Inside Story

Behind the law’s “sheen of neutrality”

In Black Lives, White Law, Russell Marks points towards a more hopeful future

Kate Rossmanith Books 26 September 2022 2267 words

“Everyone comes out broken,” Marks writes. Sayan Moongklang/iStockphoto

A little over a decade ago, Canadian sociologist Arthur W. Frank wrote a book called Letting Stories Breathe. He wanted to discover how the stories we tell ourselves, that societies tell themselves, shape human conduct. Stories are never innocent, never morally neutral; they “inform” us (in the sense of providing information) but more significantly they “give us form.” They give us temporal and spatial orientation, coherence, meaning, intention and boundaries. “Stories work with people, for people, and always stories work on people, affecting what people are able to see as real.”

Viewed through the lens of Frank’s work, Russell Marks’s new book, Black Lives, White Law, can be seen as an identification, and a powerful investigation, of persistent narratives about the incarceration of First Nations people in Australia. It is also a clear-eyed, impassioned attempt by a frontline lawyer to show how the criminal law is applied to his clients — how courts, police and prisons interact with Aboriginal people and their communities, the legal outcomes of which, Marks writes, often “feel like injustice.”

Black Lives, White Law comes at a time when Australia’s criminal justice system is out of step with much of the West. Decades of research have shown us that prisons don’t work. They are extremely costly (Australia is spending more than $4.2 billion on prisons each year) and ineffective in rehabilitating people: a period in prison increases a person’s chances of reoffending and returning to jail. While other countries have recognised the failure of incarceration (including both sides of politics in the United States) and moved towards building alternatives that deal with what drives people into the justice system and encourages them to reoffend, Australia continues to rely on incarceration.

Not only that: we are also locking up a record number of people. Imprisonment rates in Australia have grown steadily for the past twenty years; in the past decade alone, the number of people in prison nationally has risen 44 per cent. These rising rates can’t solely be explained by changes in either the amount or type of crime. Prison is, in part, a policy choice.

The brunt of Australia’s “carceral thrust,” as Marks calls it, is felt by Aboriginal and Torres Strait Islander men, women, children, families and communities. Indigenous men are fifteen times more likely to be locked up than their non-Indigenous counterparts, and Indigenous women twenty-one times more likely; meanwhile, in the Northern Territory, it is often the case that every single child (some as young as ten) in the youth detention centres is Indigenous. “Indigenous Australians,” writes Marks, “are the most incarcerated people on the planet.” And First Nations people die in prisons, police cells and police vehicles: “While I’ve been writing this book, at least thirty-seven Aboriginal people have died in Australia’s criminal justice system.”

The statistics are more than just shocking and shameful. “Absurd” is how Marks describes them. What is to be done in the face of such absurdity? For Marks, a crucial step is to properly understand how we have arrived at this point. This entails unravelling the different stories settler Australians tell themselves to explain why so many First Nations people are in prison. For Marks, while the existing stories might all be true, none of them “goes anywhere near far enough to explain the sheer extent of the problem.”

Russell Marks is not the first to write about Indigenous imprisonment. Throughout Black Lives, White Law he scrupulously acknowledges the groundbreaking work of activist intellectuals and the archival excavations of scholars. And he is not Indigenous: he acknowledges that he is a “white guy,” one of the “beneficiaries of settlement and the dispossessed.”

A criminal defence lawyer, Marks has worked for Aboriginal legal services in the Northern Territory and Victoria, and he holds a PhD in Australian political history. He brings a unique perspective to what he calls “a book about Settler Australia’s system of criminal justice.” He takes us straight to the coalface (in this case his coalface), showing us his efforts to defend his clients and the helplessness and incredulity he feels as the law — settler law — works on them.

In a sense, Black Lives, White Law is Marks’s attempt to explain to himself what is going on and how what is happening can be happening. He does this by combining frontline accounts, case studies, social science research, and a history of settler law. And, always, we are brought back to people’s experiences and their encounters, and their community’s encounters, with the legal system.

The book’s narrative voice, the teller, guides readers through the already-known (what we read in the news) into the not-widely-known, and we trust it. More than trust it: we are crying out to be steered towards a new place of understanding. This new place is arrived at via Marks’s mapping of the stories that settler Australia has told itself for more than two centuries about Indigenous crime and attempts to control it; and he shows us the real-world effects of those stories, including the impact of overlooking another story it should perhaps be telling itself.

Marks introduces us to a story we know well, the “carceral three-act narrative”: crime; arrest and court; punishment and prison. It is a story that “looks no further than the person who commits the crime and does the time.” The simplest explanation, then, of why so many First Nations people are in Australian police and prison cells, says Marks, is that they commit more serious crimes, more often.

One problem with this story is that it is unable to account for another set of statistics: that certain factors (not completing high school, using drugs, suffering abuse or neglect by parents, being unemployed) make it more likely that someone will commit a crime. If offending or not was purely a matter of choice, writes Marks, offending patterns would be consistent across the entire population. “In other words, we’d… see the daughters of Vaucluse offending just as much as the sons of Darwin’s town camps.”

For decades, researchers and policymakers have debated the causal connections between people’s background and circumstances and their likelihood of breaking the law. The most recent large-scale national investigation, commenced in 2016, found what similar inquiries had found going back to the Aboriginal deaths in custody royal commission in 1991: that Aboriginal people and communities are dealing with transgenerational trauma.

Building on the work of Maggie Walter (Palawa woman and professor of sociology), Marks calls this the “deprivation” or “deficit” story of Aboriginal imprisonment. This story sees incarceration as an inevitable by-product of disadvantage, the argument being that eventually, if governments and Aboriginal communities alike work hard to address these various deprivations, fewer Aboriginal people will be locked up. But to stop here, writes Marks, “is to accept that imprisonment… will remain a reality for a high proportion of First Nations people… until they can be dragged into the middle class. It’s a grimly utilitarian position.”

