Uncovering Bias in European Criminal Justice

“All are equal before the law and are entitled without any discrimination to equal protection of the law.” – Universal Declaration of Human Rights, Article 7.  

But are we all truly equal in the eyes of the law?  The hypothesis of postdoctoral researcher Ashlee Beazley is that an accused’s identity plays a role in how they are treated by the criminal justice system, and she sets out to find answers.  

Using a comparative and interdisciplinary approach, Dr Beazley studies hidden biases and veiled discrimination in criminal justice, across four European jurisdictions (Belgium, France, Ireland and Luxembourg) to determine whether the law has been universally and fairly applied to all accused, regardless of characteristics such as a person’s ethnic origin, gender, social class, sexuality, etc.   

Justice for me, but not for thee?

Critical race and intersectional theories (CRIT) developed in the United States as a way to explain that the law is not, in fact, as neutral or objective as it appears. It stipulates that discrimination—whether on basis of race or a combination (intersection) of identity characteristics—is not only linked to personal opinions and actions, but is also structurally present within public institutions, such as the education system, the healthcare system, or the (criminal) justice system.

‟ “The idea of the State treating people differently is difficult to swallow. We all want to believe that rules have an inherent rationality”

Ashlee Beazley

Postdoctoral researcher

Scholars in the United States, where Dr Beazley is currently completing a research stay at UC Berkeley, have demonstrated that defendants from minority communities are more likely to be subject to questioning by police or forceful arrest; they are also more likely to be placed in pre-trial detention (i.e. not be given bail), be given harsher sentences, be convicted, and have reduced access to legal assistance. Despite the likelihood of such inequality occurring in other jurisdictions, criminal law in Europe has largely remained unexamined through a CRIT lens.  

Dr Beazley hopes to shed light on this neglected topic. “In criminal law, the presumption of innocence is core tenant,” she says. “The idea of the State treating people differently is difficult to swallow. We are uncomfortable as academics and legal actors with the idea that the law is neither reliable nor fair,” Dr Beazley continues. “Yet the law is sometimes unfair, and it is important to understand when it is, and why this occurs.”  

Empirical research through a lens of comparative law

Dr Beazley will run two case studies, supported by empirical data and records of judicial decisions. One of these case studies will look into assessments of flight risk of individuals charged with criminal offending, and the effect of this assessment on the resulting decision for (or against) pretrial detention. Could a suspect’s ethnicity, for example, have a bearing on the degree of flight risk determined by the court? Another case study will look at the use of digital technology in criminal proceedings, and how the availability of this—particularly videoconferencing technology—impacts a defendant’s right to be “present” at their own proceedings. 

The comparative approach is important to Dr Beazley, who has made comparative law a cornerstone of her legal academic career. “We challenge our own presumptions and ideas by comparing, we nuance our understanding and we learn,” she explains. Within the European Union, for example, despite the introduction of common minimum standards for defence rights such as the procedural rights directives, national justice systems continue to bear the mark of their own history and culture. These marks affect how they both perceive and apply their laws.  

This heterogeneity allows researchers such as Dr Beazley to study the different legal frameworks, compare their rationales and examining how the rules and procedures are applied in practice.

Protect and sanction, equally

“The legal system exists for us—it provides us with rules that allow us to live with each other. It protects us, and it punishes us when we break these rules,” Dr Beazley says. “It is important, in criminal law especially, where the consequences can be serious and life-altering, that we can be confident that a person convicted received a fair and just process, and that their sentence— punishment— is justified because of their wrongdoing.”   

“The law is a social construct. It us, the humans behind it, who develop the rules by which we apply and analyse the law.” With these words, Dr Beazley touches at the heart of critical race and intersectional theories. As much as we may not want to believe that the criminal justice system is arbitrary and can be manipulated, we must also acknowledge research suggests that not all people who experience the legal system are treated the same. Through her project, this is what Dr Beazley has set out to do: face the uncomfortable idea that the scale may be weighted, and Lady Justice may not be so blind.    

Her project Critical Race and Intersectional Theory In (Comparative) Criminal Law or CRITICL is funded through a European Union Marie Skłodowska-Curie Actions (MSCA) grant and led under the mentorship of Criminal Law Professor Silvia Allegrezza.