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ECAN Bulletin, Issue 48, June 2021
ISSN 2752-5953
Early Career Academics Network Bulletin
June 2021 – Issue 48
ECAN Bulletin, Issue 48, June 2021
Contents
Page
Introduction
Anita Dockley and Helen Churcher, the Howard League for Penal Reform 2
Features
Empathy - What’s the Story? 4
Eleanor Horwood, Edinburgh College of Art
Race and Sentencing: A systematic review and exploration of 14
discrimination in the courts
Ana Veiga, University of Leeds
Releasing babies from prison: the case for change 23
Helen Crewe, independent researcher
The experience and treatment of women in prison as victims of violence 29
Rezia Begum, independent researcher
Women, poverty, violence and justice: the need for a new research agenda 34
Jo Phoenix, Open University
Announcements
Become a Howard League Fellow 38
Guidelines for submission 39
ECAN Facebook Group
The Howard League for Penal Reform is active on Facebook and
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topics that you would like to discuss, please start a discussion.
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ECAN Bulletin, Issue 48, June 2021
Introduction
Anita Dockley and Helen
Churcher
This issue explores the intersections
between personhood, identity and the
criminal justice system. The articles
inspire us to think about the human for and concern about racial and ethnic
stories behind the policy. disparities in sentencing. Key findings
include evidence of institutional racism
Eleanor Horwood (Edinburgh College of and discrimination; covert and discrete
Art) begins with an overview of the key discrimination from the judiciary; and a
findings from her design for change need for greater training and diversity
project Empathy- What’s the Story? In among the judiciary. Veiga explains how
this article, Eleanor explores how the the gap in experience and context
complex process of empathy can be between defendant and judge results in a
challenging to operationalise and lack of comprehension or empathy
practice within a prison context. The toward a defendant’s circumstances.
research, culminating in the production of
a prototype card game exercise, Helen Crewe (independent researcher)
illustrates the need for enhanced explores the discourse around, and
consideration and training about responses to the issue of babies in
empathy amongst the myriad different prison from a range of stakeholders in
actors who work and live in prison. 2020. Despite being an area in which the
many and varied stakeholders can
This broader focus on experience, potentially clash, this article argues for a
stories, and identity sets the scene for collaborative approach. Crewe calls for a
further exploration at a micro level. The renewed focus into the issues, and for a
articles that follow explore these ideas in more co-ordinated approach that utilizes
specific contexts, at different stages of the efforts of activists, practitioners, and
the criminal justice system. other stakeholders.
Ana Veiga (University of Leeds) explores Rezia Begum (independent researcher)
the impact of race and ethnicity on provides an overview of qualitative
sentencing. Whilst decades of research research focusing on the experience of
into racial and ethnic disparities in women prisoners as victims of violence.
sentencing have shown that, generally, The study focusses specifically on
Black and minority ethnic defendants are domestic abuse victims and the support
sentenced more harshly than white programmes offered in prison and after
defendants, there is little consensus as release. Begum provides a snapshot of
to the shape and magnitude of these women’s experiences and prompts us to
disparities and whether they constitute think more deeply about them. In
discrimination. Combining a systematic listening to women’s stories, Begum
review with in-depth qualitative research illustrates how we can better understand
conducted with barristers, Ana Veiga the ways in which further research can
finds evidence develop institutional and national policies
and improve women’s lives.
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ECAN Bulletin, Issue 48, June 2021
Jo Phoenix (Open University) argues that
women’s access to justice is poor and
likely to get worse. Her article considers
what criminal justice means for women
whose lives have been impacted by
poverty, marginalisation and abuse.
Through her work with The Stage Project
(an organisation working with sexually
exploited adult women), Phoenix learned
that there remains a group of women
whose lives are shaped by the fact that
they are both over-policed (for their law-
breaking) and under-protected (for the
crimes committed against them) and that
there is little or no equal access to justice
for them.
Please note
Views expressed are those of the author
and do not reflect Howard League for
Penal Reform policy unless explicitly
stated.
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ECAN Bulletin, Issue 48, June 2021
Features
Empathy - What’s the Story?
Eleanor Horwood
Introduction
Empathy can serve to humanise us and
our relationships. And yet, in prison,
where the very principles on which
human life and liberty depend are tested
to their limits (Liebling, 2011), one might human-centred design and how, within
be inclined to ask where empathy exists? the unique context of prison, empathy
might be better conceptualised and
In this article I present key findings from hence better supported.
an independently led master’s
dissertation, which delved into the topic Through primary research conversations
of empathy within the UK prison system. I engaged with three prison officers and
The project - Empathy - What’s the three prison volunteers who worked in
Story? - took place throughout the establishments in England and Wales.
