The Middlesex Guildhall, future site of the new UK Supreme Court

The situation in relation to black people in the United States is no different. According to Blumstein (1982), black people, although they represented 12.5% of the total population in 1982, accounted for as much as 50% of the prison population, with young black males having the highest ratio of incarceration (twenty-five times the rate of the total population).⁶ Apart from their high representation, black people are also numerically over-represented in the United States’ institutions of confinement.⁷ More recent evidence⁸ verified that there is a huge racial difference in the rates of incarceration.

These high levels of suspects and prisoners can be explained partly by the interaction between the minority ethnic groups and racial minorities, and the agencies of the criminal justice system, and particularly the police, who are the gatekeepers of the process.⁹ Sentencing is another factor that is considered to contribute to the ethnic disparities in prisons. The purpose of this article is to provide an overview of the research on sentencing of minority ethnic groups and racial minorities in Britain and the United States. In addition some attention will be paid to the relationship between ‘race’ and the death penalty in the United States. Before this, however, it would be appropriate to look at the relationship between bail/pre-trial detention and minority groups as it is an important factor that affects the sentencing nexus.

Bail/Pre-Trial Detention: Minority Ethnic Groups and Racial Minorities

Refusal of bail and remand in custody after a charge has been brought against an individual by the police is a factor that may influence the practices and outcomes of sentencing. There is evidence from Britain and the United States that people from minority ethnic groups and racial minorities are more likely to be remanded in custody before being tried by a court.

In Britain, Walker (1989), who conducted one of the first studies on the remand of suspects from different ethnic groups aged 17-20 years and 21-25 years, found that in two-thirds of the cases Afro-Caribbeans were much more likely to be remanded before trial than white and Asian defendants.¹⁰ It was impossible, however, to examine the role that other variables play in the decision to refuse bail and remand an individual before trial, such as whether the defendant has ties with the community, a family, a job or, as noted by Bowling and Phillips (2002: 170), the “legally relevant factors.”¹¹ Walker’s (1989) findings were not verified by a subsequent study, this of Brown and Hullin (1993),¹² who after having examined a significant number of contested bail applications in Leeds magistrates’ courts reached different results and conclusions. Specifically, they found that out of the 490 contested bail applications in which the ethnic background of the defendant was recorded, 56% of white and 55% of Afro-Caribbean defendants were remanded in custody, a difference that is insignificant. The advantages of Brown and Hullin’s (1993) study were the control of the possibility of re-offending by taking into account the defendants’ criminal record, and the analysis of ‘disaggregated’ offences. Again, after these variables were held constant, no significant differences were found. This, however, was the case in a more recent study by Phillips and Brown (1998),¹³ who found significant differences in the refusal of bail, which were related to the defendants’ ethnic background. Only 26% of white defendants were refused bail, whereas the equivalent percentage for Afro-Caribbeans was 35%, and for Asian defendants 34%. The last is a very surprising finding considering that Asian people are very likely to have ties with their community, or have a family. The results in Phillips and Brown’s study remained unchanged even after criminal record and the seriousness of the offence were controlled. However, it was not possible for other important factors to be explained.

In the United States, Daly’s (1989)¹⁴ study of pre-trial release decisions in New York City reached similar conclusions to Phillips and Brown’s study, and McGuire (2000)¹⁵ after having controlled all legal and non-legal variables, concluded that ‘race’ continues to play a significant role in the decision to detain juveniles in the state of Missouri. Finally, the relatively recent study by Demuth and Steffensmeier (2004)¹⁶ revealed that the defendant’s ‘race’-ethnicity has a moderately strong effect on whether the defendants are released before trial even when other variables such as prior record and nature of the offence are controlled, with the black defendants being more likely to be detained than their white counterparts. An important factor that was posed by the authors as an explanation for this difference is the inability of black defendants to pay for bail. The last finding made them argue that “even if there were no apparent…racial/ethnic disparities in pre-trial release decisions, disparities in pre-trial release outcome might still emerge” (Demuth and Steffensmeier, 2004: 240).¹⁷

