Black and Minority Ethnic People in Prison

“For every Afro-Caribbean male on campus there are two in jail.” (Phillips, 2004). Sir Trevor Phillips’ memorable claim is interesting on two levels. First, in how it highlights the strong evidence that Black or Minority Ethnic (BME) persons form a disproportionately high section of the prison population in England and Wales. Secondly, as an example of the polemical terms in which this question is often debated. In this essay I will seek to get behind the rhetoric.

Whilst Sir Trevor may have chosen (or embellished) his statistics for rhetorical purposes, there is a disproportionately high number of BME prisoners. Home Office statistics [2] show some 27% of the prison population in England and Wales identified themselves as being from ethnic minority groups [3]. These figures should be approached carefully if one is trying to consider incarceration rates in the resident population. Foreign nationals accounted for 38% of the BME prison population (Ministry of Justice, 2009). However, even excluding the impact on the statistics of foreign nationals, the differences in incarceration rates are startling, particularly for British nationals who self-identify as Black [4] : 6.8 per 1,000 compared to 1.3 per 1,000 for White people [5] – more than five times more Black people in prison per head of population than White people. Similarly, there were more people of mixed ethnicity in prison per head of population than White people, with a rate per 1,000 of 3.7. However, this substantial overrepresentation was not shared by other non-White ethnic groups. People from Chinese or Other Ethnic backgrounds were least likely to be imprisoned, with a rate of 0.5 per 1,000. The rate for people from Asian groups [6] was also higher than for White persons but significantly lower than for the Black or Mixed groups at 1.8 per 1,000 population. The differences in these rates are so marked that there is clearly a question to answer here: why are Black people, and certain (but not all) other ethnic minorities more likely to be incarcerated than their White fellow-citizens?

Three broad explanations present themselves as possibilities:

• disproportionate criminality: that persons of BME ethnicity commit a disproportionately high percentage of crimes;
• disproportionate detection and prosecution: that they are disproportionately more likely to be caught, charged or prosecuted with such crimes; and
• disproportionate conviction and sentencing; that they are more likely to be convicted, or if convicted more likely to be imprisoned or imprisoned for longer.

Of course, the truth could combine these explanations but it is important to establish which of them is most salient, and to delve more deeply into the causes underlying such explanation.

Are BME people just more likely to offend than White people?

The simplest explanation for the disproportionately high number of BMEs imprisoned is that BME individuals are more likely to commit crimes.

If we assume that there is a direct relationship between arrests and criminality, and we accept police reported crime levels, there is strong evidence to suggest that BMEs are more likely to commit crimes than Whites. (Here we are using the Home Office crime definitions, encompassing violent crime, intimate violence, acquisitive crime, vandalism and criminal damage, fraud, racially or religiously motivated crimes, and drug offences.) In 2007-8, 82% of all arrests were of people of white appearance, with 9% Black, 5% Asian and 1% classified as Other (Ministry of Justice, 2009). This can be compared the government’s estimates for the ethnic makeup of the general UK population in 2006/07 where 88.7% are White, 2.7% Black, 5.5% Asian and 1.5% Other (Gask, 2008). Whilst the arrest numbers for White, Asian and Other ethnicities were roughly proportional to their prevalence [7] in the population, Black people were 2.5 times more likely to be arrested than the population as whole.

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If we accept a strong correlation between arrest and criminality rates, then we may conclude that Black people, but not other ethnic groups, are more likely to offend than Whites. This requires an explanation and broadly three types of explanation have been propounded: socio-economic, family factors and historical/cultural factors (including policing strategies).

