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In countries throughout the world, some ethnic or racial groups are far more often found to be caught in the network of Criminal Justice than others. These elevated rates of official offending by certain ethnic groups can vary radically from one country to another. In England and Wales for example, it is the British African Caribbean's or Afro-Caribbean's as some may call them, who are most likely to be criminalized. Is this because the criminal justice system treats Afro- Caribbean's unfairly or because this particular ethnic group is more likely to offend? In seeking to address this issue one encounters difficult conceptual issues as well as a deficit of useful information. Furthermore, in order to assess whether the Criminal Justice System treats Afro-Caribbean's unfairly, during the course of this essay we will bring focus on sentencing, which is a crucial phase of the criminal justice process.
The basic issue is to decide what constitutes "fairness" in this context. It would be unjust for a police officer to stop and search an individual simply because of the color of their skin, or for a court to give someone an abrasive sentence for the same reason. This would mean that an individual's right to justice is being hindered simply because they belong to a particular race or ethnic group. Such a criterion for decision making would be similar to direct discrimination against that particular racial group, which has been deemed unlawful in Britain under the Race Relations Act since 1968.
Decision making does seem blind to race, but in practice, it will not be wrong to say that it tends to work to the disadvantage of black people. For example black suspects may be held in custody before trial rather than being granted bail, and convicted black offenders may tend to be given longer sentences plainly because they have pleaded not guilty.
There is no generally agreed method for deciding which criteria among those having an unequal or irregular effect on different ethnic groups, are legitimate. The essential question to be addressed is how close the Criminal Justice System actually comes to constituting a universal framework within which all ethnic groups are treated equally. There is a room for discussion about what is meant by equal treatment in this context. It certainly cannot mean that everyone should be treated the same. The guilty should be punished, and the degree of punishment should depend on the seriousness of the offence. Moreover, an individual with a history of past offending should be punished more severely than someone convicted for the first time. To put it simply, treating people equally must mean that people in similar circumstances and categories in relevant respects should be treated equally. This equal treatment should be independent of the felon's personal beliefs, religion and/or origin, solely depending upon the degree of his or her crimes.
It can be thus said, that race and ethnic grouping is not a legitimate benchmark. However, there is a wide room for discussion as to what can be categorized as a relevant or a legitimate criteria. At one extreme there is the view that equal treatment means the impartial application of existing rules and principles regardless of their effect on different ethnic groups. If for example more Afro- Caribbean's are committed to prison because they are stereo typed as to lack a stable family background or a steady job that does not constitute unequal treatment. At the other extreme, there is the view put forward, by Hudson (1993) who states that any policies, rules, or procedures that have the effect of punishing a higher proportion of one ethnic group than other are unjust and the law should be adjusted so as to achieve equal outcomes for different ethnic groups.
It is difficult to defend either of these extreme views. Ensuring that equal proportions of different social groups are punished has never been seen as an objective of the Criminal Justice System and it does not seem fair either as there is no point in punishing one or more than one ethnic group just to balance out the statistics of another group that has been more likely to offend. It is evident in by looking at past records that the sentence depends on the seriousness of the offence and the previous records of the offender.
However, equal treatment or the impartial application of existing rules regardless of jagged effects on different ethnic groups seems equally questionable. It is possible that some of these rules may work to the disadvantage of a particular ethnic group, yet could be changed without the sacrifice of any fundamental principle or objective. For example, in an area where the law enforcement agencies tend to target black people, a rule of this kind works to the disadvantage of black people and arguably, amounts to treating them unequally.
This analysis suggests that equality of treatment within the Criminal justice System cannot be interpreted as equality of outcome. Nor can it be interpreted as merely the neutral application of existing rules, whatever their effect. It is necessary to adopt an intermediate position. These two polar views about what constitutes equal treatment are similar to the two opposing models of justice implied in the discussion of antidiscrimination law. McCrudden, Smith and Brown (1991) describe them as Individual Justice Model and the Group Justice Model of legislation against race and sex discrimination.
The aims of these polar models conflict in important ways and actual legislation represents a compromise between them. The main element of the Group Justice Model incorporated within the Race Relations Act 1976 and Sex Discrimination Act 1975 is the concept of Indirect Discrimination: the use of a condition or requirement which is such that a considerably smaller proportion of one than of another group can comply with it, which is to the other's detriment and where the person using it cannot show it to be justified. However, conflict with the Individual Justice Model is minimized by the qualification that criteria working to the disadvantage of a particular ethnic group may always be used as long as they can be justified. The statute does not elaborate on what would constitute a justification.
