The operation of hidden prejudice in pre-court procedures: The case of Australian Aboriginal youth
| Published date | 01 March 1989 |
| Author | Joy Wundersitzt,Fay Gale |
| DOI | 10.1177/000486588902200101 |
| Date | 01 March 1989 |
| Subject Matter | Original Articles |
AUST &NZ JOURNAL OF CRIMINOLOGY (March 1989) 22 (1-21)
THE OPERATION OF HIDDEN PREJUDICE IN PRE-COURT
PROCEDURES:
THE CASE OF AUSTRALIAN ABORIGINAL YOUTH
Fay Gale* and Joy Wundersitzt
Introduction
The selection of juveniles for formal processing by the courts has long been an
area of concern especially in those jurisdictions where formal diversionary
procedures have been implemented. The move towards keeping at least first or
minor offenders
out
of the court system is usually justified on one of three grounds;
first, that it avoids labelling the child as a known offender, which may subsequently
result in the young person coming to perceive himself/herself as criminal and acting
accordingly: secondly, that informal diversionary procedures often provide the
opportunity for dealing with a child's behavioural problems more constructively
than does a court appearance, thereby reducing the likelihood of further offending;
and thirdly, that on economic grounds, non-serious matters do not warrant the time
and expense of a Full Court hearing.
Since the benefits of diversion are, at least in theory, considerable, the decision
as to who will or will not be selected for formal court processing becomes a matter
of vital importance for the young person. Yet, given the strong emphasis whichmost
juvenile jurisdictions place on the rehabilitation rather than on the punishment of
the offender, considerable discretionary powers are vested in the judicial officers,
in order that a range of factors which are not directly related to the offending
behaviour itself may be taken into account when deciding the procedural future of
a case. With such wide-ranging discretion, the potential exists for certain individuals
or groups to be systematically disadvantaged by the decision-making process.
Especially in the United States and Great Britain, the differential selection of
blacks for formal prosecution in the Juvenile Court has been well documented but
findings regarding the relevance of race to these decisions have been somewhat
contradictory and inconclusive. In the United States, germinal studies by Axelrad
(1952) and Goldman (1963) pointed to the higher proportion of court appearances
by young blacks and the greater frequency with which they were sent to court for
minor offences in comparison with young whites. Goldman (1963) concluded,
however, that race
per
se was not relevant. Instead, he argued that police used
racial identity as an indicator of socio-economic status. Terry's (1967) study of the
screening by police of young offenders for the Juvenile Court in Racine, Wisconsin,
also indicated an absence of race bias once certain legal variables had been
controlled for. Similar results emerged from Weiner and Willie's (1971) study of the
decisions taken by specialised youth bureaus in Washington
DC,
which were set up
within the Police Department to decide between the options of dismissal, referral
to social agency or court prosecution. Their analysis revealed that the court referral
rate for youths in a black racial area of the city was almost three times higher than
that of youths in a white racial area. Yet they attributed these differences to the
• BA, PhD, FASSA, Professor, Department of Geography, University of Adelaide, GPO Box 498
Adelaide 5001.
tMA, Dip Ed, Research Associate, Department of Geography, University of Adelaide.
2FGALE &JWUNDERSITZ (1989) 22
ANZJ
Crim
significantly higher police contact rate experienced by blacks and concluded that
race was not directly relevant to the decision-making process.
Other studies conducted in the early 1970s, however, reached different
conclusions. For example, Arnold (1971), who focused on the decisions made by
police probation officers in a southern American city, found a significantly higher
court referral rate for black youths and his analysis showed that even when
simultaneously controlling for offence seriousness, prior records, neighbourhood
delinquency and the parents' marital status, some racial differential in referral rates
remained. Similarly, a study of a large cohort of juvenile males in Philadelphia
(Wolfgang et aI, 1972) found that once apprehended by police, non-white youths
were more likely than were white youths to be prosecuted rather than released.
Again, this applied even when socio-economic status and seriousness of offence
were controlled for. Ferdinand and Luchterhand (1970) also found evidence of
racial bias at the level of judicial referral by police. They recorded a 34%
differential between blacks and whites at this level of decision-making. Controlling
for the type of offence resulted in a significant reduction in this differential for
personal and property crime but not for status offences.
Although most of these early studies can be criticised on methodological grounds
and, in particular, for their failure to control simultaneously for more than a handful
of variables, the same cannot be said of more recent analyses conducted in the
1980s. These later studies demonstrate that the position of blacks in the juvenile
justice system has shown little improvement. For example, in their fairly recent
analysis of the decisions taken by police juvenile bureaus to release or to refer
juveniles to court in two New Jersey counties, Dannefer and Schutt (1982) still
found considerable differences in the outcomes recorded for black and white
youths. In one county, almost three times as many black youths were referred to
court compared with white youths (59% and 21% respectively), while in the other
county studied, the figures were 66% and 46% respectively. Using log-linear
analysis to test the relevance to the decision-making process of a range of legal and
extra-legal variables, they concluded that race was one of the most important
predictors of police dispositions, along with the offence allegation and prior
criminal record.
In contrast to the vast amount of work undertaken in the United States, British
scholars have only recently begun to focus on the relevance of race in judicial
decision-making. Priestley et al (1977), Bennett (1979), Mott (1983), Farrington
and Bennett
(1981)
and Fisher and Mawby (1982) have assessed police discretion
in relation to juveniles, but have not taken racial differences into account.
However, recent studies by Landau
(1981)
and Landau and Nathan (1983) have
done so, and their results support those of Dannefer and Schutt in the United
States.
In his
1981
study, Landau focused on five divisions of the London Metropolitan
Police District and assessed the police decision whether to charge the juvenile
immediately or to refer himlher to a juvenile bureau. He found that some 27% of
blacks were charged immediately compared with only 19.3% of white youths.
Through the use of logit analysis,he found that, in addition to legal factors such as
prior criminal record and the nature of the offence, the police decision at this level
was affected by the youth's ethnic identity as well asby age and the location where
the apprehension took place. In a follow-up study, Landau and Nathan (1983)
focused on the second stage of police discretion: the decision by the juvenile bureau
whether to caution or prosecute the youth. Using the same police divisions as did
the earlier study, their research revealed that "except for 'traffic and other offences'
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