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Book Review Symposium
Justice Reinvestment: Winding Back Imprisonment by David Brown, Chris Cunneen, Melanie Schwartz, Julie Stubbs and Courtney Young, Palgrave Macmillan, 2016, 291pp (ISBN 978-1-137-44910-8)
First I want to say how delighted I am about this piece of work. The book brings together in one place the most detailed and insightful assessment of justice reinvestment that I have read. Its observations about the origination of the idea, its spread in the United States (‘US’) and elsewhere, and the challenges it now poses for penal reformers in my home country, the US, especially are, in my view, spot on. Congratulations to the authors; congratulations and thanks.
One of the most telling aspects of this book’s review of the work in the US is the way in which race, central to the problem of incarceration there, has had so little public consideration in the conversation about justice reinvestment. (By contrast, the direct linkage developed in Australia between the justice reinvestment agenda and the incarceration of Indigenous people is as refreshing as it is impressive.) In the US, the problem of racial injustice as it plays out in the criminal justice system has been like the drunken uncle at the wedding reception — embarrassing, but what can you do about it? Better off to ignore it.
Of course, the veil we have held over the monumental racial disproportionality in the justice system of the US has been shockingly lifted in recent times. For a while now, it has seemed like every week there is another unjustifiable shooting of a young black man by a policeman; every month or so another justice system tragedy for some black man or woman unfairly caught up in the net; every few months another exoneration of someone who spent decades behind bars, framed by the authorities for a crime he did not commit. The collective shame has reached national consciousness, as exemplified by the rocketing speed with which ‘Black Lives Matter’ has become a national call for a new agenda. This is apparent from the way the problem of the oversized prison population, built by decades of false-promise legislating, has become widely accepted by political leadership on the left and the right as a problem to be overcome. Some of the most enthusiastic political expressions calling for a reduction of imprisonment come from the very leaders who gave us those bloated prison populations in the first place. The firmament upon which the policies of mass incarceration are rooted is eroding. Large majorities in places like California and Colorado voted to downgrade the severity of punishments and legalise some acts that used to get people sent to prison. It feels as though we are in the early stages of a tectonic shift in what punishment means in my country. It is long overdue, but it is good to see it happening.
It is worth noting that none of these shifts existed when justice reinvestment was invented as an idea. When Susan Tucker and Eric Cadora originally circulated their think-piece to a few friends for a reaction, prison reform was not high on anyone’s agenda, save the few of us who were appalled at what had happened in the US over the last generation. In that sense, justice reinvestment can be seen as an intervention into a conversation that was going nowhere. Insiders at the inception of justice reinvestment were entirely aware of the racial inequity at the core of the penal system, and hoped to be inventing a remedy to that problem. That is what ‘investment’ meant: to take public money from a failed (and racist) national penal strategy and invest it instead into the very places that suffered the consequences of high rates of incarceration. That rhetoric of injustice underpinned the argument for justice reinvestment from the beginning.
I don’t think we ever said it out loud back when this idea was being born, but in retrospect it is fair to say that the de-emphasis on injustices of race and the reification of justice reinvestment as crime prevention was intended to make the idea of justice reinvestment more palatable to ‘mainstream’ thinkers in the justice policy arena. The need for change, we said, came from the ineffectiveness of the current approach, rather than from its immorality. It is not that justice reinvestment advocates were indifferent to the racial injustice inherent in mass incarceration, but that they (we) calculated an advantage in housing the argument elsewhere. Today, as I comment on this truly wonderful book, I realize that the lens we brought then to the call for a new strategy of penal policy would be quite different today. Openly saying that the way the penal system operates is fundamentally flawed on grounds of racial justice no longer makes one an extremist in the US. Libertarian Rand Paul has said much the same thing, as has the Texan arch conservative, Senator John Cornyn.
