Indigenous Law Bulletin
By Angela Davis
By Chris Cunneen
The following article by Angela Davis raises fundamental issues in relation to current trends in imprisonment in Australia. These insights need however to be placed within the context of the specific relationship which exists between Indigenous people and the criminal justice system in Australia. Davis draws our attention to the racialized assumptions about criminality prevalent in the US. In the Australian context, racialized assumptions about Aboriginal inferiority have been fundamental to the way Indigenous people have been treated by the colonial state: from the denial of Indigenous sovereignty, to imprisonment on reserves and the stealing of children, to current criminal law and practice which undermines Aboriginal governance and rights to self-determination. In contemporary Australia, racialization has enabled the massive criminalisation and imprisonment of Indigenous people throughout the country.
Prison privatization is a major issue in Australia too, as demonstrated by the announcement in early 1999 that the US Corrections Corporation Wackenhut is to build a new prison in Western Australia. Yet we should not ignore the fact that public prison construction also goes on unabated. In June 1999, it was announced that two new public prisons in New South Wales are to be constructed.
We should however note that there is no necessary direct correlation in Australia between States with high levels of Aboriginal imprisonment and high levels of privatization – yet. Victoria, for instance, has the highest level of privatization, but a relatively low rate of Indigenous imprisonment compared to Western Australia, South Australia, Queensland and New South Wales.
Prison numbers are influenced by both penal and sentencing policy, and particular sentencing policies can have foreseeable discriminatory impacts on political and racial minorities. We can accurately predict that the type of mandatory imprisonment legislation introduced in the Northern Territory will disproportionately impact on Aboriginal people because they are more likely to have a previous record and are more likely to be arrested for the types of offences defined in the legislation (such as property damage). Interestingly, fraud was excluded in the Northern Territory as a property crime punishable by mandatory imprisonment.
The move towards mandatory sentencing in Australia has been mild compared to the types of mandatory sentences imposed in the USA for drug offences and other ‘three-strike’ classified offences. Yet the movement towards this type of sentencing is gathering speed here at the very time that it is being questioned in the US because of its extraordinarily unjust and racist outcomes.
Over the last decade in Australia we have seen a seemingly inexorable rise in the number of Indigenous people in prison. Imprisonment rates for non-Aboriginal people have increased as well – but not nearly so rapidly. We have also witnessed further penetration of international corporations into the economies of the Australian prison. Although Victoria stands as an example of a highly privatised jurisdiction (with nearly half of its inmates in private facilities), we have still not gone as far down the road as the US in terms of integrating the prison system into the broader capitalist economy. Nor have we embarked on the same level of punitive sentencing policies. But the signs are there for anyone who cares to see.
Chris Cunneen is Director of the Institute of Criminology at the Sydney University Law School.
Imprisonment has become the response of first resort for far too many of the social problems that burden people who are ensconced in poverty. These problems are often veiled by being conveniently grouped together under the category 'crime' and by the automatic attribution of criminal behavior to people of color. Homelessness, unemployment, drug addiction, mental illness, and illiteracy are only a few of the problems that disappear from public view when the human beings contending with them are relegated to cages.
Prisons thus perform a feat of magic. Or rather the people who continually vote in new prison proposals and tacitly assent to a proliferating network of prisons and jails have been tricked into believing in the magic of imprisonment. But prisons do not disappear problems, they disappear human beings. And the practice of disappearing vast numbers of people from poor, immigrant, and racially marginalized communities has literally become big business.
The seeming effortlessness of magic always conceals an enormous amount of behind-the-scenes work. When prisons disappear human beings in order to convey the illusion of solving social problems, penal infrastructures must be created to accommodate a rapidly swelling population of caged people. Goods and services must be provided to keep imprisoned populations alive. Sometimes these populations must be kept busy and at other times - particularly in repressive super-maximum prisons and in Immigration and Naturalisation Service detention centers - they must be deprived of virtually all meaningful activity. Vast numbers of handcuffed and shackled people are moved across state borders as they are transferred from one state or federal prison to another.
All this work, which used to be the primary province of government, is now also performed by private corporations, whose links to government in the field of what is euphemistically called 'corrections' resonate dangerously with the military industrial complex. The dividends that accrue from investment in the punishment industry, like those that accrue from investment in weapons production, only amount to social destruction. Taking into account the structural similarities and profitability of business-government linkages in the realms of military production and public punishment, the expanding penal system can now be characterized as a 'prison industrial complex.'
Almost two million people are currently locked up in the immense network of US prisons and jails. More than 70 percent of the imprisoned population are people of color. It is rarely acknowledged that the fastest growing group of prisoners are black women and that Native American prisoners are the largest group per capita. Approximately five million people-including those on probation and parole-are directly under the surveillance of the criminal justice system.
