Australian Criminal Justice System Research Articles

Barriers Experienced by First Nations Deaf People in the Justice System.

Anecdotal evidence strongly suggests that members of the First Nations Deaf community experience more barriers when engaging with the criminal justice system than those who are not deaf. Therefore, our purpose for writing this article is to highlight legal and policy issues related to First Nations Deaf people, including perspectives of professionals working with these communities, living in Australia who have difficulty in accessing supports within the criminal justice system. In this article, we present data from semi-structured qualitative interviews focused on four key themes: (a) indefinite detention and unfit to plead, (b) a need for an intersectional approach to justice, (c) applying the maximum extent of the law while minimizing social services-related resources, and (d) the need for language access and qualified sign language interpreters. Through this article and the related larger sustaining project, we seek to center the experiences and needs of First Nations Deaf communities to render supports for fair, just, and equitable access in the Australian criminal justice system to this historically marginalized group.

Forensic mental health issues for women in contact with the criminal justice system.

This review demonstrates that women who encounter the Australian criminal justice system include some of the most disadvantaged and mentally unwell people in society, particularly Aboriginal women. Women in custody are a heterogeneous group and have different psychosocial needs when compared to male prisoners. The approaches to female offending must address their significant psychosocial and mental health issues at every point of contact with the criminal justice system, be culturally informed and specifically address Indigenous overrepresentation.

Sentencing and the over-representation of people with cognitive disability in the Australian criminal justice system

ABSTRACT People with Cognitive Disability (PWCD) are over-represented in Australian and International Criminal Justice Systems (CJS). Research has focused on the disadvantages experienced by PWCD which bring them into earlier and more continuous contact with the CJS than the general population. There has been little empirical analysis of how sentencing might contribute to over-representation. This article reports on a project which investigated: (1) the characteristics of PWCD who appeared before Queensland courts to be sentenced; and (2) the factors that judges considered during the sentencing of PWCD. An inductive thematic analysis of 34 sentencing remarks transcripts from Queensland’s Supreme and District Courts provided a descriptive overview to address the first component. Themes addressing the second component included: difficulties and disadvantages; capabilities; and the subjectivities of defendants. Interpreted using critical sociological perspectives on punishment, these themes demonstrated how judges navigated a tension between responding to defendants’ needs and protecting the community from a ‘dangerous other’. The community was often prioritised, contributing to the enmeshment of PWCD in the CJS. This adds to over-representation and raises the dilemma of how to respond to community safety concerns while meeting the potentially complex needs of PWCD without drawing them more deeply into the CJS.

Understanding community attitudes toward miscarriages of justice: the role of social characteristics on perceptions of wrongfully convicted exonerees

ABSTRACT Objective: Not all exonerees are perceived equally. Attitudes toward exonerees are negatively impacted by social characteristics, such as race and criminal history; providing significant challenges for exonerees attempting to reintegrate into the community. The present study examined whether exoneree race, gender and criminal history influenced ratings of desired social distance. Method: A community sample of 1043 females and males completed an online survey. Participants were asked to read a vignette of a mock news article that described a wrongful conviction, then complete a desired social distance scale. Exoneree gender, race and criminal history were manipulated in the news article, with a minimum of 120 participants randomised to eight vignette conditions. Results: Exoneree race and the presence of a prior criminal history had significant main effects on participant attitudes regarding desired social distance. There were no interactions between exoneree gender, race and priors, but differences did emerge suggesting differential views of desired social distance for females and older participants when the exoneree had a prior offence. Conclusion: Social characteristics, demographics and individual differences may be particularly important in forming community attitudes toward wrongful conviction. This holds important implications for exoneree reintegration and community attitudes toward the Australian criminal justice system.

What Are We Teaching Future Australian Criminal Justice Practitioners About Lie Detection? A Review of Criminology Textbooks

The use of fallible lie detection methods by criminal justice practitioners contributes to inaccurate convictions. Research suggests that most people believe liars will avert their gaze and display nervous-type behaviors; however, psychological research illustrates that these beliefs are incorrect. Myths about liars’ behavior should be debunked for those seeking careers in the Australian criminal justice system to ensure future law enforcers do not use fallible lie detection methods. However, research regarding what Australian criminal justice students are taught about lie detection is lacking. This study reviewed required textbooks for criminal justice-focused degrees in Queensland, Australia. Ninety-five textbooks were examined, seven discussed deception detection, and only four highlighted issues pertaining to the fallibility of nonverbal lie detection. This study’s findings suggest lie detection is not adequately addressed in criminal justice and criminology degrees. Recommendations are made for inclusion of empirically supported information about lie detection for criminology and criminal justice students.

