A more recent version of these Race And Gender notes – written by Oxford students – is available here.
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Race and Gender in the CJS Race 'Discretion is one of the most contentious concepts in criminal justice and related circles because those involved in decision-making processes experience a considerable degree of mandated flexibility in the decisions...it is the day to day discretionary actions of police officers, prosecutors, defence lawyers, judges, psychiatrists, prison, probation and immigration, officers among others, which are the 'stuff of justice' and which make for justice or injustice' (Gelsthorpe
& Padfield, 2003:1) "Race issues go to the heart of our system of justice, which demands that all are treated as equals before the law" (former Prime Minister Tony Blair) "How can we be sure that our system really is as colour-blind as we wish it to be? And, even if it is, how can we counter the widespread fear among the ethnic minorities that the scales of justice are weighted against them" (The Late Lord Chief Justice Peter Taylor) Key issues: race
? What is the problem? (overrepresentation of BME people in prison proportionate to BME representation in the overall population)
? How can we explain this? (crime rates, demographics, social-structural factors relating to social disadvantage)...discrimination?
? Is there evidence of discrimination? What kind of discrimination? What kind of evidence is there?
? How can we best understand the evidence ?
? What is being done to ensure fairness and to avoid negative discrimination?
Ongoing controversies Stephen Lawrence. Runnymede Trust - ten years on - still significant problems: "I think it can be said that the police are still institutionally racist' - if they were in 1999, they still are now" (Rob Berkeley, Director of the R.T) vs. Jack Straw (speaking on the BBC Politics Show, 22/2/09): "...if you are asking me whether I believe the Met as a whole is still institutionally racist, the answer is no. [...] If you ask me do I believe that it's perfect as an institution and that black and Asian people, and indeed women, have the same opportunities in practice as white males, I think the answer is - probably not in some areas." How to measure discrimination?
? The Law (1976 Race Relations Act) - direct and indirect discrimination
? The Law (Section 95. CJA 1991): o 'The Secretary of State shall in each year publish such information as he considers expedient for the purpose of facilitating the performance of those engaged in the administration of justice to avoid discriminating against any persons on the ground of race or sex or any other improper grounds' What constitutes equal treatment?
? Procedural justice & substantive justice
? Research: some prior definitional issues and the problem of measurement: o '...the currently dominant approach...centre on attempting to uncover by ever more sophisticated techniques the purely 'racial' dimensions is a bit like sieving flour with ever finer meshes: eventually there is too little getting through to enable anything to be made (or)...to construct a very meaningful account.' (Jefferson, 1993, in L. Gelsthorpe, Ed, Minority Ethnic Groups in the Criminal Justice System)
The problem of overrepresentation
? Overall population in England and Wales (Census 2011) = 56.6 m
? White pop. = 86%
? Black and Ethnic Minority pop. (2.2% mixed, 7.5% Asian, African/Caribbean/Black British, 1% Other Ethnic Group) = 14%
(Source: Office for National Statistics, December 2012)
Overall prison population as at 30 June 2012 - 86,048 BME proportion of national prison population (June 2012)
= 25% (a decrease of 2 percentage points since 1998) NB. includes foreign nationals (Source: MoJ s.95 Statistics on Race and the Criminal Justice System 2012, November 2013) https://www.gov.uk/government/publications/statistics-on-race-and-the-criminal-justice-system2012 Convictions per/1000 in the population might be quite useful! It would tell you whether there is more crime within ethnic minorities. Self reporting might be the closest we can get. The problem of overrepresentation
? BME groups as a whole -five times more likely than their white counterparts to be in prison
? Biological theories - discredited on evidential and political grounds e.g. The Bell Curve, 1994 by Hernnstein and Murray on genetics and intelligence.
? Differential crime patterns (linked to social and economic disadvantage)
? Impact of demographic factors, unemployment etc
? Discrimination - direct and indirect Explanations: Social disadvantage and offending
% Unemployment (in final quarter of 2011):
? 7.1% White vs. 16.9% Mixed, 16.9% Black, 10.7% Asian (7.6% Indian, 15.1% Pakistani,
16.3% Bangladeshi, 10.2% other Asian), 9.8% Chinese, and 13.5 other ethnic groups. (Source: Office for National Statistics, 2012) Educational Background: % achieving five or more GCSE grades A-C (in 2010/2011)
? 80.1% white vs. 80.7% Mixed, 80.2% Black, 84.3% Asian, 92.7% Chinese. (Source: Department for Education, 2012) 2008 Stats found that there was a huge attainment gap in terms of academic achievement at A*-C. Double the white boys achieved it!? (Check this). It looks like it has improved a lot. Explanations: differential crime patterns?