The association between socio-economic disadvantage and involvement in crime is well-established (Home Office Report). According to Becker’s (1968) analytical framework, crime rates reflect the risks and costs of being caught, and the disparity between potential gain from crime and the associated opportunity cost. Those with least to lose are more likely to offend. Economists have interpreted measures of income inequality as indicators of the distance between the gains from crime and its opportunity costs (Fajnzylber et al, 2002). This view is supported by statistics associating UK homicide rates with poverty (Dorling et al, 2005). Black African and Caribbean groups make up approximately 2.5 times the proportion of the population in the most deprived areas of the country as for England as a whole (Jacobs & Tinsley, 2006). Relative poverty appears to provide a good explanation why Black people might be more likely to commit crime, and in particular economic crime [8]. It seems likely also that the unemployed are more likely to engage in criminality. The adage that the devil makes work for idle hands is supported by the literature [9]. It is therefore significant that Home Office statistics on unemployment rates found that Black men suffered almost three times more unemployment than White British or Irish men (Home Office, 2005).

Poor educational achievement is a symptom and cause of socio-economic disadvantage. Some argue that educational underachievement is also independently a major cause of criminality. “The failure of the education system to educate our black boys provides a breeding ground for disaffection that undoubtedly leads many (not all) to seek alternative means to obtain a good standard of living or gain respect from their peers” (Home Office, 2003). Certainly poor education is associated with delinquency. Maguin & Loeber (1996) showed through their meta-analysis of studies of this relationship that children with low academic performances offended more frequently, committed more serious offences, and persisted in their offending. However, whether poor education is an independent cause is not established – the merely correlational role of education was argued by pioneering analysts in the 1830s (Feldman, 1993). It may be that poor education affects delinquency indirectly by limiting employment opportunities, which in turn leads to more probability of criminal behaviour.

If educational underachievement causes criminality then it is pertinent that Blacks participate far less in higher education than Whites (Bhattacharyya et al, 2003) [10]. Furthermore, Black people are far likelier to be excluded from school (Department for Education and Skills, 2006) [11]. There is an established association between school exclusions and involvement in crime [12] and, whilst it is unclear whether criminality leads to exclusion from school or vice versa, either way the evidence of more school exclusions amongst Black people supports the proposition that Black people’s disproportionate incarceration arises from disproportionate criminality. If education is a factor, however, it is unclear whether fault lies with the educational opportunities available; the allegedly low value that Black (or more specifically Afro-Caribbean) males place on formal education or other factors.

Family and parenting factors provide another possible explanation of the overrepresentation of BMEs in prison. BME children are more likely to grow up in single-parent households; for example, 54.5% of mixed White/Black Caribbean children grew up in lone-parent households (Home Office, 2003). This has been shown to have a negative impact on later life outcomes. Kellam et al (1982) found that Black children from mother-only families were more likely to be judged by their teachers as maladaptive, than other groups. More specifically, a high proportion of BME children are born to teenage mothers (Higginbottom et al, 2005). [13] Jaffee et al (2001)’s 20-year longitudinal study showed that the offspring of teen mothers are at particular risk for adverse outcomes including early school leaving, unemployment, early parenthood, and violent offending. Another possible family factor is that, the high proportion of BME adults already in the criminal justice system may feed back into offending behaviours among young people. Criminal and antisocial parents tend to have delinquent and antisocial children [14]. Furthermore, concentrated incarceration in impoverished communities breaks familial ties, weakens parents’ social-control capacity, weakens economic power, and sours attitudes towards ‘mainstream’ society, increasing the likelihood of offending (Clear, 2007).

Taken together these socioeconomic, educational and family factors seem to provide a fairly full explanation of any greater level of criminality among Black or BME groups. However this has not prevented other theories being advanced.

One suggestion is that we should blame urban Black culture, especially music and film, for providing role models who glamorise violence, and encourage criminal lifestyles. The Home Office suggests (Home Office, 2003) that active social exclusion comes about when “young people lay claim to particular identities and make choices about lifestyles which compound their disadvantage and their existence on the margins of society”, and quotes evidence that the arrival of American TV on St Kitts led to a sharp rise in gang violence, drugs and murders [15] and of links between music videos and criminal behaviour, especially gang behaviours such as of South London gangs having music production arms advocating violence against rivals. Pitts (2006) reports how gangs film robberies and use the footage to promote their music. However, as an explanation this is not as convincing as those discussed above. It is not obvious why BME youths should be more susceptible than White youths to music glamourising criminality. It seems more likely that a popular culture that gives endorses criminality is a reflection, rather than a cause [16].

