People who come into contact with the criminal justice system are increasingly diverse in terms of race, nationality and ethnicity. By and large, those who arrest, chase, punish, and monitor them remain white and Irish.
This raises two important questions.
The first is whether the level of contact simply reflects the changing nature of Irish society. If this is not the case and minority groups are overrepresented in Garda stations, courtrooms, prisons and probation offices, is it because of different patterns of criminal activity or a form of bias?
The second is whether public trust can be maintained in a system where decision-makers have little in common with the people whose lives their decisions affect, often profoundly.
In other countries, the perception of discriminatory policing and sentencing has led to discontent, disorder and division. Relations with minority communities have been badly damaged and difficult to repair.
With careful thought, a meaningful commitment to reform, and a bit of luck, we might be able to avoid such an eventuality.
But it’s time to get serious.
Two years ago, the UN Committee on the Elimination of Racial Discrimination expressed concern about racial profiling by An Garda Síochána of people of African descent, Travelers and Roma. He also drew attention to the fact that a disproportionate number of these people end up in prison.
We know from research with gardaí that attitudes towards members of the traveling community are often negative.
A report released last week by the Irish Penal Reform Trust found that non-white male prisoners convicted of sex offenses received sentences that were, on average, 32 months longer than those given to their white counterparts. . For controlled drug offences, there was a 16 month bonus. The number of cases involved was small and the authors of the reports acknowledge that there are gaps in the data, but even so, these are alarming results.
Unfortunately, the quality of the information available leaves much to be desired. In the absence of clarity, it is not uncommon for agencies to become defensive in the face of criticism, argue that the concerns expressed are exaggerated, or claim that policies and practices have evolved in ways that make previous assessments redundant. .
What is needed is a major program of research, carried out over several years, to establish beyond any doubt where the problems have taken root and where the perceptions are wrong. For nearly 30 years, I have been pleading in these pages for criminological research. Although there have been some welcome developments, an adequate funding infrastructure is not yet in place.
Here are some of the issues that need to be addressed urgently:
Are there minority groups whose members have less contact with the criminal justice system than one would expect given their numbers in the general population? If so, how can this be explained?
What do members of different racial and ethnic groups think of their relationship with An Garda Síochána, both as suspects and victims? How do these issues intersect with social class?
Does the probability of prosecution vary according to the identifiable characteristics of the group? Is a foreign national less likely to be released on bail? What challenges do non-English speakers face in understanding and navigating the system?
Are members of minority groups more likely to contest the charges against them? If they do, and are found guilty, they will not benefit from the significant discount that a timely guilty plea entails. As a result, the sentence they will receive will be heavier. This can help to give meaning to the disparities observed.
Does probation supervision and parole differ by nationality, race and ethnicity? Are there variations in recidivism rates?
Participation in crime
There are questions about participation in crime that need to be considered. For example, do members of certain groups disproportionately engage in illicit activities? Or is their conduct more visible or focused?
If discrimination is found at one point in the system, is it amplified or enhanced at another?
What can be done to create a more diverse corps of judges, lawyers, gardaí, probation officers and prison staff?
These are complex issues, and the lack of reliable and comprehensive information hampers any attempt to have a balanced discussion about how best to proceed.
Without solid evidence, fear and prejudice are more likely to flourish.
If we are to avoid the emergence and consolidation of a set of arrangements seen as discriminatory in their operation and leading to an evaporation of confidence in the integrity of the criminal justice system, it is imperative that we act now.
The intolerance and animosity directed for so long against members of the traveling community, together with the often shoddy treatment meted out to those who have come to this country seeking asylum, suggests that even if we clearly identify where action is required, it does not guarantee that the necessary measures will be taken.
Ian O’Donnell is Professor of Criminology at University College Dublin