Indiscriminate on Discrimination

Sep 12, 2017

Last week saw the publication of two Government commissioned reviews, both related to the life chances of minorities. The Lammy Review, published on Friday and led by David Lammy MP, investigated the treatment of and outcomes for ethnic minorities in the criminal justice system (CJS). The second, published by the Social Mobility Commission (SMC), looked at the economic chances of young Muslims. What unites both reports is the assumption that any departure from proportional minority representation—either for bad (numbers in prison) or for good (numbers in top jobs)—must be overwhelmingly the result of discrimination by the majority society. But the evidence for this is weak, which creates a double negative effect: it means the recommendations risk being ineffective, even counterproductive, while the narrative and media coverage of the reports will reinforce the very minority disaffection that they are seeking to allay. It is to be hoped that the Government’s race disparity unit, due to be launched next month, does not reinforce this tendency.

Lammy is not looking at differences in levels of recorded crime but rather at what happens after people are arrested in terms of convictions, sentencing levels and custodial sentences. And there are certain headline figures that do suggest a problem: the non-white minority population is 14 per cent but makes up 25 per cent of the prison population and the black population of 3 per cent makes up 12 per cent of the prison population.

There is certainly a perception among many black British people that the system is rigged against them. Lammy seems to agree with them. He concludes that “BAME individuals still face bias, including overt discrimination, in parts of the justice system.”

However, Lammy does little to prove the existence of bias, particularly in the court system. Instead statistics are presented that demonstrate that some non-white ethnic minority groups are over-represented, and some under-represented, relative to whites throughout the system.

This is a report about data. Of the 35 recommendations made, 14 are to do with data in some form. They either demand better collection, greater openness, or more appropriate analysis and appraisal. The idea is that with better data, one can see where the discrepancies lie more clearly and then adjust them. The Lammy Review calls for an “explain or reform approach”.

This is an attractive sounding phrase for the combatting of discrimination in general. The problem though is that we already have plenty of data on the criminal justice system but they just point to distributions—patterns of association between ethnic groups and outcomes. They are not evidence of causality, in this case discrimination.

The most striking finding by Lammy’s review was surprisingly underplayed. On page 33 of the report it is claimed:

“Under similar criminal circumstances the odds of imprisonment for offenders from self-reported Black, Asian, and Chinese or other backgrounds were higher than for offenders from self-reported White backgrounds.”

It was found that the odds for black offenders, across all offence types, were 53 per cent higher than for whites. For Asians they were 55 per cent and for the Chinese/other group 81 per cent. No differences were found for the Mixed group.

The analysis controlled for, among other things: type of plea, age, offence type, and previous criminal record. This should, indeed, give us cause for concern.

Yet just because some things have been controlled for does not mean everything has. In sentencing, judges must take into account such things as harm and culpability with greater levels of either meaning a greater likelihood of a custodial sentence. Other factors such as remorse, steps to make amends, or level of dangerousness will also be at play. These in all likelihood will vary by ethnic group, yet the analysis does not control for them.

The problem with criminal justice statistics is that the more one digs, the more discrepancies you are likely to find. The mind boggles in imagining the kinds of reforms that could be introduced all on the basis of patterns of association that have been assumed to be patterns of causation.

The Problem of Crime Statistics: Drug Offences

Take drug offences. The odds of receiving a prison sentence at Crown Courts were 240 per cent higher for non-white offenders. The point is conceded that this could be down to ethnic minorities being involved in more serious drug related cases. Nevertheless, it is implied that this is evidence of bias.

Analysis of drug offences data from 2014 reveals that the most serious drug offences do indeed tend to have a greater share of non-white offenders. Of those charged with production, supply, intent to supply (Class A), 38 per cent were non-white compared to 21 per cent of those charged with production, supply, intent to supply (Class B), as well as 25 per cent of Possession (Class A) and 31 per cent of Possession (Class B) offences. The most serious offence of production, supply, intent to supply (Class A) carries a custodial sentence in 75 per cent of cases compared to 22 per cent for the Class B equivalent. Possession offences seldom result in a prison sentence.

Problem solved? Not entirely—non-white ethnic minorities are 8 percentage points more likely to receive a custodial sentence for dealing or producing Class A drugs and 16 percentage points more likely to get one for dealing Class B. Yet there are no differences in terms of possession of either Class A or Class B drugs. Indeed, whites get higher sentences for dealing Class B drugs, as seen in the Figure below. Note how the Class B drugs pattern differs from the overall pattern of custodial sentencing.

Figure 1. Average custodial sentence length 2014

More generally, no differences were found in Lammy’s analysis between white and non-white offenders in the likelihood of receiving a prison sentence in cases of acquisitive violence or sexual offences. Is it likely that the same courts, and court officials, will discriminate in some but not all offences?

Also, white people have the highest conviction rate for all indictable offences at 82 per cent (compared to 77 per cent for black people and 74 per cent for Asians) and are also 9 percentage points less likely to be acquitted at Crown Court than non-whites (which may, of course, reflect an earlier bias against non-whites on the part of the police or CPS).