summer of 2020, as the final part of my Additionally, I spoke with a director from
Design for Change MA at Edinburgh The Howard League of Penal Reform; a
College of Art. I adopted a mixed method University Professor and researcher; an
approach to research, weaving independent expert who has formerly
secondary research with primary findings worked as a prison officer; a deputy
from qualitative semi-structured governor and who has volunteered for
interviews and engaged with creative the Independent Monitoring Board (IMB);
methodologies and product design. and to the co-founders of prison podcast
It was a journey of exploration and Bird1. A Scottish perspective was gained
learning, through which I sought to be through conversations with a Fellow of
guided by the plural perspectives of Law who worked on secondment with the
individuals with first-hand experience of Scottish Prison Service (SPS) and an
working, volunteering, and researching artist and educator who has taught in
within prison, as well as by those who both male and female establishments in
campaign for, and communicate on, Scotland. For reasons of ethics and
penal reform more widely. I was curious anonymity the names of all individuals
to explore empathy’s positioning within quoted in this article are pseudonyms.2
1 Bird Podcast was founded in 2018 by Kate and Helen is the Branch Prison Support Officer in
Nina. Kate is a social worker with previous charge of running the Samaritan Listening
experience working in prisons. Nina is a service Scheme in two men’s prison establishments in
designer and user experience researcher. the northeast of England. She has volunteered as
2 All the names of the research participants a Listener Trainer in prisons for over 10 years.
quoted in this article are fictitious: Josh currently works as a prison officer at a
Amanda has a professional background in men’s prison establishment in England.
Education. She is now an Honorary Fellow of Lisa is the Director of a Samaritans Branch in the
Law and is currently working on secondment with north of England. She has previously volunteered
the Scottish Prison Service. as a Listener Trainer and has been the Branch
Claire formerly worked for two years at a Prison Support Officer heading up the Listening
women’s prison establishment in England. Scheme in two men’s prisons establishments in
Emma currently works as a prison officer at a the northeast of England.
women’s prison establishment in England.
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ECAN Bulletin, Issue 48, June 2021
In what follows, I dive straight into play in working toward a fairer, more
empathy and the core question which humane and more rehabilitative penal
prompted this research. Next, I outline system. Broadly speaking, social design
the positioning of empathy as a encompasses design practices aimed
buzzword within the design discipline toward collective and social ends rather
and introduce four emerging critiques than predominantly commercial or
around the limits of empathy. These consumer-oriented ones (Armstrong et
limits were identified during al., 2014). The project was sparked by a
conversations with actors within the series of questions: As outsiders, and
prison system and warrant greater without first-hand experience, how can
understanding and engagement. we begin to understand, empathise and
contribute to dialogue on change within
Lastly, I present Empathy - What’s the the space of the prison system?
Story?, an iteratively developed and Exploring this question allowed for an
designed card activity which emerged examination of how designers work to
from my research. This card exercise gain a deeper understanding and
draws directly on stories and insights knowledge when designing for unfamiliar
generously shared by research contexts and user groups. The answer
participants. The prototype activity, was empathy.
intended for use in a training context in
prison seeks to engage, inform and Empathy within the design discipline
deepen understanding around the Empathy can be defined as 'the ability to
subjective and multifactorial process of share someone else’s feelings or
empathy. This is a process which is very experiences by imagining what it would
far from clear-cut, as highlighted by this be like to be in that person’s situation’
project. (Cambridge Dictionary, 2020). From a
design perspective, empathy is
understood to be both an emotional and
cognitive process which develops over
time through. This occurs when we are
able to ‘step in’ and immerse ourselves
in someone else's world and then ‘step
out’ again to reflect on insight from a
professional distance (Kouprie and
Visser, 2009).
Empathy has become a buzzword in
many industries but particularly within
design, where it has become entangled
with a concept of ‘good design’. It
entered into design vocabulary, in the
Why empathy? 1990’s when designers argued that the
As a Design for Change student, I was success of future products hinged upon
interested in better understanding the designers’ ability to empathise with their
role that social design approaches might user group from the start of product
Lucy is an independent expert who has Sarah is an academic Professor who has
previously volunteered for the Independent conducted and supervised several prison
Monitoring Board and worked as both a prison research projects in the UK and abroad.
officer and a deputy governor for HMPPS. She
currently works for a criminal justice organisation.
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ECAN Bulletin, Issue 48, June 2021
development (Dandavate et al, 1996). empathy with research participants,
Today, empathy is regarded as central to tensions were observed.
social design and design thinking
(Battarbee et al, 2014). The limits of empathy
As explained in IDEO’s Field Guide to 1. Empathy can fail to capture the
Human-Centered Design: complexities of lived experience
‘Design is premised on empathy, Empathy maps are used by designers
on the idea that the people you’re and provide insight into four areas:
designing for are your roadmap to ‘think’, ‘say, ‘feel’, and ‘do’ (Birch, 2020).
innovative solutions. All you have Designers have criticised the
to do is empathise, understand oversimplification of individual
them, and bring them along with experience when using this popular
you in the design process.’ (2015: design tool because it can foster
22) dangerous illusions of understanding
(Siegel and Dray, 2019). Critics argue
As a student of design, I found myself that this type of simplified research risks
puzzled by this positioning of empathy as losing important dynamic narratives,
a concrete means to an end. It sat at such as the recognition of both how
odds with my own understanding of the experience changes over time and the
process of empathy as being non-linear complexity of impacting factors which
and multidimensional (Gibbons, 2011; make up our day-to-day experience
Leyva, 2013). The idea of ‘bringing your (Siegel and Dray, 2019).