At present the decisions at certain key stages of the Criminal Justice Process do not fall within the provisions of the Antidiscrimination legislation, although there have been calls for this to be changed (Commission for racial equality 1991). If the scope of legislation was to be extended to Criminal justice, this would highlight the problem of deciding the particular criteria that work to the disadvantage of an ethnic group. This essay does not tackle the problem of how to determine whether rules or criteria that work to the disadvantage of an ethnic group are justifiable. The aim is to show the impact of Racism and discrimination on the patterns of Sentencing.
In England and Wales, offences have fixed maximum penalties assigned to them, usually in the form of length of custody or fine amount, and some offences may also have mandatory minimum sentences. In addition, the available sentencing options may differ by offence type and for adult and youth offenders. Despite this sentencers are afforded considerable discretion in the sentence they choose to pass. When applying their discretion and making sentencing decisions, it is intended that sentencers use legal factors such as the nature and seriousness of the offence and the defendant's criminal history.
The sentencer is also obliged to take into account any aggravating and mitigating factors. The aggravating factors include the vulnerability of the victim, the offender's leading role in the offence, and his /her profit from the offence. Mitigating factors include whether the offender was provoked, the offender's role in the offence, and his/her acceptance of responsibility or show of remorse. The sentencer may also have access to sentencing recommendations and may also be required to give discount for a guilty plea and consider the "totality" of a sentence if the offender is to be sentenced for more than one offence.
Research on sentencing decisions in the jurisdiction of England and Wales reveals that actual sentencing behavior can diverge from that which is intended. Evidence suggests that sentences may be based on factors such as the defendant's sex, race and age (see Daly and Bordt, 1995; Dowds and Hedderman, 1997; Flood-Page and Mackie, 1998; Hood, 1992; Mitchell, 2005; Speed and Burrows, 2006).
Sentence may also be influenced by the court and geographic region/jurisdiction (e.g., Johnson, 2005; Rumgay, 1995; Ulmer and Johnson, 2004).
Finally, sentences may also be affected by the characteristics of the sentencer such as his/her race and age (Spohn, 2002), and education/training (Flood-Page & Mackie, 1998; Morgan & Russell, 2000; Speed & Burrows, 2006). Thus discretion in sentencing appears to lead to unwanted disparities and unfairness.
Hood's (1992) classic study, Race and Sentencing, was one of the first to look at the impact of Racism and discrimination on patterns of sentencing. Based on research carried out at the end of the 1980s on five Crown Courts in the West Midlands, it was found that a higher proportion of African-Caribbeans than whites or South Asians were being sentenced to custody. The question was whether the different types of criminal activity, prior record or any other factor could account for these differences. It was ascertained that, given these controls African-Caribbean defendants were up to twenty-three percent more likely to be sentenced to custody.
No other systematic study has been carried out in this area during the last decade. The Home Office, however do publish regular statistics on sentencing practices in Crown courts and Magistrates' courts and it has been found that ethnic minorities in general are not found to be negatively treated in the Magistrates' courts but South Asians are, given the nature of offence, significantly more likely to be sentenced to custody (Flood-Page & Mackie 1998). More recent Home Office publication data, which is "Section 95" statistics as required by the Criminal Justice Act 1991, has suggested that there is no evidence of differences in custody between groups. Recently, in terms of Crown Court decisions in relation to violent offending, African-Caribbean offenders are far more likely to receive custodial sentences. In relation to prison populations, ethnic minorities, in particular African-Caribbeans are disproportionately represented. Furthermore, these convicts are more likely to be younger than whites (Home Office 2003).
In order to show the impact of racism and discrimination on the patterns of sentencing, the methodology which is used in this essay is "descriptive data analysis". The data type is secondary data and is taken from the website of Ministry of Justice of England and Wales.
The proportion of each ethnic group in the resident population aged ten and over, estimated by Population Estimates by Ethnic group in 2009/2010 and ethnic representation or breakdown of population at different levels of the Criminal Justice System process as compared to the general population is presented below in the table A.
