Negative Images: A Simple Matter of Black and White?

An Examination of 'Race' and the Juvenile Justice System

Bruce M. Kirk

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351915526
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

That black young people have been subject to unequal treatment in the youth justice system has been the belief of some individuals and groups, reinforced, at best, by anecdotal evidence. Negative Images: A Simple Matter of Black and White? provides not only evidential weight to uphold this view but also provides some insights into the processes by which it comes about. Findings of a case study detailed in the book demonstrate how in one youth court black youths were over-represented amongst those receiving high-tariff sentencing and that this over-representation could not be explained by seriousness or persistence of offending. Whilst responsibility for differential sentencing has often been laid at the door of Magistrates, this study reveals how social work court report practice may be contributing to the situation.

Part One
The Backdrop

1 Introduction

In 1986, Wolverhampton Social Services Department undertook the first monitoring exercise examining sentencing outcomes of all cases heard in the local juvenile court (WMBC, 1987). Two findings that emerged from that exercise caused alarm amongst juvenile justice practitioners. First, it was noted that although African-caribbeans comprised a little under one-tenth of the 16 year old population in Wolverhampton they represented nearly one-quarter of all those who appeared in the juvenile court during the year. Even more startling was the finding that nearly a third of those African-caribbean defendants received custodial sentences.

Faced with this information it might have been easy to have drawn the simple conclusion that this was evidence of differential sentencing policy imposed within a racist juvenile justice system. An alternative explanation may have been that these outcomes reflected increased criminal activity on the part of African-caribbean young people in Wolverhampton. There were those who were not only clear why these outcomes had occurred but were clear too where the responsibility lay for it. However, the monitoring exercise itself was inconclusive. If the implications of the findings were going to be better understood it would be necessary to engage in a research project of greater depth.

Alongside the unresolved issues from the monitoring exercise there began to emerge concerns about the quality of Social Inquiry Reports (SIRs). Although there was a ‘gate-keeping’ panel in operation many reports were presented to the court without first being referred to the panel. Anecdotal evidence suggested that there were some examples of poor professional practice. Might it be that there was a link between differential sentencing outcomes and SIR practice?

A decision was made to conduct a study of all cases heard in the juvenile court in 1990. The purpose of the study was to consider the impact of the local justice system on offenders. It sought to bring about a deeper understanding of the sentencing process, set against the backdrop of the development of the juvenile justice system in England and Wales as a whole. As part of this process all cases heard in the court during the year would be analysed with particular emphasis on the possible influence of SIRs.

Court hearings are, of course, only a part of the whole justice process. The route taken from the point of arrest to the imposition of a sentence in a court hearing includes many key stages at which decisions are made which determine how to proceed. Wherever decisions are made there is scope for differential or prejudicial treatment and in order to determine the extent to which Black young people are disadvantaged within the justice system as a whole, systematic analysis would be required to examine each of the key, decision-making stages. Such a task was beyond the remit and scope of the study. The intention of this study was to focus on sentencing outcomes as one of a number of studies that were planned by agencies engaged in the local justice system.

Nevertheless, it is recognised that sentencing cannot be seen in isolation from the whole justice process. In order to examine sentencing patterns it is necessary to be aware of and understand the impact of other stages. Whilst, then, this study has concentrated on sentencing it does so in the context of the justice process as a whole. For example, it is apparent that whilst sentences are imposed by Magistrates their decisions are influenced by information and opinion offered by other actors in the system: crown prosecution service, defence solicitors, social workers, probation officers, etc. In such circumstances the eurocentric values of the dominant white culture would be communicated and may contribute to discriminatory sentencing processes. A second function of this study then, was to attempt to identify ways in which social work practice may be contributing to differential sentencing patterns.

The findings of the study are presented in two parts. In Part One Wolverhampton Juvenile Court is placed in the broader context of the juvenile justice system as it has developed in England and Wales and as it operates against a backdrop of pervasive racism. In order to locate the study of sentencing in a wider context it is necessary to situate the justice system within a racist society permeated by institutional racism. In chapter 2 I shall argue that although classical notions of ‘race’ have long since been discredited by the academic community, assertions of the existence of a unique and superior white British ‘race’ are maintained in contemporary society just as they were used historically to justify British imperialism. The days of empire are gone but notions of the distinctiveness of the white British ‘race’ are perpetuated within the infrastructure, fabric and institutions of contemporary Britain. Institutions in Britain discriminate against people on the grounds of ‘race’, either directly, regardless of race relations legislation, or indirectly as institutional racism. They prevent the legitimisation of the experiences of Black people and hold back appropriate responses.

Although there have been attempts to outlaw discrimination, those attempts have been selective in their area of jurisdiction, unconvincing in application and lacking the necessary resources to be effective (Gordon, 1990). Whilst a view prevails that a ‘colour-blind’ approach ensures equality of service or treatment, racial minority people are consistently disadvantaged by institutions operating mono-cultural policies. This approach to equality is equivalent to that which advertises services to people with sight impairment through the medium of posters. Whilst the argument that sighted and sight impaired people are subject to the same advertising process, sight impaired people are clearly disadvantaged.

