Discuss whether discrimination is inevitable in the criminal justice system, in relation to race.

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Criminal Justice System – Semester 2 assignment

Discuss whether discrimination is inevitable in the criminal justice system, in relation to race.

The Criminal justice system (CJS) is the system of practices used by local governments to maintain and control crime, and to punish those who violate  with criminal penalties in order to protect society. According to Hudson 1996 it is

“The process through which the state responds to behaviour that it deems unacceptable. Criminal justice is delivered through a series of stages: charge, prosecution, trial; sentence appeal; and punishment. These processes and the agencies which carry them out are referred to collectively as the criminal justice system”.

When processing the offender through the CJS, the government must keep within the framework of laws that protect . Discrimination within the CJS is the differential treatment based on a person’s sex, gender, social class, race, ethnicity, religion, age, disability or any other improper ground. There are two types of discrimination; these are known as direct and indirect. Direct discrimination is obvious discrimination, this occurs when factors such as a person’s race, sex, marital status, religion or gender are used as an explicit reason for discriminating against them. Indirect discrimination occurs when rules and regulations have a discriminatory effect on certain groups of people, this is a less obvious form of discrimination. The CJS is said to mainly discriminate against ethnic minority males. Macpherson’s definition of institutional racism is “The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin.” These are 3 of the most highlighted forms of discrimination and I will focus upon race/colour.

Some researchers argue that there is a greater likelihood for ethnic minority groups, particularly black ethnic groups, to be criminalised as this reflects their greater involvement in crime. However few statics are able to support this view. Others argue ethnic differences in criminalisation stem from institutional racism and argue that discrimination is inevitable within the CJS and will always be there and can never fully be wiped out.

The view that discrimination can never be gotten rid of is caused by the fact that discretion is a crucial factor in the smooth running of the system. Discretion is the freedom to make judgments and to act as one sees fit, it is inevitable and necessary at many key decision-making stages. These stages are; the police decision to arrest, the Crown Prosecution Services decision to continue a case and the judge’s verdict and sentence, are all the stages in which discretion is needed. However, this discretion leaves room for individual prejudice or stereotyping to influence decisions. It can also be subject to institutional norms that have a disproportionate impact on particular groups. Potential for disparity or discrimination is highest where law are permissive and discretion is wide (Gelsthorpe and Padfield 2003). Therefore it is inevitable for discretion to have a sense of discrimination.

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For the CJS to be legitimate it must not only serve justice but it must also be seen as doing so. (Rex v. Sussex Justices, Ex parte McCarthy [1924]), if people see justice being done will they feel the system is legitimate. Discrimination threatens this legitimacy as justice cannot be done or seen due to prejudice. If people begin to question the system’s legitimacy, they are less likely to willingly engage with the system or abide by its rules which could cause more crime, leading to more discrimination.

Race is one of the main ways that the ...

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