Still, justice reinvestment was brought out into the sun by federal policy. There is no coincidence in the fact that justice reinvestment became an official policy of the US Justice Department at a time when both the President and the Attorney General were African American. It is one of the ironies of power that, under a federal leadership more hospitable to the pursuit of racial justice than any other in US history, a policy that could have had such a deep connection to racial inequality was largely cleansed of that concern. Though the founders of the idea saw justice reinvestment through the lens of racial inequality, they did not frame it that way; though federal leadership was the very face of a new era of racial justice, the federal bureaucracy could not advance the idea from that framework.
An equal irony is that those who originated the call for justice reinvestment were so quick to leave the pack as the idea gained steam nationally. I was one of them. The problems with JRI (discussed below) are well described in the book we review here, and the troubled implementation of this new idea of justice was painful to see. The deep split between those who coined the term, ‘justice reinvestment’, and those who championed the practical movement, referred to as JRI, came at a cost to the momentum the idea had developed. A couple of years ago, there was a National Conference on Justice Reinvestment, with a long list of notable speakers. Nowhere to be found: Eric Cadora, Susan Tucker, Todd Clear, Marc Mauer, Judith Green. Some of the most passionate writers about race and justice had no place at the justice reinvestment table. Was this a necessary consequence of the way JRI emerged as a technical, budgetary idea, rather than one housed in fairness and equity? It is hard to say.
In truth, I regret the split. Today, I think we would find it impossible in the US to talk about reducing incarceration rates without including the racially disparate impact of incarceration as a reason of action. Maybe the time was more ready for that kind of thinking back in the early 2000s than we thought. Maybe the US has matured a great deal on this issue in the last few years.
It may also be true that by decoupling the justice reinvestment agenda from the racial justice agenda, we unintentionally laid the groundwork for the long-term irrelevance of justice reinvestment to the movement to reduce mass incarceration. It is disheartening that so many of the people who are leading the charge to reduce imprisonment in the US do not talk about justice reinvestment as a tool in that agenda. Maybe that should not surprise us. Justice reinvestment is alive and well in the US, but it is not at the forefront of current mood to get serious about the shamefully large number of people behind bars. It is not really a way of moving money from prison to communities — savings are ephemeral and, to the extent they occur, they are used to build law enforcement or reduce the tax burden. Where is the justice in that?
Australians working on this problem have done us all a good deed. It is nothing short of spectacular how this idea has proceeded here with fidelity, creativity, and passion for the people and communities who suffer the most at the hands of tough justice. I thank you.
In summary, the book describes: how the concept of justice reinvestment developed and how its usage differs between countries; what a place-based approach means and why the Australian model is so unique in its approach; how measuring outcomes, as always, is fraught with complexities, but how the approach used is also such an important determinant of understanding what does and doesn’t work; and how marginalised and socially disadvantaged groups — those usually affected by policies that lead to mass incarceration — may or may not benefit from a place-based approach to justice reinvestment. After reading Justice Reinvestment: Winding Back Imprisonment, I feel much more at ease as an advocate for justice reinvestment strategies, but I am not sure that I am convinced that it will be the solution to turning (or winding) back the self-perpetuating and ineffective penal justice system that is currently in place. My doubts are not due to any gaps in the book; in fact, I found the book comprehensive and balanced in its presentation of arguments around the suitability and applicability of justice reinvestment in Australia. My doubts are more a product of my own research endeavours and finding, time and time again, that it is so difficult to change a system that is too closely influenced by penal populism, particularly when it comes to marginalised and racialised groups such as Indigenous Australians. I am not sure how we can overcome this, particularly when the authors themselves acknowledge that justice reinvestment is heavily influenced by context. The answer that Brown et al (p 247) provide is that:
justice reinvestment can be an inspiration for a form of locally-based community development strategy utilising enhanced data and identification of local community assets and current forms of service support, conducted initially in the communities of vulnerability which have the highest contact with the criminal justice system.
