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Ethnicity and law The
Injustice in court
Following the shooting by Gökmen T. in a tram in Utrecht, the Forum voor Democratie (FvD) party leader Thierry Baudet directly linked immigration policy and criminality. Are people with a migration background really more criminal, or are they treated differently by our legal system? American Professor Janet Thompson Jackson, who teaches at the University of Groningen, says: ‘Nobody is immune to prejudices.’
By Zvezdana Vukojevic
Whilst the police in Utrecht tried to locate the escaped suspect Gökmen T. on 18 March 2019, FvD leader Thierry Baudet was at an election meeting in The Hague. He already had the answers to all the questions: ‘If people want more of these kinds of problems, they should vote for Rutte, because he throws the borders wide open and does nothing to solve the integration problems.’
The link between Moluccan, Surinamese, Turkish, Antillean and Moroccan Dutch citizens and criminality has been studied since the 1980s. Are they more criminal than the native population? Studying the figures, you could draw the conclusion that in criminality some demographics are overrepresented.
In contrast to what some opinion makers and politicians want you to believe, this has been kept anything but quiet for years. In 1993, the then PvdA (Labour) Minister for Welfare, Health and Culture, Hedy d’Ancona, already made a plea for a ‘pragmatic and formal migration policy’, whereby it ‘must not be a taboo to discuss and deal with criminality of immigrant youths.’ When Piet Hein Donner was the Minister of Justice, he said that criminality figures demonstrated that non-Western immigrants ‘do not engage much with society’.
Right-wing politicians also made themselves heard. There was, for example, the notorious statement by PVV leader Geert Wilders in 2014, who was allegedly talking about criminal Moroccans when he got an audience to chant ‘fewer, fewer’. In an interview with a German magazine in 2017, he said: ‘Moroccan youths are represented 22 times more often in street crime.’
Is that true?
The question is whether such statements present the facts correctly. Take that factor of 22. That is high. For that reason, the news checkers from the University of Leiden investigated the figures. The Monitor Jeugdcriminaliteit (Youth Criminality Monitor) 2010 report by the Research and Documentation Centre (WODC) states the number of suspects related to their proportion of the population, per 1,000 individuals of the relevant population group. In 2008, the proportion of suspects among Moroccan
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young adults (18-24 years old) was by far the highest: 116 per 1,000. They compared this to the group with the relatively lowest number of arrests: native Dutch people, of whom 30 per 1,000 were arrested in 2008. Thus, Moroccan youths are not represented 22 times more often than native Dutch youths, but four times. But are Moroccan youths really more criminal? Or is there more to it?
Inequality principle
Janet Thompson Jackson knows all about this topic. She is a Professor at the Washburn University School of Law (US) and is working at the UG for a year. There are quite a few pitfalls when interpreting such figures, she says. Firstly, you should compare youths from the same socioeconomic class. This makes the difference largely disappear. Furthermore, youths from lower socioeconomic classes are often watched more closely. But that is not all. Our legal system is officially based on the equality principle, which states that identical cases must receive identical treatment. But the reality is often different, says Thompson Jackson.
Before commenting on these dynamics, she wants to say that intentionally stating incorrect figures, and abusing these for political gain, like Wilders did, is frankly malicious. ‘Politicians do this to set population
groups up against each other. Labelling ethnic minorities, migrants and asylum seekers as ‘others’ to strengthen the ‘us’ feeling among white Dutch citizens. Amplifying the contrasts. Increasing the fear.’
According to Thompson Jackson, differences develop precisely because the legal system deviates from the equality principle from the start. For example, police officers in the US more often patrol ethnic communities, because they think that the people who live there are more likely to be criminals. ‘So, who is being watched? Against whom are investigations started more often, and who is arrested? And who is accused? Research shows that this is often the person of colour.’
Thompson Jackson wants to emphasize that disregarding this background information behind the cold figures leads to the
distorted view that ethnic minorities are more criminal. But the figures only represent the criminality that has been detected – and the police are looking harder for criminal activity among specific groups.