users along with you in the design
process’ is complicated when working Kate, a former prison social worker,
with prisons. explained to me how dynamic narratives
of individual experience can be similarly
So, is empathising really that straight- lost within the penal system. Pre-
forward? sentence reports, for presentation to a
The last two decades have seen growing judge or magistrate bench, provide
critical engagement with the concept of accounts of the defendant’s context,
empathy (and indeed its limitations). The experience and circumstances. This
positive and simplistic portrayal of same level of information does not
empathy within the design discipline has extend to prison and is not received by
begun to be questioned (see Heylighen prison officers Kate explained ‘When
and Dong, 2019; Bennet and Rosner, large bits of someone’s journey are
2019). Whilst acknowledging its power, missed, I guess it makes it easier to see
the concept of empathy has been people through just one lens.’ Lisa, a
problematised, particularly in feminist prison volunteer, concurred that this
theory and disability studies. A review of single lens focus also prevailed within
design literature highlighted four key the public sphere. She explained,
areas in the limits of empathy. I was ‘General acknowledgement about what
curious to understand, beyond a might have led an individual to commit
theoretical design lens, what empathy an offence is rarely portrayed, it
really looked like and how it was becomes part of the missing story.’
understood through the eyes of actors
working within the penal system. It was The challenges of capturing the lived
interesting to note that when discussing experience of prison are particularly
pertinent when we consider that concrete
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ECAN Bulletin, Issue 48, June 2021
evidence bases are paramount in to ‘be like’ them (Bennett and Rosner,
influencing penal policy (Wyld et al., 2019).
2019). Research aimed at understanding
individual needs and differences within a Gender differences also affect empathy.
heterogeneous prison population is Helen, a prison volunteer, recalled her
vulnerable to derailment by political experiences in a male prison ‘…the men
anxiety and media scrutiny as well as don't want to let anyone see how they
funding and policy pressures (James, really are, that’s how they survive, you
2013; Liebling, 2015). A persistent simply can’t survive by being empathetic
challenge is that statistical figures “… get all the time.’
us only so far in understanding the
prisoner experience, which is far more Interestingly, prison officer training is
nuanced than most metrics can convey” standardised and there is no
(Crewe, 2015: 52). Amanda, from the differentiation between training for male
Scottish Prison service, echoed these and female establishments. As Claire
concerns surrounding the priority given explained:
to quantitative performance
measurements. She explained ‘… it's ‘Men and women are polar opposite
easy to tick box, but profound changes people to deal with in situations so it was
that have to come through relationships, quite a challenging environment to be in,
you can't put that in a box - it's so difficult in the sense that, we had to keep asking
to pin down in a simple form.’ ‘okay, so how does apply to a woman’.
Nine times out of ten the trainers didn’t
2. Empathy involves the body and know because none of them had worked
embodied experience in a female environment.’
Bodies matter in empathy; we seek to Designers often use roleplay scenarios in
understand the experience of another an attempt to cultivate empathy. Prison
body from the position of our own (see officer Emma reflected on the roleplay
Finlay, 2005; Goldinger et al, 2016). scenarios she participated in as part of
Indeed, it is precisely the fact that our her officer training:
own bodies perceive those of others that
enables the very possibility of empathy at 'I was incredibly impressed with the
all (Merleau-Ponty, 1962). Within acting and stuff but the things I’ve dealt
design, there is criticism that studies too with on the job you just can't compare.
often fail to sufficiently consider the You can't put pure emotion into a book,
differences between stakeholders’ you can't experience through acting how
bodies (e.g., the designers, the end- you might feel in a very stressful and
users, or both) (Heylighen and Dong, hard situation.’
2019). Black, Asian and minority ethnic
communities are overrepresented in the In working to develop empathy we
prison system, and so when considering should always seek to be aware of the
the role of design in fostering positive inevitable barriers to gaining a full
change, these issues must be understanding of someone else’s
considered. Numerous factors influence experience (Kullman, 2016). In a prison
people’s experience of prison, including context, these barriers are particularly
sentence stage, age, ethnicity, race and resonant when we consider the physical
sex. In light of this, designers have barrier of the prison. The physical
sought to reframe empathy as the act of restriction of movement is itself a prime
‘being with’ someone, rather than trying
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ECAN Bulletin, Issue 48, June 2021
example of ‘non-knowledge’’ for those world of someone else should not go
who have not experienced it. unquestioned (Pedwell, 2014). This
acknowledgment of power relations
3. There’s a risk that through empathy takes on an added pertinence in a prison
we can actually fail to be inclusive context and has long been recognised by
prison ethnographers (Liebling et al,
Pursuing empathy might also 1999).