Others prefer to blame White society, or more specifically colonialism. During the 1960s Fanon popularised a model which conceptualised the relations between Blacks and Whites in post-colonial societies (Fanon, 1963). The model has recently become revived by scholars such as Agozino (2003) and Gabbidon (2010). The colonialist model argues that past colonial repression, can cause crime in the present. Tatum (1994) argues that the victims of social, economic and political oppression will develop feelings of alienation to which the criminality and violence is an adaptive response. The model predicts that the colonised will become estranged from their own culture, and begin to self-hate both as individuals and at the group level. Racial groups become estranged from each other, and racial violence increases, based on a mutual lack of trust and as individuals try to “fight back” and reclaim their culture and identity (Tatum, 1994). Pouissant (1972) argues that this internalisation of anger can explain the increasing Black on Black violence in Afro-American societies in particular.

It is certainly easy to see that past colonialism, can be linked “to social structures of oppression that persist into the present” (Feagin & Feagin, 2003, p. 35). Past economic, political and social subordination has left lasting imbalances in post-colonial societies and these differences in status, cause segregation, which leads directly to a negative impact on crime and perception of crime level (Massey & Denton, 1993). Crime rises as the ethnic minority becomes increasingly separated from good basic services and employment opportunities (Wilson, 1998).

However, it seems easier (and to accord better with the principle of Occam’s razor) to attribute greater criminality to greater disadvantage, and the greater disadvantage to history than to rely on group-wide psychological theories based on historic grievances. Direct tests of the components of the colonial model only show limited support (Austin, 1983) for the theory (although proponents of the theory argue that colonialism should be seen as an antecedent variable, and thus these tests may lack reliability (Bosworth & Flavin, 2007)). Besides the difficulty testing this theory, the colonial model does not explain the diverse responses different groups have to similar forms of alienation – why would ethnic minorities feel more alienated than lower-class Whites? Nor do they explain why a society that produces Malcolm X can also produce a Martin Luther King.

Are black and ethnic minority individuals more likely to get caught and charged with criminal offences?

After exploring reasons why BMEs might commit disproportionately high levels of crime, it is important to note that the statistics showing disproportionate criminality are highly contested. I began the previous section with the important caveat “If we accept a strong correlation between arrest rates and criminality rates”, but this proposition is contentious.

Any statistics generated by criminal justice agencies provide only partial information about the nature of offenders, as the vast majority who commit crime are never caught or processed by the criminal justice system: individuals diverted from the criminal justice system will not feature in such statistics (Ministry of Justice, 2009). There is evidence to suggest that there is reporting bias in the reporting of certain crimes amongst certain ethnic minorities. Although some authors have suggested that mistrust of the criminal justice system may lead to less reporting of intra racial crimes, especially within ethnic minority groups, other evidence suggests that racial biases lead to disproportionately greater crime reporting in BME groups. For example, statistics suggest a higher propensity for black women to report sexual offences. Although this could indicate higher levels of sexual crime in Black communities, equally it could reflect lower tolerance of sexual misbehaviour by Black women or underreporting of sexual offences in the wider community (Home Office, 2003). Furthermore, statistics are also often skewed by the focus of law enforcement. A crack down on street crimes in BME-dominated areas, will distort the statistics (Chambliss et al, 2004).

One way to evaluate the validity of the arrest data, and answer our second question is to consider discrepancies between self-reported and official crime rates. If such discrepancies are found, the most likely explanation would be a racial bias in the police force or Crown Prosecution System. Unfortunately the evidence here is inconclusive. Sharp & Budd (2005)’s analysis of the 2000 Offending Crime and Justice Survey seems to evidence a disparity between self-reported, and official criminal activity: White respondents and those of mixed ethnic origin generally self-reported the highest levels of offending [17]. Asians and those from “Other ethnic groups” reported significantly lower levels of offending [18] than Whites, or those of mixed ethnic origin, on all offences, except robbery (Sharp & Budd, 2005: 9). Black respondents were significantly less likely to self-report offending than White respondents across all offence categories, except burglary and the supply of drugs [19]. White respondents and those of Mixed ethnic origin self-reported overall similar levels of offending, but those of mixed ethnicity were more likely to be serious offenders – 27% versus 21%, although this may be subject to some non-response bias (Sharp & Budd, 2005: 9).