The justice system, as one of the cornerstone institutions of British society, is deemed to administer justice equally, without fear or favour. However, close inspection of agencies and practices inherent in the justice system consistently reveals over-representation of Black people at key stages within the system. I shall show that whilst the evidence of research may not be conclusive, the evidence of Black experiences is compelling.

The professions too, based as they are upon the norms and values of the dominant white culture, purvey racism, even though they purport to be committed to anti-racism, adopt equal opportunities policies and promote anti-discriminatory practices. In chapter 3 I shall demonstrate how the absence of a consideration of ‘race’ within the ideological stances that frames and inform the operation of the justice system consequently denies Black experience and perpetuates discrimination. An examination of social work practice as manifest in court reports follows in chapter 4 and reveals how Black people are portrayed stereotypically in language that is value-laden and which sustains prejudicial decision-making processes.

Social workers attempting to work to principles of anti-discriminatory practice are often faced with a dilemma when seeking to implement an anti-racist strategy. Either they articulate the issues and attempt to place them in a cultural context or else they avoid them. In both cases they run the risk of perpetuating the differential treatment of Black people. In circumstances where anti-discriminatory principles are applied there are often unintended consequences that lead to Black people being disadvantaged. Consider, for example, the stigmatising and labelling experiences of lone parent families. Often held to exemplify all that is ill in family life and child rearing, lone parent families are simultaneously to be blamed and pitied. If those lone parent families are also Black then the prejudice is compounded and they become embodiments of an assault on the traditional British way of life. Clearly the experiences of prejudice which children and young people are confronted by daily impact upon behaviour and self esteem. However, to highlight the fact of their experiences of prejudice serves also to reinforce the prejudice itself. Therefore, a court report author may wish to refer to the experiences of a Black lone parent family in mitigation of offending behaviour. However, the message may not be received as one of mitigation but as an aggravating factor causing the defendant to be regarded as in need of a more punitive sentence in order to bring about deterrence the likes of which Black lone parent families may be unwilling or unable to achieve.

Discussion around ‘race’ and Social Inquiry Report practice is developed in chapter 5 to include considerations in relation to the juvenile justice system more widely. Attention is given to the alternative hypotheses that have been developed to explain the over-representation of African-caribbean people in the juvenile justice system, namely; that it is a consequence of institutional racism inherent in the key stages of the system or that it reflects higher levels of Black criminal activity. I shall draw on key features of the debate as manifest in literature, research and accounts of Black experiences of the justice system to argue that the over-representation of African-caribbean young people in the system cannot be explained by higher criminal activity.

Having considered in Part One, the juvenile justice system in overview, I go on, in Part Two, to present the study that was conducted in Wolverhampton. The structure and organisation of the social services department are described in chapter 6 and placed in the context of the local juvenile justice system as it operated in 1990.

The study comprises two components: a quantitative analysis of all 282 cases heard in Wolverhampton Juvenile Court in 1990 and a qualitative analysis of a sample of 123 social inquiry reports presented to the court during the year. The methodology utilised in each area of analysis is described in chapter 7.

The quantitative analysis was based on data routinely collected by Court Officers. From an initial profile of the cases the study moves on to analyse the characteristics of those cases where high tariff sentences were imposed, since it was in this area of sentencing outcomes that African-caribbeans were significantly over-represented. Data relating to high tariff disposals were analysed by ‘race’ in order to establish whether there were material differences between cases which might explain the over-representation. Thus the cases were analysed for differences in relation to the number and seriousness of the offences, the number of offences to be taken into consideration (tics), remand type and SIR recommendations.

The findings, which are presented in chapter 8, suggest that high tariff disposals were disproportionately imposed on African-caribbeans with fewer charges of similar seriousness and less antecedents or tics. It is apparent from the findings that this over-representation cannot be explained by the material facts of the cases, neither is it indicated by the remand type or SIR recommendation.

The qualitative analysis focused upon the content of social inquiry reports (SIRs), particularly insofar as they portrayed the individual offenders and their social background. Lengthy consideration was given to the methodology employed in other SIR content studies but few seemed to incorporate the “sentencer’s eye view” and most were essentially impressionistic considerations of the report content. For the purposes of this study, which was attempting to tease out how report content was perceived by sentencers - Magistrates - and which needed to be measurable in order to make comparisons between reports written in relation to offenders of different racial origins, there appeared to be no readily available methodology which would serve the purpose of this study. It was necessary, therefore, to tailor-make suitable apparatus for the job in hand.

