Unconscious Bias: The Role of Police and the Courts Justice
Unconscious Bias: The Role of Police and the Courts in Justice
The justice system provides an essential institution within a country. It is tasked with the duty of protecting the rights of individuals in the society. The court and the police institutions comprise the major enforcers of the law. Essentially, the police are tasked with the duty of maintaining peace and congruence in the society by apprehending individuals who choose to break the law. Subsequently, the court system decides on the nature and degree of punishment that is meted out to the subject individual. Nonetheless, the absence and inefficient application of legal policies that protect the rights of the underprivileged and the minority often leads to police and court biasness. Thus, this paper will examine the role of the police and the Courts in hindering or furthering access to justice for young people on the basis of their family history, race and socio-economic background. It will mainly incline itself to the analysis of three metrics in the exploration of the bias that is projected by two institutions. These three metrics include outright bias, discrimination or a combination of both.
In the exploration of the unconscious bias that is displayed by the justice systems, this paper will further dissect some case studies that reinforce the idea that there is police and court bias in the extension of justice to individuals based on their family histories, races and socioeconomic circumstances. Additionally, the paper will assess the history and nature of relationships between the police and juvenile offenders. The paper will begin by determining some of the definitions of the legal jargon that is employed in the analysis. Lastly, it will assess police bias based on racial profiling and will further recommend certain measures to be engaged in the improvement of the youth diversionary programs.
Access to Justice: Access to justice refers to a fundamental principle of the rule of law which encourages the extension of equal opportunity of justice to the people, Principally, it aims to afford each individual in the society an equal chance of being listened to, to exercise their rights and to challenge decisions made on their behalf by the subject institutions such as the court and the police bodies.
Unconscious Bias: The term refers to unintended preferential treatment towards one object over another. It further refers to unequal consideration of individuals in the society based one’s attitude or emotional balance rather than the characteristics of the victim object.
Discrimination: It refers to the unfair treatment that is extended to another individual based on their social, economic and political alignment. It occurs when the afflicted party is considered to be inferior to the perpetrator. It provides a means through which one community demeans the other.
The Stigma of Early Juvenile Offending/Police contact with young people in Australia
Young people in Australia are over represented in crime statistics, both as victims and offenders. They form the majority of the offenders in several other countries. For instance, according to a report by the House of Commons Joint Committee in London (2016), “adults under the age of 25 represent ten percent of the general population but account for 30 to 40 percent of cases including policing time, those supervised by probation, and prison entrants”. Thus, they are more likely to engage in criminal activity than is the same for their counterparts in other age groups. In Australia, more young males than females come into contact with the police. The trend is a consequence of an increase in criminal tendencies among the youth as a result of peer pressure. Furthermore, male individuals tend to be more emotionally detatched than is the same for their female counterparts and thus more violent in the execution of their criminal initiatives. However, at the present time rates of female delinquency are increasing at a faster rate than for boys. Young offenders tend to:
- Commit offences in groups
- Commit offences that are attention seeking
- Commit episodic, unplanned and opportunistic offences
- Commit offences in public areas, for example on public transport, and
- Commit offences close to where they live.
Still, there are researchers who indicate that the extent of crime among the youth may be a result of exaggerated statistics by media houses. The rates influence the treatment that is extended to them by the court and the police systems. Essentially, a youth may be given harsher compensatory terms by a court of law for the same crime that is committed by an individual of another age group. The rates of crime as perpetrated by a country’s institutions may inspire bias. The official statistics drafted from the Australian population may also not be a reflection of the true rates of crime in the region (Boni, 1999). However, the official statics also provide unreliable sources since only a limited number of crimes com to the attention of the police. Crimes that come to the attention of the police fall under the control of several other influences. Some of these influences may be political, social or legal (Boni, 1999). Thus, the assertions to the overrepresentation of the youth in the justice system may be predicated on erroneous statistics. Regardless, they may influence the attitudes that are assumed by the courts and the police in the treatment of the youth in the society.
