The Violence of the Neutral State: The Institutionalisation of Racism in Juvenile Justice

Juvenile detention centre as seen from distance and through a fence

In November 2017, the Youth Justice Coalition[1] (YJC) in NSW, a group of youth advocates, academics and children’s lawyers, released a report detailing the impacts of the police risk assessment tool, ‘Suspect Targeting Management Plan’ (STMP). The report emphasises that Indigenous young people are so ‘significantly over represented as STMP target’ that the concept of ‘crime-prone communities’ is just a code for ‘Indigenous neighbourhoods.’ This is far from surprising since, as Sherene Razack[2] has elaborated in Dying from Improvement (2015), over-policing in settler colonial states such as Australia represents a violent settler performance of belonging against which Indigenous people ‘who are in the city’ are cast as ‘not of the city’.

The legacy of racial profiling by the police in the settler colonial past is carried on via risk assessment tools. But risk assessment tools such as the STMP make racial profiling look like as though its function was not to attach the power of the state to the ‘flesh and bones of Indigenous bodies.’[3] This is the lesson I learnt from working for Juvenile Justice in NSW, where some children and young people are deemed riskier than others and, as a result, are increasingly surveilled, the intensive intrusion into their lives justified.

As an agency, Juvenile Justice NSW has been around for only 19 years, and although programs to tackle juvenile reoffending have come and gone, each reflecting the thinking of the time, what remains unchanged and relatively unchallenged, is the most basic and core practice of juvenile justice: the risk assessment tool. I decided to study the juvenile justice risk assessment tool as part of my PhD.

Named the Youth Level of Service Case Management Inventory-Australian Adaptation (YLS/CMI-AA),[4] the risk assessment tool used by Juvenile Justice NSW consists of a series of questions or an ‘inventory’ that juvenile justice officers put to a child or young person. The tool includes questions about previous offences, family and housing, alcohol and drugs, and about the young person’s attitude and personality.[5] Each response attracts a score with each question signalling which factors are more risky. At the end, these scores are tallied up and a final risk score is given, reflecting the level of riskiness as a number. The higher the number, the higher the risk of reoffending. This ‘assessment’ appears to be a straight-forward, race-neutral, scientific process. However, over the five years of my employment, I cannot recollect a single child that was not marked as being from a low socioeconomic background, that is who lived in the poorer suburbs, in public housing, or whose parents or themselves received welfare benefits. Consequently, every time I administered the risk assessment tool on an Indigenous child, it was automatically accepted that they would attract a higher-risk score since they were also socio-economically disadvantaged.

Because of the link established between low socio-economic status, Indigeneity and risk, it was almost inevitable that I would work with Indigenous children over an extended period because they were often sentenced to longer community-based and control orders, would repeatedly come in contact with juvenile justice. I would then usually also work with one or more of their siblings or relatives as they too came in contact with juvenile justice. While others might think, ‘well these experiences simply reflect the fact that these particular kids commit more crime,’ I found myself drawn to Michelle Alexander[6] who asks ‘…how exactly does a formally colourblind criminal justice system achieve such racially discriminatory results?’

In 2016-2017, the Australian Institute of Health and Welfare[7] recorded that Indigenous children in NSW were 17 times as likely to be under supervision as non-Indigenous children (154 per 10,000 compared with 9 per 10,000), and the rate of Indigenous people in detention was 21 times higher than non-Indigenous people. This rate of overrepresentation was recorded as an increase since 2012-13.[8] Risk assessment tools have significantly contributed to the explanations given for these types of disproportionate rates in juvenile justice. There has been limited discussion of the everyday processes in juvenile justice systems that mark children and young people as ‘risky’, and more likely to be placed at the mercy of the state to begin with. Even in the face of explicit state-sanctioned racism, risk assessment tools, which play a role in determining the level of state intrusion, continue to be defended. Don Dale children’s prison in the Northern Territory is the most conspicuous case in point.  Since 100 per cent of the detainees are Indigenous, every single child detained in this facility must have been assessed as too risky to be released back into the care of their family and community. Risk assessment tools thus validate what is already ‘known’ about Indigenous offenders; they are more likely to commit future offences because they are Indigenous.

I came to this conclusion after interrogating each and every question that the risk assessment tool asks. I examined how an everyday, relatively mundane and routine practice within juvenile justice, relies on its supposed ‘neutrality’ of numerical calculations to disguise and justify racialised targeting. I argued that risk assessment tools used in juvenile justice construct the conditions of possibility for the criminalisation and domination of specific children and young people. These are some of the questions in the juvenile justice risk assessment tool:

Do you feel you were treated fairly by the police and the court? Are most people treated fairly by the police and the courts?

Do you think people who don’t break the law are better than people who break the law? Why?

Do you think you are treated fairly by your parents? Do you think you should obey their rules? Why do you say that?