inadvertently work to single out or ‘other’
the person or group empathised with 4. The short-sighted nature of empathy
(see Ahmed, 2015; Wendt, 2017;
Friedman, 2002; Buber 1958). As The process of developing empathy in
Carolyn Pedwell (2014) outlines, ‘co- design typically encompass a narrow
feeling' can occur when we mistakenly focus on the needs and circumstances of
end up assimilating the emotions of the a select user group at a given time
person we are empathising with as our (Heylighen and Dong, 2019). However,
own. Some recent notable examples of the reality is that designed outputs are
‘co-feeling’ include narratives of the rarely delivered in the ‘here and now’;
lockdown as being ‘like prison’, including their effects are commonly delayed and
a Guardian article entitled ‘Coronavirus dispersed. Paul Bloom (2016) critiqued
has robbed us of life’s markers and left what he termed the short-sighted nature
us like prisoners crossing off the days of empathy, comparing it to a spotlight
until we can live freely again’ (Freedland, directing attention and aid to where it is
2020). needed. Bloom argued that this spotlight
creates bias toward what is illuminated,
Debbie is a volunteer for the Samaritan resulting in a disregard for the bigger
Listening Scheme.3 Samaritan picture and for others actors (ibid).
volunteers go to prisons to train peer-
support volunteers known as ‘listeners’ Research participant Sarah, an
who provide ongoing support to other academic and prisons researcher, noted
fellow prisoners within their how this spotlight focus of empathy is
establishment. Debbie expressed her apparent in the prison system. Sarah
thoughts on the trap of co-feeling: explained that when new prison projects
are costed, the capital expenditure for
‘On a personal level, I don't think I can the build and (sometimes) the first
ever truly have empathy for someone facilities management contract are
unless I've been in that position myself, included. Yet these figures do not take
unless their situation has happened to into account the wider societal costs of
me and even then you might say it's not incarceration which are arguably harder
true empathy because I'm not them. I to calculate. Compensation following
can't feel what they feel.’ assaults, transport costs of hospital
visits, and the cost of reoffending are a
Feminist and postcolonial scholars in few examples of issues left out of the
particular have highlighted a need to ‘bigger picture’ equation. Research
acknowledge the power relations at play participant Josh, a prison officer,
within empathy. They stress that the described prison as being ‘Like a huge
political and ethical issues involved in network, like a big beehive with its own
seeking to come to know the private structures and hierarchies.’ His words
3The Listener Scheme is a peer support service, Scheme is to reduce suicidal thoughts and
established in 1991, which now operates in over suicide within prisons (Samaritans, 2019).
100 prisons across the UK. The aim of the
8ECAN Bulletin, Issue 48, June 2021
are a crucial reminder that we do not For volunteers, the training provided by
develop empathy within a vacuum, but establishments largely revolved around
whilst experiencing life in pre-existing the notion that too much empathy could
systems. Within prison, these systems result in security risks. Safeguards
and structures take on a heightened against this included not giving personal
intensity. details to prisoners, discussing crimes, or
becoming involved with personal or
Even within the relatively long history of institutional problems for fear of
prison research, Liebling notes that ‘work grooming. None of the volunteers who
is rarely exclusively “prisoner‐focused” participated in the research received any
but tries to understand the prison information about the responsibilities of
experience in the light of what others in prison officers and the role’s challenges.
the environment (particularly staff and Participants noted that this would have
senior managers) are doing, saying and been very valuable.
thinking’ (2015: 22).
Samaritan Listener trainer Helen was
Key findings invited by HMPPS to attend a staff
How do those working and volunteering workshop on suicide and self-harm, the
within the prison system regard empathy content of which was aligned to
and the factors that affect it? Samaritan principles of active listening,
Conversations with research participants non-judgment, and supporting people to
illustrated how empathy cannot be find their own solutions (Samaritans,
viewed in isolation from the differing N.D.). Helen reflected on the role plays
roles, responsibilities and experiences of used inuring the workshop:
professional training. Furthermore, in a
prison context distrust, security concerns 'It was clear to see a difference in
and minimal opportunities for the approach to empathy based on training.
development of relationships between The officers had all been trained in the 5-
uniformed staff, civilian staff and minute intervention concept so they were
volunteers mean that empathy is often a going straight in and would be done in
fine balance. five minutes flat! Us Samaritans and
Listeners we were still just gently
Training, roles and responsibilities probing.’
Prison officers who took part in the
research noted that empathy had not Lucy volunteered in prison prior to joining
been sufficiently covered or was HMPPS. She explained that, as a
positioned within training at ‘an assumed volunteer, it was natural to operate from
prior knowledge level’. Claire reflected on a position of positivity. Later, when
the role of empathy in her training: working as a Deputy Governor, Lucy
found she had to teach herself to keep
‘It was a “learn this list of skills” thing, so her own empathy in check:
when it came to the exam, it was just a ‘It’s quite a lesson to have to undo your
memory exercise. You do a few practical natural empathy, and look at things on
role-plays with peers, but no-one is really paper for risk assessment, you don’t
assessing so it’s very easy for the skill to want to become too cynical and risk
not develop and then you're straight into averse, it’s a really fine balance.’
the job and there’s complete disparity
between those who possess the skills It was evident that, within the unique
and those who don’t.’ context of prison, the extent to which
individuals could allow themselves to
9ECAN Bulletin, Issue 48, June 2021
empathise was framed by varying roles. research participants explained how little
When responsibilities include decision empathy is involved or fostered in the
making with security consequences, system, and that the two can be at odds.
empathy was often trumped by other Some conversations highlighted
factors. Furthermore, understaffing, examples where the system actively
inadequate support and an absence of quashed possibilities for empathy to
time could derail the very possibilities of develop. Josh, a prison officer, explained
empathy. Prison officer Emma was often that empathy was a key aspect of his
left to run a wing alone and explained the day-to-day experiences. He shared an
challenges of responding to the needs incident which vividly captured the
and requests of forty different women: contrast between unforgiving systems
and the empathetic power of people:
'Sometimes you forget or you just don't
have the time and that’s when 'I sat with a chap recently that had been
relationships really start to break down. in my opinion ignored. He’d self-harmed.
