Ethnic Disparities in Sentencing: Warranted or Unwarranted?

Abstract

Large research efforts have been directed at the exploration of ethnic disparities in the criminal justice system, documenting harsher treatment of minority ethnic defendants, across offence types, criminal justice decisions, and jurisdictions. However, most studies on the topic have relied on observational data, which can only approximate ‘like with like’ comparisons. As a result, researchers, practitioners and policy-makers have often been wary of interpreting such disparities as evidence of discrimination. We use causal diagrams to lay out explicitly the different ways estimates of ethnic discrimination derived from observational data could be biased. Beyond the commonly acknowledged problem of unobserved case characteristics, we also discuss other less well-known, yet likely more consequential problems: measurement error in the form of racially-determined case characteristics or as a result of high heterogeneity within the ‘Whites’ reference group, and selection bias from non-response and missing offender’s ethnicity data. We apply such causal framework to review findings from two recent studies showing ethnic disparities in custodial sentences imposed at the Crown Court (England and Wales), questioning whether the reported disparities should be interpreted as evidence of discrimination. We also use simulations to recreate the most comprehensive of those studies, and demonstrate how the reported ethnic disparities appear robust to a problem of unobserved case characteristics. We conclude that ethnic disparities observed in the Crown Court are likely reflecting evidence of direct discrimination in sentencing.

Racially Determined Case Characteristics: Exploring Disparities in the Use of Sentencing Factors in England and Wales

“…Isaac, 2020), is underestimated. This would be the result of the common assumption inadvertently invoked by most researchers, who see sentencing factors as race neutral (Pina-Sánchez et al, 2022;Ugwudike, 2022;Omori and Petersen, 2020). If some sentencing factors are indeed racially determined and they are controlled for, then it risks some disparities being controlled away.…”

The Interrelationship between Area Deprivation and Ethnic Disparities in Sentencing Deprivation and Ethnic Disparities in Sentencing

“…The ethnicity variable we will use captures offenders' ethnicity as determined by the police. We decided to use this variable rather than a self-reported measure of ethnicity -also available in the dataset -since a police officer's perception of the offender's ethnicity will likely overlap more closely with the judge's perception, which represents the decision-making process that we seek to model (Pina-Sánchez et al, 2022).…”