What about school? Do you think students are treated fairly by teachers and other staff? Why do you say that?

What about work? Would you say that employees are treated fairly by bosses?

As these questions highlight, key social institutions are taken to be inherently good or fair to everybody. Consequently, negative ‘attitudes and beliefs’ towards the authority they are deemed to represent and those who administer them are considered one of the most important indicators of risk. In fact, there is a very real likelihood that children who are categorised as being ‘defiant,’ ‘anti-authority’ and ‘resistant to change’ would be sentenced to longer, more punitive community or custodial orders. What this means in ‘real life,’ or ‘on the ground’ is that, if a child or young person responded with ‘the cops are racist and keep stopping me because I’m black’ or ‘the system is unfair,’ they would attract high scores for these questions, and may be deemed overall as at ‘high risk’ of committing further crimes. In other words, recognising the state, and in particular the justice system, as racist is punishable. This also means that Indigenous children are more readily marked as riskier than other children and are more vigorously governed, especially since many of them are aware of racialised targeting and the unfairness of the justice system.

Because risk assessments, and by extension the state, are portrayed as neutral, it becomes possible for risk discourse to make other populations dangerous too. The threat of ‘home grown terrorism’ is currently under the spot light in Australia and risk assessment tools are increasingly being used for national security purposes. Muslim youth in particular are the newer targets of the state and of anti-terror measures and are represented as vulnerable to ‘radicalisation.’

Radicalisation has become a governmental priority, and although formal policies and laws do not state that Muslims are the targets, it is clear that all Muslims in Australia, regardless of whether or not they have committed a crime, are constituted as risky or as ‘at risk’ of becoming radicalised. This implies that Muslims have a natural propensity for extremism unless the state intervenes. This is made possible and thinkable by preventative community initiatives such as Countering Violent Extremism (CVE) programs, which have increasingly been deployed in Muslim communities in an attempt to prevent radicalisation. As with Indigenous communities, Muslim communities are collectively made risky. This dispersion of risk prompts Muslims to become self-regulating and self-surveilling by, for example, participating in programs that position them as inherently violent.[9]

According to current anti-terror laws in Australia, an individual does not need to engage in crime for their liberties to be removed. For example, individuals (including young people) who are ‘suspected’ of engaging in terrorism-related activities can be detained for up to 14 days without charge. Suspicion can be based on evidence that demonstrates somebody is ‘thinking’ or planning violence. The implications of these types of preparatory offences or ‘risky thinking’ have already impacted all Muslim communities in Australia. This is the case in that, unlike structured risk assessments, such as the one discussed above, there are no clear parameters about risk factors in relation to terrorism. In fact, it is because there are no parameters or specific risk factors that it is possible to see every Muslim as potentially radical. As Coppock and McGovern[10] point out:

Such open-ended vagueness may not, however, be entirely unintentional, allowing as it does for the re-construction, re-interpretation and re-articulation of what constitutes ‘radicalisation’ and the potential widening of a net of applicability to various individuals, groups, attitudes and actions.

The (lack) of evidence and transparency on how the risky Muslim is identified highlights how the valuing (or de-valuing) of evidence-based processes shifts and is used or dispensed with depending on subjective stances.  No matter how fraught risk assessment tools are, Muslim national subjects are rendered inherently dangerous regardless of the presence or absence of any of traditional risk factors. A clear example can be seen in the case of PhD student Mohamed Nizamdeen who was wrongly arrested on terrorism charges in 2018. Although he did not possess any risk factors, such as being poor or being anti-authority, he was deemed risky despite poor police evidence, effectively because he is Muslim. ‘Evidence’, or the lack thereof in this case, did not protect Mohamed Nizamdeen.

The ‘neutrality’ of risk assessment tools allows governmental departments to never explicitly name Muslims or Islam as a risk factor, while at the same time placing race centre-stage. The term ‘culture’ is often used instead to disguise the Muslim targets of assessments and programs that propose to ‘counter’ violent extremism. For example, in early 2018, Juvenile Justice NSW created a Countering Violent Extremism team to respond to the radicalisation problem and introduced the Radicalisation Extremism Awareness Program (REAP), a risk assessment tool that ‘assists staff to identify relevant indicators of extremism to enable referral of ‘at-risk’ young offenders to appropriate interventions and support.’[11] In the same year, the Inspector of Custodial Services department released a report on The Management of Radicalised Inmates in NSW [12] that stated: ‘many staff expressed a desire for more training and knowledge around prison radicalisation as well as general cultural training to assist staff to distinguish between conversion, radicalisation and violent extremism.’[13] What is meant by ‘cultural’ is made more transparent within the document: ‘in NSW the majority of violent extremists in custody are Islamist extremists’ and states that the Australian government ‘nominates the current major threat to Australia to be violent extremism perpetrated or inspired by groups and individuals that claim to act in the name of Islam.’[14] There is an entire section in the report dedicated to ‘Understanding Muslim culture.’[15] In this way, violent extremism is conflated with Islam.

