How should the law respond to racial inequality? Choose one piece of enacted legislation, and discus
University of Bristol Bar Society and Law Review Essay Competition 2021: Winning Piece – Tochi Ejimofo
This essay explores one possible reform to the Sentencing Act 2020 (legislation that concerns the type and length of sentences for convicted offenders) which may hold the potential to reduce racial inequality within the Criminal Justice System. The paper examines the current law and analyses its relationship to punishment. A critical race framework is used to reveal the racist implications that undergird the concept of punishment and how this relates to the disparities in sentences between white and BAME (Black, Asian and Minority Ethnic) offenders. The potential reform concerns the extrication of the purposes of sentencing adults as they relate to retributivism (s.57(2)). The essay engages in a discussion regarding the Right Realist criminologist perspective on the utility of punishment, and the abolitionist perspective which sees reform as an unviable solution to meaningfully addressing racial inequality and white supremacy. This will conclude in the assertion that this reform has potential as harm reduction towards racial disparities, but should by no means be seen as the end to challenging racism within the Criminal Justice System.
Reforming S.57(2) of the Sentencing Act 2020
Racial inequality is particularly prevalent within the UK Criminal Justice System; in 2017, David Lammy highlighted these wide-ranging disparities in a report he conducted.1 One such instance was in the sentencing of white offenders compared to BAME offenders, with the latter being more likely to receive harsher sentences for the same offence as their white counterparts.2 This occurs because judges have latitude to decide sentencing under the Sentencing Act 2020, which concerns the type and length of sentences for convicted offenders. In particular, s.57(2) which accounts for the purposes the judges must have regard for when considering sentences. This essay asserts that this section must be reformed as to take away any mandates for punishment. First the essay will outline the details of s.57(2) before examining the racial disparities in current sentencing practices. The essay will then analyse the causes for this, thus asserting the relationship between racist biases against non-white people and the desire to punish. Afterwards, the proposed reform to s.57(2) is argued, before two key arguments against the reform are addressed: first, the utility of punishment and, secondly, the futility of reform as opposed to abolition. Finally, the argument will conclude with a reflection of this discussion.
S.57(2) of the Sentencing Act 2020 details the purposes the court must have regard for before sentencing an offender. These purposes are “the punishment of offenders” (s.57(2)(a)), “the reduction of crime” including by deterrence (s.57(2)(b)), “the reform and rehabilitation of offenders” (s.57(2)(c)), “the protection of the public” (s.57(2)(d)), and “the making of reparation by offenders to the persons affected by their offences” (s.57(2)(e)). These purposes are not hierarchical and leave space for considerable judicial discretion.
Analysis of the sentencing differences between racialised and non-racialised individuals indicates that these sentencing guidelines have resulted in considerable racial disparities in sentencing. For instance, Black offenders are 1.4 times more likely to receive an immediate custodial sentence for a drug offence compared to white offenders; this figure increases to 1.5 times for Asian or ‘other’ racialised offenders.3 Furthermore, Asian and Black people who were convicted of an indictable offence were sentenced to prison at a rate 55% and 53% higher, respectively, than those from a white background.4 Even between white and BAME people who are designated custodial sentences, the average length of imprisonment for white offenders is 19.5 months compared to 27.1 months for racial minorities.5
This illuminates how the Criminal Justice System perpetuates racial discrimination. The Lammy Review was a 2017 report concerning the treatment of ethnic minorities within the Criminal Justice System, which investigated the disparities that led BAME people to account for 27% of the prison population despite making up 16% of the total population.6 Harsher sentencing is simply one manifestation of the institutional racism that costs the economy £234 million in BAME over-representation in prisons.7 The current ‘justice’ system disproportionately deprives ethnic minorities of their liberty at tax-payers’ expense.
The purposes of sentencing adults exacerbates these systemic racial inequalities because s.57(2) overvalues the concept of retribution; punishment is a concept that is utilised against racialised people more harshly than white people. As Criminal Justice professor Gavin Dingwall wrote in his piece concerning s.142(1) of the Criminal Justice Act 2003 (the copied predecessor to s.57(2)), as well as s.57(2)(a) which directly referenced punishment, “many of the other purposes listed are also inherently punitive”.8 The concept of ‘protection of the public’ mandates an assessment of the defendant’s character and history in order to determine their propensity for future harm; ‘deterrence’ seeks to make a general example to the offender, through harsh punishment, with the aim of influencing the offender and other potential offenders away from criminal activity. Both of these purposes, in addition to punishment, create a justification for lengthier penalties.
Punishment is a racialised tool. The form it takes, who can inflict it and who it is inflicted upon intersects with the power dynamics in society. Within a white supremacist system, white people generally hold the power to inflict punishment that disproportionately harms racialised minorities; these minorities are often targeted through negative perceptions.9 Research has consistently revealed that white people are more likely to support harsher punishments such as the death penalty in comparison to non-white people.10 Another study also displayed that 73% of white people believed that the Criminal Justice System did not deal with criminals harshly enough.11 This cannot be detached from the likelihood that who is viewed as ‘criminal’ is most likely to be Black or brown; the media’s disproportionate representation of Black people’s mug shots12 and brown Muslims as terrorists13 ensures this. Therefore, a system is created whereby judges (of which a staggering 92.6% are white)14 hold racist implicit biases against BAME offenders15 yet have the legislative discretion to exercise these biases in the form of additional punishment under s.57(2). Consequently, the Criminal Justice System reproduces the racially discriminatory attitudes held in general society.
