The government’s recently published white paper, A Smarter Approach to Sentencing, sets out a number of proposed changes to sentencing and prison releases which are likely to lead to more people in prison and more people in prison for longer.

In this blog, we look at the impact it is likely to have on people in the criminal justice system from black and Muslim communities.

It has been extensively documented, not least by two formal reviews - the Young and Lammy reviews – that black and Muslim people experience discriminatory treatment and are overrepresented throughout the criminal justice system.

Black people disproportionately receive more cautions and convictions; are more likely to be remanded and sentenced to prison; and are more likely to be sent there for longer. Their experience in custody is more likely to include segregation, use of force, and the most basic regimes. There’s less data on the experience of Muslim people in the criminal justice system pre-sentence, but we do know the number of Muslim men in prison has doubled in the past 16 years and that they report more negatively about their treatment than non-Muslim prisoners.

The impact on black people and understanding the racism in policies

The equality impact statement accompanying A Smarter Approach to Sentencing states that the Ministry of Justice (MoJ) “hold the view that none of the White Paper measures are likely to be directly discriminatory within the meaning of the Equality Act 2010 as they apply equally to all offenders”.

However, the same document caveats that there could be “indirect effects” of the policies on black, Asian and minority ethnic (BAME) people, with black people most likely to be cited as ‘effected’, including by:

• Increasing the number of convictions where the release point will be moved to two thirds of the way through a sentence
• Reinforcing minimum sentencing for repeat offences of particular crimes like drug and knife offences
• Changes planned for diversion and community alternatives such as trialling problem solving courts because it requires an admission of guilt which statistics show black people are currently less likely to give
• Tougher custodial sentencing for children.

These changes need to be understood in context of the existing disparities for black people in the criminal justice system. For one thing, black people are more likely to receive a custodial sentence for particular offences. For example the Lammy review points to a 2016 study which showed that within drug offences, the odds of receiving a prison sentence were around 240% higher for BAME people than non-BAME people. Another research paper found that even when factoring in guilty plea rates, in similar circumstances black people were 53% more likely to be sent to prison for an indictable offence. The average custodial sentence length is also longer for black people.

Alongside these proposals, the Home Office is also looking to implement policies such as Serious Violence Reduction Orders which aim to expand stop and search powers - a power which is already disproportionately used against black people. The department has also introduced knife crime prevention orders. These are civil orders that carry the risk of imprisonment for suspected knife possession and can impact children as young as 12. With the gang and youth violence narrative so racialised - the Metropolitan police’s gangs database is overwhelming made up of black people – such policies are likely to affect young black people the most.

Racial inequality in the youth justice system in particular has worsened over recent years. More than 50% of the youth justice population are now recorded as being from a BAME background. Of those, black children make up the largest proportion.

We recently cited Ibram X Kendi in our thinking about how Clinks would work to become an anti-racist organisation. He argues in his book How to Be an Antiracist that an idea, action or policy is either racist – that is, contributes to a structure that regards and treats different races as inherently unequal – or it is antiracist because it is trying to challenge that structure. By such a definition, these new proposed policies uphold and reinforce a criminal justice system that disproportionately targets, criminalises, and mistreats black people and will further entrench those inequalities.

The impact of the terrorism narrative

The white paper also proposes a new power that would enable people convicted of non-terrorism offences to be prevented from release at the end of their sentence if there is concern that they have become radicalised in prison and now present a terror threat. Of further concern, this power could also be used against “a small number of offenders” who are deemed to present “a significant danger to the public for other reasons” but whose offence at the point of sentencing was not serious enough to meet the threshold for a sentence with Parole Board oversight i.e. that the court could only impose a standard determinate sentence.

These proposals give cause for concern within a criminal justice context that - as shown by Maslaha’s report Time to End the Silence - often feels hostile to Muslims and where the perception of a link between Islam and terrorism has become institutionalised. Maslaha’s report shone a spotlight on the discrimination and daily challenges that this has created for Muslim people in prison. This is despite only 1% of Muslim prisoners being convicted of terrorism related offences.

Clinks supported the development of the report and together with Maslaha, we spoke to a number of Muslim men who were in prison or had been recently released who talked about how they felt they were seen through a lens of risk and terrorism. Participants explained that they ended up practicing their religion more in prison because it provided a source of comfort, stability and motivation on their journey through the criminal justice system. But it felt like their behaviour was continually policed and that turning to their religion was perceived negatively by the prison system, drawing concern that activities like praying out loud and in congregation were signifiers of radicalisation. This in part reflects a lack of knowledge about Islamic faith and traditions, and is exacerbated by policy which encourages staff to look out for “signs of Islamist extremism”.

If those perceptions and stereotypes go unchallenged it creates a narrative within the criminal justice system and wider society which paints Muslims as a particular threat to security. Against this backdrop, the white paper’s newly proposed power to prevent releases if there is concern of radicalisation and its potential use, risks reinforcing and exacerbating these inequalities. Even if this power only ends up being used on relatively small numbers, it is more likely that those it is used against will be from black and Muslim communities. It is also unclear how the proposals would be implemented in line with legal due process and the potential implications for the human rights of those affected - who could be left facing indeterminate amounts of time in prison.

This blog is part of a four-part series looking at the implications of the sentencing white paper. Read previous blogs here.