Self-report survey, 1996 by John Graham and Ben Bowling, Home Office; 2,500 people 14-25 surveyed between 1992-3; 700 Black and Asian people included; survey questions related to property offences, violent offences and drugs offences (see also Sharp and Budd 2005)
? No significant findings in serious offending between Black and White respondents - either in terms of life time participation in the 3 groups of offences, or in terms of frequency over the previous 3 months. Victim reports: (Clancy et al 2001) BME groups over-represented for burglary and (more significantly) 'mugging' - but problems with data quality 'Ethnicity & the British Crime Survey' (Kautt, 2011) Howard Journal 50,3, pp275-288 - limitations of data Explanations: demography and visibility
? Significance of age profiles: o E.g. Black African-Caribbean population = younger than white population o About half the ethnic minority population = (48%) under 24 years compared with 31% in white population (Source: Office for National Statistics, 2008)
Patterns of employment, living areas, and school exclusion are likely to influence use of public space and therefore contact with the police potential for amplification. o More times in public areas o More police in deprived areas o Therefore more stop and search
Explanations What about the possibility of discrimination (direct and indirect) in the implementation of criminal justice?
? 'Institutional racism' o 'The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantages minority ethnic people.' (Macpherson Report 1999 para. 34. The Stephen Lawrence Inquiry. Cm 4264. London: The Stationery Office)
The treatment of Ethnic Minority groupswith the Criminal Justice System Victims; Stops and Search Arrests; Post-Arrest: Cautions, Charges and Prosecutions (NB: Evidence largely pre-1998 - hence reference to cautions); Court of Trial and Remand Decisions; Sentencing; Prisons; Parole. Victims. Clancy et al Ethnic Minorities' experience of crime and policing: findings from the 2000 British Crime Survey
? BME groups consistently report lower levels of satisfaction with the police
? BME groups more anxiety about crime
? BME groups face greater risks of crime
? BME groups face similar risks of violence but are more likely to perceive violence as being racially motivated 'Stop & Search' & Arrests
? Controversial history - Brixton riots 1981
? Involve a considerable amount of discretion: Entry point into the CJS
? Per 1,000 pop aged 10 or older a person from an ethnic minority was x6 times more likely to be stopped and searched in 2011/12 than a person from the White ethnic group.
? Per 1,000 pop aged 10 or older a Black person was nearly x3 times more likely to be arrested than a White person; a person from the Mixed ethnic group - x2 likely. (No difference between Asian & White individuals) (Source: MoJ S. 95 Statistics on Race, 2013) Explaining 'Stop and search'
? 'Racist stereotyping' (Macpherson)?
? Rational crime control decision?
'Availability' or 'visibility' rather than bias (Waddington et al: 'In Proportion: Race, Police Stop and Search' 2004):
? Discrimination harder than might seem: identifying colour, ethnicity etc. difficult, especially from a moving vehicle
? Did not find evidence of disproportionality when visibility was good
? Did not find evidence that officers concentrated efforts in areas where BME groups were most 'available' Overall conclusion in Waddington et al: no 'direct discrimination' Entry points into the Criminal Justice System (Phillips and Brown, Home Office Study 185, 1998)
? Black people over-represented esp. for fraud and forgery, drug offences and robbery
? Black suspects more likely to exercise their right of silence
Black and Asian suspects both less likely than white suspects to be given a caution, and more likely to have NFA taken against them The CPS was significantly more likely to terminate proceedings in cases involving black or Asian defendants (!!) o Perhaps they lack evidence to pass the evidential stage - communities can be tight Discrimination in terms of police arrest decisions? Weak evidence -> CPS?
Differences or discrimination? Minority ethnic young people in the youth justice systemby Martina Feilzer and Roger Hood,
London: Youth Justice Board,
? Sampling frame: 8 YOTs (Youth Offending Teams), 7 in urban areas - high concentrations of Minority Ethnic yp
? Info. Received on 17,000+ case decisions involving approx. 14,500 males and approx 2500 females
? Information on four key stages: o Pre-court disposal or prosecution?
o CPS decision to pursue prosecution or not; if so, remand in custody or bail?
o CPS or court decision to drop the case, withdraw, acquit or convict o Sentencing decision - custody, community penalty with supervision by a YOT worker, community sentence (minus supervision); or another, lesser, penalty); (include. Length of sentence) Key findings remanding in custody
? Higher proportions of cases involving black (10%) & mixed parentage (13%) than white (8%) males had been remanded in secure conditions (a stat. significant finding) - which puts the yp at a disadvantage when it comes to sentencing
? At the same time, as many as a third of cases where a black male had been remanded in custody did not result in a conviction compared with 1 in 5 cases involving white males. Key findings conclusions
? Over-representation of black young males (in all 8 YOTs)
? Prosecution recommended in a higher proportion of cases involving black young males and those of mixed parentage (by police)
? A lower proportion of cases involving black (67%) than white (75%), Asian (78%) and mixed parentage (77%) cases resulted in conviction and sentence.
