EASTER 2019
Essays
Criminology, Sentencing and the Penal System
CSPS ‘Discuss current concerns about the treatment of BAME suspects and offenders in the criminal justice system.’ Bryan Chong
The Lammy Review 2017 pointed out many continuing concerns about the treatment of BAME suspects and offenders in the criminal justice system (CJS) which can be grouped into 3 categories that the Review identified: 1) Implicit bias, 2) Demystifying the perception of bias against BAMEs in the CJS and 3) Problems with BAME youth offenders. This essay will discuss the 3 in turn.
1. IMPLICIT BIAS Firstly, the Review mentioned the possibility of implicit bias such as the use of words like “gang” that can trigger inherent misconceptions or prejudices among those who administer the CJS, like the police. It raised the concern that this may result in police exercising their powers unfairly. As the Review rightly points out, it is difficult to really change such biases, so what a better approach is would be to ensure that decision-making is subjected to better scrutiny, and it suggests that algorithms can be used to ensure e.g. police do not exercise this bias in arresting people. However, the caveat must be that the algorithms themselves must not be biased, and the use of such tools like in the USA can be studied carefully.
2. DEMYSTIFYING THE PERCEPTION OF BIAS The Review pointed out that there continues to be a perception among BAME offenders that the CJS is prejudiced against them in 3 areas: At stop & search/ arrest stage, sentencing stage and then in custody.
Stop and search It is found that about 76% of all stops and searches happen in London, which is where the proportion of BAMEs are highest in the country. Blacks are 7x more likely to be stopped than whites, with Asians at 2x more. Even if we attribute this to the fact that there just happens to be more police in those parts, that the use of stop and search has increased by 650% from 2006 to 2011 is reason enough to suspect some bias. Dodd 2003 warns that the discretionary nature of stop and search opens up to police applying their bias and cultural perceptions, which is illegitimate. MOJ 2015 warned that if more stops and searches are used but crime does not go down, then its ineffectiveness coupled with the perception that it is arbitrarily used will lead to greater illegitimacy. Therefore, it does look on the surface that stops and searches are biased. Sentencing The same picture can be described of sentencing. Hood 1992’s study of black and white offenders as confirmed by the Lammy Review found that, taking into account all legal variables, blacks were 5% more likely to be sentenced to a longer term than whites. Lammy concurs with this and says this is particularly problematic for drug offences. Harsher community penalties tend to be given to BAME offenders too (Hood and Felitzer 2004). What makes this worse is that the magistracy are seen as “too white” by BAME offenders (Gibbs 2015). Custody In custody, it does not help the perception that BAME only make up 14% of the population but 25% of the prison population. Moreover, the number of Black
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youth in custody have been rising from 25% to 41% (2006-2016) (Lammy Review). In prison, BAMEs are 30% less likely to obtain privileges under the Incentives & Earned Privileges scheme, thus the perception of bias is justifiable. Mere “perception”? Shouhami 2002 points out that other typical criminogenic factors such as education (Jacob Rowntree Foundation) and employment (ONS 2016) (where blacks are 2x less likely to get employed than whites with similar education) actually influence the overrepresentation of BAMEs in prison. Parmar 2015 also warns that statistics can be misleading, such as for stop and search which does not show that Asians are actually less likely to get arrested than whites despite being stopped and searched more. The Equality and Human Rights Commission did establish in 2014 that ending arbitrary stop and search did not have anything or much to do with the falling crime rate at that time. Thus, might the CJS not actually be biased against BAMEs and is it just a mere perception, with other social factors at play? Perception is still dangerous However, as Lammy Review 2017 points out, a perception is itself still dangerous. This is crucial for legitimacy. As Bottoms 2003 points out, if BAMEs simply perceive that the CJS is unfair to them, then normative compliance is difficult to achieve and this simply perpetuates the cycle of more BAMEs committing crime. This is echoed by Phillips 1998’s findings that 41% versus 30% of blacks and whites respectively do not plead guilty at trials, leading to more blacks being convicted for longer sentences as a result. What makes this worse is the fact that most jurors, in addition to magistrates, are white (Dorling 2012). Also, if BAMEs have