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22 Aust. & N.Z. J. Criminology 1 (1989)

handle is hein.journals/anzjc22 and id is 1 raw text is: 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 which most 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. t MA, Dip Ed, Research Associate, Department of Geography, University of Adelaide. 1

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