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Three Things that a Baseline Study Shows Do Not Cause Indigenous Over-Imprisonment; Three Things that Might (But Shouldn’t) and Three Reforms that Will Reduce Indigenous Over-Imprisonment

Mirko Bagaric, Three Things That a Baseline Study Shows Do Not Cause Indigenous Over-Imprisonment; Three Things That Might (But Shouldn’t) and Three Reforms that Will Reduce Indigenous Over-Imprisonment (2016) 32 HARVARD JOURNAL ON RACIAL AND ETHNIC JUSTICE.

43 Pages Posted: 3 Aug 2017  

Mirko Bagaric

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School

Date Written: July 28, 2017

Abstract

Indigenous offenders are grossly over-represented in Australian prisons. It is a problem that has persisted for many years and in fact has worsened over the past few decades. Few pragmatic reforms to the sentencing system have been suggested or implemented. To some extent, this is because the reasons for the problem are not clear. Previous controlled studies analysing the reasons for the high rate of Indigenous incarceration have reached different conclusions regarding the reasons for sentencing disparity in this area. I argue that this is because the studies have not used standardised variables and, moreover, the number and types of controls that have been used are not suitable. In light of this, it is illuminating to interrogate the raw data. This article sets out the findings of a wide-ranging baseline study regarding the impact of Indigeneity in sentencing determinations. Baseline studies are often criticised because they are too crude. However, in a discipline such as sentencing where there are too many variables to accurately control, I suggest that the baseline study in this paper is revealing. The study uses the most current data available and has a considerably larger sample size than other studies. The results of the analysis suggest that the key point in the sentencing calculus, where Indigenous offenders are disadvantaged comparative to other offenders, is the decision whether or not to impose a term of imprisonment. They are not disadvantaged when it comes to setting the length of jail terms. The findings that I make are supportive of specific reforms that should be undertaken to reduce Indigenous imprisonment rates. The key recommendations are (i) reducing the weight accorded to prior convictions; (ii) providing a numerical discount when sentencing Indigenous offenders; and (iii) entrenching and taking seriously the parsimony principle. African Americans are also grossly over-represented in prisons in the United States, by a ratio of more than six to one. The solutions offered to reducing Indigenous incarceration in Australia are equally apposite to the United States sentencing system.

Keywords: Sentencing, over-representation Indigenous and African Americas in prisons, solutions

JEL Classification: K14

Suggested Citation

Bagaric, Mirko, Three Things that a Baseline Study Shows Do Not Cause Indigenous Over-Imprisonment; Three Things that Might (But Shouldn’t) and Three Reforms that Will Reduce Indigenous Over-Imprisonment (July 28, 2017). Mirko Bagaric, Three Things That a Baseline Study Shows Do Not Cause Indigenous Over-Imprisonment; Three Things That Might (But Shouldn’t) and Three Reforms that Will Reduce Indigenous Over-Imprisonment (2016) 32 HARVARD JOURNAL ON RACIAL AND ETHNIC JUSTICE. . Available at SSRN: https://ssrn.com/abstract=3010200

Mirko Bagaric (Contact Author)

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School ( email )

Hawthorn
Hawthorn
Burwood, Victoria 3000
Australia

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