Don Weatherburn,Arresting Incarceration: Pathways out of Indigenous Imprisonment

Reviewed by: Hilde Tubex, University of Western Australia, Australia

The title of this book does not leave any room for doubt: Weatherburn’s aim is to find pathways out of Indigenous over-representation in prison. He does that in his well-known straightforward, no-nonsense approach, based on evidence that he and others have collected over the years. This approach makes the book very readable and, consequently, well suited for a broad audience: people in the field might know his opinion, but here it is brought together in a solid, well-structured, and carefully constructed argument, for people less familiar with the topic; it is a recommendable introduction to one of Australia’s most pressing penal problems. Let’s have a closer look.

Chapter one takes us straight into the problem: the numbers show that, even from a comparative perspective, including other countries with first nations, Indigenous Australians are the most over-represented group in any national prison population: the national imprisonment rate for Indigenous people is 15 times higher than for non-Indigenous people (ABS, 2013). And the problem is getting worse. Weatherburn identifies six reasons why this should be of concern, but the last one alone is in our view sufficient: we have a moral obligation to care. We owe it to the Aboriginal people. This stems from the history of our colonisation, and the consequences of early settlement, as explained in Chapter two. Based on leading works in this area, Weatherburn summarises how and why Indigenous imprisonment started to rise in the 60s, which became apparent with the systematic publication of prison census data, which since 1967 included Indigenous status. More particularly, the high rate of Aboriginal deaths in prison, and the assumption that this was related to maltreatment or neglect, led to the establishment of the Royal Commission (‘the Commission’) into Aboriginal Deaths in Custody in 1987. This is the actual starting point of Weatherburn’s argument.

In the following chapters, he systematically discusses the Commission’s findings, their reasoning and their recommendations. The Commission concluded that the high frequency of Aboriginal deaths was not explained by a higher death rate but by their over-representation in the prison population. This over-representation was explained not, as had been argued elsewhere, primarily by systemic bias throughout the criminal justice system, but by the social, economic and cultural disadvantages they faced. Consequently, the Commission recommended changes to the operation of the criminal justice system and a range of measures to address Indigenous disadvantage.

And this is where, according to Weatherburn, the Commission went wrong. Instead of investing in understanding and dealing with the salient elements of Indigenous disadvantages, it emphasised a need to empower Aboriginal people, giving them back control over their own lives and communities. However laudable that may sound, according to Weatherburn, ‘The hypothesis that Indigenous disadvantage could be ameliorated through Indigenous empowerment … was an entirely contestable proposition’ (p. 25).

Indeed, despite the subsequent investments and initiatives, and despite a declining number of deaths in police custody, the rate of Aboriginal imprisonment has continued to increase. The general tendency has been to blame the failure on incomplete or inadequate implementation of the Commission’s recommendations. The issue Weatherburn is addressing in this book is whether full and complete implementation of the Commission’s recommendations would have produced different outcomes. According to him, choosing Indigenous empowerment as the way to address Indigenous over-representation in prison was a fundamental mistake, which explains why the policies adopted have not worked.

Weatherburn’s reasoning is based on evidence that shows that offence types and offenders’ criminal histories explain much of the difference in imprisonment rates between Indigenous and non-Indigenous populations. It was increasing crime rates that triggered a more punitive approach and gave way to ‘penal populism’ that impacted on both non-Indigenous and – especially – Indigenous imprisonment rates. Because, and this is the core of Weatherburn’s argument, Indigenous people are more involved in serious, violent crime. Before analysing why this is the case, Weatherburn challenges the thesis of a systemic bias throughout the criminal justice system, blaming the defenders for a lack of evidence or even ignoring the evidence contesting this theory. At this stage, the tone of the argument gets somewhat curt, reminding us of the fact that this debate is longstanding and passionate (e.g., Cunneen, 2006; Weatherburn & Fitzgerald, 2006). Weatherburn acknowledges the impact of colonisation and discrimination, but for him it is not the cause of Indigenous over-representation in the prison, and therefore also not the solution.

Weatherburn’s claim is that Indigenous offending is related to the fact that they are exposed to four criminogenic risk factors: poor parenting, poor school attendance, unemployment and substance abuse. These risk factors, and particularly their presence in an Indigenous context, are abundantly evidenced with research and data. Weatherburn is not afraid to ‘get his hands dirty’ and advocates strategies to address this problem: changing the way the criminal justice system responds to Indigenous offending, and changing the conditions that give rise to Indigenous offending. He goes into great detail outlining how these strategies can be developed and implemented (e.g., defending his thesis that to reduce the prison population it is more effective to invest in rehabilitation than in prevention).

Weatherburn’s argument is very much built on hard evidence, which is barely a reproach in (human) science, but it tends to leave him with a ‘positivist’ image, and that is highly contested in this delicate matter. He is aware of this criticism and has taken the time to assemble the available research in a logical, coherent and pragmatic interpretation of how to address Indigenous over-representation in prison. Whether we agree or disagree with his position, to put it the Ozzie way: in doing so, he did a good job!