are married, who have never been homeless, who have people they feel they can confide in, who have completed school, and who have an income in the top four deciles.

The strongest risk factor is having used illicit drugs and alcohol over the preceding 12 months, which increases the marginal risk of arrest by 14 percentage points…The strongest protective factor is school completion, which reduces the risk of arrest by 7.9 percentage points….Measures to reduce illicit drug and alcohol use, improve school retention and improve economic outcomes for Indigenous Australians are essential if Australia is to achieve any longterm reduction in the scale of Indigenous over-representation in prison(emphasis added).

 

I omit any summary of the model description and the detailed statistical results, though I recommend readers examine Figures 1 through to 4. I have taken the following text from the concluding ‘Discussion’ section of the paper.

Discussion. We set out in this report to test a theory that linked the risk of Indigenous arrest to age and gender, illicit drug and alcohol use, stress and trauma, environmental factors associated with a person’s neighbourhood, state laws and regulations, exposure to police, and human, economic and social capital. Broadly speaking, our findings are consistent with that hypothesis…

As in past studies, illicit drug and alcohol use emerged as having the strongest relationship with the risk of arrest…More than one in 10 of those who do not use illicit drugs or alcohol had been arrested at least once in the past five years, compared with almost a third of those who use illicit drugs and alcohol. The fact that this difference in risk persists over such a long period (35 years), even after controlling for a wide range of other factors, underscores just how large a contribution illicit drug and alcohol use makes to the volume of Indigenous arrests and, therewith, to Indigenous imprisonment (emphasis added) ….

The two strongest protective factors are completing school, which was associated with a 7.9 percentage point (or 35%) reduction in the risk of arrest, and having an income in the top four deciles, which was associated with a 7.4 percentage point (or 33%) reduction in risk…Reducing the risk of arrest by improving Indigenous school completion and income clearly requires a concerted effort to address the sources of Indigenous disadvantage in the home, school and labour market (emphasis added)….

The benefits associated with living in a remote area and having a permanent home are interesting, given that these variables have received little research attention in the literature on Indigenous arrest. Both are strong protective factors. If, as we assume, they measure reduced exposure to police, they suggest that simply being visible to police increases the risk of Indigenous arrest, even if no serious offence is committed. This conclusion is consistent with evidence that police make less use of diversionary alternatives when dealing with minor offences (eg offensive language, offensive behaviour) committed by Indigenous Australians than when dealing with similar offences by non-Indigenous Australians (emphasis added).

 

The authors of the AIC Research report conclude by arguing for better data to enable more rigorous testing of new or alternative hypotheses; for policy to be based more closely upon theoretical analyses of the correlates of Indigenous arrest rates; and finally for the immediate development of policies where their research finding are consistent with rigorous studies of factors that increase the risk of involvement in crime. In relation to these factors, they state:

 Research on illicit drug and alcohol use, school completion, employment and income are just four examples [references removed]. There is no need to wait for further research before developing policies to improve outcomes on these dimensions. Progress on them is essential if we are to achieve any long-term reduction in the scale of Indigenous over-representation in prison (emphasis added).

 

The AIC research paper is valuable precisely because it provides an evidence-based policy roadmap which if implemented would begin to address rising Indigenous incarceration rates. Of course, the policy reforms required will themselves take time to be designed and implemented, tasks which are themselves complex and not without risk of failure. Even when implemented, it will take time for them to gain traction and have an impact. The consequence is that even with the right policy response not only is it highly unlikely that the 2031 target will be achieved, but it is also likely that it will take at least another decade to turn around the current trends.

In these circumstances, what is required is for governments at all levels, and most importantly, for the Commonwealth to first step up and devise and implement the required reforms, and second, to stay the course. This would require the Commonwealth to come clean with the Australian community regarding the extended time frames required and the financial costs and implicit risks in the strategies being pursued.

 

The reason I consider this to be one of the most important policy relevant research papers in recent times for the Indigenous policy domain is that it substantially strengthens the policy case not just for incarceration reform, but for much more ambitious policy action on a range of other fronts, including housing, education, income support and employment policies. In other words, the AIC Research Paper is so much more than a criminological study on Indigenous  incarceration rates. With good policy design, and adequate investment of financial and human resources, each of these policy issues have the potential in their own right to substantially improve the quality of life for hundreds of thousands of the most disadvantaged Indigenous citizens. In turn, the longer term pay-off for the broader society in improved social cohesion and reduced health costs arising from widespread existence of social determinants driving sub-optimal health outcomes will be significant.