Therefore, to begin to rectify this, the racialised instruments within s.57(2) must be removed. S.57(a), (b) and (d) should be abolished as sentencing purposes, leaving reform and rehabilitation and reparations by offenders as the two purposes of sentencing adults. These reforms create a person-oriented approach to the justice system: the victim(s), the offender and harm prevention become central to the process. Not only will this limit the scope for racist biases, but these purposes shift the aim of the Justice System to a place that meaningfully addresses the offending act and scrutinises the utility of prisons as sites of rehabilitation and reparations.
There are two opposing arguments that must be resolved so that the case for the proposed reform can be effectively made: the argument in favour of punishment and the argument in favour of general abolition. Whilst both of these arguments seemingly disagree that this essay’s proposed reform of s.57(2) is a viable option to addressing racial inequality, the reasoning differs for each.
Firstly, the argument in favour of punishment within sentencing. From a criminologist perspective, this position is likely to be asserted via ‘Right Realists’ who are those who believe that crime is an ontologically real concept and that criminals use rational choice theory to make a decision to break the law. Therefore, harsher punishment is a just approach to counter the harm that is ‘inherent’ to crime. As Dingwall explains, “retributivism rests on the intuitive assumption that offenders ‘deserve’ punishment”.16 This essentially outlines the ‘eye for an eye’ notion where inflicting negative consequences is fair because one has harmed another. Moreover, punishment has utility through its ability to deter those who see the benefits of criminal activity as outweighing the costs.
This argument has some anecdotal validity: most people can recount a real-life experience where the potential for punishment may have dissuaded them from breaking a rule. Similarly, a desire for revenge or ‘just desserts’ is common once a person has been intentionally hurt by another. Right realist theorists such as James Q. Wilson point to this phenomenon and compel us to question whether we truly want murderers and rapists to be coddled in the court system; the argument is that punishment keeps us safer and allows victims to receive justice. Therefore, harsh sentences are just part of this process. It would perhaps be suggested that, to reduce racial inequality, the answer would be to retain punishment but restrict judicial discretion so that every convicted offender, regardless of race, receives the same sentence.
This essay disagrees with this viewpoint, although it will not engage in the debate as to whether crime is an ontological reality or a social construction because it is beyond the remit of this paper. That being said, the idea that punishment is deserved because harm is inherent to crime, lengthier sentences deter criminals, and punishment leads to justice for victims will be countered.
Firstly, the majority of people are imprisoned for non-violent, non-sexual offences17 which means that the many BAME people are serving long sentences where no interpersonal harm has actually been committed. This is most noticeable in the sentencing disparities for drug offences; white offenders may not even obtain a custodial sentence for the same offence as a Black or Asian offender. The idea that punishment is over-exemplified in s.57(2) because it acts as retribution for pain inflicted is faulty, in all likelihood judges will mostly face non-violent, non-sexual offenders.
Secondly, the belief that stronger penalties result in criminal deterrence is simply that, a belief. Numerous studies have either found no relationship between stricter penalties and deterrence or, at best, a dubious relationship.18 The reoffending rates of prisoners cements this fact because 39.3% of those released from prison are likely to reoffend in a year, which increases to 75% within nine years.19 Causation is a contested issue but, from figures alone, one cannot conclusively state that long sentences of imprisonment has deterred offenders.
Finally, victims are largely dissatisfied with the current sentencing of offenders; only 42% claimed they were satisfied by the end of the process.20 Surprisingly for right realists, this was not because they wanted harsher sentences, but because they believed that the sentence had little relevance to the harm they personally suffered and provided little in the way of financial compensation.21 This is despite “the making of reparation by offenders to persons affected by their offences” accounting for its own separate purpose under s.57(2)(e). This underscores how punishment has overtaken the purposes of sentencing, especially regarding to non-white offenders. Punishment cannot be said to be about justice for the victim because the highest rates of satisfaction from victims (at 85%) occurs when they are centred in a restorative justice model.22 From this, it becomes easier to understand that the removal of punishment-oriented purposes under s.57(2) will not result in a diminishment of a deterrence nor the removal of justice for victims, considering neither of these were occurring before.
The second opposing argument would likely amount from prison abolitionists. Abolitionists recognise the current Criminal Justice System as fundamentally flawed and an institution that upholds oppressive practices, including white supremacy. Angela Davis, in ‘Are Prisons Obsolete?’, called for the dismantling of prisons due to the injustices that they perpetuate;23 Mariame Kaba asserted that the only way to reduce police and prison violence that disproportionately harms racialised people is to “reduce contact between the public”24 and these institutions. It is for this reason that arguments against reform are made because they maintain these oppressive institutions whilst the reform helps to “produce the stultifying idea that nothing lies beyond”.25 Hence, a reform of sentencing cannot reduce racial inequality within a system where racism is inherent, and only abolition and transformation of the system can accomplish this.
