The old New World of criminal justice

There has been a lot of debate about whether the criminal justice system treats all members of society equally. Our international project on the future of criminal justice has found that such disproportionality exists in many countries. Australian Aborigines and Canadian First Nations are the most heavily incarcerated people in the world, making up less than 5 per cent of the population, but about 30 per cent of prisoners.

Why is this so? Are these groups pre-disposed to criminal activity? Is there bias against these groups by individual police or judges? Or is discrimination endemic in justice systems?

International comparisons of criminal justice systems point to entrenched systemic and structural issues in colonised states such as the Unites States, Canada, Australia and New Zealand. As such, this blog focuses on indigenous peoples and descendants of slaves, and how the actions of past generations have shaped and are likely to continue to shape the outcomes of generations to come.

Colonisation is a structure, not an event

Colonisation and the associated act of forced movement of people via slavery created structures which made certain groups (slaves, indigenous people) ‘other’ and ‘criminal’. The structures of colonial and slave states placed slaves and indigenous people outside the protection of the state. Slaves were defined as property, denied basic human rights. The very existence of indigenous people was sometimes denied, or they were treated as fauna.

A cursory study of the history of colonialism reveals high-minded justification for such mindsets. As Winston Churchill said in 1937 to the Palestine Royal Commission:

"I do not admit for instance, that a great wrong has been done to the Red Indians of America or the black people of Australia. I do not admit that a wrong has been done to these people by the fact that a stronger race, a higher-grade race, a more worldly-wise race to put it that way, has come in and taken their place."

The Australian experience

Australia’s Aboriginal people have the world’s highest rate of imprisonment. Australia was colonised from 1788 as a penal colony, partly in response to the U.S. Declaration of Independence in 1776. The British settlers committed great violence against Aborigines, who were considered to have no rights, to be less than human. British sovereignty (the Crown state) was established by applying the doctrine of terra nullius (“land belonging to nobody”). The founding and valid existence of the state required denial of the humanity of Australian Aborigines. The Australian Constitution stated that Aboriginal people were not to be counted as “people of the Commonwealth”.

Only in 1992 did the Australian High Court overturn the doctrine of terra nullius. In the meantime, a raft of legislation had been passed over the 1800s and 1900s which actively sought to exclude Aboriginal people from any benefits of statehood, and was often aimed at removing the right to be Aboriginal; dying out or assimilation were thought inevitable. For example, Australia has long had a practice of removing Aboriginal children from their parents, sometimes at birth, and fostering them into families or institutions. It used to be the case that when Aboriginal children were taken from their parents, they were given a criminal record. This meant that in any subsequent interactions with the police, these children were at a disadvantage, because they were already categorised as criminals.

Culture and incarceration

Cultural differences, specifically the lack of acceptance by members of the mainstream culture of other cultural practices, may be in part responsible for the disproportionate incarceration. In many western countries, authority is given to certain people such as the police, and people familiar with this hierarchy will act accordingly. Different cultural expressions of power can lead to conflict between the state’s officials and minority peoples, where no offence is meant on either side.

In Aboriginal culture prior to colonisation, there was no police force, or jails. Authority was vested in Elders, who both exercise lore and act as guardians for their people. Misunderstandings can arise when Aboriginal youths interact with the police. An Aboriginal youth may instinctively assume that the police exercise their authority in a way similar to their Elders, and that a police officer will act as Elders do, as if they have some (maternal or paternal) responsibility for the youth’s well-being. In contrast, police can take an adversarial stance, because they are dealing with people who are historically outside the bounds of state protection and are intrinsically perceived as ‘other’. Aboriginal youths may assume the police have their interests at heart and talk to the police as they talk with their Elders. Though it is within culture respectful, it can come across as insolence, and lead to confrontation and conflict. 

How the colonial state uses police

Both indigenous peoples and descendants of slaves can feel disenfranchised by states that are founded on denial of their human rights. If the state is constructed from its very creation to oppress certain groups, there is a very real challenge in overcoming attitudes and systems which are part of the fabric of society. If systemic bias is treated as isolated incidents of racism residing in individuals or larger institutions such as police forces, there is potential for those state officials to become as much victims as are the groups over which they exercise power. Diversity and inclusion training and cultural awareness programmes which recommend certain people be treated differently may only inflame the situation, and result in more resentment and polarisation.

Highlighting these issues can be controversial. State representatives and minority people are shackled together in a dance of perpetual conflict, each playing out the structures of colonialism. People who feel that it is their duty to protect the state may feel vilified because of changes in societal values. Many working in criminal justice, and in particular policing, can feel undervalued and under threat. As one Chief of Police told us in our work, “morale is at an all-time low…officers went from being heroes protecting society from COVID-19 to facing abuse and criticism [after global protests]”.

Police and other officials have challenging tasks which expose them to risk and trauma on an everyday basis. Across the world, police have been dealing with complex public order situations, and prison officers have been putting their lives at risk to manage the COVID-19 epidemic. Widespread support for those who stand opposed to police and other actors of the state can seem a betrayal, an attack to those working to uphold the law, sometimes putting their lives at risk.

Nothing about us without us

There is increasing recognition and activity in response to the structural iniquities of our justice systems. In addition to the campaigns to recruit a more representative workforce, many states and countries have seen the introduction of tighter controls around the circumstances in which police stops and searches are permitted. Some of the most transformational approaches have been made in Canada.

The problem with these well-intentioned approaches is that they are again actions of the state upon the people who feel disenfranchised by the state. There is recognition worldwide that the solutions to any People’s issues are often best designed by the People themselves. The lived experience is that a presumption of guilt is inculcated into the justice system for non-white people.

Can we revitalise police forces and other officials so that they see their role as both protecting the legitimate institutions of the state, and also acting to help disenfranchised peoples take their rightful place in society? We need to try something different, because our present approach is not working. A rethink is urgently required.