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Justice and Fairness in Prisons · 15 Jun 2020

Justice and fairness and race

News headlines over the last few weeks in both the United States and the United Kingdom, and indeed elsewhere, have been dominated by protests organised by the movement Black Lives Matters, following the murder of George Floyd in Minneapolis. In that city, the local council has voted to dismantle the existing police department, as protestors make the call to ‘defund the police’.

The root of these protests is the long history of systemic racism in criminal justice. It is also a story of what happens when justice and fairness is forgotten, in favour of the oppression of minorities and the failure of authorities to prevent discrimination and right wrongs once brought into the public eye.

At the Howard League, the impact of racial discrimination is most clearly seen in our legal casework with children and young people in custody. It is seen in the harsh punishment of a young black teenager with sickle cell anaemia who is penalised for not going to work, when in fact her poorly understood illness precludes her from doing so. It is seen in the failure of the authorities to re-categorise a young traveller who has done everything expected of him to achieve that. It is seen in the premature restraint of a young black autistic child who is frustrated and trying to explain his concerns. It is seen in the characterisation of young Muslims praying together as a suspicious “build-up of Muslims” in a cell. It is seen in the promise of a weave for a young black girl as an incentive for good behaviour. It is seen in the imposition of disciplinary proceedings on a young black teenager who has been misidentified on CCTV. It is seen in the placement of “difficult” young people in prisons where they find themselves to be the only person of colour on their wing. It is seen in the premature recalls to prison of young black boys whose recall papers are littered with references to gang involvement or machetes which they know nothing about.

Prisons take discrimination seriously at an institutional level and even have a special complaints system to deal with it. Yet young people rarely want to use this. They often question the utility of it, and rightly so. Since the Howard League’s legal service began, we are not aware of a single discrimination complaint that has been upheld. We are aware of complaints of discrimination that have been rejected or mysteriously withdrawn, even where we have filed them on behalf of young people.

Since the Howard League’s legal service began, we are not aware of a single discrimination complaint that has been upheld

It remains to be seen what the lasting impact of recent events will be. If it means that the authorities in prison take discrimination complaints more seriously that will be a good thing. But justice and fairness cannot be achieved by treating people from ethnic minorities as the ‘same’ as white people. Special attention must be given to correct the inherent injustices and disadvantages people from ethnic minorities experience, from outright racism to unconscious bias, and to cater for the particular needs that people from different ethnicities might present. Recognising people’s difference and addressing what that means is true fairness. It is necessary to make an effort to counter structural discrimination in the criminal justice system.

In the UK, 2017’s Lammy Review into the treatment of, and outcomes for, black, Asian and minority ethnic individuals in the criminal justice system, remains the landmark report looking at these issues. Yet despite positive noises from government very little concrete action has been taken in the years since to tackle the widespread racism and disproportionality that David Lammy found at every stage and part of the criminal justice system.

A key concern of our justice and fairness work is around the handing out of additional days of imprisonment as a punishment in custody. As with many other policy areas, the racial disparities highlighted by the Lammy Review can be clearly seen in the relevant government statistics. Our last briefing on this topic found that in 2017 black, Asian and minority ethnic people accounted for approximately a quarter of the prison population, yet received almost a third (32 per cent) of additional days. The same disproportionality is found in the latest figures for 2019.

As our recent briefing on children in prison during the COVID-19 pandemic highlighted, around half the children in custody are from black, Asian and minority ethnic backgrounds. This proportion has doubled in the last decade (from 26 per cent in 2007/8 to 49 per cent in 2018/19). The numbers of children in custody may have fallen in that period but this has benefited white children far more than their counterparts from ethnic minorities. And as our accompanying guide on ending the detention of unsentenced children revealed, a shocking two thirds of children on remand in Feltham and Cookham Wood prisons are black, Asian and minority ethnic.

Recognising people’s difference and addressing what that means is true fairness

What about policing? Our own work in this area focuses on reducing the arrests of children and women, and we intend to submit evidence based on that work to the new inquiry announced by the Home Affairs Select Committee on policing and race. Despite the Lammy Review putting an emphasis on criminal justice agencies interrogating their data on the disproportionate representation of people from ethnic minorities, police arrest data is notoriously poor at recording ethnicity.

For example, our last briefing on child arrests showed that of the 70,078 child arrests made in 2018, ethnicity was not recorded or was not known in nearly 4,000 cases. Analysis of this characteristic was further hampered by the fact that there is still inconsistency and local variation in the recording of ethnicity. Given the hugely disproportionate numbers of children from black, Asian and minority ethnic backgrounds in the criminal justice system, it is essential that forces are able to provide accurate data on the ethnicity of the children they arrest.

The Howard League will be doing more to examine these issues of discrimination in a forthcoming briefing on ethnicity as part of our on-going work on the criminalisation of children in residential care. We also hope to use our legal expertise to directly tackle the unacceptable situation described above – where two thirds of children remanded into Feltham prison are from ethnic minorities. If things can be improved for the youngest individuals caught up in the criminal justice system, then this will have a long-term impact for the better.

Our work at the Howard League seeks to pick off crucial areas of injustice in the system, dealing with structural unfairness as well as advocating for individual young people. We will continue to fight the fight.

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