The 2016 national investigation acknowledged another body of research too — a story of institutional bias. Marks reminds us that, while many Aboriginal people are committing serious crimes, most Aboriginal people are being locked up for very minor offences (public drunkenness, for example, or offensive behaviour or the non-payment of fines). Aboriginal children are exposed to police from an early age — there are more police around — and research has found that police regularly use their discretion against Aboriginal people. Bail laws that require financial sureties also effectively discriminate against Aboriginal people, many of whom don’t have the money to pay; meanwhile corrections departments often fail to create community-based alternatives to imprisonment.

This story, explains Marks, quickly becomes one about resources. Where exactly should governments direct their efforts? Retraining police? Reforming bail laws? Or better attempting to deal with Aboriginal disadvantage?

Marks urgently wants to tell a different story, one that might go some way to explaining the magnitude of the problem: that settler law in Australia is neither neutral nor fair; and that “the whole system of crime and punishment… is designed to continue to punish Indigenous people unless and until they adopt the cultural norms of the settler middle class.”

Indigenous incarceration is a fraught topic. Throughout Black Lives, White Law, Marks is unafraid to confront the elephant in the room: the real fact of Indigenous male violence, especially against Indigenous women. As a criminal lawyer, he sees the aftermath of “a lot of horrific violence… photos, videos, terrified victims.” He is troubled by how this violence is enlisted by politicians, the justice system and the media for their own ends: “Settler Australia has told this… story to itself for four decades. It fulfils a particular function: to shock readers into staying the colonial course.”

Marks recounts a conversation he had with a prosecutor in Katherine, in the Northern Territory, a woman who previously worked as a defence lawyer and was now with the office of the Director of Public Prosecutions. She tells Marks she is a socialist. Marks asks her how she squares her politics with her role in sending Aboriginal people to prison at such high rates. She tells him that her primary role is to represent the people “who are truly without a voice.”

“I looked at her quizzically,” Marks writes. “I thought that’s what I was doing, working as a defence lawyer for an Aboriginal legal service. Prosecutors represent the state, which is hardly powerless.” The prosecutor clarifies: she represents Aboriginal women and children. “Women and their children are completely silenced in that whole system,” she tells Marks. “It’s our role to give them a voice, help them to stand up to the bully men who are maiming and killing them.”

When men are attacking women and children, those women and children should absolutely be helped, Marks thinks to himself. And yet his exchange with this fellow lawyer unsettles him. He wonders whether the views of this prosecutor might be pervasive within the Northern Territory’s DPP. He is reminded of the 2007 NT Intervention. Yes, women and children should be helped, he thinks. But was the DPP and the settler state best placed to provide the assistance? How? By locking up as many men for as long as possible?

In the long run, Marks believes, this doesn’t protect women. “Violent men come out more violent. Children come out hardened. Everyone comes out broken — if they come out at all.” He asks us, the readers of his book, to be prepared to “distinguish the criminal act, committed by the individual, from the criminal justice system which responds to it by way of policing and punishment. Whether we accept it or not, each — the act and the system — has a history.”

Black Lives, White Law is not about solutions. “It’s about the problem, the one big problem that is perpetuating the subjugation of entire communities.” In articulating the problem, Marks also points us towards a different, more hopeful future.

For 230 years, the original owners of the lands that Europeans have been “settling” on have been demanding justice. “The problem is the immutability of settler expectations, our insistence that our system, with its prisons and its courts and its increasingly militarised police, works and is the only way.” He is not arguing in favour of reversing history so that Aboriginal and Torres Strait Islander people can be afforded the uncolonised existence they should have had from the beginning; rather, he is talking to settler Australia “about its need to change.”

There is little acknowledgement in Australia, for instance, that Aboriginal communities and nations had distinct cultures and laws before 1788, many of which continue today in updated form. (While settler law has “experimented” with some recognition of First Nations culture, that recognition is limited, with the court models — the Nunga Court in South Australia, for example — all sharing a common feature: “The law that decides a person’s penalty is settler law.”)

Marks points out that there are significant numbers of people, communities and organisations — both First Nations and settlers — working on developing real-world alternatives to the crime-and-justice model we persist with in Australia. “The only thing stopping us from changing the way we respond to crime is our collective will. [That is not] as insurmountable as it seems.”

Sometimes we see “glimpses of another future, if we know where to look.” Marks writes of agencies agitating for change. He writes of a future where true partnerships are formed:

Settlers are educated on First Nations law and cultural obligations. Social problems are decriminalised and worked on. Individuals are afforded the tools with which to take responsibility, not alone, but as part of whole, self-determining communities. Prisons are rehabilitated and even decommissioned. Communities build, strengthen, heal.

To reach this future, argues Marks, settler Australia and its legal system must first drop its “jealously guarded universality and sheen of neutrality” and enter into a relationship of genuine respect and mutuality with Aboriginal and Torres Strait Islander communities and nations.

Until then, many lives of First Nations people will continue to be lost to imprisonment, generation after generation of communities defined by the prison experience. Marks visits his clients in jail and watches families visit incarcerated loved ones. He sees Aboriginal toddlers comfortable with their securitised routines. “The idea that prison is a normal place to visit Dad or Uncle or, increasingly, Mum is one that’s been established through regular weekend visits well before many children even set foot in a school.”

Black Lives, White Law: Locked Up and Locked Out in Australia
By Russell Marks | Black Inc. | $34.99 | 368 pages