Racism persisting and worsening in the justice system
Last Friday (8 September 2017) was a landmark date in our criminal justice history as David Lammy published his final report: An independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System.
Writing in the Guardian, the MP says that when David Cameron invited him to undertake the review:
I thought I was being set up to fail. So many of the causes of, and answers to, the problem lie outside the criminal justice system: poverty, lone-parent families, school exclusions, and growing up in the care system. And what more is there left to say about stop and search?
But having looked at the evidence over the past 18 months, my judgment is that we have a significant problem in the criminal justice system itself, and that the treatment of BAME young people shows this problem is getting worse.
The full review complements an earlier report of emerging findings published in November 2016 and summarised by me here.
The Lammy Review contains 35 recommendations, including introducing assessments of a young offenders’ maturity, exploring how criminal records could be ‘sealed’, and allowing some prosecutions to be ‘deferred’. David Lammy also urges the justice system to take major steps to increase diversity and transparency.
The study found that BAME disproportionality in the criminal justice system costs the taxpayer at least £309 million each year (details of these costs are found in a separate paper), as well as a number of other concerning statistics. For example, the proportion of BAME young offenders in custody rose from 25% to 41% between 2006 and 2016, despite the overall number of young offenders falling to record lows.
Meanwhile, evidence shows the rate of Black defendants pleading not guilty in Crown Courts in England and Wales between 2006 and 2014 was 41%, compared to 31% of white defendants. This means they lose the possibility of reduced sentences and it raises questions about trust in the system.
The Lammy Review also revealed that the BAME proportion of young people offending for the first time rose from 11% in 2006 to 19% a decade later. There was an identical increase in the BAME proportion of young people reoffending over the same period.
Lammy also explores staffing in the criminal justice system and finds a varying picture with key differences between agencies, although BAME representation at senior levels is much lower than the figures you can see in this graphic from the report:
Lammy sets out three key principles, the most important of which is that there must be robust systems in place to ensure fair treatment in every part of the CJS. He recommends transparency thoughout the system, bringing decision-making out into the open and exposing it to scrutiny. He illustrates the power of transparency elegantly, noting that:
juries deliberate as a group through open discussion. This both deters and exposes prejudice or unintended bias: judgments must be justified to others. Successive studies have shown that juries deliver equitable results, regardless of the ethnic make-up of the jury, or of the defendant in question.
Lammy makes 35 recommendations and I have shared some of the most important, and challenging, ones here:
- Recommendation 3: The default should be for the Ministry of Justice (MoJ) and CJS agencies to publish all datasets held on ethnicity, while protecting the privacy of individuals. Each time the Race Disparity Audit exercise is repeated, the CJS should aim to improve the quality and quantity of datasets made available to the public.
- Recommendation 4: If CJS agencies cannot provide an evidence-based explanation for apparent disparities between ethnic groups then reforms should be introduced to address those disparities. This principle of ‘explain or reform’ should apply to every CJS institution.
- Recommendation 10: The ‘deferred prosecution’ model pioneered in Operation Turning Point should be rolled out for both adult and youth offenders across England and Wales. The key aspect of the model is that it provides interventions before pleas are entered rather than after.
- Recommendation 13: As part of the court modernisation programme, all sentencing remarks in the Crown Court should be published in audio and/or written form. This would build trust by making justice more transparent and comprehensible for victims, witnesses and offenders.
- Recommendation 17: The MoJ and Department of Health (DH) should work together to develop a method to assess the maturity of offenders entering the justice system up to the age of 21. The results of this assessment should inform the interventions applied to any offender in this cohort, including extending the support structures of the youth justice system for offenders over the age of 18 who are judged to have low levels of maturity.
- Recommendation 34: Our CJS should learn from the system for sealing criminal records employed in many US states. Individuals should be able to have their case heard either by a judge or a body like the Parole Board, which would then decide whether to seal their record. There should be a presumption to look favourably on those who committed crimes either as children or young adults but can demonstrate that they have changed since their conviction.
David Lammy has conducted an authoritative, forensic investigation into racial bias in the criminal justice system and has produced a coherent and comprehensive set of recommendations. We must now wait and see how motivated the Ministry of Justice and Home Office are to respond.
I leave the last word to Mr Lammy himself in that Guardian article:
Young black people are now nine times more likely to be in youth custody than young white people. I expected to find the youth justice system laser-focused on this issue. Instead, I have seen large parts of the system indifferent to issues of race.
You can find ten of the key findings from the Lammy Review in my infographic below:
All infographics are kindly sponsored by Intelligent Fingerprinting whose non-invasive fingerprint drug test has been designed to simplify and support drug screening programmes across a range of applications. IFP has no editorial influence on the contents of this site.
Attention to racial disparities in adverse criminal justice (and many other) outcomes in the US has for decades suffered from the mistaken belief that generally reducing an adverse outcome will tend to reduce (a) relative racial differences in rates of experiencing the outcome and (b) the proportion racial minorities make up of persons experiencing the outcome. In fact, the opposite is the case. Generally reducing any outcome tends to increase (a) and (b) as to the outcome.
Unfortunately, the Lammy Review uncritically accepts the mistaken American view on this subject, as I discuss here:
“United States Exports Its Most Profound Ignorance About Racial Disparities to the United Kingdom,” Federalist Society Blog (Nov. 2, 2017)