Skipping straight to the punishment: criminal infringement notices and factors that influence police discretion

ABSTRACT The Australian criminal justice system has witnessed a shift towards out-of-court justice in the form of police-issued penalty notices. The exercise of police discretion in such instances has largely escaped critique, in part due to insufficient executive and judicial oversight of this early stage of decision-making. This article sheds light on factors that influence police decision-making regarding whether to issue a penalty notice for suspected criminal offending. It critiques a unique dataset of interviews conducted with Western Australia police officers to inquire into how police structure their discretion around considerations that include: alleged offender characteristics and attitudes, the purposes of punishment and concerns about resourcing, efficiency and productivity. The article advances scholarly understandings of how the legal and policy structure governing police-issued penalty notices encourages police to differentiate between suitable and unsuitable candidates for fines.

Overrepresentation of Young Indigenous Offenders: Differences in Criminogenic Risk/Needs and Implications for Practice.

Indigenous youth are overrepresented in the Australian criminal justice system, yet little is known about how they differ from non-Indigenous youth in terms of criminogenic risk and need profiles in relation to reoffending. The aim of the study was to examine the differences between Indigenous and non-Indigenous youth in terms of criminogenic risk and need profiles. This paper expands on findings of our previous study. and present the results of two analyses. The first is a comparative analysis of the differences in criminogenic risk and need factors in a sample of 4,653 youth. Results raise questions about how Indigenous and non-Indigenous youth differ on type of criminogenic needs and how risk/needs are defined in an Indigenous context. The second analysis examines the predictive validity of a shortened version of the YLS/CMI in a subsample of 921 youth. Results show that a specific combination of five items for Indigenous youth corresponds to an improvement in AUC scores from c. = 0.65 for the full version to c. = 0.73. For non-Indigenous youth, the selected set of five items corresponds to an improvement in AUC scores from c. = 0.66 for the full version of the YLS/CMI to c. = 0.73. Implications of these findings for research, policy, and reducing Indigenous overrepresentation are discussed.

Validation of the YLS/CMI on an Australian Juvenile Offending Population.

There is a wealth of research that shows juvenile justice systems that utilize structured and validated assessment tools, such as the YLS/CMI, are far more effective at reducing rates of recidivism than those who do not. In line with this research, the Department of Justice (DoJ) in Western Australia adopted the YLS/CMI as the standard risk assessment tool for evaluating the criminogenic risk and needs of youth entering the justice system. While there is evidence supporting the utility of the YLS/CMI in predicting recidivism, there is little research demonstrating its effectiveness in Australian juvenile populations and no such research in a West Australian population. There is also a lack of research on the utility of the tool with young Indigenous offenders, which is particularly concerning given the significant overrepresentation of Indigenous people in the Australian criminal justice system. Our study was the first to examine the reliability and predictive validity of the YLS/CMI on a sample of West Australian juvenile offenders. In this paper, we present the results of two analyses. The first examines the properties of the YLS/CMI in a cohort of 4,653 juvenile offenders in Western Australia, including factor structure, internal consistency, and differences between male and female youth and between Indigenous and non-Indigenous youth. Consistent with our hypotheses, the tool demonstrated excellent internal consistency (α = .91) and cross-validation analyses identified significant differences between groups on total YLS scores and risk domains. The second analysis examines the predictive validity of the YLS/CMI in a subsample of 921 youth with a minimum follow-up period of 2 years. The overall recidivism rate was 74.8% and there were differences in scores and recidivism rates for Indigenous compared to non-Indigenous youth, although the predictive accuracies in terms of AUC were similar (c. = 0.65 and 0.66, respectively).

The Impact of Offender–Victim Cultural Backgrounds on the Likelihood of Receiving Diversion

The extent to which both an alleged offender and victim’s cultural background influences how one is processed through the Australian criminal justice system is largely unknown. Such information would provide some insight into the extent of discrimination within the system. To address this question, this study aimed to ascertain whether offender/victim pairings across Indigenous and non-Indigenous cultural backgrounds predicted the likelihood of receiving diversion for first-time offenders. The sample comprised 5,616 young people aged between 10 and 17 years, from the state of New South Wales, charged with (a) an offense eligible for diversion, and (b) a crime against a person. Chi-square analyses and binary logistic regression were employed to determine proportions of inter- and intra-cultural offending and the likelihood of receiving diversion dependant on cultural grouping. Results demonstrated that charges for intra-cultural crime (within cultural group) were more likely to occur than charges for intercultural crime (between cultural groups). Indigenous subjects were more likely to receive a court summons. An Indigenous subject charged with an offense against an Indigenous victim was more than 2 times more likely to receive a court summons compared with a non-Indigenous offense against a non-Indigenous victim. An Indigenous suject charged with an offense against a non-Indigenous victim was also more likely to receive a court summons compared with a non-Indigenous/Indigenous offender/victim dyad. Findings indicate that Indigenous status is clearly impacting decisions to divert regardless of the victim’s cultural background. Further research is recommended to explore the situational reasons that underpin decisions to divert on the ground.