The latest Report on Government Services published by the Australian Government Productivity Commission shows that on average the daily number of people held in Australian prisons increased by 7 per cent in the last financial year and that the ‘national (crude) imprisonment rate for all prisoners was 190.3 per 100 000 people in the relevant adult population in 2014–15’, which represents a 20.5 per cent increase from a rate of 157.9 in 2005–06 (Productivity Commission for the Steering Committee for the Review of Government Services 2016:8.5). Things do not look promising and it is difficult to believe that the rhetoric of justice reinvestment in Australia is having (or will have) much of an impact. Why is that?
Maybe we need to be patient and recognise that justice reinvestment is still in its infancy here in Australia. Indeed, the Just Reinvest Project in Bourke (Just Reinvest NSW 2016) has only been operating since 2014, when it received funding and in-kind support from philanthropic, corporate and government donors. I do not doubt that good things will happen as a result of an initiative that is community led and owned, and which has the support and backing of the local Indigenous population. But I wonder if the project can or will convince governments to take a social justice approach to crime and punishment and be the inspiration we need to do things differently. I believe that it all hinges on the type and method of data that is collected, and how the program is evaluated.
After researching Indigenous sentencing courts for approximately 15 years, an initiative that I would argue in many localities resembles a justice reinvestment approach to crime and punishment, I have doubts about the influence such programs can have on changing government policy. The formalised use of Indigenous sentencing courts started in 1999 in Port Adelaide when a maverick magistrate, Chris Vass, decided after many years of being on circuit in the Anangu Pitjantjatjara Yankunytjatjara Lands and working in Papua New Guinea that ‘Aboriginal people were getting a pretty raw deal from the justice system as a whole and they mistrusted the system’ (Daly and Marchetti 2012:467). Vass therefore decided to change the way he ran his sentencing court hearings when dealing with Indigenous offenders. After speaking to Aboriginal people living in the area for a couple of years and taking a bottom-up approach, he started what is now referred to as the Nunga Court without seeking government approval. His aim was to make the court room more comfortable for Aboriginal offenders, a place where they could trust the process and be able to speak and have their say in a setting where their family and community members were present. Part of the conversation includes thinking about what local services are most appropriate for a particular offender to support his or her transition from an anti- to pro-social way of living. Within three to four years, similar courts were established in New South Wales, Queensland, the Australian Capital Territory and Victoria. They have appeared and disappeared at the whim of governments in Queensland, the Northern Territory and Western Australia, mainly because the outcomes they are producing do not necessarily accord with what governments and the public believe are the most effective measures of success.
When the overall Australian imprisonment rate for Indigenous people in 2014 was 13 times higher than the aged standardised imprisonment rate for non-Indigenous people (Australian Bureau of Statistics 2014), there is reason to be concerned about the ever-increasing over-incarceration of Aboriginal and Torres Strait Islander people. From my research experience, new criminal justice initiatives introduced to address the over-representation of Indigenous people in the criminal justice system work best when what Brown et al have termed ‘Indigenous democracy’ is allowed to flourish. I’ve seen this illustrated in the context of the Indigenous sentencing courts — when Elders or Community Representatives are respected and are allowed to direct the manner in which the sentencing process (which still sits within the mainstream court system) unfolds. Whether that means dictating which offences should be allowed to come before the court or the extent to which a magistrate and other legal players talk during the process, or how the courtroom is set up or decorated, the Indigenous sentencing court process acquires a cultural authority and power, which can influence an offender in ways a mainstream sentencing process never will. Until you witness the presence of this authority within the courts, it is hard to believe it is there, and the impact of the cultural authority is even more difficult to measure.
It therefore makes sense that the application of justice reinvestment within the Indigenous domain, needs to embrace one of the key principles of the original justice reinvestment process: situating the public policy approach within a place-based, community-driven context that is committed to ‘a process of democratisation and empowerment, the satisfaction of human physical, social and economic needs, and respect for human rights’ (p 103). However, although this looks good on paper, and I know it does work in practice, convincing policymakers of the benefits can be difficult if we do not start measuring things differently. As the authors point out ‘what is measured and what counts as evidence are important considerations with significant implications’ (p 141).