Sentencing of Minority Ethnic Groups and Racial Minorities

At this point it should be argued that even the decision for minority ethnic people to be tried by the Magistrates’ Court or the Crown Court in Britain has an influence on the sentencing outcome. Afro-Caribbean people are more likely to plead not guilty, be tried by the Crown Court, and in consequence receive harsher punishment if found guilty of an offence. An examination of the main studies on the effect of ethnicity on sentencing would be worthwhile. Crow and Cove (1984) after carrying out a survey in nine courts (four juvenile, three Magistrates’, and two Crown) in London, the Midlands, and the North of England, suggested that once the defendants are brought in the court no evidence of direct discrimination are apparent.¹⁹ Two years later Mair (1986), who collected his data from two Magistrates’ Courts in Leeds and Bradford, reached similar conclusions. He found that the percentages of white and Afro-Caribbean defendants, who were either imprisoned or put in a detention center/youth custody/borstal, were 5.6 and 4.8 respectively.²⁰

The most sophisticated study on the relationship between ethnicity and sentencing in Britain, a study which has first demonstrated “…the complexity of the problem,”²⁴ was conducted by Hood in 1992,²⁵ which was strongly supported by von Hirsch and Roberts²⁶ in a re-assessment of Hood’s study. Based on a sample of white, Afro-Caribbean, and Asian defendants who were convicted by five West Midlands Crown Courts in 1989, Hood’s study found that Afro-Caribbeans were 17% more likely to be imprisoned than their white counterparts, whereas Asians were much less likely (18%). The same study, in which a logistic regression analysis was carried out, also showed that after controlling for other factors influencing the sentencing decision, Afro-Caribbeans were still 5% more likely to be imprisoned than white defendants (with variations across different courts), and more likely to receive a longer sentence if they had pleaded not guilty.²⁷

Research on ‘race’ and sentencing in the United States presents some disparities. Smother (1995) found that although the percentage of convictions for drug-related offences was 88 for black people, the equivalent for white people was only 4.1.²⁸ This huge difference can be attributed to the 100:1 disparity between 5 grams of crack (a substance dealt and used primarily by black people) and 500 grams of powder cocaine introduced by the Federal Anti-Drug Abuse Act of 1986 warranting a 5-year mandatory (minimum) sentencing.²⁹ Moreover, a study by Steffensmeier et al. (1998)³⁰ identified a speck of discriminatory sentencing based on the judges’ perceived vulnerability of white offenders. Specifically, they found that in some jurisdictions the judges were reluctant to send white offenders into a confinement institution out of fear that they would be victimized in some way by black inmates. Later, Spohn and Holleran (2000)³¹ argued that ‘race’ is a significant factor influencing the sentencing process although they left some space for the effect of the age of the offender. Specifically, they identified young black males as the category of offenders receiving the harsher sentences. Finally, Crawford (2000) after researching 1,103 female habitual offenders admitted to the Florida Department of Corrections in 1992-1993 reached the conclusion that the defendants’ ‘race’ heavily influences (harsh) sentencing.³² On the other hand, Pruitt and Wilson (1983) not only did not find the ‘race’ of the offender as related to more severe sentencing but also identified that, when other variables are held constant, black armed robbers and burglars are treated more leniently than their white counterparts.³³ This great disparity in terms of ‘harsh-lenient’ sentencing for black people can be explained – to a certain extent – by the relationship between offender and victim, as well as the way ‘race’ is conceived by the courts.³⁴ When the black offender commits an offence (and especially a violent one such as armed robbery) with a white victim, harsh punishment is seen as justified if not as an imperative.³⁵ Finally, a reason for the disparities may be the aggregation of some Hispanic defendants into the whites group, a practice that “dampens black-white differences in sentence outcomes because Hispanics are sentenced more harshly than are whites…”³⁶

No Satisfactory Account of Discrimination in Sentencing

There are a number of reasons why research to date has been incapable of providing a satisfactory account of either the existence of racism and discrimination in the sentencing process or its extent except, of course, in relation to the sentencing guidelines for crack and powder cocaine that constitute, as Blumstein suggests, “a blatant proof of racial discrimination by the criminal justice system” and “a profound challenge to the legitimacy of the criminal justice”.³⁷ One of these reasons is the inaccurate or, even better, problematic definition of discrimination in sentencing just as in every aspect of life. As noted by Hudson (1989),³⁸

…most studies seem to mean by discrimination, different rates of custodial sentencing for similar offences. This appears perfectly reasonable, until someone remembers that the relationship between offence and sentence is not always very strong in any case, and therefore to use it as a test of discrimination is questionable.