There comes a point where you just have I sat with him and just listened. The guy
to distance yourself emotionally.’ was ex-army and it was clear he had
PTSD. He’d been in prison over 30
times. Prison was
his rehab. Clearly
no-one had
presented any form
of empathy or
understanding.’
A design output -
Empathy - What’s
the Story?
Empathy – What's
the Story? is a
matching pairs card
exercise designed
for use in prison, by
prison officers,
Samaritan
volunteers, Listeners
Increased staffing would have a positive (prisoners), senior
impact in building relationships and management and civilian staff. The cards
fostering empathy. Emma expressed that capture the voices of eight men and
she felt, in the eyes of the prison women within the prison system talking
governor at her establishment, just ‘a about empathy. The content on the cards
number’. reflects their stories and insights shared
during data collection. The aim of the
Research participants spoke to the idea game is that small groups work
that it is people rather than systems that collaboratively to match eight
create empathy. Efforts to ‘change the statements, expressing a perspective on
system’ are often removed from the empathy, with a corresponding story told
people living, working and volunteering by the same person.
within them (Wyld et al, 2019). Yet
10ECAN Bulletin, Issue 48, June 2021
Once the statements have been matched Stories can act powerfully in three ways:
to their corresponding story card, the as mirrors, to see our own experiences
reflected; as
windows, to look and
see the perspectives
of others; and as
sliding doors,
allowing entry into
another’s
perspective (Sims
Bishop, 1990). The
statements in
Empathy - What’s
the Story? are ones
which participants
may, or may not,
identify or agree
with. A statement
might be a mirror for
someone and a
sliding door for
someone else.
cards can then be turned over to reveal Agreement aside, using designed activity
graphics on the reverse and pieced as a catalyst, the intention is to
together to construct a puzzle. The showcase, different perspectives from
completed image reveals three open- different actors and to highlight the
ended discussion questions to prompt subjective and personal nature of
group conversation around empathy. empathy.
Participants are prompted to reflect on
their own stance on what empathy is, the Conclusion
factors in prison that can present barriers ‘Within prison concepts like “dignity” and
to empathy, and the conditions that might "humanity” are difficult to operationalise
help to support its development. and practice’ (Liebling, 2011: 530). This
research project highlighted that the
Mirrors, windows and sliding doors complex process of empathy can be
The goal of Empathy - What’s The challenging to operationalise and
Story? is to provide a non-challenging practice within a prison context. The
way to expose players to plural findings highlighted the entangled nature
standpoints around empathy. The hope of empathy within the differing roles and
was that it might help to render a responsibilities of varying actors within
subjective concept such as empathy the prison system. This context therefore
more tangible. The story and statement warrants enhanced training about these
concept aimed to convey a simple truth, roles and responsibilities, and a stronger,
evidenced throughout the research shared understanding of the complexities
process: that behind every of empathy. From a policy standpoint the
understanding there lies a story, a Ministry of Justice seek robust statistical,
reasoning, influenced by our own lived often cost-driven, figures. Breaking
experience. through the treadmill of reactive, stop-
start policy is undoubtedly an immense
task.
11ECAN Bulletin, Issue 48, June 2021
Designer Thomas Markussen argued empathy-mapping-4776a7326c36 (Accessed
that social design rarely facilitates social 2nd August 2020).
change at a macro scale; however, this
does not take away its value. Crucially, it Bloom, P. (2016). Against Empathy: The
is often engagement at the micro level case for rational compassion. New York:
Ecco.
that can drive ‘the fostering of small, but
decisive qualitative changes in the form Buber, M. (1958) I and Thou. New York:
of re-distributing identities and Scribner.
interpersonal relationships.’ (Markussen,
2017: 172). Through the design of Cambridge Dictionary (2020) ‘Empathy’.
Empathy - What’s the Story?, my Available at:
engagement with the concept has https://dictionary.cambridge.org/dictionary/en
convinced me that social design does glish/empathy (Accessed 1st June 2020).
have a role to play in facilitating small but
important qualitative shifts in Crewe, B. (2015) Inside the belly of the
interpersonal relationships within prison penal beast: Understanding the experience
of imprisonment. International Journal for
gates, and indeed changing perspectives Crime, Justice and Social Democracy, 4(1),
beyond them. Exploring creative pp.50‐65.
avenues to facilitate ‘windows’ and
‘sliding doors’ onto systems and actors Dandavate, U., Sanders, E.B.-N. and Stuart,
has merit and potential. Socially engaged S. (1996) “Emotions Matter: User Empathy in
designers can support this in using and the Product Development Process,
promoting new methods and tactics. Proceedings of the Human Factors and
Ergonomics Society, 40(7), pp.415-418.