However, such self-report surveys suffer conceptual and methodological difficulties. Respondents may be untruthful and there may be an ethnic bias to the extent to which answers are honest. Whilst in the UK it is generally accepted that self-report surveys are reliable and valid measures of delinquency (Farrington, 2001), studies elsewhere suggest that ethnic minority groups are less likely to provide accurate answers to questions on criminality. Hindelang et al (1981) found that Black males were three times less likely to admit to offences, even when they were already known to the police. To overcome this problem Sharp & Budd (2005) asked respondents how truthful they had been in completing the survey. Although there was little difference by ethnicity in the percentage of respondents claiming to have been honest (around 95%), slightly fewer older Black respondents said they were totally truthful, and overall, Black individuals were less likely to report honesty when answering problems about drug use. Of course, answers to these questions could themselves be affected by a social desirability bias – individuals may not want to admit to lying – but, these general trends replicated the findings of other self-report studies, such as Flood-Page et al (2000). Another flaw in this evidence is that it shows only the percentage of individuals involved in any kind of crime. It may be that the smaller than expected percentages of BME individuals admitting to offending, commit a greater percentage of crime and therefore provide more opportunities to be caught.

The evidence, therefore, is not strong but does suggest that BME people are less likely to be involved in criminality than Whites and yet are arrested disproportionately. We must ask then why would BME individuals be more likely to be caught and charged with criminal behaviour?

Bowling & Phillips (2002) suggested that this could be explained by institutional racism amongst the police. The charge of police racism has been levelled particularly at the Metropolitan Police. [20] The finding of institutional racism made at the Stephen Lawrence enquiry was generally accepted and TV documentaries such as the Panorama series have helped establish this as a wide-spread perception that is obvious and self-evident. For example the former Home Secretary, Jack Straw pronounced: “Any long-established, white-dominated organisation is liable to have procedures, practices and a culture that tends to exclude or disadvantage non-white people.” (Straw, 1999)

Other commentators dismiss the idea that the police are institutionally racist. The earlier (1981) Scarman report supported a “bad apple” theory: that racial prejudice occurred amongst only a minority of officers (Neal, 2003). “Racial prejudice does manifest itself occasionally in the behaviour of a few officers on the street. It may be only too easy for some officers, faced with what they must see as the inexorably rising tide of street crime to lapse into an unthinking assumption that all young black people are potential criminals” (Macpherson, 1999: 16). Whilst the “bad apple” theory is not now prevalent, it is important to be careful not to extrapolate individual (or group action) or racism towards the whole institution. Some argue that reports such as the Morris Report (2004) have conflated individual racism to institutional racism (Lea, 2000; Stenson & Waddington, 2007). Lea argues that the Stephen Lawrence inquiry, in particular, examined the specific actions of individual officers and unscientifically extrapolated from this a conclusion that the police force itself is racist. It has been argued that the negative interpretation of institutional racism has further increased tension between police and ethnic minorities (Foster et al, 2005).

In fact, the direct evidence that “institutional racism” leads to disproportionate arrests of BME people is mixed. Jefferson, Walker & Seneviratne (1992) studied differences in treatment in individuals arrested in Leeds, and found conflicting evidence. By analyzing the (police-perceived) race, sex, age, offence and address of everyone arrested or stopped in the city over 6 months in 1987, they found that Blacks were over-represented (7% of those arrested, compared to 3% in the population), Asians were proportionately represented and Whites were under-represented. However, when the neighbourhood ethnic balance was controlled for, Blacks were only over-represented in White areas. In Black-dominated areas, Whites were in fact over- represented. However, the information was based on where offenders lived, not where they offended. Furthermore, the low Black arrest rate in Black areas maybe due to mistrust of police in intra-racial crimes (Jefferson et al, 2002).

