#BlackLivesMatter, race, and wrongful convictions
The #BlackLivesMatter Movement
America has long struggled with a history of systemic racism embedded into its criminal justice system. Bryan Stevenson and Michelle Alexander state this links back to America’s history of slavery and lynching, arguing that this is still perpetuated by the significant over-incarceration of Black Americans within their criminal justice system. Policing is also often at the centre of discussions surrounding racism and justice. #BlackLivesMatter, founded by Alicia Garza, Patrisse Khan-Cullors and Opal Tometi, emerged in 2013 to bring attention to police brutality against Black Americans, which has too often resulted in deaths. #BlackLivesMatter now represents a broader movement for social justice reform.
The most recent protests of 2020 have been sparked by the death of George Floyd, allegedly killed by police officer Derek Chauvin, after being accused of using a fraudulent $20 note. What makes these protests different from those that occurred following the deaths of Alton Sterling, Eric Garner, Michael Brown, Trayvon Martin, Philando Castile and Rayshard Brooks is the international attention that Mr Floyd’s death has received following the protests, and the rallying cry from communities arguing that they too are often the victims of racist policing. This frustration has been shared by Australia’s First Nations Peoples who have also taken to the streets in support of #JusticeforGeorgeFloyd and #BlackLivesMatter.
The protests across the US have resulted in a number of states and cities pledging their commitment to change. Kentucky has removed ‘No Knock Warrants’, New York has disbanded the ‘plain clothes’ unit, whilst other cities have pledged to dismantle current police departments and pledge commitments to invest in community based public safety models. While the ‘No Knock Warrants’ were abolished following the killing of Breonna Taylor in her own home in March, at the time of writing there have been no repercussions for the officers involved in her death. It, therefore, remains to be seen whether these intentions to reform are genuine, and how far they will reach.
#BlackLivesMatter Australia
Drawing parallels with the overseas experience, protests have taken place across all major Australian cities over the last few months, drawing attention to systemic, systematic and structural racism in Australia. As these protests were unfolding across Australia, further cases of recent police brutality against Indigenous Australians have come to light, such as the 16-year old whose legs were kicked out beneath him, the violent arrest and overnight detention of a man who had been riding a bicycle without a helmet, and most recently a man tasered repeatedly in the face, neck and chest despite not appearing to resist arrest. While the increased media attention surrounding these protests is new, the protests and campaigns for reform are not. First Nations people have tirelessly protested year after year raising awareness of and challenging the current systems that result in deaths in custody, police brutality, and hyper-incarceration of First Nations peoples and children.
'Australia’s First Nations people are the most incarcerated in the world. They are also more likely to be policed, fined, and processed through our criminal justice systems. Endless royal commissions, inquiries and reports generate recommendations destined to be unimplemented. After over 430 deaths in custody since the Royal Commission into Aboriginal Deaths in Custody in 1991, the Inquest into the Death of Tanya day was the first to consider whether racism played a role. The Coroner recommended that Victoria Police investigate the case on the basis of negligence, however, did not consider racism as a contributing factor to Tanya Day’s death. Policy reform across the continent has been slow, with Victoria only recently decriminalising public drunkenness, and Western Australia’s recent debate about whether the imprisonment for non-payment of fines, which predominantly impacts Aboriginal women, should be abolished.
Race and wrongful convictions
While the racial inequalities more broadly and within the justice system remain on the political agenda, it is also imperative to keep in mind the influence of race on wrongful convictions and miscarriages of justice. Most of what is known about the impact of race on wrongful conviction is derived from the US, where African American people remain overrepresented in wrongful conviction statistics, comprising almost half of all exonerations. Issues of racial discrimination, witness misidentification and official misconduct are a number of the causal factors contributing to this.
In Australia, there is no official mechanism to collate records of instances and causes of wrongful convictions. Australian wrongful conviction scholars have started to build a ‘repository’ of wrongful convictions, though a lack of official data hampers these efforts. While we acknowledge that Australian experiences and causal factors of wrongful convictions differ from that of overseas jurisdictions, similarities persist in the vulnerabilities faced by members of Indigenous and other ethnic and racial communities.
Members of the Innocence Initiative have elsewhere argued that considerations of race need to move beyond that of a demographic factor in wrongful conviction scholarship and knowledge, and instead focus on how it can be considered ‘a causal factor contributing to wrongful conviction in Australia’. Cases such as Farah Jama and Gene Gibson, are illustrative of this. Jama was exonerated on the basis of DNA error, whilst procedural errors relating to the use of interpreters and a coerced confession were highlighted as the causes of Gibson’s wrongful conviction. Whilst we can identify systematic errors in these cases, we must also ask why systemic racism is overlooked as the potential source of these errors, given the role it may play in these wrongful convictions.
Investigations at the Bridge of Hope Innocence Initiative have found race has had a monumental impact on a number of our cases, particularly those of Khalid Baker and Boronika Hothnyang. While Khalid’s case features the traditional causal factor of witness misidentification, we also believe that racism and bias featured heavily in the police investigation and prosecution approach. In Boronika’s case, we believe race has also played a role in an apathetic police investigation, compounded by other issues of a lack of appropriate interpreters, dishonest witness evidence and a lack of forensic evidence linking Boronika to the crime. Furthermore, a number of Indigenous Australians currently have advocates campaigning for their innocence, such as Derek Bromley and Kevin ‘Curtain’ Henry that are worthy of immediate attention and intervention.
While the media and academia are starting to inform and critique the narratives surrounding race, wrongful convictions and miscarriages of justice, what remains missing is political will to engage in discussions surrounding reform and rectification. That the above cases have received some isolated media attention but remained relatively ‘off the radar’ demonstrates wider societal disengagement when wrongful convictions and miscarriages of justice impact Black people and people of colour in Australia.
What can you do?
We at the Bridge of Hope Innocence Initiative stand with the families and communities seeking justice and an end to inequality not only in the criminal justice system, but wider society. If you want to contribute to change, we encourage you to read and listen to First Nations Peoples, and donate to Indigenous-led campaigns. You can also find your local innocence project and support their work. We have provided a number of links below (which is by no means exhaustive) of who to follow, podcasts to listen to, and where to donate.
Written by Alyssa Sigamoney & Monique Moffa
Follow
Ten Twitter accounts you should be following if you want to listen to Indigenous Australians and learn
Others include Amy Thunig, Teela Reid, Disposable Human, Nayuka Gorrie, Rachael Hocking, Vickie Roach
Read
Justice groups issue five-point plan to reduce indigenous-imprisonment
‘I Can’t Breathe!’ Australia must look in the mirror to see our won deaths in custody - Thalia Anthony
Deaths Inside: Indigenous Deaths in Custody - The Guardian
Bryan Stevenson: ‘Hopelessness is the Enemy of Justice. Hope is our superpower’ - NITV
Books by Indigenous and POC writers
Watch
Listen
Donate
Fundraiser for family of Kumanjayi Walker, who are calling for an independent inquiry into the shooting and community policing
Fundraiser for the family of Joyce Clarke
Written by Alyssa Sigamoney and Monique Moffa (July 10, 2020)