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13ECAN Bulletin, Issue 48, June 2021
Race and Sentencing: A
systematic review and
exploration of discrimination
in the courts
Ana Veiga
This article stems from my MPhil
dissertation in Criminological Research
at Cambridge University, for which I
conducted a systematic review on race
and sentencing studies in England and
Wales and the United States. This was what could be done to combat
supplemented with qualitative data discrimination in the courts.
collected during interviews with ten
barristers. The systematic review was Systematic review
conducted to ascertain whether there is The systematic search yielded a total of
an identifiable impact of race and 1,092 records, which after removing
ethnicity on sentencing, and to explore duplicates, screening and assessing the
the different contexts and settings of articles for eligibility, resulted in a total of
such effect. Decades of research into 91 studies being eligible for analysis. The
racial and ethnic disparities in sentencing majority of the studies were based on
have shown that, generally, Black and sentencing decisions in the United
ethnic minority defendants are sentenced States, with only 14% of studies based
more harshly than white defendants. on sentencing decisions in England and
There is little consensus as to the shape Wales. This was due to the small number
and magnitude of these disparities and of studies that examine disparities and
whether they constitute discrimination. discrimination in sentencing in England
Whilst the majority of studies find that and Wales. The majority of English and
minority defendants are punished more Welsh studies present bivariate and
harshly in comparison to white descriptive statistics; they simply
defendants (Steffensmeier and Demuth describe the data without providing
2001; Kutateladze et al. 2013), a analysis, therefore not meeting the
considerable amount of research finds eligibility criteria. This highlights the
no racial or ethnic differences in urgent need for studies that adequately
sentencing outcomes (Franklin 2013; examine sentencing disparities in
Tartaro and Sedelmaier 2009). Indeed, a England and Wales.
small number of studies have found that
white people are sentenced more On review, 78% of studies found that
severely than minority defendants minorities were treated more harshly
(Walsh 1991; Brewster 2002). Interviews than their white counterparts, 16% of
with barristers allowed me to explore this studies found no difference in treatment
difference in greater depth and assess and only five studies found an inverse
whether disparities in sentencing could result. This confirmed the impact of race
be explained by discrimination. The and ethnicity on the sentencing of
interviews allowed for an exploration of minority defendants. The systematic
the nature and role indirect and covert review also compared the findings of
forms of discrimination and examined studies in the United States with those in
England and Wales. It found that in
14ECAN Bulletin, Issue 48, June 2021
England and Wales, Black defendants offence and the individual’s criminal
were treated more harshly than their record, sentencing disparities appear to
white counterparts, being 9.5% more be greater in England and Wales than in
likely to receive a custodial sentence. the United States.
Black defendants in the United States
were 4.5% more likely to receive a
custodial sentence. Even when taking
into account the seriousness of the
Figure One, Black/White contrast imprisonment decisions- legal controls
No controls
Controls for offense
seriousness and prior
criminal history
Controls for offense
seriousness, prior criminal
history and pre-trial detention
OR plea/trial status
Controls for offense
seriousness, prior criminal
history and pre-trial detention
and plea/trial status
15ECAN Bulletin, Issue 48, June 2021
The no-discrimination thesis argues that whether they could be indicative of
racial and ethnic disparities exist in discrimination.
sentencing due to the failure to control
for legally relevant variables; once Barrister interviews
controls for legal variables are exercised, Interviews with barristers were
apparent disparities disappear conducted to further determine whether
(Wilbanks, 1987). The systematic review there was discrimination in the
contested the no-discrimination thesis sentencing of minority defendants and to
and showed that as legal controls explore the different forms and contexts
increase, the impact of race and ethnicity it took place in. The interviews also
decreases but is still present. A total of sought to examine the issue of indirect
17 studies controlled for offense discrimination that is harder to detect in
seriousness, prior criminal history, pre- quantitative studies as well as explore
trial detention and plea/trial status and what needs to be done to combat
found that on average, Black defendants discrimination in the courts. A total of 10
were still 4% more likely to receive a interviews were conducted with barristers
custodial sentence than white from three different chambers; Bedford
defendants. Row Chambers; Fenners Chambers; and
King’s Bench Walk Chambers. Three of
Figure One represents studies from the the interviewees were contacted at a
systematic review that examined networking event. These barristers then
imprisonment decisions for Black and shared details of the research with their
White defendants, aggregated per the colleagues. This ‘snowballing’ sampling
number of controls. Each circle denotes technique resulted in an additional seven
the greater probabilities a Black barristers being recruited. The interviews
defendant has of being imprisoned took place remotely due to the Covid-19
compared to a white defendant. pandemic. Throughout this article,
pseudonyms are used to protect
Hood (1992) was the only study which participants’ anonymity.