What is apparent is how ‘risk’ continues to be a proxy for ‘race’ despite the use of ‘neutral’ language. This indicates that risk assessments are being increasingly relied upon in penal systems in the aim of governing societal ‘undesirables.’

My research process highlighted how academic ‘knowledge’ and state policies make the overrepresentation of black and brown bodies in the penal system thinkable and more acceptable, logical and sensible. Despite the violence that they permit to be perpetuated, risk assessment tools are increasingly welcomed as the pinnacle of advancement in criminal justice systems. In the face of such wilful ignorance,[16] I cannot but conclude by paraphrasing Michel Foucault’s warning: we should not be complacent or accept ‘developments’ in penality as ‘progress’, because this so called ‘progress’ further justifies the elimination of Indigenous populations alongside the exclusion of differently racialised subjects.


[1] Sentas, V., and Pandolfini, C. (2017). Policing Young People in NSW: A Study of the Suspect Targeting Management Plan. Sydney: Youth Justice Coalition NSW.

[2] Razack, S. (2015). Dying from Improvement: Inquests and Inquiries into Indigenous Deaths in Custody. Toronto: University of Toronto Press, 24.

[3] Dhillon, J. K. (2015). ‘Indigenous girls and the violence of settler colonial policing.’ Decolonization: Indigeneity, Education & Society, 4(2), 12.

[4] Hoge, R.D., & Andrews, D.A. (1995). Australian Adaptation of Youth Level of Service/Case Management Inventory. North Tonawanda, NY: Multi-Health Systems Inc.

[5] To know more, you can access the assessment tool ‘guide’ here: http://www.territorystories.nt.gov.au/bitstream/10070/262722/22/annex%209%20-yls-cmi-aa-guide.pdf

[6] Alexander, M. (2012). The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press, 103.

[7] Australian Institute of Health and Welfare (2018). Youth Justice in New South Wales 2016-17. Web report, 9 May 2018, https://www.aihw.gov.au/getmedia/422ac161-904e-4a29-a45c-b36c57d2c6a9/aihw-juv-116-nsw.pdf.aspx.

[8] Australian Institute of Health and Welfare (2018). Youth Justice in Australia 2016–17. Web report, 25 May 2018, https://www.aihw.gov.au/reports/youth-justice/youth-justice-in-australia-2016-17/contents/table-of-contents.

[9] Aly, A. (2013) ‘The Policy Response to Home-grown Terrorism: Reconceptualising Prevent and Resilience as Collective Resistance’, Journal of Policing, Intelligence and Counter Terrorism, 8:1: 2-18.

Abdel-Fattah, R. (2019) “Managing belief and speech as incipient violence: ‘I’m giving you the opportunity to say that you aren’t’,” Journal of Policing, Intelligence and Counter Terrorism, 14:1, 20-38.

Morsi, Y. (2017). Radical Skin, Moderate Masks: De-radicalising the Muslim and Racism in Post-racial Societies. London: Rowman & Littlefield International.

[10] Coppock, V., & McGovern, M. (2014). “‘Dangerous Minds’? Deconstructing Counter‐Terrorism Discourse, Radicalisation and the ‘Psychological Vulnerability’ of Muslim Children and Young People in Britain.” Children & Society28(3), 245.

[11] Department of Justice NSW (2018). Annual Report 2017-2018, 30. https://www.justice.nsw.gov.au/Documents/Annual%20Reports/dept-justice-annual-report-2017-18.pdf

[12] Justice NSW (2018). The Management of Radicalised Inmates in NSW. http://www.custodialinspector.justice.nsw.gov.au/Documents/The%20management%20of%20radicalised%20inmates%20in%20NSW.pdf

[13] Justice NSW (2018). The Management of Radicalised Inmates in NSW, 9.

[14] Justice NSW (2018). The Management of Radicalised Inmates in NSW, 24.

[15] Justice NSW (2018). The Management of Radicalised Inmates in NSW, 34.

[16] Sullivan, S., & Tuana, N. (Eds.). (2007). Race and Epistemologies of Ignorance. Suny Press.

Lobna Yassine is a settler born and raised in Sydney. She is a Muslim woman, and the daughter of Lebanese immigrants. She recently submitted her PhD for examination at the University of Sydney. Her thesis explored risk assessment tools in juvenile justice, the notion of ‘neutrality’ and institutional racism, and the usefulness of Foucault’s works to understand contemporary practices within criminal justice. Lobna is also interested in the politics of knowledge production in social work. She worked as a counsellor for juvenile justice for five years and continues to work alongside young people in the community.

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