Evidence suggests that processing young people through the juvenile justice system may do more harm than good. Most juvenile crime is episodic and transitory, with young people predominantly ‘growing out’ of offending behaviour over time as they mature into adults. It is a consequence of emotion rather than intent. The report The treatment of young adult in the criminal justice system indicates that the youths have more psychological and social similarities to children in the society. Principally, their criminal tendencies are a culmination of an inability to fully control their temperaments. Thus, they do not intend to commit crimes but find themselves in the process given their underdeveloped psycho-social abilities (House of Commons Housing Committee, 2016). Young offenders typically become involved in crime between 12 and 16 years of age, with those aged 15-17 years most likely to come into contact with the police. Since they are at increased likelihood to interact with their peers, they project an increased susceptibility to criminal tendencies. The majority of these young people have one or two contacts with the criminal justice system and do not reoffend This statistic is a reflection of the lack of malicious intent among the youth in the event of a criminal event of a crime perpetrated by a youthful individual.
Research suggests that the young people who proceed to Children’s Court are significantly more likely to reoffend. The initiative may hinder the successful transition of the youth into adulthood (House of Commons Housing Committee, 2016). She instead offers an alternative mental and educational programme to mitigate the recurrence of crime among the youth. It provides a relatively more efficient measure against increased criminal tendencies among the youth.
A recent study of young men in Australia found that involvement in the juvenile justice system increased their likelihood of later involvement in the adult justice system. The increased propensity to crime is a result of grouping young people of the same character in a single setting. In particular, it was found that the greater intensity and more restrictive intervention, the greater will be the negative impacts in later life. Youths are more likely to rebel against imposed authority than is the same for individuals in other age groups. Consequently, they are less likely to assume a responsible character that would reinforce their recognition of the crimes committed. It makes them less remorseful for their actions which impedes the efficiency of the subject intervention in the prevention of future occurrences of crime. Conversely, studies have shown that young people who are diverted away from the criminal justice system experience lower levels of recidivism/reoffending compared to those dealt with by the courts. Legal intervention by the juvenile justice system may actually perpetuate youth offending and marginalize young people by proceeding cases that could be better remedied in informal settings within the community. Principally, youths are disinclined towards initiatives that lead to their ostracizing. The prevailing justice system does not consider the social implications of the youth and thus resulting in detrimental outcomes once the youths are released from incarceration. Upon release, most of these teenagers are shunned by their peers and find it hard to secure gainful employment given their histories as ex-convicts. To meet their basic needs and compensate for the void that is created by the ostracism that they suffer, these teenagers resort to crime once more which renders them unproductive to the society.
Unfortunately, the situation is made worse for young people who come from a family history of criminal convictions. These individuals are often the subject of unconscious bias from both the police and the courts. Young delinquents are often compelled to bear the burdens of their predecessors. For instance, whereas an individual of relatively clean pedigree may not be subjected to longer prison terms, the same cannot be said of individuals from families with a history of crime. The courts and police institutions do not consider the differences in contact with crime that the two different groups of individuals exhibit. For instance, young individuals from families of crime are more likely to engage in crime during the early phases of development given their early exposure to criminal activities. However, the court often imposes the maximum sentences on such individuals. It is pivotal that the Australia institutes and applies a restorative Justice framework to enhance the rehabilitation of youthful ex-convicts.
Restorative Justice refers to a form of justice or legal retribution that is inclined towards the rehabilitative function rather than the punitive role. According to Gumz & Grant (2009), restorative justice has the potential to promote healing for both the perpetrator and the victim of a given criminal activity. Essentially, the initiative offers “decreased recidivism of offenders, fewer long-term effects of victimization, and strengthening of the aggregate well-being of a community” (Gumz & Grant, 2009). Restorative justice extends a three-dimensional response to the occurrence of a crime. It provides an efficient crime mitigating initiative in the Australian justice system since it offers the youth an opportunity to redefine their lives and further promotes their re-integration back into the community. The criminal justice system empowers the court to mete out punishment to youthful offender based on the weight of the subject criminal activity.
