Last week, colleagues of the Criminology department published a report that shows that offenders with a non-Dutch background are sent to prison more often and longer than native Dutch offenders. It is laudable that the Council for the Judiciary commissioned this research on ethnic disparity in sentencing. The President of the Council even asked for more scrutiny into their work practice, because, he said, ‘the suggestion that emanates from the observed differences, namely that judges differentiate, is at odds with the core values of the judge.’

Explanation?

However, certain ways of differentiation apparently do not demand scrutiny. My attention was drawn to the conclusion that ethnic disparity partly disappears when one accounts for differences in offenders’ work status: ‘For example, judges are more likely to impose community service for people who work, because prison often means the end of a job. When these [and other] factors are taken into account, much of the differences in sentencing between immigrants and natives disappear.’

I am sympathetic towards the idea that judges try to prevent job loss, but I wonder why no questions are raised as to whether this is an acceptable explanation. That is, differentiation based on work status could be problematic in itself. Deciding in favour of employed offenders (I’m not suggesting that they get away easy: doing community service on top ofholding down a job must be challenging) inevitably means disadvantaging unemployed offenders.

Unequal opportunities

Seen from the perspective of the unemployed offender, we could argue that they are deprived of the opportunity to get a (real) job because they are sent to prison. If a job plays an important role in staying away from crime, this decision also hinders their opportunities for rehabilitation. Unemployed offenders will have an even less impressive resume. The judge’s decision thus co-shapes the work history and future of offenders.

Furthermore, for employed offenders, judges deliberately consider future consequences: job loss. However, they do not seem to consider future consequences for unemployed offenders, such as not having the opportunity to work, to the same extent. Is that fair?

Increasing disparity

Finally, sentencing decisions may affect future decisions. Imagine two repeat offenders with comparable criminal careers. But one offender was unemployed the first time he appeared before the judge and was sent to prison, while the other was employed and received a community sentences which he completed successfully while keeping his job. How will the judge assess both repeat offenders?

If the judge – or the probation officer advising the judge based on risk assessment – takes work status (or history) into account again, we should expect that the unemployed repeat offender is more likely to go to prison, again. Initial decisions then shape future decisions with increasing disparity as a result.

It may not just be unfair – also because unemployment rates are high – but also counterproductive to differentiate based on work status when one considers the (unintended) effects in terms of rehabilitation. Differences in work status may explain ethnic disparity in sentencing, but they also demand their own explanation and scrutiny.