Background

The treatment of ethnic minorities by criminal justice systems in majority white societies has been in sharp focus since the murder of George Floyd by a police officer in Minnesota, USA. The tragedy has inspired a resurgence of the Black Lives Matter (BLM) movement globally. Race and racism go beyond ‘visible’ ethnic minorities, and the disadvantages suffered by white Irish, and Gypsy, Roma and Traveller citizens have also received more attention in recent years. The growth of antisemitism in Western societies fuelled by social media and populist political discourse is also of concern.

The 2017 Lammy Review of the treatment of ethnic minorities in the criminal justice system (CJS) highlighted the stark racial disparities in terms of contacts with the criminal justice system and in outcomes. In addition, the unrepresentativeness of staff profiles throughout the system was revealed. Lammy called upon the Government and all justice services to “explain or reform” such disparities.

Probation services are not exempt from criticism. Although probation services are at the end of the socio-economic and criminal justice ‘pipeline’ that ends in racial disparities, the response, staffing and operations of probation must be founded in racial equality to be effective, legal and just.

Key statistics are as follows:

• at the end of December 2020, 15.6 per cent of the court ordered probation caseload were recorded as being of black, Asian and minority ethnic heritage
• the Ministry of Justice reports from an analysis of 2014 data that:
  • black men were over three times more likely to be arrested than white men
  • mixed heritage men were over two times more likely to be arrested than white men
  • both black and mixed heritage women were over two times more likely to be arrested than white women.

Summary of the evidence

Tackling racial disparity

The Sentencing Project in the USA has produced a manual for reducing racial disparity in the CJS. Probation leaders are recommended to consider these strategic actions:

• conduct research and analysis on their court reports and recommendations. Services should especially look for bias in language or writing style
• reorient probation services toward a community-based model in order to reduce the social and cultural distance between probation personnel and those whom they supervise. Probation departments should decentralise their operations into the communities where their caseloads are concentrated
• use objective risk management assessment tools but evaluate these for unintended discrimination
• promote leadership development through affirmative action in the recruitment, retaining, and advancement of minorities in probation services.

The Lammy Review identified recall as an area where young ethnic minority adults (aged 18-25) were disadvantaged compared to white service users. Her Majesty’s Prison and Probation Service have produced guidance for operational staff to counter this racial disparity. Staff are encouraged to consider:

• unconscious bias in their decision-making
• tackling issues of differential maturity in supervision
• communicating procedural justice through voice, neutrality, respect and trustworthiness.

The guidance ends with questions for professionals to encourage reflective practice, such as, “if you had to argue against recall in this case, what would your best argument be?”.

Unconscious bias

The EHRC (2018) helpfully outline the evidence for unconscious bias training (UBT). UBT is usually delivered via an Implicit Bias Test (IAT) which presents individuals with and without a variety of protected characteristics in rapid succession asking the participant to assign positive or negative labels to the face. The EHRC review found evidence that UBT/IAT with a debrief session can raise awareness of unconscious bias and reduce (though not eliminate) implicit bias. However, such training does not reduce explicit biases; UBT is rarely designed to tackle explicit bias. Worryingly, the EHRC found two studies which showed UBT/IAT ‘backfiring’, that is, reinforcing stereotypes and reinforcing beliefs that implicit bias could not be reduced. UBT/IAT needs to be carefully designed and professionally conducted to avoid doing harm.

The Probation Service offer some guidance on mitigating unconscious bias in probation practice:

• use decision-making tools and/or checklists to slow down your thinking and allow time to consider all relevant information when making a decision
• ask yourself: “what’s the best argument for the opposite or an alternative decision to this one?”
• ask someone else to review your decision, provide quality assurance and play ‘Devil’s Advocate’. Consider co-working on complex cases
• talk openly about the potential for bias to influence decision-making and make a commitment to reviewing decisions to tackle biases.

Assessment of needs and risks

There are concerns about the use of algorithms in assessment in producing racialised outcomes. Ugwudike (2020) critiques the use of algorithm-based risk profiling, such as the Offender Assessment System (OASys), in probation. Such systems cannot be relied upon to produce unbiased results as the administrative data underlying them are themselves the product of racialised assumptions by police, prosecutors, judges and probation officers.

Research has indicated that reducing static factors, especially previous convictions, and increasing the importance of protective factors could reduce racial disparity emanating from the usage of risk assessment tools.

Find out more about assessment tools

Interventions

Interventions should be delivered by culturally competent staff, preferably involving staff from similar ethnic backgrounds to service users to reduce anxiety, misunderstanding and resistance.

There are some barriers to interventions with ethnic minority people that may interfere with starting, completing or engaging in treatment. Such barriers could include experiences or fear of racism or discrimination, or cultural irrelevance. Explicit recognition and encouragement of cultural identity could be a promising approach to facilitating greater responsivity for ethnic minorities.

Being the only person from an ethnic minority group in a treatment group may result in feelings of isolation and stress about being misunderstood and stigmatised.

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Last updated: 22 October 2021