Stigma and discrimination in the justice system

Thanks to Alex Freeman for leading this research and writing this article for UN.

In 2020 the Drug and Alcohol Multicultural Education Centre (DAMEC) project team, as part of research on consumer engagement with Drug and Alcohol Services ran a focus group that was comprised entirely of people with a culturally and linguistically diverse background and lived experience of incarceration. The 8 participants included people from Egypt, Afghanistan, Iran and Iraq and an Indigenous Australian. They all spoke about the cycle of recidivism, either having witnessed it first hand or struggled themselves to break out of it.  

“Look every time I got out, there was nothing in place for me... there was no help. And if there was help it wasn’t helpful,” said one respondent.  

“The system’s cracked, bro. That’s why it’s a revolving door. That’s why people keep going back in. I’m 40 now I’ve been in and out if prison half my life, so the system’s not working,” said another. 

At present, in 2022, Australia is locking people up in record numbers, at a direct cost of $5 billion dollars per year, and has one of the highest recidivism rates in the world. The criminalisation of drug use creates formidable barriers to treatment. Meanwhile, politicians cite concern about “sending wrong messages” when refusing to allow proven lifesaving initiatives like pill testing or amnesty bins at festivals. While less than 3% of the population in NSW are Indigenous (2016 Census), a staggering 28% (2021 ABS) of the prison population are, suggesting extreme racial biases in the justice system. 

Stigma was initially the thing most often cited as a barrier to effective engagement with D&A treatment services.  

Something that many respondents saw as unjust was the way that courts are more lenient towards those with family support, a stable environment, money and opportunities and harsher to people without these things.  

As one participant put it: “You see people from ‘good family backgrounds’ – oh, they’re from a ‘good family’ so you say they shouldn’t go to jail [but] if anything, [if] you had a good family and you had a good upbringing [then] you should have known fucking better.” 

“Why should I be locked up more than somebody who’s got a mother, father, family unit… Just because mine are dead. How the fuck does that work out?” asked another participant. 

“I was raised in poverty, man… Drugs and alcohol and violence, this is all I’ve ever seen. So, if anything, isn’t this person who’s made that decision who’s seen the better life, they should know right from wrong. Like me, I grew up like that is my normal. Of course, I’m going to run down that line. If anything, I should get more leniency than the other,” another participant said. 

Participants agreed that family support played a massive role in giving them a chance at recovery and reform. Family could be a vital resource, but this depended on personal circumstances.  However, for some in the group their family background could lead to being targeted by police —especially in Indigenous Communities, often at the mercy of a few bored police.  

But even if advocates and activists organised and mobilised to the point where they were able to exert intense scrutiny on community policing, to the point where they succeed in creating a systemic overhaul to rewrite the whole foundation of that role and the objectives of what they are trying to do, it would only address half the problem.  

This is because of the way that the few mechanisms currently written into policy are undermined and the myriad ways individuals targeted by authorities can be unofficially punished. This is less often brought to light. Ultimately it becomes a question of what the justice system wants to achieve. If the priority is punishment, the system is working. But if you view drug users with compassion, the picture becomes more complicated and problematic.  

There was a shared view among respondents that opportunities for rehabilitation were compromised by a desire by the state to ensnare them in the system for their entire lives.  

“When have the cops ever been fair? There’s no level playing field. With those motherfuckers, you’re fucked,” a participant said. 

Participants cited reasons from pure malice to the profit motive of private jail operators. 

“The system wants you to go back to jail, the system doesn’t want you outside, the system wants Corrective Services NSW (CSNSW) to make money for the shareholders in Dover Heights and Rose Bay. CSNSW is a company, they have shareholders, so God knows what the police are getting out of it,” said one participant. 

“All these new jails, they want to fill them up,” said another. 

“Look at Parklea now, it’s doubled in size,” another participant said. 

While CSNSW is in fact a government institution without shareholders, increasingly prisons are run by private companies who are following the “for profit” model, like MTC-Broadspectrum, who hold the contract for Parklea. 

Participants noted that often their engagement with parole would be at the expense of neighbourhood respect and relations. Raids were often alarming for new neighbours and landlords. “Bail checks” jeopardises people’s tenancy. While some people seem able to engage housing services and set themselves up upon release, participants called for more attention on the issue of stable housing.  

“When I got my apartment in Willoughby, straight away the real estate and the owners were like, ‘You’ve got to leave’ because they were coming round to do bail checks … They’re coming fucking constantly – leaving their lights flashing and shit so everyone’s thinking ‘This guy in No 1 is a bad cunt’ and ‘Why are there cops there?’” 

Repeatedly participants noted that the transition from prison back into wider society was challenging, and that more should have been done to assist them. Parole was seen by most as unnecessarily proactive, with some in the group stating they felt targeted and provoked by police actions. 

“I’ve often thought to myself: It’s easier to go back in, like, fuck it,” noted one. 