Moreover, many studies, especially in Britain draw their samples from courts with different powers and responsibilities such as the Magistrates’ and the Crown Courts. Crow and Cove (1984), for example, draw their sample from four juvenile, three Magistrates’, and two Crown Courts.³⁹ This pattern is problematic as it does not enable the researchers (and the reading audience) to disaggregate the results from every court studied, and draw accurate conclusion on any discrimination that may be taking place in the sentencing process. Another important limitation of these studies is that they do not disaggregate between different geographical areas, and this is an issue that mostly applies in the United States’ context. In the United States many studies draw their samples not only from different courts with different jurisdictions, but also from different states where justice is delivered differently, variations in culture may influence sentencing, and where criminal involvement of minority people varies considerably.⁴⁰

Racial Minorities and the Death Penalty⁴¹

The death penalty, an issue heavily related to the sentencing practice, has been the epicenter of great debate involving a number of academics, practitioners, and the public who argue in favor or against it. Despite the fact that it has been the context within which practical as well as philosophical issues were raised, its relationship with convicted individuals from minority ethnic groups and racial minorities is under-researched. Due to the fact that Britain does not impose capital punishment, all the evidence presented in this article derives from American research. The little research that has been done directly shows a pattern of discrimination in the imposition of capital punishment, through the influence of the interaction of the offender’s and victim’s ‘race’.

Finally, some integrated research, in which a logistic regression analysis was carried out, has shown that the risk of a black murderer of a white receiving a death penalty persists even if other variables are controlled.⁴⁵ Fleury-Steiner and Argothy (2004: 79-80) summarize the research in a few words by arguing that “…the decision to impose the death sentence… is a broader, historically situated form of racialized discipline”.⁴⁶

Summary-Conclusion

Minority ethnic groups and racial minorities are clearly disadvantaged by ‘extra-legal’ factors such as family and community ties, and employment status, which influence the ‘fate’ of the defendant in the process, and which, however, have no direct relation with the criminal justice system. In relation to drugs in the United States, black people are disadvantaged by the racial criminal policy of the 100:1 crack:cocaine powder disparity. In Britain, Afro-Caribbean defendants are also disadvantaged by their decision to plead not guilty, and tried by a Crown Court with the consequence of receiving a harsher punishment if found guilty. In the United States, where research presents some disparities, it is also the ‘race’ of the victims that influences the sentencing process, with black offenders receiving a harsher punishment when the victim is white. This is also the case regarding the imposition of the death penalty. Apart from the clear evidence on sentencing for drugs that disadvantages black people, and although there appears to exist some evidence pointing at discrimination in sentencing in general just as in every stage of the criminal justice system, due to inadequate research with methodological limitations this is not always clear. The available evidence regarding sentencing in Britain and the United States (excluding drugs) is insufficient, and clearly more research is an imperative.

Notes

The author would like to thank John Tierney, Dick Hobbs, Nick Ellison and Ben Bowling for their comments on the document, which this article derives from. Correspondence: This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

1 By ‘minority ethnic groups’ we mean groups, who share cultural characteristics and consider themselves as a distinct group with shared cultural characteristics. On the other hand what we mean by ‘racial’ minorities is groups of people with shared, inherited physical features such as skin colour. Although most scientists have long considered the term ‘race’ to be unscientific we use the term just to facilitate discussion about the American context, which collects information based on the ‘race’ of the suspect/offender. When we refer to the American context and the American literature we will be using the term racial minorities. In addition the terms used by each context are used in this article (e.g. ‘Afro-Caribbean’ in Britain, ‘black’ in the United States).

