Discriminatory Practices within the Criminal Justice System
The first agency of the criminal justice process that an individual comes in contact with, as a suspect/victim of a crime is the police. The police are responsible for recording and investigating a crime and apprehending and detaining the suspects (Department of Criminology, 2006/07). Moreover, the police provide the subsequent agencies of the criminal justice process with information about the crime and details about the defendant.
The police play a fundamental role for the future of the case within the criminal justice process since, like the rest of the criminal justice agencies, police personnel can exercise discretion and decide whether a person will be engaged in the criminal justice process or not (Fyfe, Greene, Walsh, Wilson and McLaren, 1997).
At this point an important question emerges: Does race influence the police use of discretion and if so, to what extent? A variety of research has been conducted in order to answer this question. ‘Ethnic minority contact with the police constitutes the most commonly researched part of the criminal justice system’ (Department of Criminology, 2006/07:8-9). In the following paragraphs, a brief description of some of these surveys and their results is provided.
A survey commissioned by BBC News online in the UK in 2002, that had whites, blacks and Asians as a sample, shows concern about the way the police force behave towards black and Asian communities. According to this survey, approximately half of the black and the Asians respondents feel that there is evidence of discriminatory practices against them. In addition, 18% and 15% respectively, claimed that they experienced discrimination by the police (BBC News, 2002).
More specifically, the practice of ‘stop and search’ has been the focus of a variety of research. The Home Office research study 223 which was based on findings from the 2000 British Crime Survey, indicated that black people were more likely than white people to be stopped and searched while on foot or in a car (Home Office Research Study 223, 2001). In addition, this survey revealed that white respondents who were stopped on foot or in a car, felt satisfied with the way police handled the stop and also felt that they had been treated fairly. In contrast, racial minority groups, especially black respondents, were the least satisfied and the least likely to rate police behaviour as polite (Home Office Research Study 223, 2001). As arises from this report, police force exercise discretion against racial minorities in decision-making of ‘stop and search’.
Besides the ‘stop and search’ practice, another often-debated issue, is whether police take racial background into account when making arrest decisions.
According to the Home Office 2006 study, black people were 3 times more likely to be arrested than whites (Department of Criminology, 2006/07). Another report by Home Office in 2002 with black and Asian people as a sample shows that in 2000/2001 the arrest rate of black and Asian people has increased by 8% while for white people it has decreased by 2%. This report also indicates that it was 4 times more likely for the police to arrest black people, especially by using force, than white people (cited in IRR, 2002).
Furthermore, there is evidence that race can influence the police’s decision whether to caution offenders or proceed to prosecution. A Home Office study (2006) showed that 17,5% of white people were let off with a warning compared with 16% of Asian and 13% of black suspects (Cavadino and Digman, 2007). Phillips and Brown’s research reveals that African Caribbeans are less likely to be cautioned than whites (Department of Criminology, 2006/07).
Nonetheless, in contrast to these findings, there are also some studies which show that racial origin does not influence the decision to arrest and process a suspect in the criminal justice system. Particularly, a Black and Reiss’s research conducted in USA indicated that there are legal factors (such as crime seriousness, prior record etc.) that influence police decisions (Lampropoulou, 1999).
From the above it becomes clear that the relationship between ethnic minorities and the police is unstable. Although some studies show that police decision making is based on legal factors and not on someone’s race or ethnicity, the majority of the racial minorities believe that the police agency discriminate on grounds of race and consequently the relationship between them is characterised by lack of feelings of confidence and satisfaction.
Another important agency of the criminal justice process is the prosecution service. The prosecutor reviews the evidence of a case and decides whether or not to continue the proceedings and whether or not further charges are necessary (Department of Criminology, 2006/07). ‘Prosecutors are the chief law enforcement officers within their jurisdictions. They protect the interests of the state’ (Karmen, 2004:167).
The prosecution agency members have broad discretion in the exercise of their duties that often puts people in the position of making difficult decisions without the appropriate policies and guidelines being in place. At this stage of the criminal justice process, interest has been raised to examine whether national origin influences the decision making.
A total of 68 studies have been carried out and the results showed that African-Americans are subjects of racial discrimination in criminal processing (Sage Journals online, 2002). More specifically, ‘from those charged by the prosecutor service with the offence of robbery, at least a third was African-Americans; a higher proportion than their representation in the population’ (Department of Criminology, 2006/07:8-15). According to Spohn, Gruhl and Welch (1987), an analysis of more than 30,000 cases from the Los Angeles County showed that cases against blacks and Hispanics were significantly more likely to be prosecuted than cases against whites (Banks, 2004). Another study proposes that the prosecutor agency is less likely to divert minority ethnic groups from the legal process than whites who have committed crimes of the same seriousness (Senna and Siegel, 2002). Moreover, ‘In 2001 the leading academic lawyer Sylvia Denman found “unwarranted complacency over the possibility of race discrimination in the prosecution process” ’ (BBC News, 2003).
