Last year we identified ethnic disparity in the data on criminal justice outcomes for young adults. Since then, I’ve drawn on even more data, reports, academic literature and informal conversations across the sector, to identify the drivers of that disparity.
In the coming weeks, the result of this work will be published in a new report, Behind the decline. The report finds that minoritised ethnic groups are disadvantaged in the criminal justice system in three key ways:
- the accumulation of decisions taken at successive stages;
- the procedures that shape how those decisions impact outcomes (such as charging or sentencing);
- and the lack of infrastructure needed to identify, explain, or correct what is happening.
What are the implications for meaningful reform? That is a tricky question to answer well in a febrile environment where efforts to advance equality can be interpreted as doing the exact opposite. Most people agree that justice should be fair and equal. The real question is: how do we get there?
In my attempt to answer that question, let me first begin with an example, the role of remorse in criminal justice outcomes.
Remorse: the exemplar subjective assessment
What does ‘remorse’ look like? That question matters because its answer affects one’s eligibility for diversion programmes (rather than being sent to court), the severity of sentence (if convicted), as well as progression through rehabilitation pathways (if sent to prison).
Can remorse be read in the shame embodied by a bowed head and averted glance? Or is it through serious engagement embodied in alertness and direct eye contact? Can remorse be read in tearful reflection on one’s actions? Or can a learned stoicism belie an equally reflective disposition?
Subjective assessment, by its nature, leaves a lot more room for variance than a binary assessment like ‘did they plead guilty or not’ and we can see, in the statistics, that this filters through to sentencing outcomes. A recent statistical study found that the mitigation factor of remorse advantaged White defendants more than any other ethnic group in a sample of assault and drugs cases.
There is a wealth of anthropological and sociological evidence that shows how our ways of expressing emotion (and understanding it in others) is partly shaped by the way we were brought up and the communities we grew up around. Paul Willis’ seminal Learning to Labour would suggest that the variance in emotional communication within this country (and its consequences) could have a lot more to do with class than ethnicity (although the over-representation of minoritised ethnic groups in deprived areas creates a crossover that is hard to definitively unpick).
The majority of practitioners across the criminal justice system, particularly senior practitioners, grew up in medium or high socio-economic backgrounds (a third of barristers, for example, attended a UK independent or fee-paying school). Meanwhile, about 90 per cent of police and judicial staff identify as White. When these practitioners are faced with individuals from different backgrounds, there is inevitably a potential for miscommunication.
Now add to that miscommunication the propensity, sometimes, for racialised assumptions, in which interpretation of a person’s behaviour is read in bad faith – regardless of whether they cry or not, avert the gaze or hold it – and you have a recipe for disparate outcomes, through disparate treatment.
One form of racialised assumption was pithily put by Patrick Williams at the Centre’s event on joint enterprise earlier this year: “when the jury see five young Black people in the dock, what they don’t see is five individuals, but one Black ‘gang’”. We are, of course, not privy to the decisions of juries but a lot of evidence has been gathered (not least by Williams himself) about the way this ‘gang’ framing, influenced by successive policies, plays into prosecutorial practice. Returning to our focus here on remorse, how can a fair assessment be made of an individual’s emotional expression if they are not even seen as an individual?
How to address the impact of subjective assessments?
I’ve focused here on the identification of remorse by individual practitioners, but there are many other subjective assessments that affect how one progresses through the criminal justice system. For example: whether one’s potential support and mentorship in the community is taken into account because it comes from extended family and religious figures rather than one’s nuclear family; whether one’s behaviour in response to distress or trauma is viewed as vulnerability or aggression; or whether one’s complex individual needs are even recognised in the first place. When you take all the subjective assessments across all stages of the system together, there is a cumulative effect, with later decisions (like sentencing) affected and constrained by decisions earlier down the line.
As mentioned above, the mitigating factor of remorse affects ethnic disparity in sentencing outcomes for drugs offences. Consider, then, that Black young men in particular are more likely to be stopped and searched on suspicion of drugs offences; less likely to be referred to a drug diversion programme, and more likely to be charged, before then being more likely to receive a custodial sentence (with the role that identification of ‘remorse’ plays in mitigation, as already described). Consider also the impact of identifying ‘remorse’ in prison, where those same Black young men are less likely to be offered the rehabilitative pathway that addresses their needs. This flow of cumulative effects could be stanched at any stage by individual discretion, but it can be addressed even more effectively by procedures and practices that encourage broader thinking and allow for scrutiny in cases where subjective assessments have such weighty consequences.
It is important, then, to design procedures and practices with an acknowledgment of the potential impact subjectivity has on disparity. It is also important to note that there is nothing inherently wrong with subjective assessment, individual discretion, or bias. Bias is human. We need little short-cuts to make our day-to-day interactions in the world run smoothly. Imagine the cognitive overload of starting every social interaction, every decision, from basic principles, working out all the possibilities. We are not wired that way. Similarly, individual discretion and subjective assessments are essential to the smooth running of a system where one size does not fit all. If we leave no space for individual discretion, the system does not work. Yet, if we leave too much space for individual discretion by, for example, failing to question the reasoning behind a decision, the system can (and does) produce disparate outcomes.
One solution, at least regarding the influence of subjective assessments in sentencing, was proffered by the Sentencing Council last year. Introduce pre-sentence reports (PSRs) to help broaden out a sentencer’s understanding of the person in front of them to mitigate the disadvantage faced by people not performing the ‘right’ kind of remorse (or other subjectively defined mitigation factors). However, the Sentencing Council suggested (perhaps for reasons of resource) that PSRs need only be necessary in certain cases, which led to criticisms of ‘two-tier justice’. The real issue at the heart of the sentencing guidelines kerfuffle, as identified in an LSE blog post at the time, is that “sentencing must not only be just, it must also be seen to be just”.
Requiring PSRs for everyone might be both just and seen to be so, because a PSR would not necessarily change how the people performing the ‘right’ kind of remorse are perceived, but it might help sentencers identify other ways of expressing remorse (or any other such subjective mitigating factor). This would be an equal opportunity for all (to have a PSR) leading to more equal outcomes (sentencing that acknowledges all rather than some expressions of remorse, good character and so on). In a financially constrained system, perhaps such universal access has become too costly.
Just outcomes through equal treatment
On the topic of perceptions of justice, more recent public discussions have centred on the Public Sector Equality Duty, that is, the responsibility of public authorities to consider how their policies and decisions affect people with protected characteristics (race, religion, gender, disability and so on). The criticism of the Public Sector Equality Duty is that it could lead to a focus on treating people differently in order to achieve equal outcomes, rather than ensure equality of treatment. Yet, as was so well-put in a recent IFG blog, “the duty specifically doesn’t call for public services to pursue equality of outcomes or require ‘positive action’ to address historic inequalities.”
I think most would agree that addressing disparate or unequal outcomes is a case of ensuring equal treatment. However, the criminal justice system is currently not providing that equal treatment. Too many processes are based on a one-size-fits-all model and there are too many consequential subjective assessments that go unchecked.
Behind the decline makes the case that addressing disparity is not about treating people differently on the basis of their protected characteristics to force through equal outcomes. Rather, it is about reworking procedure and policy for all, to ensure that people are not being treated differently on the basis of their protected characteristics, because assumptions underlying certain practices and decisions disadvantage them, whether indirectly or by design.
We are grateful to the Transition to Adulthood Alliance, convened by the Barrow Cadbury Trust, for supporting our work on Smaller, but tougher and its follow-up, Behind the decline.
