Following on from the requested blog, a couple of weeks ago, on the Criminology course I was part of, comes an article that was inspired by some of the content of that course.
Should Justice be blind?
I was involved in ‘Unlocking Criminology’, an outreach programme with staff and students from Bath Spa University. Over 6 weeks a group of ten prisoners and ten students from Bath Spa worked together to discuss and debate various aspects of the criminal justice system.
Each week we are given extensive reading materials in advance order to prepare for our tutorials. As a prisoner it has certainly made me consider my situation and those of my peers. It has proven to be a very productive use of time and has given the students a unique perspective on criminal justice – from those of us that have been through the system.
One of the early themes related to the factors that can influence sentencing. It certainly made for interesting reading but the real surprise came during the subsequent tutorial. When we were tasked to list 10 factors that could influence sentencing it was done in a heartbeat. In fact it didn’t take us long to extend the list to more than 30 factors that can influence the sentences that are handed down. A perpetrator’s race, ethnicity, geographical location, gender, appearance and attitude were just a taste of the factors listed. There were also suggestions that the presiding judge could be influenced by politics, media and by personal experiences or prejudice.
But what could be done to make sentencing fairer?
It is my belief that the only way to remove any bias from sentencing is to remove the handing down of sentence from the trial judge. If and when a defendant has been found guilty, the decision to sentence should be passed on to a specialist judge (or panel).
I suggested Blind Sentencing whereby the sentencing judge (panel) would be given a file with only limited information, such as:
- The offence committed
- Accepted aggravating / mitigating factors
- Previous offences
- The age of the defendant[1]
The sentence received would be based on these factors alone and should remove any potential for sentencing bias from the process (unless the judge was soft / tough on a particular crime).
If Blind Sentencing were to be introduced I believe that there are three key areas that would need to be examined.
1: Is their less disparity between sentences handed down?
If Blind Sentencing were implemented it should stand to reason that the length of sentence handed down to individuals should be far closer to the mean (average) sentence handed down for that crime (not withstanding aggravating / mitigating features). National figures across every key demographic should reflect a narrowing of the range of sentences handed down.
2: Have sentences increased for female defendants?[2]
What would happen in the case of a young woman with a great career ahead of her? Would the sentence she received for a knife attack have been longer if she were sentenced blind?
3: Have sentences for BAME men decreased?[3]
Would the panel be inclined to hand down a non-custodial sentence on a BAME youth who was involved in affray?
Perhaps the most significant consideration must be given to how Blind Sentencing would impact on sentencing in general. Would the length of custodial sentences handed down tend to increase or decrease in length?
Would a sentencing judge / panel be mindful of ruining the life of a young woman with great prospects OR be more concerned with letting a BAME defendant off too lightly?
Would the sentencing judge / panel be more inclined to err on the side of caution and hand down non-custodial sentences? This mind-set or attitude would see judges / panels being more inclined to hand out shorter sentences.
Or would we see the judge being more concerned about letting a defendant off lightly? In this case we would see longer sentences handed down.
There would be a simple way to test this theory. It would involve gathering a broad sample of files where defendants have already been sentenced. These files would need to be redacted and prepared before being submitted to a panel of judges for blind sentencing. It would be a simple process to compare the trial judge’s sentence to that of the panel.
If one were focused on highlighting sentencing bias, one could also alter the details of existing cases and swap the gender / ethnicity of the defendants to quantify any major disparity in sentencing trends.
[1] The defendant’s age does (and should) have a bearing on the length of sentence handed down. When the remaining lifespan is taken into consideration a five (5) year custodial sentence is a very different prospect for a 20-year-old and a 70-year-old respectively.
[2] This rationale would apply to a number of key demographics, including geographical factors.
[3] This rationale would apply to a number of key demographics, including nationality.