In contradiction, Phillies and Brown’s study of 1,175 suspects found that there were higher rates of termination in cases involving black suspects (20%), Asian suspects (20%), while for white suspects the rate was 12% (Department of Criminology, 2006/07). This study suggests that prosecutors’ decisions are maybe based upon other factors beyond one’s national origin.
Although the gathering of the evidence in the above surveys is not conclusive, they overall reveal trends of discriminatory practices in the prosecution organisation.
The last stage of the criminal justice process which has also became subject of many studies involving discriminatory practices against racial minorities, is the court.
The court’s fundamental role is to decide: 1) whether the defendant should be given bail or be remanded in custody until the trial, 2) whether or not the defendant is guilty and 3) in case the defendant is guilty, the appropriate sentence (Department of Criminology, 2006/07). The two most important types of courts within the adversarial criminal justice process are the magistrates’ courts and the crown courts. In the magistrates’ courts offenders who are charged with minor offences are prosecuted, in contrast to the crown courts that deal with more severe crimes (Department of Criminology, 2006/07). Needless to say, the decisions made by court are very important for one’s life as they have the power to limit one’s liberty. A number of studies have been conducted to research discriminatory practices during the decision making process, once the defendant appears in court.
One of the initial decisions made by courts that may contain evidence of discriminatory practices, is the decision regarding whether the offender should be given bail or should be remanded in custody until his/her trial. It is also worthy of note at this point, that, this decision will be crucial for the type of sentence that will be imposed, because a remand in custody decision raises the likelihood of a defendant to receive a custodial sentence (Department of Criminology, 2006/07). Overall, the courts employ criteria such as the dangerousness to the community and the possibility of flight in making bail decisions (Banks, 2004). Nonetheless, several surveys reveal evidence of discrimination against racial minorities in bail decisions. More specifically, for white people bail is more likely (84%) than for black people (71%) (IRR, 2002). Hood’s study (1992) with African Caribbean and white people as sample showed that 26% and 20% respectively were remanded in custody (Department of Criminology, 2006/07). The above surveys suggest that the exercise of discretion by the courts operates against ethnic minority groups as far as the bail decision is concerned.
Regarding the verdict decision a seemingly non-discriminatory picture emerges. Research conducted in London and Manchester, suggests that verdicts are not affected by the ethnical background of the offenders. ‘Jurors are influenced by the race of the defendants, but this does not affect final verdicts’ (BBC News, 2007). Certainly acquittal rates reveal that 58% of Asian people in magistrates’ courts are acquitted, 59% of blacks and only 41% of whites.
This difference is also evident in crown courts where higher acquittal rates were found for black people tried for robbery and criminal damage than their white counterparts (Department of Criminology, 2006/07). It is important at this point to mention that, these high percentages of acquittals of ethnic minorities not only show that there is no consistent evidence of racial discrimination at the point of criminal conviction, but they also prove the existence of discrimination at the previous stages of the criminal justice process.
Research on sentencing has produced interesting results regarding racial disparity. At this point the evidence remains contradictory. On one hand, some studies indicate that an offender’s race has a direct impact on sentencing outcomes; On the other hand, other studies have failed to show a definitive pattern of discrimination against ethnic minorities.
In particular, McConville and Baldwin’s study which involved 339 defendants from racial minorities proposed that there were no signs of systematic discrimination (Department of Criminology, 2006/07). In addition, a research conducted from the Home Office, indicated that there was no significant difference between the length of custodial sentences and ethnic minority groups (Department of Criminology, 2006/07).
In contrast, there are several studies that suggest that black defendants tend to receive more severe sentences. According to Hood (1992) 57% of blacks and 48% of whites were sentenced to an immediate custodial sentence (Department of Criminology, 2006/07). Hudson’s research in London (1989) showed that for common offences 75% African Caribbean and 50% white offenders had to serve custodial sentences (Department of Criminology, 2006/07).
At this point, it is important to note that, any kind of discrimination at any of the stages of the criminal justice process has a significant impact on the proportion of the population from ethnic minorities in prison. According to research in the U.S. in 2000, black inmates made up an estimated 46% of all inmates compared to white inmates who accounted for 36% (Banks 2004).
It is partly the result of a whole discriminatory system that its decisions are based upon stereotypes and prejudices (IRR, 2002).
Besides the discriminatory practices within the criminal justice system against ethnic minorities as suspects and offenders of crime, another main focus of concern is whether victims of minority ethnic groups become subject to discriminatory treatment. ‘The guarantee to all persons of equal protection under the law is one of the most fundamental principles of a democratic society’ (U.S. Department of Justice, 2000).
Ethnic minorities repeatedly complain about the failure of the system to treat them in the same way as the rest of the population. More specifically, research conducted by victimologists pinpoints that white victims are more likely to be given a first-class treatment, than others who due to their national origin, tend to be neglected and treated as second class complainants by the same agencies and officials (Karmen, 2004). Victims from minority ethnic groups feel that their requests for protection and intervention receive suspicion and hostility. Studies found that the majority of these minorities tend not to report attacks against them because the criminal justice agencies are more likely to take formal action when the crime victim is white (Senna and Siegel, 2002). In addition, they feel that the incident in which they are involved as victims will not be treated seriously and that they will not receive good service from the police officers, prosecutors and judges (Karmen, 2004).
