Discrimination and bias are embedded in criminal law and how it is used in criminal legal systems and institutions around the world. They affect outcomes at every stage of the criminal justice process, from the creation of discriminatory laws, policing and arrest through to conviction, sentencing and release.

In many countries, racialised, minoritised and marginalised people and communities are more likely to be suspected of criminal behaviour, whether profiled by the police or by automated systems using biased data. If arrested, they are more likely to be detained in prison while waiting for a trial. If found guilty, they are likely to be punished more severely.

In all our advocacy and campaigning, Fair Trials works to identify and eliminate systemic racism, implicit bias, and disparate treatment based upon race, ethnicity, gender or any other factor. This work includes listening to and empowering marginalised communities. We are actively recruiting people who have been affected by the criminal justice system as experts who will work with our team.

Pre-trial detention

Pre-trial detention reflects and reinforces discrimination and racism within criminal justice systems as there are often disparities in who is detained and who is released on bail.

In many EU Member States, foreign nationals who are accused of a crime can be routinely held in prison because they are perceived to be a flight risk even if there is no evidence that this is the case.

In the UK, a disproportionate number of people who are Black, Asian and from other racially minoritised groups are held on remand. In 2020, 50% of Black defendants were remanded in custody in England and Wales, compared to 40% of white defendants.

Plea bargaining

In the US, Black and Latinx people get worse plea bargain offers than white people, and often do not have access to adequate legal resources before making a decision to waive their right to a trial. Many feel that it is better to accept a deal, even if they are innocent, than to face a jury that may be inherently hostile to certain groups and the prospect of a vastly increased penalty after a trial.

Plea bargaining occurs behind closed doors without much public scrutiny, so the racial injustice inherent in the process goes unchecked. Racial bias from prosecutors is not confronted by a public jury and racial bias by police can’t be challenged in the same way it could be during a trial.

Watch: Plea bargaining reform is a racial justice issue