Supported Decision-Making in Criminal Proceedings: A Sociolegal Empirical Study

This article outlines a project in which supported decision-making (SDM) and broader support to exercise legal capacity were provided to accused persons with cognitive disabilities in the Australian criminal justice system. The program was developed to advance the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in relation to “unfitness to plead” laws. The researchers collaborated with three community legal services in three Australian jurisdictions. Four nonlegal “disability support people” were trained to work with accused persons alongside legal counsel to maximize their participation in the trial process and avoid the need for unfitness to plead determinations under current laws. The article draws on qualitative research conducted in the form of interviews with clients, lawyers, and support persons. The findings provide an evidence base for implementing SDM for persons with disabilities in the criminal justice system. It also helps answer the question of whether unfitness to plead laws should be repealed in pursuit of a “universally accessible” justice system in line with the CRPD.

Necropolitics and the violence of Indigenous incarceration

Since the Royal Commission into Aboriginal Deaths in Custody, over thirty years ago, there have been over 400 Indigenous deaths in custody, with 28% of the Australian prison population identifying as Indigenous. Indigenous over-representation in the criminal justice system continues to be an unresolved issue despite varying attempts to reduce the high incidence of incarceration experienced by Indigenous Australians. This paper proposes a fresh approach to analysing the violence of Indigenous incarceration using the theory of necropolitics. The paper represents a critical discussion of a work-in-progress of how an analytical framework based on necropolitics has the potential to elevate the often-silenced voices of vulnerable populations, such as Indigenous Australians, within the criminal justice system. This is because the proposed study will present a multi-level analysis of the overt and covert forms of violence perpetrated against Indigenous Australians within the criminal justice system and unlock the potential of exposing the extent to which unequal relations of power contribute to these forms of violence. The significance of this research therefore lies in its capacity to provide policymakers with deeper insights into how such forms of violence impact upon and further disempower Indigenous Australians in the Australian criminal justice system.

Over-representation of indigenous offenders and the consideration of structural circumstances in Australian criminal justice system

Over-representation of indigenous offenders and the consideration of structural circumstances in Australian criminal justice system

Experiences of Abused Muslim Women With the Australian Criminal Justice System.

The confidence of intimate partner violence (IPV) survivors/victims in the criminal justice system (CJS) is important to consider when exploring intervention and prevention strategies toward deterring IPV. Information on the experiences of IPV survivors/victims with the justice system is greatly lacking. This issue is even more so for IPV survivors/victims for minority communities such as Australian-Muslims. The lack of cultural and religious sensitivity that many immigrant women experience with the CJS deters them from accessing the CJS. In addition, the contrast between the mediation processes in courts and those of religious requirements may make the mediation processes ineffective if they do not include the perpetrators in the mediation process. Furthermore, for many migrant women, their lack of knowledge about their rights under the Australian legal system renders them powerless to undertake active action against IPV in their relationships. Due to the lack of research on Muslim women's experiences, it is difficult to ascertain how the justice system response can effectively address IPV issues for Australian Muslim women. It is therefore necessary to solicit Muslim women's views and explore past experiences with the justice system to inform future reforms that will better meet the justice response needs of Muslim women in Australia. This article explores Muslim women's positive and negative experiences with the justice system in response to their IPV victimization. It also investigates the constraints that have deterred Muslim women from seeking assistance from the Australian criminal justice system (ACJS), particularly in the reporting of intimate partner violence. The findings of this research give voice to Muslim women's past experiences with the CJS. It is expected that the findings will influence practical outcomes that can facilitate strategies by the CJS to promote inclusiveness among Muslim women to increase their confidence in the CJS.

Changing the Rules on Bail: An Analysis of Recent Legislative Reforms in Three Australian Jurisdictions

Bail decisions are a high-volume and hugely consequential component of the Australian criminal justice system, and yet, laws governing access to bail have rarely been the subject of systematic analysis. This article sheds new light on how bail laws have changed and what this reveals about how and why governments employ the criminal law as a public policy tool. Working with a dataset of 71 statutes enacted in New South Wales, Queensland and Victoria during the 10-year period between 2009 and 2018, we employ a combination of quantitative and qualitative analysis to illuminate key features and patterns. Our main findings are that bail law remains an active site of statutory reform, and that the object of mitigating harm- risk routinely takes priority over the fundamental rights of the accused. As a consequence, the strong trajectory of contemporary bail law reform has been to restrict rather than expand access to bail.

