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...educational indigenous peoples is indicative of the most marginalized groups globally. (1) As a result, it is not surprising that they are so frequently criminalized. Examples from Canada, New Zealand, and the United States illustrate the point. Criminal justice data show that Maori are overrepresented at every stage of the New Zealand criminal justice system. In 1998, they were 3.3 times more likely to be apprehended for a criminal offense than non-Maori. They were more likely to be prosecuted, convicted, and sentenced to imprisonment. The result was that Maori made up 14% of the general population, but 51% of the prison population. Evidence suggests the gaps are widening, not narrowing (Doone, 2000: 8). In Canada, Aboriginal people comprise three percent of the general population, but Aboriginal offenders make up 17% of inmates in the federal penitentiary system. The situation is even worse in some provincial institutions, particularly in Manitoba, Saskatchewan, and Alberta, where Aboriginal people make up more than 60% of the inmate population in some penitentiaries. In Saskatchewan, for example, Aboriginal people are incarcerated at a rate 35 times higher than the mainstream population (Cunneen, 2001c: 108). In the United States, on any given day an estimated one in 25 American Indians 18 years old and older is under the jurisdiction of the nation's criminal justice system. This is 2.4 times the rate for whites and 9.3 times the per capita rate for Asians, but about half the rate for blacks. The number of American Indians per capita confined in state and federal prisons is about 38% above the national average. The rate of confinement in local jails is estimated to be nearly four times the national average (Greenfeld and Smith, 1999).
This article looks at indigenous overrepresentation in the criminal justice system in Australia and the findings of research on indigenous deaths in custody in the context of the landmark Royal Commission into Aboriginal deaths in custody. Using a number of case studies, the article considers deaths in police custody and in prison, which highlight some of the ongoing issues relating to Aboriginal contact with the criminal justice system, in particular the failure to exercise a proper duty of care, and, more generally, the failure to reduce the levels of criminalization in the indigenous community.
Any discussion of Aboriginal deaths in custody in Australia should begin with the work of the Royal Commission into Aboriginal Deaths in Custody (RCADIC), which was established in 1987 and reported to the federal Parliament some four years later. It was generated by the activism from Aboriginal organizations, including the Committee to Defend Black Rights and Aboriginal Legal Services, the families of those who had died in custody and their supporters. From the early 1980s, a number of deaths in police and prison custody took place, causing serious alarm among Aboriginal communities across the country. In particular, among the deaths were those of John Pat in Western Australia (kicked to death by police after a pub brawl) and Eddie Murray in New South Wales (picked-up by police for public drunkenness and died from hanging in a police cell) (Cowlishaw, 1991).
The Royal Commission found that the high number of Aboriginal deaths in custody was directly related to the overrepresentation of Aboriginal people in custody. However, the Royal Commission also exposed the failure by custodial authorities to exercise a proper duty of care. It found that there was little understanding of the duty of care owed by custodial authorities, along with many system defects in relation to exercising care. There were many failures to exercise proper care. In some cases, the failure to offer proper care directly contributed to or caused the death in custody.
In his report on New South Wales, Victoria, and Tasmania, Commissioner Wootten (1991: 7) noted that "every one of the (18) deaths was potentially avoidable and in a more enlightened and efficient system ... might not have occurred. Many of those who died should not or need not have been in custody at all." He found that "negligence, lack of care, and/or breach of instructions on the part of custodial authorities were found to have played an important role in the circumstances leading to 13 of the 18 deaths investigated" (Ibid.: 63).
The Commission found that the most significant contributing factor bringing indigenous people into contact with the criminal justice system was their disadvantaged and unequal position within the wider society. The elimination of indigenous disadvantage would only be achieved through empowerment, self-determination, and reconciliation. The Royal Commission also found that in the 99 deaths in custody investigated, the Aboriginality of the person was a significant factor, and in some cases the dominant one, leading to the person's placement and eventual death in custody. In almost half the cases, the person had been removed from their families as a child, and a similar proportion had been arrested for a criminal offense before they were 15 years old. In over 80% of the cases, the person was unemployed. In general, those who died had early and repeated contact with the criminal justice system (Johnston, 1991).
The Royal Commission made 339 recommendations to achieve the ends of reducing custody levels, remedying social disadvantage, and assuring self-determination. All Australian governments committed themselves to implementing the majority of recommendations. The Royal Commission also made specific recommendations designed to reduce the occurrence of deaths in custody, including the removal of hanging points from cells, increasing the awareness by custodial and medical staff of issues concerning the proper treatment of indigenous and non-indigenous prisoners, and a greater commitment to cross-cultural training for police, the judiciary, and other criminal justice staff.
The Royal Commission's findings highlight the intersection between the structural conditions of "race," colonialism, and criminalization, as well as the more mundane failings...
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