Family History and Socio-Economic Background
The police and the courts do act with a level of unconscious bias in relation to juvenile offenders and their access to justice. Principally, the family history of the subject delinquent may influence the stance that is assumed by the courts in meting out punishment. The analysis of the some of the case scenarios that took place at the youth empowerment programme attest to the unconscious bias that is assumed by court in determining judgement for young offenders whose pedigree consist with individuals who have come in contact with the criminal justice system. This paper analyzes some of these case studies and predicates its finding on the ruling that was given by the subject case.
Case Study 1
Nick is 19 years old. In his early teens, he was a frequent drug user and became hooked on methamphetamine. The drugs and his behaviour destroyed his relationship with his family and friends and he was kicked out of his Melbourne home. He was convicted for assault at 19 and was given a second chance. He was allowed to go through a three-month diversion program instead of prison.
“I had a heated argument with my stepfather. It got to the point where fists were thrown. I got hit and I wasn’t going to accept it. I retaliated,” he said. “It resulted in him being hospitalised.”
Nick was arrested and ended up being taken to court the following Monday. “The magistrate basically said to me, ‘You’ve either got to pull your act up or go to jail’,” he said. “My heart was pounding. No worse feeling than not knowing if those police are about to walk through that door, arrest you, and take you to jail.” “I nearly burst into tears [when the judge gave me a second chance] – just being given another opportunity. It made me sick, in a way. Like a good sick. But it was just a weight off my shoulders being able to have another chance.”
Nick was sent to youth diversion program Youth Junction for three months, where he spoke to his case worker Dale to improve his behaviour and get off drugs. “I nearly had a relapse, falling back on marijuana, but I called Dale and I told her, ‘I feel like going back on it’,” Nick said.” All she said was: ‘Think about what that’s going to do to you. Think about what good it’s going to do you’. I also had a strong family support and I called my sister for advice. She said to me that my actions affect the lives of those people who are closest to me and a real sign of maturity is to realise that and avoid the temptation of having a relapse.
“I had two people who were able to help me and a family who supported me.” He said he did not relapse because he had someone he was able to call.
Second Case Study
Roger Antochi is 32 years old. He grew up in the suburbs of Sydney to parents who were a gambling addict and a career criminal. He was an ice addict by 16 and in jail at 18.
“I was pretty much addicted to ice. And to support that habit I committed a crime that landed me in Port Phillip Prison, in the youth unit.” He was sentenced to two-and-a-half years. “I’d just done three-and-a-half years in New South Wales, now I was doing two-and-a-half years in Victoria. “That’s six years of my life gone down the drain … your 19th birthday, your 20th birthday, 21st behind bars … Christmases, Easters. It just seemed like another day in there, y’know?
He said he remembered walking into the youth unit, being told the unit rules, and walking up the stairs to his cell. “At this stage I was feeling depressed, angry, suicidal. And annoyed at myself, annoyed at the system, feeling like the system had let me down,” he said.
“And then there was a knock on my cell door and a mentor in the youth unit arrived. “He came into my cell and asked me ‘Hey mate, how you travelling?'” “For the first time in my life, at age 22, somebody asked me how I was travelling. “I’ve never had opportunities in my life until I went into the youth unit at Port Phillip Prison. And that’s a big call, and I know that’s sad to say, but that’s just the reality of it.”
The first case study demonstrates how the Magistrate subconsciously based his decision on the level of family support Nick had to guide and help him get better. This was further supported by the fact that Nick’s background derived from a middle-class socio-economic background who have the education level – an environment that projects a positive influence on Nick to get his life on track.