This has been all too evident when it comes to determining what works within the context of Indigenous sentencing courts. Research on the Indigenous courts suggests that community-building aims are typically achieved. Specifically, the courts provide more culturally appropriate processes, increased communication, and community participation — all of which contribute to making the sentencing process more meaningful for defendants and victims. But when it comes to criminal justice aims, particularly reducing recidivism, the findings are not so positive, and this is where the danger lies when implementing innovative culturally appropriate criminal justice programs that nevertheless end up being measured in ways that reflect Western notions of success. The authors note that ‘[j]ustice reinvestment is avowedly data-driven and evidence-based’ (p 141), and that ‘[m]any jurisdictions have inadequate administrative and research data, especially for women, minorities, those with mental illness or cognitive impairment or other vulnerable groups, and those at the intersection of social categories such as racialised women’ (p 158). As part of the process of reinvesting funds to build community capacity and address social determinants of incarceration, we, as evaluators and researchers, need to be continuously mindful of measuring and critiquing justice reinvestment initiatives from the worldviews and perspectives of the communities involved. This is the only way to aptly present justice reinvestment outcomes in ways that will ultimately convince policymakers to wind back imprisonment rates.
Reading this book took me back 25 years to the very beginning of my own thinking and writing on the question of how to confront the injustice of over-incarceration and other manifestations of penal excess. Specifically, I found myself drawn into the authors’ carefully handled appraisal of whether ‘justice reinvestment’ could offer a pathway to what I will refer to as ‘radical justice reform’. In this context, by ‘radical’ I mean a fundamental
re-orientation of how ‘crime’ and ‘punishment’ are conceived and deployed — with a foregrounding of social justice and community empowerment and autonomy, and with change imagined and achieved far beyond the boundaries of the traditional institutions and processes of criminal justice administration.
I was reminded of my undergraduate studies in criminal law and criminal justice and, in particular, with the attempts by left realist criminology to ‘uncouple’ the potential of community crime prevention from the penal populism and law and order agendas that were dominant. In the late 1980s and early 1990s one of the most graphic and tragic reminders of the consequences of over-reliance on policing and incarceration as ‘solutions’ to a range of social ills was the enormity of Indigenous over-representation, to which the Royal Commission into Aboriginal Deaths in Custody drew national attention.
The sobering side of these reflections, triggered by my engagement with Justice Reinvestment: Winding Back Imprisonment’s exploration of the latest incarnation of the familiar mantra ‘We have a crisis, we must do something different’ is that so little has changed in a quarter-century. Penal populism still has a stranglehold on crime policy and criminal law-making in NSW and Australia, and hyper-criminalisation in the name of ‘law and order’ continues apace (McNamara and Quilter 2016). Appallingly high levels of Indigenous prison over-representation remain the ‘norm’ across Australia (Anthony 2016). Communities — Indigenous and non-Indigenous, but routinely disadvantaged — remain deeply scarred by the effects of intergenerational incarceration and disempowerment.
I want to focus here on what most intrigued me about this book against this pretty bleak background: the recognition that five outstanding scholars of criminalisation, criminal justice and criminology, all of whom I know are deeply committed to principles of social justice, appear to see the potential in justice reinvestment. I have deliberately avoided overstating things here. Even though there is sometimes more than a touch of the evangelical about the concept of justice reinvestment in the wider literature, the authors of this book could not be accused of being ‘zealots’ or ‘missionaries’ or even ‘disciples’ of justice reinvestment. Indeed, the authors deserve to be complimented on the tone of the text, which blends analysis, optimism, respect, critique and reflection.
However, one of the questions that I pondered as I read the book was this: Have the authors been a little too ‘polite’ towards ‘justice reinvestment’? I wondered if there is not, at the heart of the practice of justice reinvestment, a pragmatism (and a conservatism) that is inconsistent with a radical reform agenda.