Three decades ago, the imprisoned population was approximately one-eighth its current size. While women still constitute a relatively small percentage of people behind bars, today the number of incarcerated women in California alone is almost twice what the nationwide women's prison population was in 1970. According to Elliott Currie:
[t]he prison has become a looming presence in our society to an extent unparalleled in our history-or that of any other industrial democracy. Short of major wars, mass incarceration has
been the most thoroughly implemented government social program of our time.
To deliver up bodies destined for profitable punishment, the political economy of prisons relies on racialized assumptions of criminality - such as images of black welfare mothers reproducing criminal children - and on racist practices in arrest, conviction, and sentencing patterns. Colored bodies constitute the main human raw material in this vast experiment to disappear the major social problems of our time. Once the aura of magic is stripped away from the imprisonment solution, what is revealed is racism, class bias, and the parasitic seduction of capitalist profit. The prison industrial system materially and morally impoverishes its inhabitants and devours the social wealth needed to address the very problems that have led to spiraling numbers of prisoners.
As prisons take up more and more space on the social landscape, other government programs that have previously sought to respond to social needs - such as Temporary Assistance to Needy Families - are being squeezed out of existence. The deterioration of public education, including prioritizing discipline and security over learning in public schools located in poor communities, is directly related to the prison 'solution.'
As prisons proliferate in US society, private capital has become enmeshed in the punishment industry. And precisely because of their profit potential, prisons are becoming increasingly important to the US economy. If the notion of punishment as a source of potentially stupendous profits is disturbing by itself, then the strategic dependence on racist structures and ideologies to render mass punishment palatable and profitable is even more troubling.
Prison privatization is the most obvious instance of capital's current movement toward the prison industry. Government-run prisons are often in gross violation of international human rights standards. However, private prisons are even less accountable than governments ones. In March 1999, the Corrections Corporation of America (CCA), the largest US private prison company, claimed 54,944 beds in 68 facilities under contract or development in the US, Puerto Rico, the United Kingdom, and Australia. Following the global trend of subjecting more women to public punishment, CCA recently opened a women's prison outside Melbourne. The company recently identified California as its 'new frontier.'
Wackenhut Corrections Corporation (WCC), the second largest US prison company, claimed contracts and awards to manage 46 facilities in North America, UK, and Australia. It boasts a total of 30,424 beds as well as contracts for prisoner health care services, transportation, and security. The stocks of both CCA and WCC have done extremely well recently. Between 1996 and 1997, CCA's revenues increased by 58 percent, from $293 million to $462 million. Its net profit grew from $30.9 million to $53.9 million. WCC raised its revenues from $138 million in 1996 to $210 million in 1997. Unlike public correctional facilities, the vast profits of these private facilities rely on the employment of non-union labor.
But private prison companies are only the most visible component of the increasing corporatization of punishment. Government contracts to build prisons have bolstered the construction industry. The architectural community has identified prison design as a major new niche. Technology developed for the military by companies like Westinghouse are being marketed for use in law enforcement and punishment.
Moreover, corporations that appear to be far removed from the business of punishment are intimately involved in the expansion of the prison industrial complex. Prison construction bonds are one of the many sources of profitable investment for leading financiers such as Merrill Lynch. One American telecommunications company charges prisoners and their families outrageous prices for the precious telephone calls which are often the only contact prisoners have with the free world.
Many corporations whose products we consume on a daily basis have learned that prison labor power can be as profitable as third world labor power exploited by US -based global corporations. Both relegate formerly unionized workers to joblessness and many even wind up in prison. Some of the companies that use prison labor are IBM, Motorola, Compaq, Texas Instruments, Honeywell, Microsoft, and Boeing. But it is not only the hi-tech industries that reap the profits of prison labor. Nordstrom department stores sell jeans that are marketed as 'Prison Blues,' as well as t-shirts and jackets made in Oregon prisons. The advertising slogan for these clothes is 'made on the inside to be worn on the outside.' Maryland prisoners inspect glass bottles and jars used by Revlon and Pierre Cardin, and schools throughout the world buy graduation caps and gowns made by South Carolina prisoners.
'For private business,' write Eve Goldberg and Linda Evans (a political prisoner inside the Federal Correctional Institution at Dublin, California) 'prison labor is like a pot of gold'. No strikes. No union organizing. No health benefits, unemployment insurance, or workers' compensation to pay. No language barriers, as in foreign countries. New leviathan prisons are being built on thousands of eerie acres of factories inside the walls. Prisoners do data entry for Chevron, make telephone reservations for TWA, raise hogs, shovel manure, make circuit boards, limousines, waterbeds, and lingerie -all at a fraction of the cost of 'free labor.'
