“I find it shocking that we are better at keeping our young people locked up in detention than in school.” Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda in a recent Amnesty International report on Australia
The disproportionate rates of incarceration are usually a result both of the ongoing, largely unaddressed impact of colonial policies and practices that have marginalized and impoverished Indigenous peoples and of the systemic discrimination and bias that continue to face Indigenous peoples in justice systems that remain foreign to their cultures and values.
These factors play out at every point of contact between Indigenous people and the justice system. And the problem is especially acute for Indigenous youth.
The experience in Canada
Numerous studies in Canada demonstrate that Indigenous women and men are more likely to come into negative contact with the law whether by committing a crime or being suspected of a crime, are more likely to face charges when there is discretion about whether or not a charge should be laid, are likely to face more serious charges than other people accused of the same crime, if convicted are likely to be given a longer sentence, and once imprisoned are likely to face stricter security conditions and have less access to rehabilitative programs and to parole.
These factors also mean that Indigenous offenders are also more likely to be affected by laws that, based on a history of prior convictions, require either mandatory minimum sentences or which allow for indeterminate, potentially lifelong sentences such as the dangerous offender designation.
As a consequence, almost a third of all people being placed in some form of custody in Canada are Indigenous, even though Indigenous people make up only 4 percent of the population. And the problem of over-incarceration is especially acute for Indigenous women and youth.
According to a Statistics Canada report, First Nations, Inuit and Métis women account for 43 percent of all women being placed behind bards in Canada,. At the same time, Indigenous girls make up 49% of the young women being placed in custody and Indigenous boys make up 36% of boys admitted to custody.
The over-incarceration of Indigenous youth and adults in Canada has been examined in countless judicial inquiries and other studies from the Royal Commission on Aboriginal Peoples and to the recent summary report of the Truth and Reconciliation Commission (TRC). The TRC summary report released in June, noted, “It is assumed that locking up offenders makes communities safer, but there is no evidence to demonstrate that this is indeed the case.”
The TRC’s Call to Action includes a call for federal, provincial and territorial governments to eliminate the over-incarceration of Indigenous women, men and youth in the next decade, including through greater attention to alternatives to incarceration.
A crisis in Australia
A recent Amnesty International report on the over-incarceration of Indigenous youth in Australia reveals a situation with many direct parallels to Canada. Crucially, the report, called A brighter tomorrow: Keeping Indigenous kids in the community and out of detention, highlights some of the work being done at the community level to develop alternatives to incarceration.
The report looks in particular at the concept of “justice reinvestment”, of focusing more government resources not on keeping increasing numbers of people in prison, but on addressing economic and social needs that contribute to high crime rates, supporting community led safety plans and developing effective alternatives to incarceration that meet the needs of justice and community safety but also increase the likelihood of genuine rehabilitation.
Unfortunately, as the report documents, not only are such initiatives being denied adequate long-term funding, the overall direction of government policy in Australia threatens to make things even worse.
In Western Australia the incarceration rate for Indigenous youth has climbed to the point that Indigenous youth make up 80 percent of young people being incarcerated even though they make up only 6 percent of the youth population.
A critical factor are state laws that require judges to impose mandatory minimum sentences for young offenders in a number of situations. For example, in certain circumstances laws in Western Australia currently require judges to impose a mandatory one year sentence for a third burglary conviction, even where these offenses result from minor or extenuating circumstances, such as stealing food to eat.
The report notes that “Because of these laws, the Children’s Court is prevented from ensuring that detention is a measure of last resort, that the best interests of the child are a primary consideration, and that each child is dealt with in a manner proportionate to their circumstances and the offence.”
Now, the legislature in Western Australia is considering adopting a new Bill that would make things even worse. The government has already acknowledged that by expanding the cases where a mandatory will apply, the Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014 will put more young people behind bars for longer periods.
Amnesty International is calling for the Bill to be rejected and for mandatory minimum sentences for youth to be repealed, in keeping with international human rights standards. You can add your voice here.