Racially Determined Case Characteristics: Exploring Disparities in the Use of Sentencing Factors in England and Wales

There is little understanding of how documented ethnic disparities in sentencing outcomes in England and Wales come to be and, consequently, how to address them. We argue that ethnic disparities in sentence outcomes could stem from how cases are constructed. We hypothesize that case characteristics determined through a high degree of judicial discretion and an assessment of the offender have a high risk of being racially determined, and therefore, operate as precursors of ethnic disparities in sentencing. We test this using data from the Crown Court Sentencing Survey combined with data on offenders’ ethnicity from the Ministry of Justice Court Proceedings database. We identify three sentencing factors (remorse, good character, and ability to rehabilitate) clearly favouring White offenders. We contextualize their operation and argue that all three should be classified as racially determined and sources of ethnic disparity. We conclude by setting out targeted policy solutions.