And for many routine crimes the sentence differences by ethnicity are negligible. In 2014 the average sentence length for Grievous Bodily Harm was: White 21.1 months, Black 21.2 months, Asian 20.8 months, Mixed 23.9 months. Chinese/other 21.2 months.

The fact that Lammy has not proved his case does not mean there is no case to prove. At the very least there is a perception problem that may be contributing to the problem. One of the reasons for higher imprisonment of non-white people is because 40 per cent of non-white defendants plead not guilty compared with just 31 per cent of white defendants. And that is probably connected to lower levels of trust in courts and court officials among non-whites.

Yet juries themselves seem to have a pretty good record of colour blindness and the CJS has made considerable strides in recent years to increase representation of non-whites among magistrates and judges. (Indeed the Lammy report is littered with references to an encouraging number of projects and initiatives aimed at dealing with the ethnic minority presence in the CJS.)

About 11 per cent of 16,000 magistrates are non-white and 7 per cent of 3,000 court judges (rising to 10 per cent for those under 40). Lammy wants more to be done and a target of complete ethnic representativeness by 2025. This is not a sensible target. About half of all ethnic minority Britons are first generation immigrants, many of whom will be poorly educated and unable to speak English well or be fully integrated into British cultural norms. A better target would focus on British-born minorities or, for elite positions, it would be more appropriate still to take as a bench-mark the proportion of non-whites leaving Russell Group universities 25 years ago—about 9 per cent. Using that benchmark, non-white magistrates are over-represented and judges coming along well.

This is surely a cause for celebration as is the decline in youth reoffending. Lammy complains that the decline has been slower for non-whites which means that their proportion has risen to 18 per cent but he seems to forget that the under-18 proportion of the population is now 20 per cent non-white.

This raises a broader question of just how big some of the CJS discrepancies are when you account for not only age but also income, education and area of residence (inner city versus rural). Poorer young people from broken homes in inner city areas have always attracted disproportionate attention from the CJS, and while they used to be almost entirely white, now a lot of them are non-white.

There is unfairness in British life and that there is also opportunity. This we have shown in our report Bittersweet Success? which shows both a growing minority middle class (in line with its overall share of the population) and some ethnic minority groups vastly outperforming the ethnic majority in both education and access to the higher professional middle class.

One of the startling points made by Lammy’s review is both the large share of Muslims in prison and its remarkable growth rate. 15 per cent of prisoners are Muslim whereas they constitute just 5 per cent of the total population. Growth over the last decade stands at 48 per cent. While the population share is alarming, the growth rate is not since it is less than the growth rate of the Muslim population as a whole: between the last two census years that grew by 72 per cent. Nevertheless, Lammy is right to call for data collection on religion across all strands of the CJS since it is impossible to tell if the high share of Muslims within prison is do with conversions or not .

It is important to understand who the Muslims are in the CJS, what happens to them, and why they are there. This is both from an integration perspective as well as out of a concern for extremism. Such young people are vulnerable to radicalisation. However, the Social Mobility Commission (SMC) has nothing to say about this in its latest report, titled The Social Mobility Challenges Faced by Young Muslims. Instead the focus is overwhelmingly on barriers faced at school, university and work, especially for young women.

The SMC notes that Muslim women often express conservative attitudes about gender roles. However, its analysis is based on the assumption that such attitudes are things that happen to women. Women actually want to work but negative “cultural” attitudes get in the way. It is never understood that many of these women may actually be living in accordance with what they themselves value.

Evidence for Muslim Discrimination

Like the Lammy Review, the focus is firmly on discrimination yet the evidence is even weaker. For Lammy’s review, the evidential problems stem from the intrinsic weaknesses of quantitative methodology—correlation is not causation and data are patchy. For the SMC the problems are qualitative. The researchers, led by Professor Jacqueline Stevenson, employed a qualitative research design involving focus groups conducted across the country. Sample sizes are likely to be too small to draw reliable inference and will suffer from selection bias. Inferences and policy proposals are made on the basis of just 58 Muslims (40 of whom were female). The report does admit some of these problems and yet clearly believes that its generalisations and recommendations are soundly based.

The SMC report aims to explain why Muslims (and young Muslims in particular) perform less well in their social and economic life chances than many non-Muslims. The SMC chairman, Alan Milburn speaks of a “broken social mobility promise” while Professor Jacqueline Stevenson claims:

“Muslims are excluded, discriminated against, or failed, at all stages of their transition from education to employment. Taken together, these contributory factors have profound implications for social mobility.”

In addition to their exclusion by education and employers, young Muslims suffer because they are coming from lower social income backgrounds defined by poverty and disadvantage, it is claimed. However, the story told is unduly negative and one-sided. Nowhere is it mentioned that the predominantly Muslim Bangladeshis actually enjoy the same chances of getting to a Russell Group university as the white British. Nor is it pointed out that while there is economic underperformance for Pakistanis and Bangladeshis as a whole, British-born Pakistanis and Bangladeshis have the same shares in the higher managerial and professional class as British-born whites (10.2 per cent, 10.6 per cent and 10.7 per cent respectively).