Another described the experience of being released this way: “I walked out of jail with just the clothes on my back, that was it. Cops took everything else, house was raided, all my shit gone, just nothing. Walked into a shit rehab and got kicked out of there.”  

“They chuck you in a hotel for a couple of days … then you’ve got to figure it out … No wonder people go in and out of jail,” another participant said. 

“They should be doing more housing for those who are on the streets,” was another comment. 

Bail seemed to be viewed by participants as an opportunity for police to remind them of the power imbalance and to provoke people into responses that would justify their arrest. Obviously, this created great despondency as illustrated by this exchange between 2 members of the group: 

Participant 1: “Look I’m at the verge of, you know what? Up yours, back to same life, catch me if you can.” 

Participant 2: “That’s what I’m thinking as well. If you’re gonna fuck me over anyway, run the gauntlet.” 

Participant 1: “Look this is when you can’t let them win.” 

Participant 2: “But you can only be pushed so far.” 

One participant’s description of entering the system: “Never mind the people coming out. What about the people going in? I did the 14 days of coming down, like worst ever, in a dry cell. And the junkies are coming in shaking and everything … They just laugh, like those cells at Surry Hills, that’s shit, and by the time you get out to Parklea you go into that clinic and you think ‘ah I’m finally getting something.’ Nup. That’s why 8mg Suboxone strips are going at $1000 a pop” 

Long periods on remand was an issue raised by several participants. “Those 7 years I was on remand, that’s half a million dollars. If I was on bail I would pay tax and wouldn’t do anything silly,” said one. 

“You’re just in limbo. There’s supposed to be a limit to it, like 18 months, but this guy just did 7 years remand,” said another. 

Another said: “It’s innocent until proven guilty, so why?” 

Participants suggested that if the prosecution couldn’t put together a compelling brief within a certain amount of time, then that inmate should receive bail. 

The lack of access to programs on remand was another issue raised. This includes a lack of access to many medical services. “They seem to take joy in you getting fucking sick,” a participant said. 

In response to the question “What would give you the help you felt you needed?” were some frustratingly obvious and simple answers. 

“The system keeping their word.” 

 “Going through with what they say they’re going to do. Right now, the promises are not kept. Not ever.” 

Another issue raised was the lack of independence of the Ombudsman, participants seeing an inherent conflict of interest. 

“They’re supposed to be there as a separate entity to the jail, but 99% of the time they rule in favour of the jail. I mean, the jail pays their salary, so who do you think they’re going to side with? They don’t do nothing,” was how one participant explained it. 

A hugely problematic issue is the CSNSW policy stopping people starting OST therapy in jails, either on remand or just generally.  

“It’s not fair that only if you’re on it on the outside can you continue,” said one participant. 

Another participant explained how scarcity of OTP medications increased violence inside: “That’s why some people get stood over. That’s why people get attacked. That’s why people get fucked up. It’s because some people have it and some people don’t.”  (Editors note: OTP services inside jails expanded during COVID largely due to the introduction of injectable buprenorphine but there are still issues getting onto treatment inside) 

Conversely, violence decreases when drug supply increases. “When there’s more of it around, there’s less drama,” was how one participant put it. 

“You see it when it’s around, everyone’s sweet. When there’s nothing, everyone’s on edge,” said another. 

Another point of contention was the practice of prisoners being moved from one jail to another without notice, disrupting access to programs, buy-up and family visits. This is ironically known as “diesel therapy”. 

“They’ll do shit to isolate you from your families: ‘diesel therapy’. They’ll put you in a truck here, a truck there, fucking move you around everywhere. So you never get your buy up, never get to settle anywhere.”  

“If you miss your buy-up it takes 14 days.”  

“I was 1 week at Parklea, 1 week at Cessnock, 1 week in Kempsey, like a football, in out in and out, in.”  

“Can’t call your family.” 

“Thing is, at any time they can buzz you up out of the cell at 4 in the morning. ‘Get your shit, you’re gone.’”  

“I think that’s wrong. You got court coming up, you got visits coming up, you got all this shit coming up. They should at least let you know a week beforehand.” 

“At the moment at certain places, they just buzz you in the morning [and] say ‘You’re on the truck’ and you’re going. You can’t even make a phone call to let them know where you’re going. Maybe that should be looked at.”  

It is not just those who have been incarcerated who believe that the system is counterproductive. Dr Mindy Sotiri, Executive Director of the Justice Reform Initiative, has said: “There is a body of evidence that shows prison itself is criminogenic. That is, the experience of prison increases the likelihood of future imprisonment.” 

This grim picture points to the need for urgent reform. It needs to be recognised that prisoners are human beings with human rights, such as the right to have access to families, to legal due process, to adequate health care, including OTP, and that denying human rights makes rehabilitation impossible. The way bail and parole operate also needs to be reformed. Most urgently, incarceration should be a last resort not a default. Racial and other biases in policing and the court system need to be systematically rooted out and the assumptions in the legal system that mean offenders who are poorer and have less social support are dealt with more harshly must be overturned. And, most of all, the failed War on Drugs needs to end.