Why is the criminal justice system still so affected by racial bias?

The following blog is adapted from a 1500-word paper. If you would like to read the full piece, please reach out.

In 1999, the Macpherson report concluded that institutional racism plagues the police service nationwide.1 The report was the first official document in the UK that identified the issue of racist policing as more than just a few ‘bad apples’. Institutional racism is not confined to policing but is present throughout the whole Criminal Justice System (CJS). Statistically, although black people2 only make up 4% of the population, they account for 9% of arrests, 10% of prosecutions, and make up 12% of the prison population.3 These figures are even more significant for children and young people; although only 5% of the population of young people is black, they account for 15% of arrests and 19% of prosecutions and make up 30% of the prison population.4

In her book ‘Are Prisons Obsolete’, Angela Davis explores the creation of the modern CJS in the US in the historical context of the transatlantic slave trade.5 Davis’s argument that the abolition of the slave trade led directly to the use of prison labour by corporations and the punishment of black bodies for deviating from the hegemony of white power lays bare the racist roots of the CJS. This line of thinking is not unique to Davis’s thesis; Coretta Philips, Ben Bowling, and Alpa Palmer argue that ‘the roots of policing in slavery and colonialism are increasingly recognized as providing a blueprint for the control of postcolonial citizens’.6 In essence, the CJS in the UK and the US grew alongside a desire to regulate certain citizens and award freedoms to others.

Even though criminologists have argued that financial inequality and a failing social welfare system exacerbate incarceration rates, the wedge that has been driven by the ever-present ghoul of white supremacy between lower socio-economic classes of white people and their potential allies in minoritised communities prevents true social justice reform from taking place.7 Thus, poverty is substituted for race, leaving both lower socio-economic white people and racialised people despondent. Critical Race Theorists argue that the ‘dialectical relationship’ between crime and race leads to the consideration of ‘blackness’ as itself a crime.8 This means that instead of challenging those manifestations of racial bias that also affect a broader population (namely, over-policing of lower socio-economic areas, suspicion of young people, and a lack of restorative justice programmes), the criminality that those failures create is attributed to the ‘natural’ criminality of blackness.

There are a few cases that permeate the public mind when it comes to racism in the CJS. The events surrounding the murders of George Floyd and Breonna Taylor in 2020 rocked the world and triggered mass protests against police brutality both in the US and worldwide. The recent controversial decision on the death of Chris Kaba is also at the forefront of public consciousness. A report by Inquest exploring deaths in police custody establishes that after being restrained by the police, black people are seven times more likely to die than white people, but also found that no police officers were disciplined for these deaths.9 Such a lack of successful oversight severely affects people's trust in the CJS from reporting to conviction.

Also prevalent in the public mind are stop and search powers. In recent figures, black people are four times more likely to be stopped and searched than white people and constitute 14% of stop searches despite only accounting for 3% of the population.10 This is despite the fact that black people are not overrepresented in crime rates. The over-policing of ethnic minorities is well-documented and is perhaps most starkly shown by the statistic that 33% of all stop searches in the UK took place in London, and 66% of those stopped were black.11 London is the most ethnically diverse area of the UK, with 46% of Londoners identifying as minority ethnic, compared to 14% for England as a whole. As mentioned earlier, these figures are not representative of the crime rate. In fact, for the Metropolitan Police, 66.84% of stop searches required no further action.12

The effects of stop and search on minoritised communities are well known; they have been discussed many times in parliament, where cross-party MPs agree that ‘Nothing has been more damaging to the relationship between the police and the black community than the ill-judged use of stop and search powers.’13 As there is little trust between black communities and the police, the relationship continues to break down, which prevents racial bias from being adequately addressed within the system. Diverse community members are unlikely to join (or even scrutinise) the police, as they do not feel safe.

The CJS has also been criticised for its over-emphasis on punishment; although rehabilitative programmes exist, they are often under-utilised. Focusing on punishment instead of rehabilitation creates a cycle of recidivism where those who are unable to access crucial support find themselves criminalised and penalised. This is especially true of racialised communities who are more likely to suffer from poor education, housing instability or poverty and who fall victim to racial stereotyping and over-policing. Speaking on ex-prisoners in the US, Michelle Alexander explains how even those who can receive accreditation or support during confinement find it extremely hard to get a job on the outside due to the prejudices held by employers.14 This is also true in the UK, where only 30% of ex-prisoners can find stable work within 6 months of their release date.15 There is also evidence to show that rehabilitative programmes take on a one-size-fits-all approach and do not consider the unique experiences of racialised prisoners.16

Insufficient focus on restorative justice programmes also means that breaks in the community cannot be healed. This exacerbates distrust between different parts of the community and between the community and the police. In 2019-2020, only 5.5% of victims were offered access to restorative justice programmes.17 These programmes allow victims to meet the offender or for out-of-court disposals to be used in the early stages of conviction. The absence of CJS-backed reunification between victim and offender, combined with the cycle of criminality caused by a shortage of rehabilitative programmes, creates fissures across communities. Not only is there a void of distrust between minority ethnic communities and the police, but also between the criminalised and the victimised.

The combination of colonial legacy, over-policing, and a lack of focus on rehabilitation and restoration reveals some level of the rotten core of the CJS, as well as the dialectical link between blackness and criminality, summarised neatly by this quote:

‘When we think of crime we have black people in mind, and when we think of black people we have crime in mind’.18

Racialised people are so intrinsically linked to criminality within the public consciousness that it will not only require structural change to bring about a fair and equal justice system, but it will also need a fundamental societal shift. To answer the question, the CJS is still so affected by racial bias because it is built upon it. It was created to protect some and criminalise others. Not until the system is completely reconsidered will we ever achieve racial justice.