Even if (like me) you know precious little about the law, the chances are you know one thing: Lady Justice is supposed to be blind. Equality before the law is a cornerstone of any functioning democracy, and is vital for social cohesion. Despite what we may have witnessed playing out on the streets of London recently (alongside the reasonable accusations of two-tier policing), it is vital that no group is privileged in the eyes of the law. That, however, could all be about to change.
In radical plans, the Sentencing Council for England and Wales (the body tasked with advising the judiciary on sentencing criminals fairly and consistently) is suggesting that judges and magistrates eschew short-term jail sentences in favour of more rehabilitative community orders. The consultation, published on Wednesday and running until February 2024, proposes a major revision to the imposition of community and custodial sentences guidelines, which date back to 2017—specifically, that unpaid work or drug treatment programmes should be handed down in lieu of prison time.
The consultation bases its argument on a recent literature review published in September 2022, which highlighted the following:
Short custodial sentences are less effective than other disposals at reducing reoffending, increasing lengths of sentences is not effective for reducing reoffending for offenders with addiction or mental health issues and sentences served in the community may be more effective at promoting positive outcomes, among other things.
The report gives particular attention to women, and argues that those who are pregnant, have dependents, and are either menopausal or aged between 45-55, should be spared jail time wherever possible. To support its case, the consultation cites the impressive disparity between reoffending rates—illustrating that female criminals were markedly less likely to reoffend when cautioned (12.1%), as opposed to those who were given a custodial sentence (56.1%). Even if one were on board with such plans, women are the tip of the iceberg when it comes to the ‘special cases’ under consideration.
One of the report’s recommendations is that an extra step to the existing sentencing guidelines should be implemented: “mitigating factors and the offender’s personal circumstances.” The following list of offenders who might warrant such considerations is said to be “non-exhaustive”:
- at risk of a custodial sentence of 2 years or less;
- a young adult (18-25 years);
- female;
- pregnant;
- sole or primary caregiver for dependent relatives;
- from an ethnic minority, cultural minority, and/or faith minority community;
- disclosed that they are transgender;
- has any drug or alcohol addiction issues;
- has a learning disability or mental disorder;
- or the court considers there to be a risk that the offender may have been the victim of domestic abuse, trafficking, modern slavery, or been subject to coercion, intimidation, or exploitation.
Conspicuous by his absence is the bogeyman de nos jours: the straight white male. In other words, only those likely to be found timidly frequenting Marks & Spencer on a Sunday afternoon deserve to face the full force of the law. This is enormously problematic, and not merely because the odd white man might get a little uppity at the injustice.
Sentencing disparities within the justice system are commonplace, and while I would rarely offer up Shadow Foreign Secretary David Lammy as a genuine advocate of equality, at least his report into racial inequalities in the criminal justice system (the 2017 Lammy Review) highlights some of these (or at the very least, puts them up for discussion). In the case of women however (who barely comprise 2% of the prison population), it has been known for decades that they already benefit from excessive leniency. Men are twice as likely to be given a custodial sentence for the same crime, and are given 63% longer sentences.
Via an extremely clumsy sleight of hand, the consultation attempts to both have its cake and eat it in terms of equality, claiming that the privileging of certain groups will have no deleterious effects on others:
The revised guideline is not expected or intended to have any significant negative impacts on any particular demographic group or any group with protected characteristics. Rather, the guideline intends to support more informed sentencing of certain demographic groups and cohorts with some protected characteristics.
This of course is arrant nonsense. You cannot simultaneously mandate kid gloves for everyone except white males, and claim there will be no consequences. Yes, there are wide differences among the prison population according to race, but one major cause of this is the disparate rates of criminality. Black people in particular are vastly overrepresented in the crime figures, which in turn translates into skewed incarceration rates. You can of course have the debate on the reasons for this, but do we really need to wilfully inject disparity into the justice system, to somehow ‘balance the books’ in terms of ethnicity?
There is another element at play here. Thanks to relentless mass immigration, even more than the obvious paucity of school places and hospital beds, Britain has simply run out of prison space. With only a few hundred cells available, and the UK soon expected to house more Albanian prisoners than Albania, a fifth of prisons are taking steps to release prisoners even earlier than usual to deal with overcrowding. Making the case that Britain treats criminals with an iron fist is therefore pretty hard to effect.
Consider the following flow chart from the Sentencing Council’s report, which makes it crystal clear that the only guaranteed route to a custodial sentence is either to be convicted of a serious crime, or simply to be a white male:
If it is genuinely the case that community orders are more effective at rehabilitation and deterring criminality (and I have no reason to doubt it), why the need for triage? Such a push for ‘diversity’ and ‘equality’ muddies the waters, and suggests an ulterior motive. Freeing up prison places for serious criminals is perfectly understandable. But are we not in danger of a criminal amnesty for non-white males, as has certainly been suggested (and indeed argued for) before? Or more sinister still, is this merely an emboldened attack on the white man?
https://europeanconservative.com/articles/commentary/jail-but-only-for-white-men/