Those 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, prosecute, punish, and supervise 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 it does not, and minority groups are overrepresented in Garda stations, courtrooms, prisons, and probation offices is this because of different patterns of criminal activity or some form of bias?
The second is whether public trust can be sustained in a system where decision makers have little in common with the people whose lives their decisions affect, often profoundly.
In other countries, perceptions of discriminatory policing and sentencing have led to discontent, disorder and division. Relations with minority communities have been severely damaged and been difficult to repair.
With careful thought, meaningful commitment to reform and some luck, we might be able to avoid such an eventuality.
But it is time to get serious.
Two years ago the United Nations Committee on the Elimination of Racial Discrimination expressed concern about racial profiling by An Garda Síochána of people of African descent, Travellers and Roma. It also drew attention to the fact that disproportionate numbers of these individuals ended up in prison.
We know from research with serving gardaí that attitudes to members of the Travelling community are frequently negative.
A report published last week by the Irish Penal Reform Trust found that non-white male prisoners convicted of sexual offences received sentences that were, on average, 32 months longer than those imposed on their white counterparts. For controlled drug offences, there was a 16-month premium. The number of cases involved was small, and the reports’ authors acknowledge there are gaps in the data, but even so these are alarming findings.
Becoming defensive
Regrettably, the quality of the available information leaves a great deal to be desired. In the absence of clarity it is not uncommon for agencies to become defensive in the face of criticism, or to maintain that expressed concerns are exaggerated, or to argue that policies and practices have evolved such as to render prior appraisals redundant.
What is required is a major programme of research, carried out over several years, to establish beyond doubt where problems have become embedded and where perceptions are off beam. For almost 30 years I have been making the case in these pages for criminological research. While 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 as a matter of urgency:
Are there minority groups whose members have less contact with the criminal justice system than would be expected based on their numbers in the general population? If so, how can this be explained?
How do members of different racial and ethnic groups feel about their dealings with An Garda Síochána, both as suspects and victims? How do these issues intersect with social class?
Does the likelihood of prosecution vary according to identifiable group characteristics? Is a foreign national less likely to be granted bail? What are the challenges that non-English speakers face comprehending and navigating the system?
Are members of minority groups more likely to contest the charges against them? If they do, and they are convicted, they will not benefit from the significant discount that a timely guilty plea attracts. As a result, the sentence they receive will be heavier. This may go some way towards making sense of observed disparities.
Do probation supervision and parole release differ according to nationality, race and ethnicity? Is there variation in rates of recidivism?
Participations in crime
There are questions about participation in crime that must be considered. For example, are members of certain groups disproportionately engaged in illicit activity? Or is it that their conduct is more visible or targeted?
If discrimination is found at one point in the system, is it amplified or ameliorated at another?
What can be done to create a more diverse body of judges, lawyers, gardaí, probation officers and prison staff?
These are complex matters, and the absence of reliable and comprehensive information hinders any attempt to have a balanced discussion about how best to proceed.
Without robust evidence, there is a greater chance that fear and prejudice will flourish.
If we are to avoid the emergence and consolidation of a set of arrangements that are viewed as discriminatory in their operation, and lead to an evaporation of confidence in the integrity of the criminal justice system, it is imperative that we act now.
The intolerance and animosity that has been directed against members of the Travelling community for so long, together with the often shoddy treatment meted out to those who came to this country to seek asylum, suggest that even if we identify where action is unambiguously required, there is no guarantee that the necessary steps will be taken.
Ian O’Donnell is professor of criminology at University College Dublin