The authors say that, in the US, because of the emphasis on bipartisanship, ‘politically controversial proposals are jettisoned early, even if they offer the most potential for penal reduction. Clearly it is important to prevent decarceration from being a partisan issue, lest law and order politicking eclipse the reform agenda’ (pp 80–1). I have no doubt that this passage is an accurate account of the ‘on-the-ground realities’ of justice reinvestment in the US. Indeed, one of the great strengths of the book is the way in which the authors tell the ‘story’ of justice reinvestment in the US, in a way that is conceptually sophisticated and accessible, empirically rigorous and illuminating, as well as searching and genuinely critical — in the fair and constructive sense of that word. But, given those realities, which seem to demand major concessions from the get-go, how is it — why is it — that the authors, nonetheless, maintain a cautious optimism about the radical potential of justice reinvestment?
To pursue this line of questioning a little further: isn’t the basis for optimism dented even further by the fact, as is acknowledged by the authors at length in Ch 5, that many of the favourable conditions that have contributed to justice reinvestment’s success in the US are not present in the Australian context? On the parlous state of local politics when it comes to ‘outside the square’ thinking on crime and prison policy, I am reminded that when the recently released figures (NSW Bureau of Crime Statistics and Research 2016) showing that overcrowding in the state’s jails had reached a ‘record high’ (Robertson 2015:7), the Labor Party Opposition lambasted the Liberal-National Coalition Government for having closed two prisons five years ago. At the time, the Corrections Minister, David Elliott, said, ‘I don’t want to be the Minister for Prisons known for opening new cells’ and The Sydney Morning Herald reported that, to this end:
In a transparency overhaul that echoes federal and state pushes to improve schools and hospitals, Mr Elliott will be introducing performance measures for all NSW prisons. Each will be judged on criteria such as how often inmates reoffend, inmates’ quality of life behind bars and the time inmates spend outside their cells (Robertson 2015:7).
This suggests that the Minister had heard a little bit about justice reinvestment, but perhaps not the bits that have emphasised that ‘social justice’ and ‘community development’ are very important conditions of the change that justice reinvestment promises. The authors of this book rightly describe these considerations as ‘fundamental’ (pp 103, 239) and they are undoubtedly right about that. The enormous challenge is to get governments (and aspiring governments) on that same page.
To be clear, I am encouraged by the fact that the authors maintain qualified enthusiasm for justice reinvestment’s potential, including in Australia (see p 140). I look forward to hearing more, during the conversations that this book will surely provoke, about what fuels that enthusiasm. What sort of conditions need to exist for ‘good’ justice reinvestment initiatives (that is, those that promote social justice, empower and reduce prison populations) to come into being and thrive? What can be done to nurture or ‘seed’ those conditions?
It is interesting to consider what we can learn from the Bourke experience (Just Reinvest NSW 2016). One of Bourke’s great strengths is that it is a justice reinvestment initiative that has grown from the ‘ground up’, and at arm’s length from government. An important issue to consider is whether such organic community-based initiatives can nonetheless trigger the sort of reallocation of state resources that I understand to be central to the original concept of justice reinvestment.
Finally, this book will also contribute to productive discussions on the relationship between justice reinvestment’s focus on local and community-specific problems and solutions, and the need to tackle criminogenic factors that are not local, but institutional and structural — including wealth distribution, labour market participation and access to quality education.
In closing, I want to offer my own nomination for ‘best passage in the book’. It comes in Chapter 5, How Does Justice Reinvestment Travel?, under the subheading ‘The carpet model — “Rolling out” policy’. The authors effectively skewer the idea that good policy is like a roll of carpet in that:
a carpet or a lawn cannot just be rolled out anywhere, the building and room, or the ground, must first be prepared, and thereafter further nurturing is necessary. Carpets fade and are stained, scuffed and torn, lawns can die, be dug up by insects or animals, washed away in a deluge or overrun by other plant species (p 228).