The evidence for Islamophobia provided here is flimsy. It is simply claimed that “[f]or the participants in this research, Islamophobia, discrimination and/or racism is ever present and pervasive, and experienced in both direct and indirect forms.”

But when actually called to illustrate such behaviour, the examples given are subjective and tend to be rather mild:

“I interview people and I’ve been in a very white environment, people make comments – “he looked very Muslim”, “she’s, ooh look at her, she’s got a scarf on”, “she looks very Muslim”, ooh, like slight concern.”

The quotations presented in the section on Islamophobia speak more of Muslim anxiety about discrimination than concrete evidence of it.

There is discrimination against Muslims but how much and how intense we do not know and this report does little to enlighten us. We know there are hate crimes targeted against Muslims, while surveys demonstrate greater suspicion of them than other minorities (the British Social Attitudes Survey of 2013 found that 44 per cent of adults would object to a relative marrying a Muslim, 23.4 per cent a lot, 21 per cent a little). But qualitative interviews are not the way to provide evidence of this. If you ask people why they do badly, they are likely to want to put themselves in a good light and seek to blame others or “society/racism.”

However, when you ask Muslims, through proper survey methods how much discrimination there is, their perception is that it is far from pervasive.

Polling of Muslims conducted by ICM for Policy Exchange found that just 6 per cent considered religious harassment to be a big problem with 14 per cent considering it a slight problem. Also, data from the Citizenship Survey 2010/11 show that 13.2 per cent of Muslims who had applied for a job in the last 5 years considered themselves to have been discriminated against.

The SMC report makes various recommendations. It calls for the Department for Education to “put in place a careers strategy that promotes informed and inclusive choices by pupils. Free from stereotypical assumptions” to be piloted in Muslim communities where there is high unemployment. Furthermore, the report calls for mentoring and support for Muslim children at school as well as guidance for parents on career choices, as well as diversity training for teachers, and further diversity training and unconscious bias training for employers.

Of course, much of this will be in place already and there is evidence that mandatory diversity training may actually have negative effects. Also, the report seems to have given no thought to the reaction of non-Muslim children who will be living close by (although not necessarily attending the same schools)—some of whom, including white working-class kids, will be doing even less well in school. (Lammy, to be fair, does seem aware of this issue.)

The SMC report, like Lammy, acknowledges there might be “cultural” differences at play, particularly with regard to women and work. Only about one third of adult Muslim women work, one reason for the low household income of most Muslims groups.

However, it does not ask the question: does religion matter? Of course it does. Islam as it is practised in Britain is the least relegated to the private sphere of all the major religions.

Survey data from Understanding Society make the point: 22 per cent of Muslims said that their religion affected the job decisions they made. 32 per cent said religion affected the savings and investments they made. None of the other the major religious groups surveyed come close on these measures. See Figure below.

The point is clear: with greater religious prescription will come greater opportunity costs. The same survey found that Muslims were also much more likely to say that their religion impacts on what they eat, drink, wear, and who they socialise or partner with. The more religious social restrictions there are, the more cut off Muslims are likely to be from career and other networks and therefore the less likely they are to enjoy economic opportunities.

Figure 2. My religion affects my choices a lot on… (Understanding Society Wave IV)

Other studies have also pointed to the segregationist tendencies found within the British Muslim population. For instance, our polling found that while 53 per cent of Muslims would like to fully integrate with non-Muslims in all aspects of life, 37 per cent would like some degree of separation on things like schooling and law, while 6 per cent would like minimal integration.

While the hard segregationist Muslims are rare, it is reasonable to assume that even more moderate conservatives will be cutting themselves off from opportunity to some extent.

We have to recognise that there is a trade-off between religious conservativism and thriving in a secular society. And some Muslims choose not to succeed on the terms of Britain’s liberal, secular society. Differences can be accommodated to some extent by non-Muslims but even in the relatively open society that is modern Britain there will be some economic penalty to pay.

David Lammy’s report is a more serious piece of work than the SMC one and he makes some reasonable suggestions, including ideas about changing the regime on non-disclosure of criminal records. Indeed, there is a decent report struggling to emerge from beneath the tendentious rhetoric and selective statistics.

Between the lines he is forced to admit that the CJS is not doing a bad job on race and his conclusion and recommendations are correspondingly mild: essentially, please try a bit harder and publish some more data.

Lammy accepts that most of the causes of discrepancy in offending itself lie outside the system, especially for the big outliers—young black Britons. He mentions poverty and the high incidence of families without fathers which is clearly one of the key factors behind high rates of black offending compared with, say, young Sikhs and Hindus. But he never talks about the culture of disaffection so prevalent in popular culture, and encouraged by some parts of liberal Britain, that so often assumes that black kids don’t have a chance so might as well live outside the system.

Moreover, the biased way in which he has written about his own report— generating a Guardian headline “The racial bias in our justice system is creating a social time bomb”—is contributing to the very disaffection that he claims to be combatting.

Authors

David Goodhart

David Goodhart
Head of Demography, Immigration & Integration Read Full Bio

Dr Richard Norrie

Richard Norrie
Demography, Immigration, and Integration Research Fellow Read Full Bio

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