If we turn to indications of differential treatment by the Police in relation to actions other than arrest, patterns do emerge. Newburn, Shiner & Hayman (2004) analysed the propensity to be strip-searched in custody, finding that on average, Afro-Caribbeans suffered twice the number of strip-searches as Whites, whilst Arabic or Oriental people had a “virtual halving of the probability of being strip-searched” (Newburn et al, 2004: 689). Other studies have considered possible police ethnic biases in relation to stop-and-search arrests. Overwhelmingly the data suggest that BMEs are significantly more likely to be stopped than Whites. In 2006/2007 Blacks were seven times more likely to be stopped and searched, and Asians were twice as likely to be stopped as Whites (Jones & Singer, 2008).

However, the validity of these findings can be questioned. Bennetto, 2009 observes that police officers may just be more likely to record stops made of BMEs than those conducted on White people, but it seems unlikely that such misrecording would persist so consistently across forces, and over the last five years, particularly with the strong incentives on the police not to display racism. A more telling criticism is that stop-and-search data involves an invalid comparison – it compares the ethnicity of the whole population with that of those stopped, rather than looking at the proportion of those stopped within the available population – those who are out at times, and in places where stops are likely to occur (Fitzgerald & Sibbitt, 1997). Indeed, Jefferson et al (1992) found a statistically significant low-to-moderate correlation (r=0.20) between number of evenings out and annoyance with police. Although Pavey (2008) counters this by arguing that it is unlikely that Black people are more available to be stopped in some areas than others, it is not outlandish to suggest that in some cultures may be more normal than others for people (particularly young men) to hang round on the street rather than staying in. Others counter this criticism by observating that, even if the ethnicity mix where and when the searches are made is different to that in the general population, it does not disprove police racist motivation – the police might have chosen when and where to conduct such stops is based on where BME youths congregate (Home Office, 2003). This argument would be convincing if it could be backed by evidence that police decisions on where to operate are based on something other than their assessment of when and where crimes are most prevalent, but I am not aware of any such evidence.

Are Black and Ethnic minorities unfairly dealt with by the justice system?

The evidence of institutional racism in the justice system is also mixed at best. Although Hood (2008) argues that the over-representation of Afro-Caribbeans in prisons is a direct product of their over representation among those convicted of crime and sentenced in the Crown Courts, a recent study of almost 16,000 jurors found that although BME individuals are 3.5 times more likely to face a jury verdict, relative to their representation in the global population, jury verdicts showed only small differences based on defendant ethnicity (Thomas, 2010) [21]. This indicates that one stage in the criminal justice system where BME groups do not face persistent disproportionality is when a jury reaches a verdict.

The evidence that BMEs are likely to suffer more punitive sentences than White people is superficially more persuasive. Black young offenders accounted for 11.6% of custodial sentences, despite only accounting for 6% of total offences (Home Office, 2003).

However this does not prove unfairness – whilst it could reflect biased sentencing, it could equally have other causes, perhaps that BMEs are likelier to commit crimes that justify a custodial sentence. Jefferson et al (1992) found that apparently racially-based differences in outcome of arrest could be otherwise explained. Although in juvenile cases, Blacks were twice as likely to be tried in a Crown Court as Asians or Whites, most were being tried jointly with an older co-defendant, necessitating the Crown Court, and six of the twelve Black subjects included in this data were arrested in one incident. Also the Home Office statistics say nothing about prior convictions, which may affect sentencing. Although evidence that Whites are more likely to re-offend [22] suggests that this may not explain disproportionate custodial sentences for BME people, studies which take account of prior convictions find no evidence of racially biased sentencing. Mair (1986) found that Blacks and Whites who had committed similar offences, and had similar criminal records, had the same chance of a custodial sentence. Jefferson et al (1992)’s regression analysis of data collected in their Leeds study found that when offence type and previous convictions were taken into account, there were no differences in sentencing or length of custodial sentence between different ethnic groups [23].

Furthermore, once imprisoned, there is evidence to suggest that there is no racially-explained difference in the availability of parole. Although Hood & Shute (2000) found that both Blacks and Whites were less likely to be granted parole than South Asian/Chinese prisoners, this is not necessarily due to ethnic bias. Moorthy et al (2006) argued persuasively that this could be better attributed to other characteristics associated with release.