2 Home Office (2000) Statistics on Race and the Criminal Justice System. A Home Office Publication Under Section 95 of the Criminal Justice Act 1991. London: Home Office

3 Home Office (2001) Prison Statistics: England and Wales 2000. London: HMSO

4 Green, P., Mills, C. and Read, T. (1994) ‘The Characteristics and Sentencing of Illegal Drug Importers’, British Journal of Criminology, 34(4), 479-486

5 Maden, A., Swinton, M. and Gunn, J. (1992) ‘The Ethnic Origin of Women Serving a Prison Sentence’, British Journal of Criminology, 32(2), 218-221

6 Blumstein, A. (1982) ‘On the Racial Disproportionality of United States’ Prison Populations’, The Journal of Criminal Law and Criminology, 73(3), 1259-1281

7 Sabol, W.J. (1989) ‘Racially Disproportionate Prison Population in the United States’, Contemporary Crises, 13, 405-432

8 Pope, C. E. (1993) ‘Youth, Crime, and Justice: Minorities in the Criminal Justice System’. Paper presented at the 45th Annual Meeting of the American Society of Criminology: Violent Crime and its Victims, Phoenix, Arizona, 27-30 October; Tonry, M. (1994) ‘Racial Disproportion in U.S. Prisons’, British Journal of Criminology, 34(special issue), 97-115; Human Rights Watch (2002) ‘Race and Incarceration in the United States’. Available online at: http://www.hrw.org/backgrounder/usa/race, accessed on 28th July 2004

9 For a review of the literature on minority ethnic groups and the police see Antonopoulos, G. A. (2003) ‘Ethnic and ‘Racial’ Minorities, and the Police: A Review of the Literature’, The Police Journal, 76(3), 222-245

10 Walker, M. (1989) ‘The Court Disposal and Remands of White, Afro-Caribbean, and Asian Men (London, 1983)’, British Journal of Criminology, 29(4), 353-367

11 Bowling, B. and Phillips, C. (2002) Racism, Crime and Justice. Harlow: Longman

12 Brown, I. and Hullin, R. (1993) ‘Contested Bail Applications: The Treatment of Ethnic Minority and White Offenders’, Criminal Law Review, 107-113

13 Phillips, C. and Brown, D. (1998) Entry into the Criminal Justice System: A Survey of Police Arrests and Their Outcomes. Home Office Research Study No.185 London: Home Office

14 Daly, K. (1989) ‘Neither Conflict nor Labeling nor Paternalism Will Suffice: Intersections of Race, Ethnicity, Gender and Family in Criminal Court Decisions’, Crime and Delinquency, 35(1), 136-168

15 McGuire, M. D. (2000) ‘Racial Correlates of Pre-Hearing Detention Among Missouri Juveniles’. Paper presented at the 52nd Annual Meeting of the American Society of Criminology, Crime and Criminology in the Year 2000, San Fransisco, California, 15-18 November

16 Demuth, S. and Steffensmeier, D. (2004) ‘The Impact of Gender and Race-Ethnicity in the Pretrial Release Process’, Social Problems, 51(2), 222-242

17 Demuth and Steffensmeier (2004)

18 Human Rights Watch (1997) Racist Violence in the United Kingdom. London: Human Rights Watch/Helsinki

19 Crow, I. and Cove, J. (1984) ‘Ethnic Minorities and the Courts’, Criminal Law Review, 413-417

20 Mair, G. (1986) ‘Ethnic Minorities, Probation and the Magistrates’ Courts’, British Journal of Criminology, 26(2), 147-155; see also Phillips, C. and Brown, D. (1998) Entry into the Criminal Justice System: A Survey of Police Arrests and Their Outcomes. Home Office Research Study No.185 London: Home Office

21 McConville, M. and Baldwin, J. (1982) ‘The Influence of Race on Sentencing in England’, Criminal Law Review, 652-658

22 Walker, M. (1989) ‘The Court Disposal and Remands of White, Afro-Caribbean, and Asian Men (London, 1983)’, British Journal of Criminology, 29(4), 353-367

23 Walker op.cit.

24 Gelsthorpe, L. (1996) ‘Critical Decisions and the Process in the Criminal Courts’. In McLauchlin, E. and Muncie, J. (ed.) Controlling Crime. (pp.107-156) London: Sage

25 Hood, R. (1992) Race and Sentencing: A Study in the Crown Court. A Report for the Commission for Racial Equality Oxford: Oxford University Press

