The Sentencing Academy has produced a report reviewing ethnicity and custodial sentencing trends from 2009 to 2019. Over the years, several official reports have addressed the role of race and ethnicity in sentencing decisions. The current report looked at sentencing patterns for different offender profiles with two key issues that emerged. The first was ethnic disproportionality, and the second, differential sentencing outcomes.
Disproportionality was expressed by comparing the percentage of BAME individuals appearing in the criminal justice system compared to their proportion in the general population. The data on custody rates and average custodial sentence lengths were combined to form the “expected custodial sentence” (ECS), a new measure of punitiveness. In 2019 the ECS for an indictable offence was 6.6 months for a white offender and 10.2 months for an Asian offender. The overall ECS figure does mask the fact there is variation across offence categories, the greatest divergent is with offences of violence.
Despite the research, the authors said that the knowledge of differential sentencing across ethnic groups remained imperfect, although it had improved. The preliminary conclusions were:
BAME groups are associated with greater use of imprisonment;
Visible minority offenders attract higher custody rates than white offenders, but the ordering of different groups varies from study to study;
group-based differences in custody rates and custodial sentence lengths are consistently statistically significant;
there is long-standing evidence of ethnicity-based differences using custody rates and average custodial sentence lengths;
between 2009-2019 black offenders attracted the most punitive punishment levels;
ethnicity-based differences emerge most consistently and strongly for drug offences;
little is known about ethnicity-based sentencing differentials in the magistrates’ courts;
the research studied custody rates and average custodial sentences so that no conclusions could be drawn regarding other sentencing options.
It was noted that data collection ceased in 2015 and further research priorities were set out:
Publication of sentencing trends in the magistrates’ court was discontinued some time ago, as the majority of offenders are dealt with in that court, data needs to be obtained.
The sentencing differentials appear higher for drug offences, but BAME defendants are over-represented for other offences too, where more research is required.
Very little is known about variations at a local level.
Sanctions other than custody have rarely been studied, for example, the level of fines, length and duration of suspended sentences, use and length of community orders and the use of out of court disposals.
The most important question is why certain ethnicities are linked to higher custody rates. A range of hypotheses would need to be explored, such as consideration of pre-sentence reports. There are ethnic differences in relation to the relationship between a PSR recommendation and the sentence imposed. A white offender is more likely to have the recommended sentence imposed than a BAME defendant.
The report concludes that the rates of immediate imprisonment for BAME defendants have been higher than for white offenders for many years. Both the level and the cause of the differential need to be understood before the sentencing process can be addressed so that it treats all equally. The difference in custody rates has declined more recently, but there is still a differential. The challenge is finding the cause; only then can the government, courts, and the Sentencing Council devise proper remedies to address the disparities.
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