 

Yet notwithstanding the clear benefits of addressing these policy issues, our political elites and thus our political system has demonstrated a longstanding and deep-seated aversion to acting in the public interest on these issues. The likelihood that necessary action will now be taken to address incarceration is thus remote. In a very real sense, the nation’s incarcerated, its unemployed, its unhoused and its under-educated citizens continue to inhabit a realm of sustained exclusion. There is no shortage of simplistic and instant solutions: many of us have a predisposition to blame the victim, and notwithstanding the existence of systemic constraints, there is no exemption for anyone from taking responsibility for their own life. Nevertheless, the extraordinary imbalance between government rhetoric and action, and between the preparedness of democratically elected governments to play politics rather than act in the public interest, suggests that there is something very awry in the economic and social governance of the Australian nation.

 

I previously published posts dealing with incarceration issues in 2019 (link here) and 2020 (link here and link here). On re-reading them, what strikes me most is how over the past five years and notwithstanding a change of government in Canberra, nothing has changed. The underlying dynamic of apparent policy intractability and avoidance of responsibility by governments remains ubiquitous and deeply embedded.

 

While the AIC Research Paper is of much wider policy relevance than its title suggests, it does not offer a pre-fabricated policy solution to the policy issues it identifies as crucial. It merely provides a roadmap. Each of the policy areas identified requires innovative and determined policy work at both political and bureaucratic levels to transform the roadmap into real world policy. Yet I fear that without sustained advocacy from Indigenous interests, there will be no appetite within policy circles to begin the journey so persuasively mapped out by the AIC Report authors. Even with Indigenous advocacy, there is no guarantee that policymakers will listen.

 

In other words, for all our self-confidence regarding the seemingly unquestionable merit of our existing systems of democratic governance, it remains the case there exists a substantial ‘underclass’ of excluded citizens, many of whom are Indigenous. This should prompt serious reflection by thinking Australians. Might it not be the case that the deeper drivers of continuing stratospheric rates of Indigenous incarceration can be traced to the self-imposed captivity of mainstream Australians by beliefs and mindsets that refuse to recognise the continuing existence of systemic exclusion embedded in our political systems.

 

25 May 2024

Indigenous Incarceration Update: uncomfortable politics

Uncomfortable time, why camest thou now?

Romeo & Juliet Act 4, scene 5

Indigenous incarceration has been in the news for the last week or so, driven by the upswell in concern internationally of the treatment of African Americans by that nation’s police forces. There have been numerous articles in the media (link here to just one of many) , and the media pressure has led the Federal Minister for Indigenous Australians to issue a statement (link here).

The Minister’s statement is replete with platitudes and rhetoric, and lacks any commitment to new action apart from the suggestion that the refreshed Closing the Gap targets developed in partnership with First Nations interests would include an as yet unspecified target. I recommend readers examine it closely for themselves.

In particular, what is missing is any direct reference to the reform agenda provided by the Australian Law Reform Commission’s 2016 Inquiry into the Incarceration Rates of Aboriginal and Torres Strait Islander People, initiated at the request of the current Government, and undertaken by Judge Matthew Myers, the first Indigenous judge appointed to the Federal Court.

My April 2020 post (link here) on the lack of implementation commitment and action by the present Government on this issue is a stark reminder of what is at stake. As I stated in that post (do read the full post):

What is crystal clear is that two years on, the Australian government as well as the states and territories who are primarily responsible for our criminal justice systems have done absolutely nothing.

In his approach to this issue, the Minister for Indigenous Australians (I use his title advisedly) is trying to walk astride a barbed wire fence, one leg on the side of Indigenous Australians, the other leg on the side of a Government determined to manage the issue rather than address its substantive and underlying causes. He must be feeling rather uncomfortable.

Indigenous incarceration reform

Fortune, that arrant whore,

Ne’er turns the key to the poor

King Lear, Act 2, scene 2.

Hannah McGlade, an academic and member of the UN Permanent Forum on Indigenous Issues (link here) has recently argued (link here) that the risks of COVID 19 in prisons requires the early release of at risk Indigenous prisoners:

With the over-representation of our people in prison, our lives are on the line.

We are calling for immediate early release, particularly of people who are on remand, women who are victims of family violence and sentenced for lesser offences like fines and public order offences, young people and those most at risk of transmitting Covid-19, like elderly and people with health conditions.

McGlade cites similar calls from the Chair of the National Aboriginal and Torres Strait Islander Legal Services (NATSILS), Cheryl Axelby: see NATSILS media release on the COVID-19 crisis (link here). These statements, by focussing attention on Indigenous incarceration, bring into view the deeper and more longstanding issue of Indigenous over-representation in our prisons. McGlade raises the issue in her article, but she is far from alone.