As briefly mentioned above, although the criminal justice process is supposed to serve all people fairly regardless of ethnicity, reports reveal sources of tension, conflict and mistreatment between criminal justice system and victims from racial minorities.
This unjust treatment by the criminal justice system against ethnic minority groups leads to an unavoidable question: Why criminal justice agencies show discrimination against minority ethnic groups? There is a variety of explanations that have emerged to answer this question.
Primarily, ‘“fear of difference” has always been an integral component of discrimination’ (McLaughlin, Muncie and Hughes, 2003). People have the tendency to fear ethnic minorities, especially black people, because they have a different appearance from the majority of the population. This fear is rapidly gravitating toward a fear of crime. ‘Perceptions of threats, rather than actual threats, are influential in the design of crime control policies’ (Banks, 2004:69). People believe that because members of ethnic minority groups have a different skin-colour or different culture, they are more likely to exhibit antisocial behaviour, namely criminal behaviour. People perceive them as enemies of the general population and they become hostile against them. Consequently, the criminal justice agencies treat members of racial minorities either as offenders or as victims of crime in an unjust way.
Moreover, discrimination can be the product of social and political pressures that impel the criminal justice system in an effort to combat crime and reduce the crime rates. The criminal justice system is responsible for preventing any danger of disorder in the community (Alexiadis, 2004). As a result, several political parties, society as a whole, the local community all , expect from the criminal justice process to ensure their protection and safeguard their interests against criminal activity. The criminal justice agencies feel the pressure to be effective and try to meet these expectations by becoming stricter and adopting criteria that do not serve justice.
On the other hand, it is important to note that the fact that discriminatory practices are operating within the criminal justice process does not mean that the whole system treats these groups unfairly and unjustly. The over-representation of the ethnic minorities within the criminal justice system is not solely the effect of discriminatory practices. It can also constitute the reflexion of higher levels of minorities’ criminal activity (Department of Criminology, 2006/07). These higher levels can be explained by examining various aspects. To begin with, members of minority groups are more likely to be involved in the criminal justice system because of social factors such as poverty, unemployment and poor education, which can force them into deviant behaviour. In addition, white people usually have better legal representation. For people from ethnic minority groups it is more difficult (mostly due to their poor financial background) to have a private lawyer, access to expert evidence etc, either when they are the victim or the defendant of crime (Banks, 2004).
From the writer’s point of view, the racial discriminatory practices within the criminal justice process are the result of a combination of factors such as prejudice and social and political characteristics. It is important to note that according to the author’s view, this prejudice is the result of a never ending cycle. People often base their views of other people upon stereotypes and prejudices that are based upon myth rather than fact. These stereotypes and prejudices have often been found embedded in tradition, culture and even in the criminal justice systems of earlier times (Associated content, 2009). The criminal justice system, as an integral part of society, often reflected the same prejudices and stereotypes as those found in everyday life. The criminal justice system, would therefore start to treat some minorities in a discriminatory way, and the criminal justice agencies would adopt the belief that people with a different national origin than theirs, were not only inferior, but they were also more likely to exhibit deviant or criminal behaviour. As a result, they focused more on people from ethnic minority groups than white people and as a rational repercussion, they found more extensive illegal activities amongst these groups than amongst whites. Subsequently, stereotypes were reinforced and were able to survive into contemporary attitudes and practices. The existence of this never ending cycle in combination with the factors mentioned above cause, to some extent, discriminatory practices within the criminal justice system.
Conclusion
In conclusion, ‘the debate about racial discrimination in the criminal justice system remains unresolved’ (Banks, 2004:72). There has been a steady accumulation of research on racial differentials within the criminal justice process that show that members of ethnic minorities receive less favourable treatment than whites as victims as well as offenders of crime. Nevertheless, that does not mean that all practitioners within the system operate in an unjust manner. ‘Although there is racial discrimination within the criminal justice system, the system itself is not characterised by racial discrimination’ (Banks, 2004:60). Discrimination within the criminal justice system is not systematic. These discriminatory practices exist only to some extent and they are caused by a combination of factors such as prejudices and social and political pressures.
Therefore positive steps can and should be taken in order to prevent any further discrimination. The fact that some people have a different skin colour or different culture and customs from the majority of the population that does not mean that they are mean people who have a stronger urge than whites to exhibit antisocial behaviour and break the law. Essentially, all people are the same inside.
Furthermore, in order to decide whether a person should go through the criminal justice process, the agencies should act ethically and base their decisions only upon legal factors such as the type of crime, the seriousness of the charges, prior convictions, whether the injury is serious and the available evidence (Lampropoulou, 1999). People all over the world deserve to be treated justly within the criminal justice process. If the above solutions be implemented, then it will be a fair and equal justice for all races of people.
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