Why do black offenders get longer sentences?

Why do black offenders get longer sentences?

Reports by mainstream media outlets and advocacy groups point to sentencing disparities between black and white offenders as clear evidence of institutional racism in the criminal justice system. There may well be racism in the criminal justice system. However, this article will argue that the disparities in Average Custodial Sentence Lengths (ACSLs) handed to black and white defendants are much more likely to stem from the differing characteristics of the defendants and the offences in question.

The Guardian routinely accuses the British Criminal Justice System of institutional racism
The Guardian routinely accuses the British Criminal Justice System of institutional racism

There are various factors that could explain why one defendant might get a longer sentence than another. According to the Government, “If you are found guilty of a crime, your sentence will depend on a number of factors, including the type, seriousness and circumstances of the crime.  When deciding on a sentence, the judge or magistrate will consider things like:

    • your age
    • the seriousness of the crime
    • if you have a criminal record
    • if you pleaded guilty or not guilty

You have to control for all of these kinds of factors (i.e. make sure you’re comparing apples with apples) to see if racial discrepancies could be blamed on racism. This article will look at two of these factors – type of offence and defendant’s plea.

Offence Type 
It should go without saying that different offences result in different sentences. Government statistics show that black defendants are more likely be sentenced for serious offences that white ones. And thus, they are more likely to get longer sentences.

Black offenders are more likely to be facing serious charges than white ones
Black offenders are more likely to be facing serious charges than white ones

Robbery is a serious offence which has a maximum sentence of life. According to the Ministry of Justice report Race and Criminal Justice System 2014, in that year, around 7% of black defendants were sentenced for robbery, as opposed to around 2% of white defendants (p. 46). Incidentally, statistics from the Sentencing Council (p.7) show that black people have made up around 1 in 5 of those sentenced for robbery for at least the last decade.

More Serious Violence related crimes
In official statistics, offences are often grouped into categories such as Violence Against The Person (VATP). VATP accounts for most inmates in England & Wales prisons (House of Commons, Prison Population Statistics, 2016:p.6). But these categories include offences that can have widely differing sentence lengths. A Ministry of Justice study explains that the VATP category ‘contains some of the most serious offences, such as murder. However, murder is very infrequent, and the category also contains less serious offences such as common assault.” (see also Moj, 2012: 81-82).

2012 MOJ figures reveal disparities in ACSLs given to black and white defendants for VATP offences. However, the report explains that ‘these differences… are in part a consequence of the number and type of violence against the person offences committed which differs across ethnic groups. For example in 2012, a greater proportion of offenders sentenced for a violence against the person offence from any of the BAME groups were sentenced for wounding with intent to cause grievous bodily harm (16%-18%) compared to White offenders (11%). In contrast a lower proportion of offenders from all of the BAME groups were sentenced for wounding or inflicting grievous bodily harm without intent (11%-14%) compared with White offenders (17%). Wounding with intent to cause grievous bodily harm had an overall ACSL of 67.4 months, in contrast wounding or inflicting grievous bodily harm without intent had an ACSL of 20.5 months.” (p.81). A similar picture emerges in the 2014 Race and Criminal Justice System. I would imagine that if the study specifically looked at black offenders (not just BAME), the proportion sentenced for the more serious VATP offences would be even higher.

So in short, black offenders tend to be charged with more serious offences which is one reason why their average sentence lengths are longer than those of of white offenders. A second reason for this disparity is that black defendants plead differently when charged.

Black Defendants Plea Differently
A basic fact of our legal system is that pleading guilty when charged gets you a reduced sentence. And the earlier in the case you plead guilty, the more the reduction.

[I]f found guilty, the offender [who pleads not guilty] will not benefit from the discount awarded to those offenders who plead guilty at the earliest possible opportunity (33% reduction in sentence); plead guilty during police questioning (25% reduction in sentence); or plead guilty on the day of their trial (10% reduction in sentence).” (Source)

Looking at all pleas and jury verdicts at all Crown Courts in 2006–08 by defendant ethnicity (at charge level), we see that 47% of white defendants pleaded guilty when charged versus 41% of black defendants. In other words black defendants were 15% less likely to benefit from the automatically reduced  sentence that comes with pleading guilty (Are Juries Fair? p.61).

Black offenders are more likely to plead Not Guilty than white ones
Black offenders are more likely to plead Not Guilty than white ones

This pattern is repeated in other statistics. MoJ statistics for 2012 (p.85-88) showed that a higher percentage of white defendants than black defendants pleaded guilty when charged for Actual Bodily Harm (67% v 53%), Burglary (80% v 66%) and Production, Supply and Possession with intent to supply of class A drugs (86% v 76%). And, in 2014, “most White offenders tried for the selected VATP offences at the Crown Court whose pleas are known pled guilty (74%), as did Mixed offenders (63%). These were higher proportions than Black (54%), Asian (53%) and C&O offenders (48%).” So black defendants in VATP cases were 30% less likely to benefit from the discount.

These figures look at offenders who pleaded guilty and showed what proportion of them were acquitted, broken down by ethnicity (p.83-88). It controlled for offence type and plea, but not for timing of plea, severity of crime and previous offence history (75-82). Hence, it says “the ACSL is likely to reflect aggravating and mitigating factors of the case and at which stage the offender pleads guilty.”

This evidence suggests that part of the reason that black defendants receive longer custodial sentences is because they are less likely to plead guilty when charged for a range of offences than white defendants.

Aggravating and mitigating factors
There are a range of other factors which can impact on the severity of sentencing. The Sentencing Council provides a long list of these including:

  • an intention to commit more serious harm than actually resulted from the offence;
  • offenders operating in groups or gangs;
  • ‘professional’ offending;
  • commission of the offence for financial gain (where this is not inherent in the offence itself)
  • multiple victims;
  • a sustained assault or repeated assaults on the same victim;

https://www.sentencingcouncil.org.uk/explanatory-material/item/aggravating-and-mitigating-factors/)

Most comprehensive study
I have not seen any studies which compare ACSLs for defendants of different ethnic groups after controlling for more than one other factor. One study did look at whether BAME defendants were more likely to be sent to prison than white defendants. The study found that after holding gender, age, nationality, ethnicity, previous convictions/cautions and offence type constant, ‘ethnicity was independently associated with being sentenced to prison… although the effect was small.’ But the author acknowledged that this finding would be enhanced by adding more variables such as seriousness of the offence, aggravating and mitigating circumstances and the defendant’s pleas.

Conclusion
It is clear that black defendants receive longer average custodial sentence lengths than white ones. However, it isn’t reasonable to say that this disparity is mainly caused by racism without considering all of the other variables that influence sentence length. On the contrary, the available evidence shows that Black defendants tend to be involved in more serious offences and are much less likely to plead guilty. Without controlling for all or even most of the variables, it is not really fair to conclude as the Independent did in this article, that “Judges and magistrates are institutionally racist, consistently handing down more lenient sentences to white criminals.”