The issue of Indigenous incarceration is of course politically sensitive and complex. It is prone to political manipulation, and self-righteous appeals to law and order, and the propensity of voters to want simplistic solutions to complex problems. There are crimes that require imprisonment, and there is a case for a prison system aimed at deterrence and rehabilitation. The issue with Indigenous incarceration in Australia, however, is that it appears to operate in a structurally discriminatory manner, contrary to the near ubiquitous notion that justice is dispensed without fear or favour.

On Sunday, the Canberra Times ran a full page article (link here) headlined ‘A national disgrace, nobody cares’. The sub-headline in the print edition was ‘Indigenous incarceration is on the rise and government are failing to act on recommendations’. The author, Philip Lee was for five years from 2005 to 2010 Chairperson of the Sentence Administration Board of the ACT (link here). The gist of Lee’s article are two-fold: first, that the statistics on Indigenous incarceration are disproportionate to the representation of Indigenous people in the community; and second, that the recommendations of the 2017 Australian Law Reform Commission Report Pathways to Justice – Incarceration rates of Aboriginal and Torres Strait Islander (ATSI) Peoples (link here) by Federal Circuit Court Judge Matthew Myers, commissioned by the Federal Government three years ago, and delivered to the Government over two years ago, have not been implemented.

Lee cites extensive statistics from the ALRC and other sources; here is just one key paragraph:

The ALRC Report noted that ATSI men are 14.7 times more likely to be imprisoned than non-indigenous men and that ATSI women are 21.2 times more likely to be imprisoned than non-indigenous women. The report also noted that although ATSI adults make up around 2 per cent of the national population they constitute 27 per cent of the national prison population. 

Lee concludes his article with the following assessment:

The Commonwealth government stands condemned for failing to implement the recommendations of an ALRC report on the rate of Indigenous incarceration which it commissioned almost three years ago.

The tabling of the ALRC report in March 2018 somehow evaded my attention, so there was no blog post to record the event. However, I did put up a post in July 2017 on the issue of a Closing the Gap target (link here). I recommend it to readers. One of its key paragraphs stated:

The reality is that where policy challenges are characterised by complex causality, it is most often the case that no single initiative or intervention will of itself be decisive in driving positive change. Moreover, policymakers act within contexts and environments which are constrained: by policy capability, by politics, by resources, and so on. The real world policy challenge is to design a set of incentive structures which encourage policymakers across jurisdictions, and at all levels within jurisdictions, to work on a sustained basis toward the desired outcome.

This blog post was followed in August 2017 by a detailed post (link here) commenting on a Discussion Paper issued by the ALRC. Again, do read it in full. But perhaps the key paragraph for present purposes is reproduced below:

But there is a sense here that the Federal Government may have adopted a strategy of commissioning this inquiry as a substitute for focussed action. Indeed, it is clear from the detailed terms of reference that the policy experts in the Attorney General’s Department already have a pretty good idea of the key drivers of Indigenous incarceration. By commissioning this inquiry, the Government has bought space and time. When the report is finally delivered, it will likely point to the need for joint action by states and territories, and the very complexity of the issues raised will mean that the Commonwealth will be under minimal pressure to drive a coordinated and sustained law reform policy agenda through COAG.

The final ALRC report comprises around 500 pages of detailed analysis, and makes 35 recommendations. It has the benefit of the ALRC’s comprehensive and methodical approach to legal analysis, and draws on the combined expertise of an expert and talented advisory panel of criminological experts. I have not had the opportunity to read it in detail, much less to closely analyse its contents. The data and statistical analysis in Chapter 3 is extremely compelling, and points to deep-seated structural inequities in the administration of justice for First Nations people. I am not able to summarise the level of detail presented in this chapter, but it amounts to a staggering indictment of our treatment of First Nations peoples.

I have made no assessment of the relative importance and significance of the ALRC report’s recommendations, which encompass justice reinvestment, bail, sentencing and aboriginality, community based sentences, mandatory sentences, prison programs and parole, access to justice, Indigenous women, fines and dirvers licences, alcohol, police accountability, child protection and adult incarceration, and criminal justice targets and Aboriginal justice agreements. The Executive summary asserts (pages 35–36) that:

Implementation of the recommendations in this Report will reduce the disproportionate rate of incarceration of Aboriginal and Torres Strait Islander people and improve community safety…. Reduced incarceration and greater support for Aboriginal and Torres Strait Islander people in contact with the criminal justice system will, in turn, improve health, social and economic outcomes for Aboriginal and Torres Strait Islander peoples.

