Fair Trials' response to the EU Action Plan on Racism

Article by Fair Trials

Fair Trials has responded to the EU anti-racism action plan 2020-25, published today.

Mitali Nagrecha, Head of European Networks for Fair Trials said:

“We support the Action Plan’s emphasis on engaging civil society and grassroots groups – the people most impacted by structural racism should have the power to lead these plans.

“We also welcome the EU’s recognition that there is a serious risk that Artificial Intelligence (AI) will worsen racial discrimination in criminal justice systems. However, proposals to address this must go beyond regulation.

“In addition, we are concerned about proposals to expand the list of EU hate crimes as a way of tackling racism. This will not solve the real problem of structural racism that is endemic in Europe’s criminal justice systems, from arrest to sentencing. Instead, we need to acknowledge racism throughout Europe’s criminal justice systems, and to engage those most impacted affected by these policies to lead reform.

“The EU must take bold, radical action to end structural racism within policing, pre-trial detention and sentencing—and to reduce its reliance on punishment in the first place.”

Racial profiling and discrimination

In the area of racial profiling and discrimination in the criminal justice system, we recommend that the EU facilitate community-led independent, impartial, and standardised research on disparities and discrimination in Member State criminal justice systems, from policing to the end of the criminal justice process and reintegration.

Effective regulation to combat the discriminatory impact of AI

We welcome the EU’s recognition of the risk that the increased use of Artificial Intelligence (‘AI’) in criminal justice systems will worsen racial discrimination, and that its proposed legislation will actively seek to ensure adequate testing for bias. This challenge however, cannot be overcome through regulation of AI systems alone. It must be recognised that AI systems are built on criminal justice data that contain inherent racial biases, and that most Member States lack legal and policy frameworks that allow AI systems to be tested for racial bias.

Support not punishment

We urge the European Commission to also consider the role of punishment in Member States. Throughout Europe, inequality, poverty, and racial differences are often met with punishment rather than services, support, and other responses. We should assess this use of criminal sanctions. Fair Trials’ recent research shows, for example, an overuse of criminal sanctions in response to people’s poverty and inability to pay.

Punishing hate crimes is not the solution

Prosecuting hate crimes won’t solve structural racism in the system itself; it will only serve to reinforce punishment as a solution. We need more holistic and less punitive approaches to issues of discrimination, bias, and racism.

Racism goes beyond policing

Discrimination in policing is problematic on its face: people of colour are targeted repeatedly in communities across Europe, facing shame, stigma, and trauma as a result. People who are racially profiled then face criminal prosecution, punishment, and a range of other consequences that impact their lives for years to come. As people of colour are trapped in criminal legal systems, their fundamental rights, recognised in EU law, are not always upheld—thereby making it harder to argue that “the innocent won’t be punished.” People of colour also face worse consequences within the system.

One recent study in France showed how discrimination occurs at individual and structural levels—and at many decision points within the criminal justice system, from judicial decisions about pre-trial detention to sentencing. For example, the researchers found that people born outside of the sentencing jurisdiction were more likely to face pre-trial detention and prison sentences: 5.2% of people born outside of France are held in pre-trial detention, compared with 1.8% of people born in France. One in six people from France faced prison sentences, compared to one in four people born outside of France.

Read Fair Trials’ recommendations to ensure the European Commission ends structural discrimination throughout its criminal legal systems.