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Good morning. The Sentencing Council has suspended its plans to introduce guidelines to judges that would have discriminated between defendants on the grounds of race (and a series of other characteristics).
I wrote yesterday about why I think this approach was misguided when it comes to race. But of course, these guidelines weren’t only designed to be applied to race. Today, I want to talk a little bit about why I think those other factors are different and what levers are appropriate to pull when it comes to race.
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Closing the gap
The policy problem the Sentencing Council is trying to solve is that we have good evidence that two offenders, with near-identical case histories and profiles, will receive different sentences based on their ethnicity.
As I said, there are two load-bearing assumptions here. The first is that what drives the disparity is racism. It could equally be favouritism. The issue might not be that the person from a GRT (Gypsy, Roma and Traveller), Black or Asian background who gets a custodial sentence for a drugs offence is being detained unfairly, but that the white British person who doesn’t get a custodial sentence also belongs in jail.
Everything the Sentencing Council has done proceeds from the idea that the “correct” sentence is the one handed out to white Britons. Maybe that’s the case, but we simply don’t know. And in a democratic society, I can’t think of a study we could conduct to investigate this that would be ethical or politically tenable.
Given that, we should seek to improve judicial decision-making, and be open-minded as to whether “closing the gap” means fewer custodial sentences for Black, GRT and Asian offenders, or if it means more custodial sentences for white Britons. This holds true outside the criminal justice system: one of the best measurable interventions to increase ethnic minority representation in the workforce is blind recruitment. (This also combats ageism, nepotism and cronyism.) There are vanishingly few good measures to combat racial disparity that do not also combat broader patterns of unfairness.
Yes, there is a real thing called ethnicity. And it has a variety of important outcomes. But I don’t think the disparity in sentences for drug offences are because judges are preoccupied by Black defendants’ greater risk of type 2 diabetes, for example.
The other characteristics for which the Sentencing Council proposed these changes (to name a few: whether you are female, pregnant, postnatal, aged 18 to 25, facing your first custodial sentence, battling addiction or a victim of domestic abuse) are not like that. These are things that can be measured objectively and have consistent effects. They have predictable public policy challenges and consequences. Regardless of the feelings of judge or jury, “facing your first custodial sentence” is a real thing. It’s not an imagined one, like your “race”.
And regardless of how biased or unbiased a system is, “being pregnant” or “having a drug addiction” will always create additional pressures and require bespoke responses. It will never be inappropriate to ask, “should we consider whether this offender is the sole caregiver in a family?” or “is this offender pregnant?” Whereas the precise aim of tackling racism is that differences fall away.
As a result, tackling racism will almost always be poorly addressed by measures that treat being a minority as an unchanging fact of life.
Now try this
This week, I mostly listened to the brand-new complete Shostakovich cycle by the Boston Symphony Orchestra and Andris Nelsons while writing my column.