A two stage analysis was undertaken reflecting how individual characteristics were portrayed and how individuals were placed into the context of their social background. The first stage required the extraction of descriptive terms and phrases contained in SIRs. This material was then presented in documentary form to three groups of Magistrates drawn from benches outside Wolverhampton. Each Magistrate gave a score for each of the terms signifying whether a positive or negative impression of the offender was conveyed. By aggregating the scores it was then possible to award a score to each SIR which indicated the overall effect of the collective descriptive terms that were used. The findings are presented in chapter 9 together with the results of the second stage of the content analysis. This second stage focused upon causes of offending identified by SIR authors from the social background of the offenders concerned. When reports were analysed by ‘race’ it was noted that although African-caribbean defendantswere generally portrayed more positively from whites as individuals, the causes of offending, as perceived by social workers, were presented in such a way that allowed stereotypical and prejudicial judgements to be made. Thus although individual African-caribbean defendants were portrayed relatively positively, they were set against a back drop of social background information which could be interpreted prejudicially and hence undermine the positive elements in the report.

From these findings conclusions and recommendations are made in relation to strategies for social work practice and changes in the organisational structure of the Social Services Department in an attempt to address the issues. These conclusions and recommendations are set out in chapter 10.

Upon conclusion of the study an initial report was produced and presented to the Departmental Management Group. Following consideration of the report organisational changes were made which brought SIR preparation largely under the umbrella of the Juvenile Justice Team as a means of: emphasising the distinctive nature of SIRs in contrast to most other reports that social workers routinely prepare: bringing SIR production under close control within a team whose workload focuses specifically upon young offenders and the juvenile justice system and encouraging greater consistency through the increased awareness of issues and trends in a team that had regular contact with the juvenile court.

Following closely on the heels of the publication of the first report but unrelated to it, came a number of developments. Most significant of these was the implementation of the Criminal Justice Act 1991 which introduced Youth Courts and replaced SIRs with pre-sentence reports (PSRs). These provisions, together with s.95 which outlawed discriminatory practices in the justice system and the establishment of national standards governing PSR production and community sentences appeared to put into place safeguards which would address some of the issues and concerns which arose out of the study. Most crucially, the notion of ‘proportionality’ introduced by the 1991 Act and of sentencing on the basis of seriousness of the current offence plus one other seemed to diminish the scope for differential sentencing.

In such circumstances the impetus for the research had become forgotten and the findings and recommendations had arguably been overtaken by events such that for many months the report sat gathering dust on the shelves. However, it has emerged that an insufficient beachhead had been established and some areas of progress have fallen back. In other ways expected changes in practice have not materialised rendering the messages of this research study more significant than was at one stage evident. As a result, I have revisited the study; looked again at the glimpses and insights into court report practice and the implications for sentencing and thought again about the issues that emerge and remain of concern in the current youth justice system. I present this study, then, as an attempt to identify whether Black young offenders who appeared in court in 1990 were disadvantaged in court proceedings, consequently leading to more intrusive sentencing than if they had been white. The study is an attempt to determine whether there was scope for collusion, however unwitting, by social workers in discriminatory practices and seeks to make positive recommendations about the way in which youth justice practitioners and agencies might operate in an effort to counter discrimination.

I am concious of the onerous responsibility as an author in attempting to address issues of ‘race’. I would not pretend to be able to accurately represent black experience. I am especially concious of my inadequacy manifest in my clumsiness and insensitivity of language when attempting to relate the findings of this research and portray the impact of discriminatory practice for Black defendants and their families. I apologise in advance for any offence caused. I am not at all apologetic however, for pursuing the project since I firmly believe that it is the responsibility of white workers to scrutinise their work, to understand the impact it has and to strive to eliminate the racist potential in their practice however unintended it is.

2 Racism

In the course of this chapter I shall give consideration to the place of Black people in Britain. Beginning with reflections on notions of racism, I shall go on to trace the origins of racism within British culture. I will demonstrate how British colonialism engendered ideas of white superiority and how this became translated into racism within post-war Britain. I shall show how any notions of belonging and security within Black communities are undermined from the outset through immigration laws and how racism is re-inforced through the application of legislation. I shall point up how anti-racist and equal opportunity strategies have been developed and identify some respects in which they have failed Black people. Finally, I shall show that anti-racist monitoring needs to be conducted according to frameworks which are not narrowly exclusive but which take account of movement both within and between racial groups and which constitute the basis from which anti-racist and ethnically sensitive services may be accurately targeted.

The emergence of racist Britain

Racism is defined as the belief in the inherent superiority of a particular ‘race’ over all others, the consequent right to dominate inferior ‘races’ and the prejudice based on this belief (Lorde, 1984; Oxford English Dictionary, 1990). Cashmore and Troyna (1983) go further in explaining that this doctrine asserts that the population of the world is divided into a range of categories, each category having its own distinctive features. It is argued that these categories may be ordered hierarchically with the result that certain segments of the population are perceived as superior to others. Husband (1986) points to the irony of a consensual belief in objective categories of ‘race’ when such notions have been ‘virtually buried...beneath the weight ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Table of Contents
• Figures and tables
• Acknowledgements
• Foreword
• Part One The Backdrop
• Part Two Negative Images
• Appendix 1 Case information form
• Appendix 2 Social Inquiry Report Content Analysis Exercise
• Bibliography