Although prison labor - which ultimately is compensated at a rate far below the minimum wage - is hugely profitable for the private companies that use it, the penal system as a whole does not produce wealth. It devours the social wealth that could be used to subsidize housing for the homeless, to ameliorate public education for poor and racially marginalized communities, to open free drug rehabilitation programs for people who wish to kick their habits, to create a national health care system, to expand programs to combat HIV, to eradicate domestic abuse, and in the process, to create well-paying jobs for the unemployed.
Since 1984, more than twenty new prisons have opened in California, while only one new campus was added to the California State University system and none to the University of California system. In 1996-97, higher education received only 8.7 percent of the State's General Fund while corrections received 9.6 percent. Now that affirmative action has been declared illegal in California, it is obvious that education is increasingly reserved for certain people, while prisons are reserved for others. Five times as many black men are presently in prison as in four year colleges and universities. This new segregation has dangerous implications for the entire country.
By segregating people labeled as criminals, prison simultaneously fortifies and conceals the structural racism of the US economy. Claims of low unemployment rates-even in black communities-make sense only if one assumes that the vast numbers of people in prison have really disappeared and thus have no legitimate claims to jobs. The numbers of black and Latino men currently incarcerated amount to two percent of the male labor force. According to criminologist David Downes:
[t]reating incarceration as a type of hidden unemployment may raise the jobless rate for men by about one-third, to 8 percent. The effect on the black labor force is greater still, raising the [black] male unemployment rate from 11 percent to 19 percent.
Mass incarceration is not a solution to unemployment, nor is it a solution to the vast array of social problems that are hidden away in a rapidly growing network of prisons and jails. However, the great majority of people have been tricked into believing in the efficacy of imprisonment, even though the historical record clearly demonstrates that prisons do not work. Racism has undermined our ability to create a popular critical discourse to contest the ideological trickery that posits imprisonment as key to public safety. The focus of state policy is rapidly shifting from social welfare to social control.
Black, Latino, Native American, and many Asian youth are portrayed as the purveyors of violence, traffickers of drugs, and as envious of commodities that they have no right to possess. Young black and Latina women are represented as sexually promiscuous and as indiscriminately propagating babies and poverty. Criminality and deviance are racialized. Surveillance is thus focused on communities of color, immigrants, the unemployed, the under-educated, the homeless, and in general on those who have a diminishing claim to social resources. Their claim of social resources continues to diminish in large part because law enforcement and penal measures increasingly devour these resources. The prison industrial complex has thus
created a vicious cycle of punishment which only further impoverishes those whose impoverishment is supposedly 'solved' by imprisonment.
Therefore, as the emphasis of government policy shifts from social welfare to crime control, racism sinks more deeply into the economic and ideological structures of US society. Meanwhile, conservative crusaders against affirmative action and bilingual education proclaim the end of racism, while their opponents suggest that racism's remnants can be dispelled through dialogue and conversation. But conversations about 'race relations' will hardly dismantle a prison industrial complex that thrives on and nourishes the racism hidden within the deep structures of our society.
The emergence of a US prison industrial complex within a context of cascading conservatism marks a new historical moment, whose dangers are unprecedented. But so are its opportunities. Considering the impressive number of grassroots projects that continue to resist the expansion of the punishment industry, it ought to be possible to bring these efforts together to create radical and nationally visible movements that can legitimize anti-capitalist critiques of the prison industrial complex. It ought to be possible to build movements in defense of prisoners' human rights and movements that persuasively argue that what we need is not new prisons, but new health care, housing, education, drug programs, jobs, and education. To safeguard a democratic future, it is possible and necessary to weave together the many and increasing strands of resistance to the prison industrial complex into a powerful movement for social transformation.
Angela Davis is Professor in the History of Consciousness Department at the University of California and is also a former political prisoner and long-time prison activist. She visited Australia for the first time in May last year as a guest of the Sydney Writers Festival. On her trip, she also visited Mulawa Women' Detention Centre in Sydney and met a group of Indigenous women active in prison reform. She is currently working on a history of the penal system which will also discuss prisons in Australia.(see (1999) 4 (21) ILB 31. Angela Davis' article is reprinted from the US magazine Colorlines.
 National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Bringing Them Home (1997) 528. Cf also George Zdenkowski, 'Mandatory Imprisonment of Property Offenders in the Northern Territory', (1998) 4 (17) ILB 15; 'New Challenge to NT Mandatory Sentencing' (1999) 4 (18) ILB 16; C Thomson, 'Preventing Crime or "Warehousing" the Underprivileged? Mandatory Sentencing in the Northern Territory', (1999) 4 (26) ILB 4.
 M Tonry, Malign Neglect (1995).
 C Cunneen and D McDonald, Keeping Aboriginal and Torres Strait Islander People Out of Custody (1997) especially Chapter 2.
 See the special issue on prisons and privatization in Australia in (1999) 11 (2) Current Issues in Criminal Justice.