This article originally appeared in The Australian on 28 July 2017.
A report from the NSW Bureau of Crime Statistics and Research shows the incarceration of indigenous Australians in that state has increased by 25 per cent since 2013. The report attributes this rise to more indigenous people being charged with, and imprisoned for, stalking and intimidation offences, defendants spending more time on remand and more breaches of good behaviour bonds and suspended sentences leading to imprisonment.
Recent reforms announced by the NSW government will help. In May, the government unveiled plans to abolish suspended sentences and expand the use of intensive corrections orders, giving judges more options for imposing conditions on low-risk offenders, such as home detention, curfews and movement restrictions.
Breaches of these orders will be punished by swift and escalating punishments, including extra restrictions and the loss of privileges.
Fewer offenders will be imprisoned for minor breaches. The government is also increasing the sentencing discount for early guilty pleas and is changing the way prosecutors manage their cases to reduce the time defendants spend on remand. While not specifically aimed at reducing indigenous incarceration, these changes will go some way to addressing the issues identified in the bureau’s report.
However, these reforms will probably not address the spike in intimidation and stalking offences, nor should they.
Criminal justice reform must always put community safety first. Alternative punishments have been shown to reduce reoffending, making the community safer. Similarly, time spent on remand is most safely addressed by speeding up the judicial process, not by granting higher-risk offenders bail.
Public support for these measures rests on government assurances that the goal of reducing incarceration and its costs is not being pursued at the expense of safety. Therefore, governments must distinguish between violent and nonviolent offenders. Violent offenders need to be imprisoned and reform efforts should focus on those who are not dangerous to the community.
For policymakers, this is where the effort to reduce the indigenous incarceration becomes more difficult. In NSW, and nationally, a large number of indigenous prisoners are incarcerated for violent offences.
Nationally, the most serious offence of 61 per cent of indigenous prisoners was a violent offence, compared with 51 per cent for non-indigenous prisoners.
The number of indigenous prisoners whose the most serious offence was an “act intended to cause injury” was 33 per cent, compared with 17 per cent of non-indigenous prisoners.
In NSW, this gap is narrower — 29 per cent versus 19 per cent — but the pattern holds.
This difference cannot simply be attributed to stalking and intimidation offences, which were the most serious offences of just 25 per cent of those indigenous prisoners in the “acts intended to cause injury” category. And separating out stalking and intimidation is ill-advised anyway.
A further complication is that 74 per cent of indigenous prisoners nationwide have been imprisoned before. Reoffending indicates an unwillingness to change, so isolation becomes the only way to assure the safety of the public.
The solution to the extraordinary level of indigenous incarceration cannot simply be to let violent offenders or recidivists avoid prison. Nor can it be to criticise the police for enforcing the law, especially where, as in the case of stalking and intimidation, the safety of not just the community but of specific people is at risk.
The causes of this problem are complex but certain principles hold true for all offenders. Unemployment and low education attainment are correlated with crime because they increase the marginal benefit of crime while reducing its potential costs.
These factors are particularly acute for indigenous Australians, whose unemployment rate is four times that of other Australians and whose Year 12 retention rates are far lower (which in turn relates to high community levels of drug abuse and family violence). The criminal justice system cannot by itself resolve these issues. It can play a constructive role by including job training and education in punishments, and by securing indigenous communities so that children can complete their education.
There is no short-term way to safely reduce indigenous incarceration. Clever reforms such as those in NSW should help indigenous offenders and defendants.
But building, over the long term, a society open to all Australians based on opportunity, personal responsibility and the dignity of work is the only real solution.