What is not clear from the report is how Governments should priorities the various recommendations. Nor is there any sustained argument (notwithstanding some commentary within the report) that socio-economic disadvantage is itself a driver of high levels of Indigenous incarceration. Nevertheless, it is clear that the ALRC has delivered a comprehensive and cogent report that deserves serious consideration by the Government that commissioned it.

The elephant in the room then is this: why hasn’t the Australian Government responded in any way to the report and recommendations of the ALRC?  Or to put it even more starkly, why wont governments do anything about the over-representation of Indigenous people in our prison systems?

The ALRC website (link here) indicates that the review’s implementation status is ‘partial’ on the basis that the WA Government has announced that it would introduce a custody notification service, a partial implementation of recommendation 14-3. What is crystal clear is that two years on, the Australian government as well as the states and territories who are primarily responsible for out criminal justice systems have done absolutely nothing.

The potential answers to these questions can be framed in multiple ways. Lack of political will, bureaucratic incapacity, ideology, powerlessness, fractured responsibility, constrained resources, etc etc….The question deserves sustained and detailed attention, and the answers too will be shaped by the viewpoints, ideology, background and political perspectives of the person asking. I cannot in a short blog post do the question, let alone the potential answers, justice. Suffice to say that my own view is that Indigenous incarceration rates in Australia are the product of deep-seated structural exclusion. The arguments for the existence of an exclusionary structures are set out in a 2019 paper I co-authored with Neil Westbury (link here).

Instead, I will make just a few tangential comments.

First, put yourself in the shoes of an Indigenous person looking at this process over the past three years. What should they make of it? What does it say about the commitment for reform generally? Should they place any trust in the nation’s governments that there is any substantive commitment to addressing unfair and discriminatory outcomes in social policy?

Second, what does this outcome say about our democratic system? How is it that these issues do not appear to have been raised in a sustained manner in Parliament?

Third, what does it say about the widespread view amongst Australians that we live in a nation where everyone gets a fair go?

We certainly live in a lucky country. Unfortunately, it appears that ones luck depends in large measure on whether you are Indigenous or not.

Food for thought: facial recognition technology and Indigenous incarceration

‘Ye have angels’ faces, but heaven knows your hearts’

Henry VIII, Act three, scene one.

Yesterday’s Australian Financial Review (9-10 February 2019) ran a fascinating article by Mark White (‘Nowhere to Hide’: link behind paywall) on the accelerating spread of facial recognition technology world-wide. In the US, a number of members of Congress recently wrote to 39 law enforcement agencies seeking information on the extent of their use of this technology (link here). In Australia, the Identity-Matching Services Bill 2018 is currently before the Parliament, and according to White, once enacted will create a giant searchable hub somewhat ominously named 'the Capability' by pooling federal and state data bases such as passports and drivers licences. The Bill is currently being examined by the Parliamentary Joint Committee on Intelligence and Security.

The article also mentions that state and federal police currently use facial recognition software in varying degrees, and points to the risk that these new technologies may have adverse implications for individuals when combined with existing watchlists and the like.

I recommend the article as a good introduction to what is clearly shaping as an important privacy issue generally.

However what attracted my attention in terms of Indigenous policy was the following paragraph in the article:

The NSW Police’s secret watchlist, the Suspect Target Management Program (STMP), identifies those believed to be at risk of offending, repeatedly stopping and searching them, and is overwhelmingly made up of Indigenous people.

I am not aware of any public discussion of this issue in policy forums, although I don’t follow NSW politics and policy issues closely. Nevertheless, it raises important issues for policymakers and those charged with oversighting the Executive both at state and at national levels.

In a recent media statement (link here) announcing the release of a report on the implementation of the 1991 Royal Commission into Aboriginal Deaths in Custody, Minister Scullion noted:

Minister Scullion said despite the review’s finding that significant progress has been made in implementing the recommendations, Indigenous people are still over-represented in prisons.

The report reinforces the fact that the vast majority of policy levers that impact on Indigenous incarceration rates remain within the remit of the states and territories therefore we need to continue to work in partnership with all state and territory jurisdictions if we are to achieve meaningful and long term improvements.

Through COAG and Closing the Gap, the Commonwealth remains committed to leading national efforts to reduce the over-representation of Indigenous Australians in prison.

If we were to take this statement at face value, this might be a good time for the Commonwealth to take some action in addressing the apparent over-representation of Indigenous citizens in police watchlists, and to perhaps consider whether there are any new risks for Indigenous citizens imprisonment rates in the new facial recognition technologies being adopted by governments.