26 von Hirsch, A. and Roberts, J.V. (1997) ‘Racial Disparity in Sentencing: Reflections on the Hood Study’, The Howard Journal of Criminal Justice, 36(3), 227-235

27 Hood (1992)

28 Johnson, W.W. and Jones, M. (1998) ‘Probation, Race, and the War on Drugs: An Empirical Analysis of Drug and Non-Drug Felony Probation Outcomes’, Journal of Drug Issues, 28, 985-1004

29 Blumstein, A. (2003) ‘The Notorious 100:1 Crack:Powder Disparity – The Data Tells Us That it is Time to Restore the Balance’, Federal Sentencing Reporter, 16(1), 87-92

30 Steffensmeier, D., Ulmer, J. and Kramer, J. (1998) ‘The Interaction of Race, Gender, and Age in Criminal Sentencing: The Punishment Cost of Being Young, Black and Male’, Criminology, 36(4), 763-798

31 Spohn, C. and Holleran, D. (2000) ‘The Imprisonment Penalty Paid by Young, Unemployed, Black and Hispanic Male Offenders’, Criminology, 38(1), 281-306

32 Crawford, C. (2000) ‘Gender, Race, and Habitual Offender Sentencing in Florida’, Criminology, 38(1), 263-280

33 Pruitt, C.R. and Wilson, J.Q. (1983) ‘A Longitudinal Study of the Effect of Race on Sentencing’, Law and Society Review, 17(4), 613-635

34 Peterson, R.D. and Hagan, J. (1984) ‘Changing Conceptions of Race: Towards an Account of Anomalous Findings of Sentencing Research’, American Sociological Review, 49(1), 56-70

35 LeBeau, J.L. (1988) ‘Is Interracial Rape Different’, Sociology and Social Research, 73(1), 43-46

36 Steffensmeier, D. and Demuth, S. (2001) ‘Ethnicity and Judges’ Sentencing Decision: Hispanic-Black-White Comparisons’, Criminology, 39(1), 145-178

37 Blumstein, A. (2002) Testimony of Alfred Blumstein before the United States Sentencing Commission on Sentencing Guidelines for Crack and Powder Cocaine, February 21; see also Tonry, M. (1995) Malign Neglect: Race, Crime and Punishment in America. New York: Oxford University Press

38 Hudson, B. (1989) ‘Discrimination and Disparity: The Influence of Race on Sentencing’, New Community, 16(1), 23-34

39 Crow and Cove (1984)

40 Crutchfield, R.D., Bridges, G.S. and Pitchford, S.R. (1994) ‘Analytical and Aggregation Biases in Analyses of Imprisonment: Reconciling Discrepancies in Studies of Racial Disparity’, Journal of Research in Crime and Delinquency, 31(2), 166-182

41 The title of this subsection does not read ‘Minority Ethnic Groups and Racial Minorities, and the Death Penalty’ as the only information available is from the United States.

42 Kleck, G. (1981) ‘Racial Discrimination in Criminal Sentencing: A Critical Evaluation of the Evidence With Additional Evidence on the Death Penalty’, American Sociological Review, 46(December), 783-805

43 Paternoster, R. (1983) ‘Race of Victim and Location of Crime: The Decision to Seek the Death Penalty in South Carolina’, The Journal of Criminal Law and Criminology, 74(3), 754-785

44 Vito, G.F., Wilson, D.G. and Latessa, E.J. (1991) ‘Comparison of the Dead: Attributes and Outcomes of Furman-Commuted Death Row Inmates in Kentucky and Ohio’. In Bohm, R.M. (ed.) The Death Penalty in America: Current Research. (pp.101-111) Cincinnati, OH.: Anderson Publishing Co.

45 Vito, G.F. and Keil, T.J. (1988) ‘Capital Sentencing in Kentucky: An Analysis of the Factors Influencing Decision Making in the Post-Gregg Period’, The Journal of Criminal Law and Criminology, 79(2), 483-503

46 Fleury-Steiner, B. and Argothy, V. (2004) ‘Lethal Borders: Elucidating Jurors Radicalized Discipline to Punish in Latino Defendant Death Cases’, Punishment and Society: The International Journal of Penology, 6(1), 67-84