In contrast, the second case study illustrates that because Roger had come from a family with a history of criminal convictions and seemingly no family support to be a positive influence or support on Roger, the Magistrate made an unconsciously bias decision to order that Roger go to jail and subsequently receive the appropriate psychological assistance from a youth care mentor.
This infers that on a case-by-case basis the Courts may play a role in either hindering or not hindering access to justice for young people on the basis of their family history and socio-economic background.
A range of measures aim to protect the privacy and limit the stigmatisation of juveniles. Prohibitions on the naming of juvenile offenders in criminal proceedings exist in all Australian jurisdictions. In some instances, juveniles’ convictions may not be recorded. This approach aims to avoid stigmatising juveniles and assist juveniles to ‘grow out’ of crime rather than become entrenched in the criminal justice system.
Principally, the two case studies attest to the presence of unconscious and conscious bias within the court system. In the first case, the judge’s decision was predicated on the sanity that was exhibited by the family of the juvenile offender. Conscious bias is also observed when the judge institutes a stern sentence on Rogers who has a history of crime and comes from a family that has been associated with crime in the past. Since the degree of the crime was relatively the same for both the individuals, it is plausible that they should have been extended the same punitive measure. However, that was not the case and the latter was the subject of an extreme intervention while the former was committed to a relatively more appropriate intervention.
Police discretion or police bias?
The manner in which Indigenous Australians have been treated in the criminal justice system has been a recurring theme in the history of debates about public order legislation in Australia. Police are essentially the gatekeepers for the system. They decide who will enter and how they will enter. Police work always involves choices from several options. Public order legislation is often vague, and consequently the classification of the behaviour in question is usually left to the discretion of police. In the context of an individual offence, choices must be made whether to investigate, charge, arrest, caution, give warning, or refrain entirely from intervention. This discretion is inevitable in policing since full enforcement of the law is an impossible task and would be unduly inflexible. However, the subject discretion parameters should be cognizant of the possibilities of bias in the execution of police duties. The police are tasked with the duty of ensuring that the rights of each individual are protected regardless of their historical; background. The history of an individual should not be used to predict their future.
The racial composition of the purported criminal and the involved police may influence the nature of the treatment that is instituted against or for the perpetrator. An over-representation of one community in the police force may lead to intended bias. For instance, a police force that is largely made up of the majority race may impose biased treatment on members of the minority who are arrested on charges of criminality. There is an over-representation of Indigenous Australians for the offence of offensive language. This is not necessarily because they commit the offence more often, but rather because policing methods combined with the underlying police culture unfairly or improperly target Indigenous Australians, especially youth. I will now analyse the case DPP v Carr.
Lance Carr (L), a young Indigenous Australian man, was arrested for offensive language. The victim of this offensive language, a police constable (P), had approached L in pursuit of some information about rocks being thrown at a passing police car. L was not a suspect for this incident The conversation soon turned into an argument between L and P, with L telling P: ‘Fuck you. I didn’t fuckin do it You can get fucked.’ It was at this point that P placed L under arrest for offensive language. By the time L was in police custody, two more charges – resist arrest and assault police – had been laid. L’s behaviour in the dock at the police station was used to substantiate a further charge of intimidating police. L was charged with four offences, all stemming from the fact that he was uncooperative towards P.
On appeal, Smart AJ of the NSWSC dismissed seven of the eight grounds of appeal submitted by the DPP. The DPP only succeeded on a procedural ground, because the magistrate had relied on material that was not tendered in evidence when reaching his decision. As Smart AJ, said:
This court has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant’s name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. The consequences of the employment of the power of arrest unnecessarily and inappropriately and Instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person res1sting arrest and assaulting the police.
The remedy in Carr, namely the judicial discretion to exclude evidence, is unlikely to act as a serious deterrent for the reasons noted above. The culture, attitudes and the use of discretion from within the police service need to change. This requires a change in the techniques used for policing Indigenous Australian communities.