Chinese or others
Population aged 10 or over
Stop and Searches 2009/2010
Court order supervisions2010
Prison population 2010
Source: Ministry of Justice
In 2010, the total number of persons who proceeded against indictable offences was 436,933 and from these 349,833 were convicted. The conviction ratio for white persons as compared to other minority ethnicity groups was higher (81% for White, 74% for Black and 77% for Asian). Once found guilty in the Criminal Court of law an individual can receive one of six broad disposals: an absolute/conditional charge; a fine; a community sentence; a suspended sentence; a sentence to immediate custody; or they are otherwise dealt with. Otherwise dealt with includes a number of orders, for example hospital orders, confiscation orders and compensation orders.
In 2010, the total 347,421 defendants were sentenced for indictable offences in England and Wales across all courts. Of these 17% were given a fine, 31% a community sentence, 10% a suspended sentence and 24% an immediate custodial sentence. The remainder were given a discharge or otherwise dealt with. A higher percentage of those in the minority ethnicity group were sentenced to immediate custody for indictable offences than in the white group (White 23%, Black 27%, Asian 29% and other 42%). Differences between ethnic groups may occur due to a number of reasons including: the mix of crimes committed; the seriousness of the offence; the presence of mitigating or aggravating factors; whether a defendant pleads guilty; or whether the defendant was represented or not.
Research by Thomas (2010) for the Ministry of Justice indicated that people from black minority ethnic backgrounds were more likely to plead not guilty and be tried. A guilty plea can reduce a sentence by up to a third. In 2010, the lowest proportion issued a fine or community sentence, and the highest proportion given a suspended sentence or immediate custodial sentence was recorded for the other ethnic group. For example 21% of the other ethnic group, 28% of Asian people, 29% of Black people and 32% of White people were given a community sentence.
The highest average custodial sentence length was recorded for the Black ethnic group, at 20.8 months, followed by the Asian and other ethnic groups with averages of 19.9 months and 19.7 months respectively. The lowest average custodial sentence length was recorded for the White group at 14.9 months. It must be noted that the differences in sentencing outcome and sentence length can be due to many factors as explained above.
After analyzing the numerical data and statistics it can be argued that at the end of the criminal justice process, black people are more likely to be in prison as compared to the White or Asian population. There is some evidence of bias against Afro-Caribbeans and Asians at various stages of the criminal justice system. With regard to sentencing, the leading study (Hood 1992) did suggest some racial bias, but its measured effects were rather small, especially when compared with the effects of other variables. It is obvious from the aforementioned numerical data that it is the Asians and Black people whose conviction ratio is higher.
On the other hand black people are placed at a great disadvantage by the application of apparently neutral criteria. The clearest example is the influence of social background factors on sentencing and the lower sentencing tariff for suspects who plead guilty. The relationship between guilty plea and sentence accounts for a substantial part (around 15 percent) of the difference in rate of imprisonment between black and white people. So it seems important that the decision making criteria should be reviewed in light of its consequences on different ethnic groups, because the present decision making criteria is working more to the disadvantage of the minority ethnic groups in general and the British African Carribeans in particular.
An important point in the conclusion of this essay is that there exists a definite bias against black people at several stages of criminal justice system. It can be said that a lack of efficient supervision and apparently neutral criteria for decision making in the criminal justice system has forced some individuals of this ethnic group to take the law into their own hands to ensure their own personal safety. Another reason can be the lack of education and grooming which is the responsibility of the state after all. The state cannot just target its social benefits and development to a particular class or group of people and ignore the rest. Despite the legislative changes the perception, as well as reality, of discrimination continues to promote involvement of black people with the criminal justice system. The causes of this particular ethnic group's exceeding involvement in such activities are complex and reach down into the very foundations of society. There is no single solution to this issue, and what adds insult to injury is the fact that little or no steps are taken to prevent it.
Moreover, as previously stated, sentencing is but one phase of the criminal justice process, and outcomes in this area are reflective of decisions made at prior stages in the system. Thus, efforts to reduce racial disparity at sentencing must also pay attention to law enforcement arrest decisions, prosecutorial charging practices, indigent defense representation, presentence investigation procedure, and provision of sentencing alternatives options.
Decades of research has shown that race has always played a pivotal role in sentencing outcomes, even as the dynamics of this relationship have evolved over time. Reducing racial disparity in the criminal justice system is critical in order to produce fairness and to uphold the ideals upon which the justice system is premised. It is also essential from a practical point of view. Unless the justice system is perceived as fair and just, trust and confidence will erode and public cooperation with the system will diminish.