included controls for all four variables in
England and Wales. Hood’s study found Nine out of the ten barristers interviewed
that even after controlling for legal confirmed that they had witnessed racial
variables, Black defendants still had a and ethnic discrimination from judges
five per-cent greater probability of being towards defendants. One barrister who
sentenced to prison than white said they had not witnessed any
defendants. This shows the need for discriminatory behaviour, however, did
more recent sentencing studies that say that they felt that a defendant had
control for legal variables to be carried been treated differently due to their
out in England and Wales. At present, ethnicity or race.
most studies are conducted internally by
the Ministry of Justice. The problem here Michael, a barrister, explained that he
is that ‘official sentencing data has had seen judges ‘acting in ways towards
traditionally been presented in an defendants who are of Afro-Caribbean
aggregated format, precluding the use of origin in a way that I do not personally
regression modelling techniques’ (Pina- believe they would act if they were white
Sánchez et al, 2019: 3). The use of British peers of the same age’. He also
regression modelling techniques would noted that ‘I’ve seen the same judge
allow researchers to test for and properly behave more sympathetically towards
examine racial and ethnic disparities and people of white ethnicity’. Claire similarly
remarked that ‘there are certain judges
16ECAN Bulletin, Issue 48, June 2021
that are renowned’ for racist behaviour. seems to be an idea that if you’re a
Claire explained how some judges would young Black boy or man from south east
behave when there was a Black London it kind of doesn’t make much
defendant in the dock: difference if you go to prison since you’re
not doing much anyway’.
‘[They] would immediately ask what their
immigration status was and ask whether Discrimination was particularly salient in
an IM3 had been served, which is a drug offences in spite of the existence of
notice of deportation before even finding sentencing guidelines. One barrister
out whether or not they were second remarked ‘very often young Black men
generation, or had UK citizenship. Just are more likely to receive custodial
the automatic assumption was see a sentences than their white counterparts,
Black or minority defendant, immediately and this is because of the judge’s
ask about their immigration status but approach to the sentencing guidelines’.
obviously they wouldn’t do that if it was a Particularly alarming were cases
white person in the docks.’ involving county lines; Emily affirmed that
she had ‘never seen a white man
These accounts of more blatant and sentenced for county lines’. John
direct discrimination from senior recalled how a judge once told a Black
barristers contrasted with the defendant that ‘we’re sick and tired of
experiences of some junior barristers. having people like you coming to places
Rachel explained ‘it’s not an overt like these’. As Claire explained, there
discrimination by judges’ and Emily was also ‘real significant reluctance on
similarly remarks ‘I don’t think it’s blatant the part of the judiciary out of London to
and direct’. Another barrister, Hannah, employ the Modern Slavery Act
explained that discrimination ‘is really regarding the protection of vulnerable
hard to pinpoint … very few people in the children through county lines once they
legal profession would be stupid enough see they’re Black.’
to make it clear that the reason they’re
discriminating against someone is All barristers who were interviewed felt
because of their race.’ that indirect discrimination was an
ongoing issue. It commonly occurred due
Discrimination has changed its form to to the ‘crossover between the social
become more covert and discrete. One class or social status or position of a
barrister suggested that discrimination person and race as well’ and was
can occur when ‘you want to achieve predominant in bail decisions. Anne
something unusual, if you’re asking for explained that:
someone not to go to prison where
normally you would expect them to. You ‘… lots of young Black men are not in a
seem to have more of a chance if they’re position to have anyone in their family to
well educated, if they’re a bit more like offer surety to enable them to get bail
the judge, they’ve got a really good job.’ and I think there’s an expectation almost
Tom also agreed that discrimination on the part of some judges “oh well this
occurs in situations ‘where a judge has person is not going to get bail and I’m not
given a white defendant a chance’ and going to give him any consideration
compared this to the Oxford student case towards that”’.
where the judge decided not to imprison
the student because of her intelligence John explained how judges, as in society
and the perceived impact on her life more broadly, could be prejudiced; for
chances. Tom remarked how ‘there judges, ‘… it just means they have
17ECAN Bulletin, Issue 48, June 2021
preconceived notions based on their Moreover, as Tom remarked, ‘training is
experiences’. This makes it harder for really, really important’. Hannah
them to comprehend or sympathise with summarised:
the defendants’ wider circumstances and
could lead to a denial of bail or ‘We treat the learning around being anti-
consideration of mitigating factors. racist and the learning around being anti-
Similarly, Emily remarked that ‘if you discriminatory as being something which
don’t have an address it can sometimes isn’t actual to the role. There needs to be
be very, very difficult to obtain bail’. Emily more diversity because nothing beats
further explained ‘you’re more likely to having first hands experience of different
not have a fixed address if you’re from things that happen but the fact is what
an ethnic background’. are you going to do, you’re not going to
get rid of all of the white-middle class,
In order to combat discrimination in middle-aged men who are already sitting
sentencing, on barrister noted that on the bench. So you also need to
‘judicial diversity is a really big thing introduce things in the system that make
because ultimately it’s up to the judge on them think about their prejudice. And I
an individual basis how to sentence think there needs to be a lot more done
someone’. Some minority ethnic in terms of very challenging anti-racism
defendants get harsher sentences training for judges’.
