The influence of Indigenous status on the issue of police cautions
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/26338076221146326 |
| Author | Don Weatherburn,Brendan Thomas |
| Date | 01 June 2023 |
| Subject Matter | Articles |
The influence of Indigenous
status on the issue of police
cautions
Don Weatherburn
National Drug and Alcohol Research Centre, University of New South
Wales, Australia
Brendan Thomas
NSW Department of Communities and Justice, Australia
Abstract
Over the last 20 years, a body of research has emerged in the United States (US) revealing that
the country’s sentencing courts to treat young male African American (and Hispanic) offen-
ders more harshly than white offenders, even after adjusting for relevant legal and contextual
factors. Similar research in Australia has generally found that the effect of Indigenous status on
adult bail/sentencing outcomes is either non-significant, or significant, but very small. The aim
of this study is to explore the impact of race, age, and gender on police decisions to prosecute
rather than caution to a juvenile offender. We employ a multilevel model with random
intercepts to explore the impact of race, age, and gender on police decisions to prosecute
rather than caution to a juvenile offender. The first level controls for offender/offence factors
a police officer may legally consider when deciding whether or not to caution a young
offender. The second level controls for the police patrol to which the police officer is
attached. After adjusting for the effects of legally relevant factors, we find Indigenous juvenile
offenders (regardless of sex) are more likely to be prosecuted than cautioned, compared with
their non-Indigenous counterparts. There is also wide variation across local area commands in
willingness to caution juvenile offenders. We conclude that further research is needed to obtain
a better understanding of the factors responsible for racial disparity in the use of police cautions.
Keywords
Multilevel model, racial discrimination, focal concerns, Indigenous, police caution, juvenile
offender
Date received: 12 September 2022; accepted: 5 December 2022
Corresponding author:
Don Weatherburn, National Drug and Alcohol ResearchCentre, University of New South Wales, New South Wales,
Sydney, Australia.
Email: d.Weatherburn@unsw.edu.au
Article
Journal of Criminology
2023, Vol. 56(2-3) 253–277
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/26338076221146326
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Introduction
Over the last 20 years, a body of research has emerged in the United States (US) revealing that
the country’s sentencing courts treat young male African American (and Hispanic) offenders
more harshly than white offenders, even after relevant legal and contextual factors have
been accounted for (Bushway & Piehl, 2001; Mitchell, 2005). These findings are usually
explained by reference to what has become known as focal concerns theory (Miller, 1958;
Steffensmeier et al., 2006). According to this theory, sentencing judges are guided by three
focal concerns: the blameworthiness and culpability of the offender; concerns about practical
constraints and consequences; and a desire to protect the community. Because judges often lack
the time and information required to adequately assess defendants in terms of these factors,
focal concerns theory postulates that race, ethnicity, and sex come to function as a kind of per-
ceptual shorthand for public safety. Young black (or Hispanic) males are treated more harshly,
on this account, because they are perceived to be more dangerous.
A number of scholars in Australia have also expressed concern about racial bias in the oper-
ation of the criminal justice system (e.g., Allison et al., 2013; Anthony, 2015; Blagg, 2008;
Blagg et al., 2005). After adjusting for factors that courts are required to consider, however,
most studies find that the parameter measuring the effect of Indigenous status on bail/senten-
cing outcomes for adult offenders is either non-significant, or significant but very small (Bond
& Jeffries, 2012a, 2012b; Broadhurst, 1997; Gallagher et al., 1997; Jeffries & Bond, 2009,
2012; Luke & Cunneen, 1995; Snowball & Weatherburn, 2006, 2007). The only exception
to this pattern concerns Indigenous adult offenders charged with domestic violence offences.
In that context, Indigenous defendants have been found to be significantly and substantially
more likely to be imprisoned than non-Indigenous adult offenders, even after controlling for
relevant legal factors (Bond & Jeffries, 2010; Donnelly & Poynton, 2015; Thorburn &
Weatherburn, 2018).
The limited evidence of racial bias in the sentencing of convicted offenders to imprisonment
is in some ways not surprising. There is little inter-racial violence in Australia compared with
the United States. Judges and magistrates in Australia are not elected officials and are therefore
rather more removed from public pressure than judges in some US States. They are also heavily
constrained by statute law and the appellate review process. The limited evidence of racial bias
in sentencing in Australia is also unsurprising for another reason. Focal concerns theory would
not necessarily lead one to expect a general effect of Indigenous status on criminal justice out-
comes. The theory posits an interaction between age, race, and gender; suggesting (in an
Australian context) that differences between Indigenous and non-Indigenous defendants/offen-
ders are likely to be limited to or concentrated among young Indigenous males. This fact may
be obscured in past Australian research on racial bias which, up to this point, has mostly
focused on adult offenders at the point of sentencing.
As elsewhere, police in Australia enjoy considerable discretion in how they choose to
proceed against juvenile offenders. Not surprisingly, research has consistently shown that
race effects are most likely to be found in the early stages of the formal juvenile process
(Ericson & Eckberg, 2016). In New South Wales, for example, police can choose to warn or
caution a young offender, refer the offender to a youth justice conference or charge the
young offender and refer him or her to court. There is no appeal against a decision by a
police officer to charge a child with a criminal offence and have the matter dealt with in
court instead of issuing a formal caution. Decisions made in the early stages of the criminal
254 Journal of Criminology 56(2-3)
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