Who says you can’t blend intellectual rigour and an evocative metaphor?
The authors are to be congratulated for Justice Reinvestment: Winding Back Imprisonment, a book that is well researched and engaging, which stimulates thinking and provokes questions, and is an outstanding work of scholarship.
Authors’ response
The authors thank the reviewers for their kind and constructive comments. We don’t have the space to respond to all the points they mention, so we will concentrate on the key issues each person raised. Todd Clear, a key player in the US justice reinvestment (‘JR’) movement and opponent of mass incarceration, comments reflexively on an issue raised in our book, the absence of race in the US JR debate. Luke McNamara raises a series of linked questions that go to the definition of JR, its arguably pragmatic political character and the reasons for our optimism about its prospects in Australia. Elena Marchetti is also skeptical about the prospects for JR, based on her long experience with Aboriginal sentencing courts, and is concerned with how ‘success’ is framed and measured.
The racial question
In the now different context post-Ferguson[1] and the Black Lives Matter movement, Todd Clear reflects that while de-emphasising race within JR can be understood as a strategy to secure results, such a posture may have been a mistake. By contrast, race was central in our treatment of JR. This approach arose from our previous book: Penal Culture and Hyperincarceration (Cunneen et al 2013), which looked at the reinvigoration of prisons in Australia and internationally since the mid-1980s, and traced the main drivers of this reinvigoration and its key cultural dimensions. In that book’s conclusion, we asked whether we were at a turning point and gave the following answer:
Unless reform movements confront the highly selective nature of penality and the way it bears so disproportionately on marginalised groups, then any gains to be made through ... widespread adoption of policies such as justice reinvestment or penal reductionism, are likely to be limited in practice (Cunneen et al 2013:195).
This conclusion was the starting point for our JR project.
The second key reason for our concentration on race arises from the recognition that three groups have been especially affected by the increasing resort to incarceration: Indigenous people, marginalised women, and people with mental illness or cognitive impairment. Thus, it was vital that the JR debate be conducted with these vulnerable groups in mind. In our view, ‘Indigenous democracy’, a term we used as shorthand for issues of Indigenous governance, empowerment, self-determination and nation building, is central to finding workable solutions. If anything, this focus is even more pertinent in the context of the current Australian debate about Indigenous constitutional recognition, for reasons articulated by Megan Davis (2015–16): ‘We are not seeking recognition. We are seeking more. We are seeking institutionalised safeguards and the right to be consulted, and to participate actively in decision-making.’
A central issue is thus how to develop a democratic politics around criminal justice issues. Strategies to reduce prison numbers must consciously redress drivers of incarceration that are racially selective and concentrated in communities of vulnerability. The exact nature of such strategies will need to be fashioned according to the specific national, regional and local context and circumstances. They must also engage the structures of democratic political representation, governance and agency enjoyed (or not) by and within the racial and marginalised communities subject to mass incarceration in those specific contexts. This is an unfolding and unfinished story and process.
The politics and prospects of justice reinvestment
Luke and Elena’s linked questions revolve around the politics of and prospects for JR in Australia. Luke asks if there is a pragmatism/conservatism at the heart of the practice of JR that is inconsistent with a radical reform agenda. However, pragmatism and conservatism are not the same thing; they are different forms of political rationality, and conservatism may or may not be pragmatic. In the book, we argue that context is very important and we note the influence of conservative evangelicals and groups like Right on Crime in the promotion of JR and ‘reentry’ policies in the US. This prompts us to take conservatism more seriously. ‘Progressives’ do not have a monopoly on penal reform. Indeed, the criminal justice records of the Democrats under Bill Clinton, UK New Labour under Tony Blair, or the NSW state ALP under Bob Carr were hardly impressive.
