Inequality in the Criminal Justice system PDF

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An analysis of inequality within the different tiers of the Criminal Justice system...

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Inequality in the Criminal Justice System Issues of inequality deeply affect all levels of the criminal justice system. Within the scope of Australia’s justice system, this essay will focus on how inequality affects Indigenous Australians, ethnic minorities, and those facing socio-economic disadvantage. These inequalities are reflected in several different levels of the criminal justice system. Issues of disproportionate incarceration affect these groups within the policing sector and are related to how the media coverage of certain low-level crimes and communities. Additionally, Australia’s minimal legal support severely disadvantages the financially troubled, reducing one’s chances in court. Many of these inequalities can be attributed to the highly diverse and multicultural landscape of Australia, which unfortunately has led to the rise of many biases and prejudices. Many of the problems within Australia’s procedural justice system however, are exacerbated greatly by intersectional disadvantages. Further, despite the professed universal ‘equal treatment under the law’, this philosophy doesn’t necessarily guarantee the fairest application of justice. Instead, relative justice and a situational based application of the law is required to truly eliminate these inequalities. Before assessing the inequality within the Australian justice system, it is important to breakdown the relevant elements. The criminal justice system in Australia has three main sections (Daly, 2016, p.2). Firstly, is the investigative branch, which includes the police and any other third-party regulatory bodies. This section of the criminal justice system serves two main purposes, enforce the law, and to protect public safety. Many discriminatory injustices pervade the investigative sector, involving the disproportionate incarceration rates of minority groups. The discrimination within the policing sector is strongly related to the theory of moral panics, where the media portrays these minority groups as a “threat to societal values and interests” (Cohen 1972 p.1).

Secondly is the adjudicative branch, which includes the

many levels of our judicial system including applying for bail, criminal trial and applying for an appeal. This section serves to fulfil the statutory right to a fair trial, pursuant to the 1

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Observance of Due Process of Law Act (1368). Economic hardship, however, can detrimentally impact one’s access to a lawyer, severely disadvantaging one’s ability to defend themselves in court. Thirdly is the correctional branch, which includes prisons and rehabilitation facilities. The level of inequality within prison is not as significant as the other two branches and mostly manifests as a result of police-based inequality. Intersectional disadvantage is central to understanding the impact of inequality within the justice system in Australia. As described by O’Connor (2019, p.1), intersectional disadvantage occurs when a person occupies “multiple disadvantaged demographic categories”, subjecting them to several forms of discrimination. This category of disadvantage is quite common in Australia and is only further widening the inequality within the criminal justice system, particularly concerning obtaining legal services. For example, many Indigenous and Torres Strait Islander’s also suffer from economic disadvantage. The most recent Australian Bureau of Statistics report in 2015 (National Aboriginal and Torres Strait Islander Social Survey, 2016) stated that the unemployment rate for Aboriginal Australians was 20.6% compared, with the national average of 6.1% (Labour Force, Australia, 2020). The intersection of these two minority groups affects inequalities in both the investigative and adjudicative branch of the justice system – where the specifics of these injustices will be discussed in further detail below. The operation of the criminal justice system’s investigative branch is greatly afflicted by inequality and unequal treatment. The quantitative basis of this judgement will be made on incarceration rates among different minority groups. This is especially true for Indigenous Australians, who are widely accepted as “the most incarcerated people on Earth” (Baldry, 2017, para. 1). Statistically, Indigenous Australians are grossly disproportionately arrested, accounting for only 3% of the population, but comprising 27% of the adult prison population (Prisoners in Australia, 2017, 2017 para. 2). This issue of inequality has only worsened 2

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recently, where the “share of Indigenous adults in prison has more than doubled” (Leigh, 2020, p.10) from 1990 to 2018. Reasons have been posited for the disproportionate rate of incarceration, many relating British settlement and the “long history of dispossession, removal and trauma” (Council of Australian Governments (COAG), 2016, p.17). COAG also states in this report, that the high rates of incarceration are driven by intersectional disadvantages, like exposure to adverse factors including; “child abuse and neglect, intergenerational trauma, alcohol and drug abuse”. Additionally, though to a lesser extent, many migrant groups are also over-represented in prisons. These issues are especially resonant in Australia because of the country’s incredibly ethnically diverse social landscape, with more than 7.5 million Australian residents born overseas (ABS, 2018). This disproportionate incarceration includes the Lebanese (1.6 per 1,000 of the population) and Vietnamese (2.7) community when compared with the Australian born (1) (Collins, 2007, p.8). Chan (1997) claims that “community racism” within Australia is a large contributor to the imprisonment rates, however equally, so is the media and its portrayals of ‘traditional crimes’. Moral panics surrounding “ethnic gangs” depict migrant groups as dangerous and threatening to the general public, like the media’s coverage of the Cronulla Riots in 2005, and the hyper-sensationalised ‘African Crime Gangs’ in Melbourne. The moral panics surrounding these minority groups have contributed to the over-policing of minor crimes and ‘petty theft’ – a major reason why incarceration rates of Indigenous Australians and ethnic minorities continue to rise. The concept of over-policing relies heavily on police discretion, where a conscious executive decision has been made to police Indigenous communities more “intensive[ly] than the policing of non-Indigenous communities” (Cunneen, 2001, p.29). Though the fact of the matter may be that incarceration rates are higher because more crimes are committed by these minority groups, it is the 3