The clearest explanation of the disparity in sentencing is that BME individuals are likely to be engaged in different types of crimes than Whites, and more specifically are more likely to be engaged in crimes that have a high likelihood of incarceration, or even mandatory prison sentences. Young people of different ethnic groups do appear to have different profiles of offending behaviour. Jefferson et al (1992) found that BME individuals were more likely to be arrested under charges of violence and theft, whereas, Whites were more likely to be charged with burglary or damage. This is corroborated by Home Office statistics which suggest that. BME individuals seem to be overrepresented for certain crimes – notably robbery and drugs offences (Home Office, 2003), and are more likely to be involved with firearms and gang violence, whereas white people are more likely to commit and be convicted of less serious offences, for example criminal damage or property offences like burglary. The propensity for BMEs to be engaged in drug offences in particular goes a long way towards explaining the relatively high percentage of custodial sentences given to BMEs. Drug offences typically have longer custodial sentences than those for even the most violent crimes, even for importing relatively small amounts of drugs. [24] There is a substantially higher proportion of Black inmates serving drug-related sentences (Home Office, 2003). [25] This is particularly true for female prisoners (Chigwada-Bailey, 2003) [26]. Of the women in prison for all offences, 40% were convicted of drug offences (Home Office, 2003). Furthermore, this is not only the case for foreign nationals; over half of all Black British women prisoners’ incarcerated in 2005 were due to drug offences (Fitzgerald, 2007: 56).

Although levels of drug use among 16 – 24 year olds are lower for Black youths than those from White or mixed backgrounds, there is evidence to show that Black people disproportionately misuse certain drugs, specifically crack cocaine (Sangster, Shiner, Sheikh, & Patel, 2002). Almost half of arrestees reported using crack cocaine are Black: young White offenders at Feltham Young Offenders Institute are more likely to have opiate problems, whereas Black youths are more likely to have problems with crack cocaine (Home Office, 2005). There is also evidence that cannabis misuse is a particular problem among ethnic minority communities. The 2001/2 British Crime Survey found that people from a ‘mixed – white and black Caribbean’ background were also most likely to have used cannabis in their lifetime (54%), compared with only 30% of Whites (Home Office RDSD, 2008). Furthermore, there is evidence that BME people are disproportionately more likely to be involved in supplying drugs. Despite accounting for only 11% of all Londoners, 67% of those accused of supplying crack cocaine are Black (Home Office, 2007).

Conclusion

The relationship of race to criminality is perplexing. Many commentators in the field have a particular political point to make, and much of the debate is conducted in terms that are more interested in promoting a particular agenda than reaching the truth. Often statistics are gathered for particular reasons. Since 1991, the Criminal Justice Act has required police officers to monitor the ethnicity of people they stop and search and these have been gathered in the context of a force desperately keen to shrug off a racist label. It is difficult to see that this would not have had an effect on the quality of the data. In other contexts, data are deliberately withheld or not collected, for example the Press is discouraged from referring to ethnicity when reporting crime [27]. Where information is collected, different studies categorise ethnic groups in different ways, some including and some excluding foreign nationals.

However with all these caveats, the conclusion that best seems to fit the facts is that in England and Wales, BMEs do as a group disproportionately commit crimes that are more likely to lead to custodial sentences than other ethnic groups but this disproportionality all but disappears if we factor in socio-economic disadvantage, educational levels reached, and family factors, and there is no need to reach for more complex explanations such as post-colonial angst or police racism. In particular, the evidence supporting the pervasive view that police racism causes disproportionate arrests is unconvincing, especially as if it were true it would mean that we would need to find explanations why BME groups must have a lower level of criminality than one might expect given the socio-economic disadvantage, educational levels and family factors that apply.

Astonishingly, there seems to be no paper that directly looks at crime rates by race, when socio-economic status is controlled for. Such a paper would be a major step forward to moving this debate from the polemical onto a scientific basis. Of course su