Should We Be Following the USA? The Americanisation of the Australian Criminal Justice System

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Australian and US flag put together into a montage

With 5% of the world’s population and 25% of the world’s prison population, America has firmly cemented its position as the leading advocate for mass incarceration.

But with Australia increasingly adopting Americanised law and order approaches, there are serious concerns that we are blindly following in Uncle Sam’s footsteps.

Already, our appalling rates of Indigenous incarceration mirror America’s over-representation of African-Americans in the prison system, and with the recent introduction of tougher bail laws and mandatory sentencing, our prison population is on an upward incline.

This blog looks at the similarities between the Australian and American criminal justice systems, and how our increasingly ‘Americanised’ approach is likely to further impact upon incarceration levels.

Outdated Attitudes

During his 1968 election campaign, U.S. presidential candidate Richard Nixon famously declared, “Doubling the conviction rate in this country would do more to cure crime in America than quadrupling the funds for Humphrey’s war on poverty.”

Nixon was speaking about rival candidate Hubert Humphrey, a liberal politician who called for greater recognition of civil rights and increased spending on social welfare and community housing.

Nixon’s ‘tough on crime’ approach was reinforced when he announced the ‘war on drugs’ in 1971 – a zero-tolerance policy that resulted in soaring rates of arrests and incarceration. Although it was announced more than 40 years ago, the war on drugs is still ongoing and has added greatly to America’s ever-rising prison population.

Although most people now recognise that the war on drugs has been ineffective and even counter-productive in dealing with drug use in society, recent years have seen Australian politicians echo Nixon’s ‘tough on crime’ stance.

The past decade has seen funding for social justice services slashed across the board and diverted towards law enforcement and incarceration. For example, the government has recently announced massive cuts to crucial public legal services, including the Aboriginal Legal Service (ALS) and Legal Aid, when at the same time dramatically increasing funding to ASIO and other law enforcement agencies.

Services like Legal Aid and the ALS provide vital legal representation to many disadvantaged and vulnerable people who are charged with criminal offences and find themselves up against well-resourced investigatory and prosecutorial bodies. Without publicly funded legal representation, those people will not be able to secure timely representation to fight the charges, and principles of justice including the right to a fair trial will go out the door.

Cuts to public legal services have been complemented by reductions in funding to a range of other community programs, including housing, disability and mental health services, social welfare and education.

But although the ‘budget crisis’ has been used to justify those cuts, it doesn’t seem to have affected funding for law enforcement and incarceration.

This year, the Victorian government spent a whopping $942.1 million on prisons – up nearly $200 million from the $746.1 million it spent last year.

Similar increases have been seen across the board, with the NSW government spending approximately $750 million on imprisoning people last year and pledging an extra $375 million per year towards servicing prisons.

Nationwide, government expenditure on criminal justice – encompassing policing, criminal courts and prison services – has increased by 49% since 2002, and by approximately 10% each year. Of the $15 billion or so spent on criminal justice around the country each year, around 70% is spent on police services.

Discrimination and Disparity

Increased spending on prisons and police, and massive cuts to social services, is just one of many parallels that can be drawn between the American and Australian approaches to tackling crime.

Another similarity is the apparent propensity towards targeting minority groups.

The US has certainly earned its reputation as a country that discriminates against African-Americans. Despite making up only a quarter of the total population, African-Americans comprise around 50% of all prison inmates, and are six times more likely to be imprisoned than white Americans.

The situation in Australia is even more dramatic. While indigenous people make up only 3% of the total population, they represent a massive 28% of the prison population. For young offenders, the statistics are even more alarming – 48% of all juveniles in custody are Aboriginal.

So why are certain ethnic groups more likely to be imprisoned?

A major contributing factor is the ‘overpolicing’ of certain ethnic groups. In America, police departments around the country have come under fire for their discriminatory treatment of African-Americans following the highly-publicised shooting of Michael Brown in August of last year.

Similarly in Australia, police forces have been criticised for disproportionately targeting Indigenous people. Studies have shown that police are far more likely, for example, to confront indigenous people for relatively trivial offences such as offensive language, while they are far more inclined to ‘let it slide’ when it comes to Anglo-Australian people.

Upon confronting Indigenous people, the situation will often escalate, resulting in charges of resisting arrest and assaulting police being added to the mix.

Like many African-Americans, Indigenous Australians often experience entrenched socio-economic disadvantage and extreme poverty. However, it is not only Indigenous people who are targeted by police.

In recent years, police have honed in on members of the Muslim community, especially Muslim youth, under the guise of preventing terrorism. And members of motorcycle gangs have also found themselves under police scrutiny, with police making several arrests in recent months. And the media’s tendency to focus upon ‘undesirable’ minority groups certainly adds fuel to the fire.

Changes in the law

As discussed in several of our blogs, a series of major overhauls to the Bail Act have made it increasingly difficult for people charged with certain offences to get bail. The practical effect is that more people are being held in prison until their matters are finalised before the courts, thereby increasing the prison population.

On top of this, the government has introduced tougher sentences for a number of criminal offences, including mandatory minimum prison sentences for alcohol-fuelled violent assaults. This means that people are being kept locked up in prison for longer.

The combined effect of such changes is that prison populations skyrocket so high that existing facilities become overwhelmed. As a result, the government has been forced to consider re-opening old prisons, or expanding existing ones, and has already pledged millions of dollars towards the construction of portable prison cells.

Why Prison isn’t the Solution

While those advocating a hardline approach to fighting crime tend to support longer sentences, prison is often not the best solution.

For one, prison fails to address the underlying causes of criminal activity – particularly issues that affect minority groups, who often commit crime as a result of socio-economic disadvantage. Rather than steering those people away from a life of crime by promoting education, community housing and social support systems, prisons simply act to further stigmatise, alienate and institutionalise those people which often leads to them coming out worse than when they went in.

Those who are sent to prison have limited contact with their families and community, yet are afforded the opportunity to rub shoulders with other prisoners, forming criminal connections and learning criminal skills which can be used upon release.

Meanwhile, prisoners’ family members and friends are left to support themselves financially and emotionally – which can often exacerbate existing stresses and encourage criminal activity.

Other measures which divert people away from criminal activity, such as Justice Reinvestment, have been implemented successfully in both Australia and the United States.

Despite this, both major political parties appear intent on throwing more and more tax-payer money towards law enforcement and imprisonment, while at the same time cutting funding to projects that address the root causes of crime and support vulnerable people.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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