because judges are unable to
sympathise with them and understand The systematic review showed that
where they are coming from. As Tom people from Black and minority ethnic
explained, ‘some judges, they can backgrounds were more likely to be
identify more with defendants that look imprisoned than white defendants. The
like them and made mistakes, so I think interviews with barristers suggested that
judges sometimes treat more favourably this could be due to minority defendants
defendants with whom they feel they can not being as likely to receive suspended
identify more’. John similarly pointed out sentences. As Emily explained:
how mitigation is about ‘how much the
judge identifies with the defendant’. ‘Getting a suspended sentence is really
Hannah explained: difficult for young Black men because to
get a suspended sentence you need to
‘Judges are making decisions about have relative prospects of rehabilitation.
whether or not someone’s personal But if you don’t have a job and you don’t
mitigation qualifies as, is meant to be have a house and you don’t have the
used to reduce somebody’s sentence but support, then you don’t have the things
they’re looking at people who have that you need to be rehabilitated’.
grown up in environments that they’ve
never been to and in. They don’t have When speaking about her experiences,
people in their friendship circles who are Emily remarked that ‘because of their
Black and working-class. How are they race and the factors in their life, the
going to know whether or not growing up social factors that work against them,
with a single mother in an estate in they are more likely to get a higher
Brixton road is sufficiently met with a sentence than a white person’. Rose
three-month reduction in a sentence. explained:
They haven’t lived that experience.’
‘…there’ll be considerations in their lives
that might mean they have non-standard
backgrounds. So, they may have come
18ECAN Bulletin, Issue 48, June 2021
from poorer communities or they may apprehended. Barrister Hannah
move addresses more or they may have explained that ‘the areas that have the
temporary housing. What can be highest BAME populations are over-
perfectly innocent like moving address or policed compared to areas that are more
no longer living somewhere can be suburban, so you’re more likely to be
something that makes them look less arrested for something than if you were a
reliable or like a flight risk or something white person doing the same thing’.
that might worry a judge and so because
of that they’re treated differently’. Not only is stop-and-search
disproportionately and discriminatorily
Institutionalised racism and applied against minority communities, it
discrimination was present in the criminal further influences sentencing decisions.
justice system, identified by several of Claire explained:
the barristers interviewed. One remarked
that ‘I just think it’s more the system is ‘Because stop and search is very
set up to probably discriminate against disproportionately applied to the Black
people but it’s not an overt discrimination community the number of times where
by judges’. Another explained ‘I think it’s the element of a case has been the
definitely the system, the sentencing extent to which a client has been
guidelines and things like that, repeatedly stopped and searched, the
disproportionately affecting certain judge seems to take the view that that’s
defendants’. because they’re up to something. Not
because on ten times they weren’t up to
The Macpherson Inquiry (1999) into the something and the one time that they
murder of Stephen Lawrence established were up to something doesn’t mean that
that institutionalised racism ‘can be seen they were disproportionately affected by
or detected in processes, attitudes and the previous ten times’.
behaviour which amount to
discrimination through unwitting Claire continued:
prejudice, ignorance, thoughtlessness
and racist stereotyping which ‘There’s a real reluctance for the judiciary
disadvantage minority ethnic people’. to accept that policing is implemented in
With stop-and-search disproportionately a racist way, so that affects where if they
applied against minority ethnic haven’t followed the codes of practice for
communities (now more than ever), the police whether they’re less likely to
examples of institutionalised racism and exclude evidence as a result of those
discrimination are ever present. People breaches. So if they think well the police
from Black and minority ethnic are only doing that because they must’ve
backgrounds are 9.6 times more likely to been at it then if they’ve breached that,
experience stop-and-search than their then they won’t exclude the evidence. So
white counterparts. This disparity it has an effect on the granting of bail,
increases 40 times, with Black and admissibility in trials, summing-up and
minority ethnic people being more likely sentencing in particular’.
to experience stop-and-search under
s.60 of the Criminal Justice and Public Particularly alarming is the situation with
Order Act 1994, which no longer requires drug offenses and the sentencing
reasonable suspicion to search someone guidelines. Emily explained that ‘I have a
(Home Office, 2019; The Guardian, bit of a bugbear when it comes to
2019). This impacts the number of ethnic sentencing for drugs matters and
minority defendants that are unfortunately a lot of people that get
19ECAN Bulletin, Issue 48, June 2021
sentenced for drug matters, particularly a factors) could be one of the reasons why
certain type, are young Black men and I minority defendants are more likely to be
feel that they end up with a imprisoned and receive longer sentences
disproportionately higher sentence than than their white counterparts. Currently
other people’. Rachel similarly explained 93% of the judiciary are white (Ministry of
that ‘Black defendants are Justice, 2020). Increasing judicial
disproportionately sentenced in relation diversity, however, is not a simple
to drug offences and drug offences have solution; even if achieved via positive
much higher sentencing guidelines.’ discrimination, it will take some years
Rachel questioned whether ‘[this] should until the judiciary is diversified. Self-
be taken into consideration and there reflection, education, training and
should be shorter sentencing guidelines commitment are vital.
for drug offences or better rehabilitation,
specifically targeted as you know they
disproportionately affect minority References
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