The cases illustrate how the Magistrate at first instance accepted the police officer to exercise his discretion and admit the evidence under s138 of the Evidence Act. This demonstrates how the courts can act with a level of unconscious bias in hindering access to justice for young people on the basis of their race and stigma within society (as regularly being in contact with the criminal justice system). However, on appeal Smart AJ declined the police officer’s power to aggravate the situation with its conduct demonstrating that on some level the courts do realise the discrimination prevalent within society in perpetuating offences. Ultimately, the appeal decision demonstrates that the courts do further access to justice for offenders whilst in most cases the police can often instigate an offence to occur and subsequently inhibit access to justice.
Whilst I have touched on the impact court decisions can have on young people who derive from low or middle-class socio-economic backgrounds, it is clear that those people who are self-represented, non-native English speakers or both may experience barriers with respect to accessing justice. Principally, intended bias with regards to the socio-economic metric may be a consequence of corruption where an individual with significant resources may be subjected to a higher bail than is the same for an individual who has committed a similar crime but comes from a relatively poorer community. It is often assumed that the imposition of hefty fines and bond rates may deter the wealthy from committing crime or eluding justice. Nonetheless, the initiative may result in unintended outcomes in the criminal justice system since it may fail to prevent the poor from abiding with established regulation in the knowledge that they will not be subjected to hefty financial impositions when they commit crimes.
Diversionary schemes can assist in alleviating the overburdened courts and are an alternative to the highly costly and too often overcrowded and ineffective juvenile corrections system. As well as reducing reoffending and justice system costs, youth diversion programs are an alternative option and are a component that the Youth Law Centre may wish to consider in the future in order to educate young people about their legal rights and consequences of not abiding by the law. Youth diversionary programs are an extension of restorative justice. Restorative justice aims to better the individual rather than punish them. As a legal system, it is more appropriate since it ensures that the perpetrators are given an opportunity to revisit their decision and re-align their priorities. This provides the core value of every justice system. It is the duty of the police and the courts to ensure that the potentials of the citizens are protected. This can only be achieved through the application of the restorative justice system. Perhaps, the severity of the crime will determine whether they proceed to children’s court or a youth diversion program. Obviously, there are practical considerations namely, that YLC may not have the capacity to fund such a program but it is definitely a potential reform that could be implemented down the track with further funding. Currently, there has been limited investment in diversionary programs by the government. There is need for the creation of state policies that establish funds for the youth diversionary programs in order to promote their effectiveness in mitigating the challenges that beleaguer the youth in rehabilitation phases.
Another argument in support of a youth diversionary program is that Australia is a signatory to the United Nations Convention on the Rights of the Child and consequently all Australian jurisdictions are obligated to ensure that appropriate diversionary measures are afforded to children and young people. As a nation under the UN body, it is necessary that the country engage measures and interventions that protect and promote the rights of its citizens regardless of their racial and socio-economic settings Thus, by creating pathways to prevention and rehabilitation programs, this may further prevent and reduce offending and reoffending ensuring that Australia both uphold its international obligations and reduces the risks posed to the Australian community. When the youths in juvenile detention are offered an opportunity to re-define their lives they may be more willing to overcome the criminal tendencies than would the case if they were committed to an institution whose sole aim was to punish them for their crimes.
Boni, N. (1999). Youth and Serious Crime: Directions for Australian Researchers into the New Millenium . Children and Crime: Victims and Offenders Conference (pp. 1-16). Brisbane : Australian Institute of Criminology .
Gumz, E. J., & Grant, C. I. (2009). Restorative Justice: A Systematic Review of the Social Work Literature. Families in Society, 90(1), 119-126.
House of Commons Justice Committee Boni, N. (1999). Youth and Serious Crime: Directions for Australian Researchers into the New Millenium . Children and Crime: Victims and Offenders Conference (pp. 1-16). Brisbane : Australian Institute of Criminology .