Unconscious bias and discrimination of roma people in the criminal justice system
Evidence at the European level suggests that Roma people are more likely to be drawn into the criminal justice systems of EU Member States than other ethnic groups. The EU Framework for National Roma Integration Strategies up to 2020 emphasizes that “Many of the estimated 10-12 million Roma in Europe face prejudice, intolerance, discrimination and social exclusion in their daily lives”.
Arrest, detention and conviction are the antithesis of integration into mainstream society. Involvement with the criminal justice system can have negative impacts on people’s health and well being. The existence of criminal records and contact with criminal justice systems reduces access to employment, because those with a criminal record are not able to hold certain jobs and many jobs require background checks, contributing to extreme levels of endemic unemployment on Roma communities. For example, in the EU-MIDIS II study, 77% of Roma aged 16-24 in Spain were not in any form of work, education or training, compared to the national average of 17%. Furthermore, when a breadwinner is arrested and detained, the implications for dependents can be enormous – loss of housing, disrupted education and other risks associated with poverty.
The subject of prejudices of criminal justice professionals has not yet been studied in Europe despite the fact that there is growing evidence (particularly from the United States) that unconscious bias in criminal justice actors does have an impact on criminal justice outcomes. For example, a study of the decisions made by the District Attorney of New York’s office, involving an analysis of more than 200.000 cases, demonstrated that where prosecutors exercise discretion, unconscious bias causes differential outcomes based on race and ethnicity. The greater the discretion a professional exerts, the greater the risk that unconscious bias will result in unfair outcomes. In every criminal justice system, professionals exercise enormous discretion: they determine whether a person is arrested, detained pre-trial, prosecuted and how a person is sentenced.
Although it is not hard to imagine that social attitudes to Roma people would have an impact on these decisions, to date it has been very hard to encourage criminal justice professionals to recognize this. One reason is the lack of complete data but mostly it is because criminal justice systems are expected to operate (and to appear to operate) in a fair and impartial way. This makes it difficult to encourage criminal justice professionals to accept that unconscious bias may play some part in their decisions as a result and as a consequence, a cause of harmful discrimination against Roma people is being ignored.
Bias is formed when there is lack of knowledge. Unconscious bias describes “the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner”.
Conlusions
The majority of the criminal justice professionals admitted that negative stereotypes and prejudice about Roma people are present in the criminal justice system and they justified their presence through early education which informally teaches discrimination. However, they highlighted there is a big difference between having stereotypes and acting based on that stereotypes (discrimination). Most of them concluded that the law (criminal codes) provides guarantees for these situations and it was designed to prevent any manifestation of those stereotypes in their decisions.
One of the obvious conclusions emerging from the interviews, the research and the ECHR cases mentioned is that the greatest risk of discrimination lies at the police level. This risk diminishes as the procedure advances at the prosecutorial level and finally the judge, whose decision must be motivated on the basis of the provisions of the criminal codes.
Police
The cases of police abuse generated by ethnic discrimination have been emphasized by the ECHR in the numerous cases against Romania showing the gravity of the situation.
In the most recent case, Lingurar v. Romania, for the first time, the Court elaborates on the concept of ethnic profiling. It remains to be seen to what extent this judgment will determine change at the level of police practice and tactics.
The field of police activity most likely to generate discrimination against Roma is related to administrative measures (control, identification, administrative leading to the police station).
As detailed in Chapter 3, the procedure for appointing a legal aid lawyer is sometimes disregarded, which can negatively influence the process. Oftentimes, police officers inform suspects/defendants of their rights and obligations in a formal manner which prevents a clear understanding of how to exercise them in a concrete manner.
Last but not least, the mechanism for solving complaints against possible police abuses is not effective, which discourages victims from lodging them in the first place.
Nevertheless, the interviewed police officers unanimously stated that they are not familiar with the phenomenon of ethnic profiling and that they have not participated extensively in courses on discrimination against Roma although they heard about such courses that organized by the Ministry of Internal Affairs and consider them useful.
Lawyers
Regarding lawyers, previous interviews and research show that Roma people often need a legal aid lawyer because they cannot afford to pay for one. The legal aid assistance is not of the highest quality according to interviews with Roma people but it is difficult to assess whether this is due to a possible discriminatory attitude of the lawyer or a more general problem regarding the poor quality of legal assistance. As mentioned in Chapter 4, lawyers have long been dissatisfied with the legal aid fee and certain procedural activities that restrict their activity (access to the case file, etc.). Some interviewed lawyers admitted that they do not want to have Roma clients.
A relevant aspect which emerged from the interviews is that lawyers tend to refuse to represent Roma people in court, accusing them of being more difficult to work with and/or not seeing enough profit in legal aid cases. APADOR-CH would like to draw the attention to this paradoxical situation created by the representatives of a legal profession who is supposed to ensure the defense of all suspects and defendants. By adopting this attitude, lawyers hinder access to justice and jeopardize the exercise of all other procedural rights.
Lawyers were unfamiliar with the concept of ethnic profiling and largely stated that they had no training on discrimination.
Judges and prosecutors
Judges and prosecutors unanimously claimed that the criminal law is very clear and limiting – any potential stereotype is censored by it. However, the application of the law implies first of all a mechanism of interpretation, a filtering through the subjective consciousness of the one who interprets it. As we have identified in Chapters 5 and 6, there are areas subject to their appreciation such as the “impossibility of defending oneself” in order to appoint a lawyer, the degree of danger to public order, etc. In the absence of concrete rules, these interpretations depend to some extent on subjective criteria and customs. It should be emphasized that as far as the part of the court proceedings is concerned, the possibility of ethnic discrimination is in theory less possible, as the criminal codes provide guarantees for the control of such sideslips.
The interviews show that judges and prosecutors continue to link committing a crime to the Roma community, under the pretext of economic and socio-cultural factors. APADOR-CH thus finds that they are subject to dangerous prejudice which may have an impact on their decisions.
Besides, in the case of Lingurar v. Romania, the Court held that the authorities involved have manifested a discriminatory attitude when they automatically connected the ethnicity of the Roma community to criminal behaviour. Moreover, the Romanian authorities have also failed in carrying out an efficient investigation of the case and of the systemic violence invoked by the applicants. The prosecution had accepted the police’s justification for the use of force based on a perception that all Roma were criminals and the domestic Courts closed the case without other investigation.
The interviewed judges and prosecutors were not familiar with the phenomenon of ethnic profiling and unanimously stated that they did not participate in courses on this subject. Some mentioned that there are continuous education courses organized by the National Institute of Magistracy on discrimination. However, they stated that these courses are treated as general knowledge because discrimination against Roma in the criminal justice system does not exist.
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