As to JR being ‘inconsistent with radical reform’, rather than fixing the meaning of JR, we see it as an unfinished project: ‘We wish to contribute to an unfinished, evolving narrative and movement in the way crime, criminal justice and penal issues are constructed and managed’ (p 240). We suggest a threefold approach that simultaneously offers:
1. a vision that what currently is might be otherwise;
2. an appreciation that reforms can only be won within existing political possibilities and conditions; and
3. recognition that political movements should maintain a posture of self-reflection, with constant questioning and refashioning of their own foundations, values and claims.
We see the unfinished and evolving narrative of JR as an inspiration, rather than a fixed set of methodologies or a policy template, and we conceive the task as fashioning a new commonsense:
Such a commonsense might be fashioned out of a range of elements, including: appeals to cost savings and ‘smarter’ justice, data and evidence-based policies; enhanced public safety; reduced recidivism; increased offender accountability to communities; ex-prisoner job creation and other community development programs; redressing racial and other marginalised group disparities and inequalities; promoting Indigenous democracy; unleashing individual and community potential; creating healthier families; providing a better future for young people; enhancing life chances and building social solidarity (p 249).
This involves recognition that JR discourse consists of a series of disparate claims and appeals, promoted by different constituencies for different purposes and with different interests. Our aim is not to certify the ‘correct’ approach, but to promote a politics that attempts to stitch together or articulate these various arguments and constituencies. We, and they, do not — and will not — agree on everything, for this is a realm of shifting alliances, differently weighted arguments, varied concerns and aims. It is not just a matter of following some approved or ‘true’ set of principles, in part because the myriad political, bureaucratic, policy and other fields are constituted by disparate discourses, forms of calculation and rationality, mentalities and practices. Hence our opposition to the ‘carpet rolling out’ model of social policy so ingrained in contemporary social policy.
Appeals to ‘evidence-led’, ‘what works’ and ‘fiscally responsible’ policy, however desirable, cannot fulfil the task of articulating these varying, and in some instances contradictory, elements and discourses around JR. A normative commitment to redressing social and racial injustice, and a politics of democratic community engagement from below that can best animate such commitments, are necessary lest success be calculated only in instrumental or managerial terms.
Rethinking how data-driven and evidence-based approaches have been applied within JR, with what effects, is necessary, and in the book we provide examples of possible alternative approaches. For instance, analysing the social determinants of incarceration and not just the criminal justice drivers offers potential benefits such as: identifying factors underlying the vulnerability of some people and groups to incarceration; giving greater emphasis to preventative approaches and front-end policy options that reduce criminalisation than to back-end measures, as is common in JR; and generating interventions that are targeted to particular needs. Analysing the social costs and benefits of incarceration and alternative policy options, not just those that accrue to criminal justice, has the potential to shift the focus from recidivism towards the development of measures more aligned with broader notions of community engagement, safety and wellbeing. And, of course, Indigenous democracy necessitates that Indigenous people determine what matters and how it is measured.
One common criticism of JR is that it offers little more than the type of reforms that criminologists and progressive advocates have always promoted. This in turn leads to skepticism that JR is anything other than the latest ‘flash in the pan’, destined to leave the penal landscape largely unchanged. However, the fledgling examples of JR in Australia have given us reason for optimism. The JR pilot in Bourke in north west NSW (Just Reinvest NSW 2016) is the most advanced of these programs and, like almost all of the others, focuses on the over-incarceration of Indigenous people in Bourke (it targets young people up to 24 years of age). That JR project was initiated by the community who then sought support from the Aboriginal Legal Service and the Australian Human Rights Commission — both organisations extremely well suited to fostering Indigenous democracy. Most importantly, the pilot is being conducted according to an agenda fundamentally driven by the local community. This contrasts markedly with the usual mode of government-led criminal justice reform. Arguably, it is the only approach that is predisposed to positive outcomes when working with Indigenous communities.