? Why? - higher rate of discontinuances and acquittals.
? White and Asian m sentenced to custody in equal proportions (12%), black m (13%), mixed parentage (15%) and other ethnic backgrounds (16%)
? Raw differences in custody rates were largely explained by different case characteristics
? All cases involving young males from BME groups were sentenced to more restrictive community penalties at a higher rate than would have been expected The Sentencing ofEthnic Minorities
? 'The increasing use of secure facilities for certain ethnic groups is of concern. Young people who are black or of mixed race are more likely than white or Asian young people to receive substantive community sentences (such as Supervision Orders, Community Punishment Orders and Community Rehabilitation Orders) or custodial sentences. The difference between these groups increased between 2000 and 2003.' Youth Justice Board 2004: Audit Commission Report. Also more likely to get more onerous requirements on community sentences. Sentencing: Hood (1992): Race and Sentencing Studied five Crown Courts in W. Midlands in 1989
? 5% greater probability, once other factors taken controlled for, that black defendants
would be sentenced to custody compared to white defendants Black adults and Asian males received longer sentences Black and Asian defendants also given longer sentences than whites in cases where defendants pleaded not guilty
? Differences most significant for offences where judges had most discretion Overall conclusion: 'some indirect and some direct discrimination' (study now quite dated)?
Ethnic Minorities in the Criminal Courts.
Perceptions of Fairness and Equality in Treatment- Hood,
Shute and Seemungal (2003) (2003 - based on 778 interviews with EM and White defendants + sentencers, witnesses, solicitors, barristers, court staff in Manchester, Birmingham and South East London (1,252 interviews altogether).?Nearly a third (31%) of defendants in Crown Courts perceived their treatment to be unfair (though little difference between defendants), and about a quarter (26%) in magistrates' courts. Was this to do with ethnicity? 1 in 5 of Black defs. in the Crown Ct, 1 in 10 in the Mags' courts, and 1 in 8 Asian defs. in Crown Court and Mags' cts said yes. 'Bias/unfairness' revolved around perceptions that they had received harsher sentences than others. Very few felt there was bias in conduct or attitude of the sentencers.
? Studies sparse; social inquiry reports/pre-sentence reports; quality of supervision
? Probation (Calverly et al, 2004, Race and Probation); interviews with 483 Black and Asian clients): o offenders reported a number of negative experiences (re stop and search experiences) and more generally, offenders thought that they had been treated unfairly by the police. Visible representation of BME communities in the staffing of the cjs was seen as helpful Prisons
...the Prison Service is an institutionally racist organisation, which reflects an institutionally racist white society. We have to add to this our knowledge that there are pockets of blatant and malicious racism with the Service. It is time to face up to these things (Martin Narey 2001: 7)??
Murder of Zahid Mubarek (March 2000) (Enquiry, 2006) Commission for Racial Equality investigation (2003) 'Parallel Worlds: A Thematic Review of Race Relations in Prisons'.(2005) NOMS Race Review (2008) - Implementing Race Equality in Prisons, Five Years On.
Commission for Racial Equality findings: CRE (2003) findings - re Feltham: 'The cumulative effect of these failures meant that Zahid Mubarek, as an ethnic minority prisoner in Feltham, was not provided with the equivalent protection available to prisoners who were white' (CRE 2003a: 13) General failings in terms of:
? Protecting BME prisoners and staff from abuse etc
? Negative stereotyping allocation of favoured jobs
? Disciplinary processes for black male prisoners
? Poor procedures for race complaints 'Race Matters in British Prisons'Cheliotis and Liebling 2006,
Criminology The study: A Quality of Prison Life survey, in 49 establishments, collected 2003-4:
? Race relations dimension: o 'Racist comments by staff are rare in this prison' o 'Race complaints are not taken seriously in this prison'
o o o
'This prison encourages good race relations' 'There is respect for all religious beliefs in this prison' 'Black and Asian prisoners are treated unfairly in this prison by comparison to white prisoners'
? Non-white prisoners reported more negatively than white prisoners, with black prisoners reporting the lowest scores.
? BME prisoners generally shared similar views about the quality of race relations in prisons
? Nearly 40% Black and Asian prisoners and nearly one-third Chinese/Other felt they were subjected to unfair treatment
? On race complaints/fairness, BME scores low compared to white prisoners
? On racist comments/ religious beliefs, scores relatively high (i.e. good) o This is changing - especially since Zaid Mubarak enquiry report has suggested that religious beliefs in the prison service are becoming much more of an issue than in the past. Is there a tendency to over-categories incidents in prison as racial. The other big tension in prisons is religion. Prisoner perspectives: cultural ignorance rather than racism?