This essay is mostly inclined to agree with this reasoning: racism and white supremacy are not boxes that can be neatly removed from certain aspects of society, it is an interconnected web that necessitates comprehensive dismantling. That being said, harm reduction within racist systems exists, and this is a concept Davis herself acknowledges in her book.26 This essay asserts that sentencing is one such important reform that leads to harm reduction.
Removing the directive for punishment would decrease the sentences of non-white offenders which would “reduce contact” between BAME individuals and racist institutions, as Kaba stipulates. Furthermore, the potential economic savings from reducing BAME over-representation in UK prisons could be redirected into restorative justice programmes which increase victim satisfaction and uphold both the rehabilitation and reparative purposes that would remain in the Sentencing Act. As long as the wider goal of harm prevention and restorative justice is consistently emphasised, this reform can work to fix racial disparities whilst not reproducing the “stultifying idea that nothing lies beyond”.
To conclude, s.57(2) of the Sentencing Act 2020 reproduces racial inequality within the field of Criminal Justice. One such way the law can respond to this is by removing s.57(2)(a),(b) and (d) which centres punishment. Punishment is a racialised disciplinary tool that is more likely to be wielded against non-white offenders to deprive them of their liberty due to pervasive racist biases. Through ensuring that the only purposes of sentencing are rehabilitation and reparations to the victims, more equitable solutions will arise that reduce imprisonment, concentrate on the victims’ needs, and limits racial disparities. Punishment is an ineffective tool against crime and it is inexcusable to retain its legislative form when it has such devastating impacts against racialised people.
1 David Lammy, ‘The Lammy Review: An independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System’ (Gov.uk, 8th September 2017) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/643001/lammy-review-final-report.pdf> accessed 21st March 2021
2 Ibid 33
3 Amber Isaac, ‘Investigating the association between an offender’s sex and ethnicity and the sentence imposed at the Crown Court for drug offences’ (Sentencing Council, 15th January 2020) <https://www.sentencingcouncil.org.uk/wp-content/uploads/Sex-and-ethnicity-analysis-final-1.pdf > accessed 21st March 2021, 3
4 Kathryn Hopkins et al, ‘Associations between ethnic background and being sentenced to prison in the Crown Court in England and Wales in 2015’ (Ministry of Justice, 16th November 2016) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/643001/lammy-review-final-report.pdf> accessed 21st March 2021, 1
5 Baber Yasin and Georgina Sturge, ‘Ethnicity and the criminal justice system: What does recent data say on over-representation?’ (Commons Library, 2nd October 2020) <https://commonslibrary.parliament.uk/ethnicity-and-the-criminal-justice-system-what-does-recent-data-say/> accessed 21st March 2021
6 Ministry of Justice, ‘Her Majesty’s Prison and Probation Service Offender Equalities Annual Report’ (Gov.uk, 26th November 2020) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/938345/hmpps-offender-equalities-2019-2020.pdf> accessed 21st March 2021, 5
7 Hannah Kneen, ‘An exploratory estimate of the economic cost of Black, Asian and Minority Ethnic net overrepresentation in the Criminal Justice System in 2015’ (Ministry of Justice, September 2017) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/642551/david-lammy-economic-paper-short-summary.pdf> accessed 21st March 2021, 1
8 Gavin Dingwall, Deserting Desert? Locating the Present Role of Retributivism in the Sentencing of Adult Offenders (2008) 47 The Howard Journal of Criminal Justice 400-410, 401
9 Robert Booth and Aamna Mohdin, ‘Revealed: the stark evidence of everyday racial bias in Britain’ (The Guardian, 2nd December 2018) <https://www.theguardian.com/uk-news/2018/dec/02/revealed-the-stark-evidence-of-everyday-racial-bias-in-britain> accessed 25th March 2021
10 Pew Research Center, ‘Shrinking Majority of Americans Support Death Penalty’ (pewresearch, 28th March 2014) <https://www.pewforum.org/2014/03/28/shrinking-majority-of-americans-support-death-penalty/#fn-20067-1> accessed 21st March 2021, 2
11 Peter V. Marsden, Social Trends in American Life: Findings from the General Social Survey since 1972 (Princeton University Press, 2012), 158
12 Sarah Turnnidge, ‘The Met Police Are More Likely To Publish Your Mugshot If You’re Black’ (Huffington Post, 11th March 2021) <https://www.huffingtonpost.co.uk/entry/metropolitan-police_uk_603fa18ec5b617a7e411ffc5> accessed 19th April 2021
13 Katy Sian et al, The Media and Muslims in the UK (2012) 15 Centre for Ethnicity and Racism Studies, University of Leeds 229-272, 229
14 Ministry of Justice, ‘Judges and non-legal members of the judiciary’ (Gov.uk, 6th November 2020) <https://www.ethnicity-facts-figures.service.gov.uk/workforce-and-business/workforce-diversity/judges-and-non-legal-members-of-courts-and-tribunals-in-the-workforce/latest> accessed 24th May 2021