The Language of Incarceration: Barriers to an effective justice system

These disadvantages are linguistic, cultural, and invisible to those who make up a cultural hegemony. Without tearing down these barriers, our justice system cannot serve true justice.

Aboriginal and Torres Strait Islander people are represented ten times more in Australia’s prison population than the general population (32% of prisoners are Indigenous, but only 3.2% of Australians are). This can be attributed, in part, to the over-policing of Indigenous communities. However, once someone is arrested, Indigenous people, alongside other people of colour, face further systemic disadvantages when navigating the justice system. These disadvantages are linguistic, cultural, and invisible to those who make up the cultural hegemony. Without tearing down these barriers, our justice system cannot serve true justice. 

Language is not a neutral mechanism for describing the state of the world. The tools that exist in languages are in a symbiotic relationship with reality: they at once shape and are shaped by the cultures and perspective of the people speaking them. This is especially evident when we look at the politeness resources that languages afford us. In some languages, for example, there are different second-person pronouns for different levels of formality, like how in Italian, you might refer to a friend as “tu” but an older stranger as “Lei”. In English, we only have “you”. Other languages like Japanese have honorific systems which are affixed to the end of names — like “-san” or “-chan” — to indicate levels of respect and social distance. Again, we don’t have similar resources in English. Beyond different linguistic tools, there are also different definitions of politeness across cultures. In Arabic cultures, for instance, it is polite to decline an offer initially before taking someone up on it, whereas that isn’t true in Anglo cultures. Politeness is a social construct, and, as such, it varies across cultures. 

Typically, misunderstanding different cultural definitions of politeness is only problematic insofar as it creates some awkwardness when people aren’t on the same page. More insidious problems arise, however, when we impose hegemonic linguistic and cultural standards of politeness onto structures which govern broader society. 

The justice system is a particularly impactful example of this. We use the same arbitrary, Anglicised standards to determine whether all people, regardless of their culture, are criminal or not. This only compounds the disadvantage that people from marginalised backgrounds, especially Aboriginal and Torres Strait Islander peoples, face in legal settings. There are several ways these linguistic and cultural standards are imposed. 

Firstly, we rely heavily on semantics when assessing witness evidence, and these semantics are deeply culture-specific. In a common assault case, for example, a defendant may be examined on whether they “hit” or “tapped” a complainant. Although the difference between these verbs may sound intuitive to a native English speaker, it may be less clear if it is not your first language. The former constitutes an offence, but the latter may just be a means of getting someone’s attention. They are not interchangeable, and they are often the best gauge a courtroom has for determining the severity of an offence. For non-native speakers, this makes them more susceptible to accepting untrue or incriminating versions of events from prosecutors due to semantic ambiguity. This exists even when the defendant speaks English fluently; there are many dialects of English which ascribe different semantic meaning to words. A clear example is how “deadly” can mean “great” in Aboriginal English, but “fatal” in Standard Australian English. A judge may be lenient to a witness or defendant who they can tell isn’t fluent in English, but that same leniency may not exist for a speaker who is speaking a different dialect than they are, for the simple reason that a lot of us just don’t know that there are other dialects of English to begin with. Relying on semantics to gauge the severity of an offence disadvantages those who use language differently to you. 

Standards of politeness also factor into the way witnesses and defendants are treated in examinations in court and  prior questioning. There are many examples of differences between various Indigenous cultures and white Australian standards of politeness. Politeness could inform the way a witness answers a question. Gratuitous concurrence, for instance, is a politeness strategy used by many Indigenous people which involves agreeing with a statement as a show of respect. To disagree can be seen as presumptuous and rude. If a cross-examiner puts a scenario to an Aboriginal witness, then, it is possible they will say that they agree to it even if it doesn’t match their own recollection. It should be clear how dangerous that could be. 

Differences also arise in the way people from different linguistic backgrounds describe events. Tense systems in English (past, present, future) differ substantially from tense systems in many Indigenous Australian languages, which have less rigid distinctions between periods of time. Even if a witness is fluent in English, or speaks English monolingually, they may describe passages of time differently to an Anglo Australian speaker. As such, an Indigenous witness might be unable to give a specific time when an incident took place, or use loose terms like “before dinner”, which could lead a cross-examiner or judge to assume their recollection is faulty or that they are being purposefully deceptive. Part of a judge’s role is to assess the credibility of witnesses or defendants. If they deem them poor sources of evidence, their testimony can be neglected or given less weight than a “more credible” witness. 

This issue of credibility also arises when considering the body language and conversational conventions deemed polite in many Indigenous communities. Direct eye contact can be seen as disrespectful by some Aboriginal people, but avoiding eye contact can be considered deceitful by Anglo people. Saying the name of deceased people is taboo for many Indigenous people, but refusing to speak a name or equivocating around it may be treated as hostile by a white court. While direct questioning is conventional in courtrooms, it is impolite in many Indigenous communities, which may lead Indigenous defendants to react uncomfortably in interviews or examination. All of these factors may weigh into a judge’s assessment of witness or defendant credibility. Imposing white standards of politeness onto Indigenous people in order for them to be treated as credible or trustworthy is a tool of colonialism that further disadvantages BIPOC experiences. Trusting white voices over voices of colour stacks the judicial process against marginalised people. 

Beyond witness credibility, these assessments also factor into sentencing. Judges take remorse into account when deciding how long of a sentence is appropriate. These assessments of remorse are entirely arbitrary. The act of apologising differs greatly cross-culturally. In Korean, for example, the apologetic term “mianhada” carries a component of responsibility; it would be redundant for a Korean speaker to say “I’m sorry, that was my bad”, but the same isn’t true for English. Admitting responsibility is a major part of expressing remorse in a courtroom, which is why courts treat early pleas of guilty as counting towards remorse. If a non-native speaker apologises for an act in a way that doesn’t seem sincere to a native-English-speaking judge, that can contribute to a higher sentence. Prior character evaluations about a defendant, including misreading their expressions of politeness as standoffish, can also contribute to being overly punitive when evaluating how remorseful they are. This can be the difference between a community corrections order and a prison sentence, or bump time served up by months or even years. 

Our justice system is deeply colonial in the standards it imposes upon those it governs. This disadvantages BIPOC in one of the most impactful contexts they could find themselves in. Our prison system is underfunded and dangerous, time away from families and communities can be traumatic, and a criminal record can complicate finding meaningful employment in a life-ruining way. In states like the USA, a felony charge can strip you of your right to vote or condemn you to death. A justice system that favours those who know the unwritten rules of white society and condemns those who do not is not just at all. 

How can we decolonise our justice system? Unfortunately, this is a tricky question — one I am not qualified to answer. On a surface level, we can introduce more cultural sensitivity to our courts, training judges and lawyers in the ways that people unlike them may respond to the high stress situations they will encounter them in. More BIPOC at the bench and the bar table would also help challenge the Anglo cultural hegemony. More radically, we could deconstruct our justice system, have different courts for different people and cultural contexts, and remove the capacity for a judge to evaluate witness or defendant sincerity. It is not easy to decolonise systems that we rely on to function as a society, but it is necessary if we care about justice in any capacity.