02:22, September 15 44 0 theguardian.com

2017-09-15 02:22:03
Juries, not judges, lead the way against racial bias in our justice system

We are told our criminal justice system is the fairest in the world, with highly trained, dedicated professionals involved at every stage. I was one of the members of the advisory panel for the Lammy Review (pdf) into the criminal justice system – its damning conclusion lays this claim of fairness to rest.

Published last week, it uncovers evidence of disproportionate treatment and outcomes for BAME people by the criminal justice system, when compared to white people.

Media attention has focused on the many areas where outcomes were worse for BAME minorities. It is instructive, though, to look at the areas, admittedly very few, where there were no differences in outcomes or treatment and to understand how this is achieved.

The jury system is a notable success story. In an analysis of nearly 400,000 cases, the review found that juries were consistent in their decision-making, irrespective of the ethnicity of the defendant.

While juries appear able to keep race out of their decision-making, the sentencing by judges of those found guilty told a different story. BAME offenders were significantly more likely to receive a custodial sentence than white offenders for comparable crimes.

Likewise, in magistrates courts, BAME women were on average 24% more likely to be found guilty than white women, with the range going from 22% more likely for black women to 43% for Chinese/other women.

By reporting on what is working, as well as what is problematic, the review gives us an opportunity to explore the underlying psychological processes that underpin the decision making process. Some of the key features of the jury system include:

  • Explicit instructions to focus on the evidence. Guidance like this, research has found, encourages people to endeavour to be more accurate in their decisions which, in turn, reduces the impact of stereotyping.

  • Active debate, discussion and challenge. Disagreement cannot be swept under the carpet but needs to be faced. There is an acceptance that everyone’s views need to be heard – a group of peers who recognise the significance of the task they have been given will result in less chance of one person dominating the decision.

Challenge and debate is one of the more effective ways of reducing bias, as it means that we reflect more on the data before us and on our own attitudes. Unlike juries, magistrates and judges aren’t expected to engage in this type of constructive discussion. Their decisions aren’t necessarily scrutinised, which creates a context where biased decisions are more likely to occur. The context is as important as the individuals; change the context and you get a different outcome, as the jury system (and a lot of psychological research) shows.

Instead, sentencing guidelines already exist for judges and magistrates. As long as they keep within these parameters, no further scrutiny or explanation appears to be required. While the sentencing for any individual case may appear satisfactory, the trends unearthed by the review show that BAME offenders are at the higher end of the guidelines. Research looking at decision making in employment contexts has found that mistakes by BAME employees are noticed and penalised more heavily than those made by white employees. A similar mechanism may be occurring in the legal system.

Despite the headline figures for magistrates, the review found that there was an absence of reliable data, so it was hard to identify what the possible cause of the discrepancies are. Without data, it is also harder to advise magistrates on how to become fairer in carrying out their duties.

Before we get too carried away about judges and magistrates, they are probably no more biased than anyone else. They believe they are acting fairly, but then we all like to think that about ourselves. However, failing to reflect on our decisions, to learn from our mistakes, or to listen to what the research tells us, means problems like these will continue.

These examples, positives as well as negatives, highlight the two factors that can improve the fairness of any system: accountability and transparency. The more opaque, obscure and secretive a system is, the greater the bias. The collection and sharing of data by judges and magistrates, in a problem-solving rather than a judgemental way, will make some of those involved reflect upon the way they reach their decisions.

Transparency helps, but combined with greater accountability where people need to explain their decisions, fairness is further enhanced. So, whilst the review is focused on the criminal justice system, what it has revealed is of broader interest to decision makers everywhere.

  • Binna Kandola is a business psychologist and co-founder of Pearn Kandola. He was awarded an OBE in 2008 for his services to disadvantaged people and diversity and was an advisory panel member of the Lammy Review.



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