An honest comparison of crime statistics can only be made if all criminal activities are represented, something that is, of course, never going to happen. In the meantime, politicians abuse statistics to point out the danger that migrants pose to our society, and more often plead openly for a tough approach to criminality in ‘disadvantaged areas’ – often migrant neighbourhoods. Last year, VVD (the Dutch conservative-liberal party) leader Klaas Dijkhof suggested the implementation of a plan devised by fellow Danish politicians, whereby criminality in disadvantaged areas was to be punished twice as hard. An initiative like that would only distort the statistics more and increase the inequality within our legal system.
This selective approach within our legal system leads to ‘white spots’ of undetected and therefore unpunished criminality. For example, the police are less likely to perform a drugs raid on the Zuidas in Amsterdam, where there will certainly be people with cocaine on them, whilst a shisha bar will be visited more often to search for drugs.
Ethnic profiling
Meanwhile, we are still struggling in the Netherlands with the most basic problem that causes the differences: ethnic profiling. It has been on the agenda for years, in part due to non-profit organization Control Alt Delete. In 2016, rapper Typhoon wrote on Facebook that he is regularly pulled over by the police. As a black male, he allegedly drives a too expensive car. Typhoon wrote: ‘Unfortunately, this is the umpteenth time that has happened to me and I am ‘famous’, and after they have recognized me, the atmosphere is less tense. Many do not have that privilege.’ When the police let someone’s skin colour, ethnicity, nationality, language or religion play a role in the decision to check someone, this is ethnic profiling. A study by the Social and Cultural Planning Office (SCP) showed that one-in-three Turkish and Moroccan, a quarter of Surinamese and one-in-five Antillean Dutch citizens, as well as 16 percent of migrants from Middle and Eastern Europe, are subjected to discrimination by the police. This was recently brought up again when mar
ket research institute Beke concluded that the police in Amsterdam are not doing enough to eradicate such practices. Earlier, the proposal to introduce ‘stop forms’ was abandoned; on these, policemen had to write why they were stopping and searching someone preventively, so that they would become more aware of the reason behind checking someone.
Unemployed
Inequality also takes place once suspects enter the legal system. Thompson Jackson is specialized in the American legal system, where suspects must deal with an obviously prejudiced jury when their case is brought in front of a judge. ‘But American judges were also shown to have prejudices. There are studies about every legal system that demonstrate these prejudices.’
Also in the Netherlands. In 2012, a study was published in the Nederlands Juristenblad that showed that Dutch-speaking suspects with an ethnic background and appearance had a higher probability of being convicted than Dutch-speaking white suspects. The probability of being convicted was highest when the suspect did not speak Dutch and also looked ‘unlike the Dutch’ (read: not white). Researchers from the University of Leiden subsequently studied 110,000 criminal records from 2005 to 2007 and interviewed 1,500 prisoners. The outcomes were very serious: the probability that a suspect born in the Netherlands ended up in prison for theft involving a weapon was 7 percent. The probability that second-generation Turks and Antilleans ended up in prison for the same crime was 11 percent.
Was that racism? Discrimination? The researchers could not decide. They did consider that judges sometimes think in stereotypes. The differences became smaller when they corrected for the suspect’s personal circumstances. People with a job appeared to end up in prison less often, so as not to also be unemployed after serving their sentences. If you are already unemployed, you more often end up in prison. Who is, relatively speaking, more often unemployed? Ethnic minorities. And unemployed people cannot pay fines, so that is another explanation for sending immigrants to prison more often. The researchers concluded that the difference had developed by ‘considering the circumstances’ of those convicted.
Yet there was still a small difference in sentences after correcting for personal circumstances. The chair of the Justice Council, Frits Bakker, wants an investigation into that final difference. He said in the Dutch newspaper Trouw: ‘The suggestion that judges make distinctions is the opposite of judges’ core values.’
Thompson Jackson regrets that people refuse to accept that judges also have prejudices: ‘The initial reflex is: this is not racism. This problem of unconscious bias has entered the legal system, as it has entered every layer of society. Everyone has these unconscious prejudices: you, me and even judges. Nobody is immune to them. And these prejudices are often to the disadvantage of people of colour and ethnic minorities.’
