By way of a coda to my last post on “gendered law” we will soon have sentencing by identity group – including by race and sex.
The Sentencing Council’s Guidelines on “Imposition of community and custodial sentences” comes into force on 1st April 2025. This includes guidelines on, amongst other things, when a “pre-sentencing report” (PSR) would normally be considered necessary. The relevance of a PSR is that, quote,
“A pre-sentence report can be pivotal in helping the court decide whether to impose a custodial or community order and, where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence.”
A PSR is not mandatory but an offender for whom a PSR is carried out will generally receive a less severe sentence than one who has no PSR. Sentencing Council’s Guidelines state,
“A pre-sentence report will normally be considered necessary if the offender belongs to one (or more) of the following cohorts:…(amongst others)….
- female
- from an ethnic minority, cultural minority, and/or faith minority community”
As the BlackBeltBarrister reminds us, this does not mean that people not covered by their guidelines will necessarily not have a PSR carried out. Do you find this sufficiently comforting?
The Guidelines refer to the Equal Treatment Bench Book for more details on the Judicial College’s recommendations on equality issues. The Equal Treatment Bench Book has long been based upon “equity”, not upon equal treatment but explicitly upon unequal treatment. Quote, “True equal treatment may not, however, always mean treating everyone in the same way”. To ensure truly fair treatment this philosophy adheres to a view that equality requires unequal treatment, in order to “avoid disparity of outcomes for different groups”. Some people, you see, have greater needs than others.
If you are a straight white male, Christian or atheist, you have lesser needs than everyone else. This is the judicial view of equality.
I find this approach to be wrong in principle. The principle that “all are equal before the law” was, I thought, both simple to understand and morally right. To replace it with “the law will avoid disparity of outcomes” is actually unworkable, if it were meant seriously. There are many problems with it, one of which is that the MOJ has not the faintest idea of the outcomes for any of those it sentences.
The trouble with opening the door to different treatment, by race or sex, is that it provides a blank cheque. Just how much more leniently must you treat some people in order for true equality to be achieved with those deemed less needy – and treated more harshly?
I can readily believe that ethnic minorities are more likely than whites to be sentenced to immediate custody, even after controlling for offence severity – and there are analyses which show this. See for example Statistics on Ethnicity and the Criminal Justice System 2022.pdf, Section 9, which presents Relative Risk Indices and logistic regressions controlled by offence. Ethnic minorities show increased probability of being sentenced to immediate custody for some offences (violence against the person and drug offences), though not others (notably sexual offences). For VAP and drug offences the disparity is very crudely around 20%, but with a large error bar.
So one might propose an argument that certain groups should be paid particular attention to offset existing biases that are empirically evident. I still think that “all are equal before the law” is the desirable guidance, but at least this approach might have some credibility for ethnic minorities.
The glaring problem with the Sentencing Council’s guidance is that, if current disadvantage was the argument being advanced, then “female” should be deleted and replaced by “male”. It is indisputably the case that men are treated far more harshly in the criminal justice system than women, though that will not stop it being disputed.
The opposite impression is given by the Equal Treatment Bench Book which repeats the same arguments that have been made since Baroness Corston’s 2007 report on women in the criminal justice system. But these arguments do not withstand scrutiny (see for example chapter 2 of this book or this extract and this extract from this book).
I have been presenting the case that men are treated more harshly in the criminal justice system than women for over a decade, see here and here and here and here. The bias by sex is a great deal larger than that based on ethnicity, as identified above. The same conclusion was reached for an analysis of USA data.
In 2016 the Ministry of Justice published a report, ‘Associations between being male or female and being sentenced to prison in England and Wales in 2015’. This MoJ analysis was based on multivariate logistic regression models to account for possible dependences of imprisonment, not only on sex and offence category but also ethnicity, age and previous criminal history. This allowed the associations between sex and imprisonment to be examined under similar criminal circumstances. The MoJ’s headline finding was that under similar criminal circumstances the odds of imprisonment for males were 88% higher than for females, i.e., an imprisonment disparity factor of 1.88 in 2015. This was very similar to the disparity of being sentenced to imprisonment from my analysis. But I also showed that a similar magnitude of disparity exists on sentence length, assuming imprisonment. Moreover there are many other disparities such as on parole, on cautions, on convictions, on community sentences and on suspended sentences. All are to men’s disadvantage.
The overall bias against men compared with women in criminal justice is of huge magnitude.
That there is institutional bias against those who are already treated far more harshly has been openly declared since June 2018 when then Lord Chancellor and Justice Secretary, David Gauke, announced a new policy to ‘divert the most vulnerable women in the criminal justice system away from custody’. This strategy, which has been reconfirmed several times since, is intended to ‘break the cycle of female offending’ and will involve only sending women to prison in ‘the last resort’, more often putting the emphasis on rehabilitation. I have no problem with this per se. My problem is that for men, in contrast, the strategy is to build more prison places.
This is where “some animals are more equal than others” takes you. It won’t end well.