Implementing a Participatory Human Rights-Based Research Methodology: The Unfitness to Plead Project

AbstractThis article describes a novel action-research methodology that combines aspects of participatory methods and emancipatory principles into a human rights-based framework. The history of these different methods is discussed and the authors then explain how the methods can be combined to create a participatory human rights-based research methodology. This new methodology has the potential for high social impact, community inclusion, and scholarly output. The article also describes the implementation of the methodology on a project which analysed the human rights compliance of unfitness to plead laws in the Australian criminal justice system. This project developed a system of support persons within community legal centres across Australia in order to build an evidence-base for good practice in supporting people with cognitive disability who are charged with a crime. The new participatory human rights-based methodology was successful on this project and is replicable in future human rights research.

When the Line between Victimization and Criminalization Blurs: The Victim-Offender Overlap Observed in Female Offenders in Cases of Trafficking in Persons for Sexual Exploitation in Australia

ABSTRACTThis paper applies the concept of the victim-offender overlap to Australian cases of trafficking in persons for sexual exploitation through an analysis of six cases involving female offenders. To do this, a thematic qualitative text analysis approach is adopted to focus on the judges’ sentencing remarks. Based on this methodology, the paper identifies two themes, categorized as ‘similar circumstances to victims’ and ‘she should have known’. These two themes are linked, and allow us to reflect on the judges’ expectation of behavior by those women who were previously victimized and sexually exploited. This paper argues that such expectation is idealistic, is not supported by the literature on the victim-offender overlap and does not consider the social structural constraints, including lack of opportunities, for a comprehensive exercise of agency by the former victim. Finally, this expectation is formed because the Australian criminal justice system relies heavily on a clear differentiation between the completely innocent victim and the completely guilty offender, despite the identification of an individual as a victim or an offender having significant consequences for how the criminal justice system responds to that individual.

Out of the Shadows: Republican Criminology and the Children of Prisoners

The Australian criminal justice system pays little attention to the impact of imprisonment on prisoners’ dependent children, even though these children are often very vulnerable. In this article, it is argued that the system can better respond to children of prisoners by adopting Braithwaite and Pettit’s theory of republican criminology as a normative framework. Specifically, the relevance of Braithwaite and Pettit’s argument that the criminal justice system should have the maximisation of personal dominion as its primary goal is explored, in terms of its application to the children of prisoners. By orienting the criminal justice system towards this goal, it is possible for the needs of children to be viewed as an integral part of the business of criminal justice rather than as secondary or adjunct considerations.

Three stages in the development of DNA evidence in Australia

ABSTRACTDNA evidence continues to make a significant contribution to the Australian criminal justice system. The techniques used by forensic scientists, and the legal principles governing the collection of DNA evidence and its use in court by law enforcement, have developed considerably since they were first introduced. DNA evidence is continually evolving as new scientific techniques are applied to investigations and presented in court, and new database infrastructure is introduced by government agencies. This paper examines the development of DNA evidence in Australia over the last 30 years. It proposes that this development can be understood as a three-stage process: the first stage, from 1989 to 2000; the second, from 2001 to 2014; and the third, from 2015 to the present. In delineating the development of DNA evidence into three stages, a holistic approach has been taken to describe the scientific development of DNA evidence throughout this period, as well as the associated legal and regulatory framework.

Parole, populism and penal policy

Parole plays a significant part in the Australian criminal justice system. In March 2017, there were over 14,000 people on parole across Australia and, with prison numbers now well over 40,000, this and the number of those eligible for parole are likely to increase.

Maori and Pacific Islander overrepresentation in the Australian criminal justice system—what are the determinants?

ABSTRACTMaori and Pacific Islanders are heavily overrepresented in the Australian criminal justice system. Despite these circumstances, little is known about the risk factors uniquely underpinning their involvement in criminal behavior. A review of the literature discovered that acculturation stressors, widespread educational disengagement, family and cultural disintegration, job insecurity, economic disadvantage, and social service inaccessibility were prevalent issues among both young Maori and Pacific Islander offenders and their communities. The findings signal the need for culturally tailored interventions that divert young Maori and Pacific Islanders from law-breaking behaviors while reconnecting them with family, culture, education, employment, and prosocial activities. Local efforts to address this significant gap in service delivery have been made and are discussed within.