Reconceptualising sentencing and punishment from an Indigenous perspective

Previously we outlined the over-representation of Indigenous peoples in prison in settler colonial societies. In this chapter we examine the sentencing and punishment of Indigenous peoples. We begin by analysing the way non-Indigenous courts have responded to the sentencing of Indigenous people through two contrasting examples of Australia and Canada. We then discuss what are generally referred to as ‘Indigenous sentencing courts’. These courts have developed in different ways in Australia, Canada, NZ and the US, and the scope of their incorporation into mainstream criminal justice systems varies. However, there are commonalities to the extent that the courts take into account some aspects of Indigenous culture when sentencing. The third area we turn our attention to briefly is the development of a distinctly Indigenous approach to justice reinvestment in Australia, and contrast that with the US, where justice reinvestment has largely ignored issues of Indian imprisonment. Finally, we reflect on healing as an Indigenous response to social harm. Essentially existing outside the formal court and correctional systems, healing approaches have grown over recent decades as both an alternative to the philosophical underpinnings of Western punishment, as well as providing practical alternatives to mainstream non-Indigenous correctional policies and practices. We should be clear that we are not interested here in the debate as to whether the courts impose harsher or more lenient sentences on Indigenous peoples. There have been numerous studies of this type focusing on either ‘race’ or Indigeneity in the US (Alvarez and Bachman, 1996; Steffensmeier and Demuth, 2000; Office of Hawaiian Affairs, 2010), Britain (Hood, 1992) and Australia (Gallagher and Poletti, 1998; Bond and Jeffries, 2011). The studies have found various results. Some have methodological flaws or limitations, for example in the variables that are taken into account; and some are theoretically challenged, for example in their understanding of ‘race’ and its broader effects. For an overview of these issues in the US, see Wolpert (1999) and Davis (2003); in New Zealand see Morrison (2009); and in Australia see Cunneen (2006) and Anthony (2013). The view that discrimination in sentencing can be established through a few simple criteria is simplistic: • First, the focus on discrimination or bias is often caught within a binary ‘equality paradigm’, where the standard against which Indigenous people are judged is the treatment of the (white) majority.

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