By way of a coda to my last post on \u201cgendered law\u201d we will soon have sentencing by identity group \u2013 including by race and sex.<\/p>\n\n\n\n
The Sentencing Council\u2019s Guidelines on \u201cImposition of community and custodial sentences<\/a>\u201d. This was due to come into force on 1st<\/sup> April 2025 when this article was first published but, after some push-back from media and government sources, as of 26\/4\/25 it reads “effective date to be confirmed”. My guess is it will quietly be made effective when the furore dies down. The document includes guidelines on, amongst other things, when a \u201cpre-sentencing report\u201d (PSR) would normally be considered necessary. The relevance of a PSR is that, quote,<\/p>\n\n\n\n \u201cA 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<\/em>.\u201d<\/p>\n\n\n\n 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\u2019s Guidelines state,<\/p>\n\n\n\n \u201cA pre-sentence report will normally be considered necessary if the offender belongs to one (or more) of the following cohorts:\u2026(amongst others)\u2026.<\/p>\n\n\n\n As the BlackBeltBarrister<\/a> 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?<\/p>\n\n\n\n The Guidelines refer to the Equal Treatment Bench Book<\/a> for more details on the Judicial College\u2019s recommendations on equality issues. The Equal Treatment Bench Book has long been based upon \u201cequity\u201d, not upon equal treatment but explicitly upon unequal treatment. Quote, \u201cTrue equal treatment may not, however, always mean treating everyone in the same way\u201d. To ensure truly fair treatment this philosophy adheres to a view that equality requires unequal treatment, in order to \u201cavoid disparity of outcomes for different groups\u201d. Some people, you see, have greater needs than others.<\/p>\n\n\n\n If you are a straight white male, Christian or atheist, you have lesser needs than everyone else. This is the judicial view of equality and has a bearing on whether you are sent to prison.<\/p>\n\n\n\n I find this approach to be wrong in principle. The principle that \u201call are equal before the law\u201d was, I thought, both simple to understand and morally right. To replace it with \u201cthe law will avoid disparity of outcomes\u201d 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.<\/p>\n\n\n\n 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 \u2013 and treated more harshly?<\/p>\n\n\n\n I can readily believe that ethnic minorities are more likely than whites to be sentenced to immediate custody, even after controlling for offence severity \u2013 and there are analyses which show this. See for example Statistics on Ethnicity and the Criminal Justice System 2022.pdf<\/a>, 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.<\/p>\n\n\n\n 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 \u201call are equal before the law\u201d is the desirable guidance, but at least this approach might have some credibility for ethnic minorities.<\/p>\n\n\n\n The glaring problem with the Sentencing Council\u2019s guidance is that, if current disadvantage was the argument being advanced, then \u201cfemale\u201d should be deleted and replaced by \u201cmale\u201d. 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.<\/p>\n\n\n\n The opposite impression is given by the Equal Treatment Bench Book<\/a> which repeats the same arguments that have been made since Baroness Corston\u2019s 2007 report<\/a> on women in the criminal justice system. But these arguments do not withstand scrutiny (see for example chapter 2 of this book<\/a> or this extract<\/a> and this extract<\/a> from this book<\/a>).<\/p>\n\n\n\n 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<\/a> and here<\/a> and here<\/a> and here<\/a>. 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<\/a>.<\/p>\n\n\n\n In 2016 the Ministry of Justice published a report, \u2018<\/a>Associations between being male or female and being sentenced to prison in England and <\/a>Wales in 2015<\/a>\u2019. 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\u2019s 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<\/a>. 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\u2019s disadvantage.<\/p>\n\n\n\n The overall bias against men compared with women in criminal justice is of huge magnitude.<\/p>\n\n\n\n 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<\/a> to \u2018divert the most vulnerable women in the criminal justice system away from custody\u2019. This strategy, which has been reconfirmed several times since, is intended to \u2018break the cycle of female offending\u2019 and will involve only sending women to prison in \u2018the last resort\u2019, more often putting the emphasis on rehabilitation. I have no problem with this per se<\/em>. My problem is that for men, in contrast, the strategy is to build more prison places<\/a>.<\/p>\n\n\n\n This is where \u201csome animals are more equal than others\u201d takes you. It won\u2019t end well.<\/p>\n\n\n\n <\/p>\n","protected":false},"excerpt":{"rendered":" By way of a coda to my last post on \u201cgendered law\u201d we will soon have sentencing by identity group \u2013 including by race and sex. The Sentencing Council\u2019s Guidelines on \u201cImposition of community and custodial sentences\u201d. This was due to come into force on 1st April 2025 when this article was first published but, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[16],"tags":[],"class_list":["post-4656","post","type-post","status-publish","format-standard","hentry","category-justice"],"_links":{"self":[{"href":"https:\/\/empathygap.uk\/index.php?rest_route=\/wp\/v2\/posts\/4656","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/empathygap.uk\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/empathygap.uk\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/empathygap.uk\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/empathygap.uk\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4656"}],"version-history":[{"count":3,"href":"https:\/\/empathygap.uk\/index.php?rest_route=\/wp\/v2\/posts\/4656\/revisions"}],"predecessor-version":[{"id":4724,"href":"https:\/\/empathygap.uk\/index.php?rest_route=\/wp\/v2\/posts\/4656\/revisions\/4724"}],"wp:attachment":[{"href":"https:\/\/empathygap.uk\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4656"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/empathygap.uk\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4656"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/empathygap.uk\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4656"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n