Another unusual — and hopeful — characteristic of the Bourke JR pilot is the involvement of the corporate and philanthropic sectors. This has allowed the groundwork necessary for positive outcomes to be built on the Bourke community’s terms and timeframes, and without the influence of existing government policy agendas — again, essential components for successful outcomes. Elsewhere in Australia, JR pilots show similar thoughtful, community-led, place-based approaches to reducing contact with the criminal justice system. Although it is early in the piece, these are markers of sound, innovative and reflective approaches to criminal justice reform that should give us cause for cautious optimism.
References
Anthony T (2016) ‘Deaths in Custody: 25 Years after the Royal Commission, We’ve Gone Backwards’, The Conversation (13 April 2016) <https://theconversation.com/deaths-in-custody-25-years-after-the-royal-commission-weve-gone-backwards-57109>
Australian Bureau of Statistics (2014) 4517.0 — Prisoners in Australia, 2014 (10 December 2015) <http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0~2014~Main%20Features~Key%20findings~1>
Cunneen C, Baldry E, Brown D, Brown M, Schwartz M and Steel A (2013) Penal Culture and Hyperincarceration: The Revival of the Prison, Ashgate
Daly K and Marchetti E (2012) ‘Innovative Justice Processes: Restorative Justice, Indigenous Justice, and Therapeutic Jurisprudence’ in M Marmo, W de Lint and D Palmer (eds), Crime and Justice: A Guide to Criminology, Lawbook Co, 455–81
Davis M (2015–16) ‘Gesture Politics’, The Monthly (online), 2016 <https://www.themonthly.com.
au/issue/2015/december/1448888400/megan-davis/gesture-politics>
Just Reinvest NSW (2016) Justice Reinvestment in Bourke <http://www.justreinvest.org.au/justice-reinvestment-in-bourke/>
McNamara L and Quilter J (2016) ‘The “Bikie Effect” and Other Forms of Demonisation: The Origins and Effects of Hyper-criminalisation’, Law in Context 34(2), 5–35
NSW Bureau of Crime Statistics and Research (2016) NSW Custody Statistics: Quarterly Update December 2015 <www.bocsar.nsw.gov.au/Documents/custody/NSW_Custody_Statistics_Dec2015.pdf>
Productivity Commission for the Steering Committee for the Review of Government Service Provision (2016) Report on Government Services 2016, Productivity Commission
Robertson J (2015) ‘Jail Overcrowding Reaches Record High’, The Sydney Morning Herald (online), 30 January 2015 <http://www.smh.com.au/nsw/prisons-overflowing-as-corrections-minister-david-elliott-brings-in-report-card-system-20160129-gmh26l.html>
[*] Distinguished Professor, Rutgers School of Criminal Justice, Newark, NJ 07012 USA. Email: todd.clear@rutgers.edu.
[†] Professor, School of Law, McKinnon Building 67, University of Wollongong NSW 2522 Australia.
Email: elenam@uow.edu.au.
[‡] Professor, UNSW Law, University of New South Wales, Sydney NSW 2052 Australia. Email: luke.mcnamara@unsw.edu.au.
[§] Emeritus Professor David Brown, UNSW Law, University of New South Wales, Sydney NSW 2052 Australia, email: d.brown@unsw.edu.au; Professor Chris Cunneen, School of Social Sciences, University of New South Wales, Sydney NSW 2052 Australia, email: c.cunneen@unsw.edu.au; Melanie Schwartz, UNSW Law, University of New South Wales, Sydney NSW 2052 Australia, email: m.schwartz@unsw.edu.au;
Professor Julie Stubbs, UNSW Law, University of New South Wales, Sydney NSW 2052 Australia, email: j.stubbs@unsw.edu.au; Courtney Young, UNSW Law, University of New South Wales, Sydney NSW 2052 Australia, email: courtney.young@unsw.edu.au.
[1] Protests and riots broke out after the fatal shooting of Michael Brown by police officer Darren Wilson on August 9, 2014, in Ferguson, Missouri.
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