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economic inequality and structural violence present in Australia that is responsible for the clustering of these activities. Crimes like theft are responses to economic troubles and are particularly grouped in areas of lower socioeconomic standards (Merton, 1968). Contrary to this, is the under-policing of corporate and white-collar crimes, crimes involving large corporations and most commonly large sums of money. The issues concerning economic disparity within the function of the criminal justice system are exacerbated by the continued lenient policing of these white-collar crimes (Findlay et al., 2015, p.303). Thus, issues of economic inequality most greatly affect the policing sector of the criminal justice system. Inequality is also prevalent within the jurisdictional section of the criminal justice system. The “right to a fair and public criminal trial” (Fair trial and fair hearings rights, 2020, para. 2) is promised to all Australian citizens and is covered under article 10 of the Universal Declaration of Human Rights, a binding document Australia is expected to follow. However, in Australia the right to legal representation is neither Constitutional or supported anywhere in statute and thus, issues of financial inequality are the most prevalent within the courts. The basis of legal representation in Australia is money, where a lawyer must either be paid for by the client, financially supported by qualifying for Legal Aid to assist the fees for a solicitor. Even with the existence of Legal Aid, not all applications are successful and a ‘cost ceiling’ limits the amount that can be granted per case. Thus, those who are of a lower economic status risk being unrepresented in court, a severe prejudicial disadvantage. A self-represented litigant will potentially suffer from: a lack of knowledge of the law, a lack of knowledge of court procedures and potential mismanagement of their case, with the success rate of selfrepresented litigants is incredibly low sitting at 11.3% in 2013 (McMurdo, 2013, p.5). Therefore, issues of inequality influence the function of the jurisdictional branch of the criminal justice system.

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Despite the existence of inequality within the justice system, an ‘equal treatment before the law’ does not guarantee an equal application of justice. It is the deeply engrained structural violence within Australia that is the crux of many of these injustices within the country’s procedural legal system, including unequal access to resources, disadvantaged communities, deeply entrenched economic disadvantage and historically high crime rates in certain areas. These issues of inequality most greatly affect police made arrests, as this principle decision sits at the base of the criminal justice system. All preceding actions within the justice system are directly affected by police made decisions. Officers are given discretionary powers when it comes to arrests, and in some situations can be used to apply a form of relative justice. Police officers can utilise less punitive measures or avoid penalty completely based on the situation they’re faced with, especially in situations where education or rehabilitation would be more just than a punitive, blatant application of the law, especially in disadvantaged communities with higher crime rates. The PCYC youth support services that focus on education and helping the poor are especially important. These programs involve a unique relationship between the NSW police force and the community, helping “educate young people on the impact of their actions” (Police Programmes, 2019, para. 4) instead of using disciplinary measures that could foster collective hatred towards the police. Thus, an unequal treatment, and utilisation of alternate policing measures, is crucial in keeping an equal operation of the justice system. Undoubtedly, inequality exists within the operation of the criminal justice system, affecting minority groups in Australia. Economic disparity is highly linked with disproportionate incarceration rates of marginalised groups when compared to the policing of corporate crimes. Additionally, the issues of economic inequality are further exemplified within the courts because of Australia’s limited legal aid. Programmes however, that acknowledge this

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inequality and work to educate and help the disadvantaged are helping to improve the function of the justice system in Australia.

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References Abs.gov.au. 2016. National Aboriginal And Torres Strait Islander Social Survey, 2014-2015. [online] Available at: [Accessed 13 May 2020]. Abs.gov.au. 2017. Prisoners In Australia, 2017. [online] Available at: [Accessed 15 May 2020]. Abs.gov.au. 2020. Labour Force, Australia, Apr 2020. [online] Available at: [Accessed 13 May 2020]. AG.gov.au. 2020. Fair Trial And Fair Hearing Rights. [online] Available at:

[Accessed 18 May 2020]. Baldry, E., 2017. Factcheck Q&A: Are Indigenous Australians The Most Incarcerated People On Earth?. [online] The Conversation. Available at: [Accessed 16 May 2020]. Chan, J. (1997) Changing Police Culture: Policing in a Multicultural Society. Cambridge, University Press; Cambridge. Collins, J., 2007. Immigrants as victims of crime and criminal justice discourse in Australia. International Review of Victimology, 14(1), pp.57-79. Cohen, S., 1972. Folk Devils and Moral Panics: the creation of the Mods and Rockers, London Council of Australian Governments (COAG), 2016. Prison to work report. Cunneen, C. (2001). Conflict, politics and crime: Aboriginal communities and the police. NSW, Australia: Allen & Unwin. Daly, K. and Sarre, R., 2016. Criminal justice system: Aims and processes. Crime and justice: A guide to criminology, 5. Findlay, M, Odgers, S, & Yeo, S 2014, Australian Criminal Justice, Oxford University Press, Melbourne. Available from: ProQuest Ebook Central. [21 May 2020]. Leigh, A., 2020. The Second Convict Age: Explaining the Return of Mass Imprisonment in Australia. Economic Record. McMundro, J., 2013. THE UNREPRESENTED LITIGANT ON APPEAL. Australiasian Institute of Judicial Administration Assisting Unrepresented Litigants – A Challenge for 7

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Courts and Tribunals Conference, [online] pp.1-6. Available at: [Accessed 16 May 2020]. jn O’Connor, C., Bright, L.K. and Bruner, J.P., 2019. The emergence of intersectional disadvantage. Social Epistemology, 33(1), pp.23-41. PCYCNSW.org.au. 2019. Police Programs. [online] Available at: [Accessed 29 May 2020].

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