Most black people are loud, and some people look on that in a bad way, but it's just the way we are and some people find that intimidating, like officers. Say we're talking, some of us talk loud and laugh and joke loud. The size of us don't help either. We stand out more. When black guys do something they notice it straight away, not like white guys, and they get nicked for it straightaway (interview, black prisoner, Crewe 2009. The Prisoner Society) HMCIP: a continued prevalence of '...at best insensitive and at worst racist remarks ... In most cases, they [i.e. black prisoners] attributed this to a lack of understanding, rather than deliberate and overt racism; and to a minority of officers. But in some prisons, there were clearly endemic problems' (HMCIP Annual Report 2003-04: 23) How can the evidence on discrimination best be understood?
An inter-relation of factors?
Direct discrimination, indirect discrimination, social factors (see Hood 1992 Race and Sentencing) A cumulative effect?
'It can well be imagined that the interaction between racial stereotypes, discrimination, antagonism to authority, and actual rates of offending among black people produces a cycle of deviancy amplification' (David Smith 1997: 754, Oxford Handbook) Individualist, Cultural and Structural explanations (Robert Reiner (in Gelsthorpe, 1993)) Minorities in the Criminal Justice System 'The Criminalization of minority ethnic groups' Phillips and Bowling (2007, Oxford Handbook of Criminology, p451) Access to Justice...
What are the experiences of civil and criminal justice systems, and legal processes?
'There was a body of evidence that indicated the negative experiences of these minority groups within civil, criminal and associated systems and processes. Discriminatory outcomes for minority groups were demonstrated by research in the criminal justice system' (Ministry of Justice Research Series 7/09, Access to Justice: a review of existing evidence of the experiences of minority groups based on ethnicity, identity and sexuality Mason et al., May 2009) Criminal Justice v. Racial Justice Ed. Kjartan Pall Sveinsson. Runnymede (2012) www.runnymedetrust.org 'The debate about racism in our criminal justice system needs to include a way of addressing the broader structural inequalities that delineate the opportunity structure for crime.
Inequalities in education, employment, health, housing and voice form a backdrop to the way in which 'race' influences criminal justice' (Foreword: Director, Runnymede) What is being done and what is still to do?
The Law: Section 95. CJA 1991 'The Secretary of State shall in each year publish such information as he considers expedient for the purpose of: a) enabling persons engaged in the administration of criminal justice to become aware of the financial implications of their decisions b) facilitating the performance by such persons of their duty to avoid discriminating against any persons on the ground of race or sex or any other improper grounds The Law The Crime and Disorder Act 1998 (s.28) new emphasis on racial aggravation The Race Relations (Amendment) Act 2000 Statutory Code of Practice on the duty to Promote Race Equality (Public Sector race equality duty, 2001) The Human Rights Act 1998 Police and Criminal Evidence Act Amendment 2005 Policy Inputs: Positive leadership to promote race equality (e.g. HMIP - Inspection Findings 1/04; dissemination of good practice initiatives. See also The Heart of the Dance, A Diversity Strategy for the National Probation Service for England and Wales 2002-2006, National Probation Service, 2003) Race Review (NOMS, 2008) Implementing Race Equality in Prisons - Five years on What is being done and what is still to do?
In prisons also:
? Race Equality Action Plan
? Improved monitoring and analysis of processes
? Performance targets on race equality
? Improved systems for reporting and handling of racist incidents
? Race Equality Action Teams within prisons, including prisoner reps., race relations officers etc
? However, Black prisoners 'consistently more likely than White prisoners to be on basic regime, to be in the segregation unit for reasons of Good Order or Discipline and to have force used against them' (Race Review NOMS, 2008:15) Policy Inputs CPS new equality and diversity policy and strategy (2005) key equalities measures as part of performance review (e.g. representation in staff, hate crime prosecutions, information, reassurance and listening events with Muslim communities, impact assessment of ethnic and gender charging decisions) Equal opportunities (see s.95 Report on recruitment to different professional groups within the cjs) Positive action v Positive discrimination in recruitment The complexities of recruitment Further recruitment issues (e.g. Resigners? The Experience of Black and Asian Police Officers, Simon Holdaway & Anne-Marie Barron, 1997); more BME staff...but not just about recruitment - do more BME staff better BME treatment?
(Cheliotis and Liebling 2006; see also Singh Bhui and Fossi, in Bennett et al 2008) Practitioners in the cjs. Min of Justice Statistics on Race and the CJS 2010. S.95 publication Police - BAME = 5% of officers in post (0.6% senior officers (Superintendent and above) in 2012) CPS - BAME = 15% of the staff in post in 2012 (BAME = 16% of senior staff positions in post in 2012)
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