Abstract

Excerpted From: J. P. Anderson, Prison Disproportion in Democracies: A Comparative Analysis, 48 Law and Social Inquiry 906 (August, 2023) (11 Footnotes/References) (Full Document)

Overrepresentation of ethnic and racial groups in prisons--especially when the groups in question are disproportionately poor and historically marginalized-- is a concerning issue; it suggests the possibility of widespread bias in law enforcement and/or a pattern of socioeconomic exclusion that contributes to increased risks of criminal involvement and contact with police. Whether disproportion is the consequence of bias, inequality, or something else, it represents both a threat to the legitimacy of criminal justice institutions and the more troubling prospect that a country's criminal justice outcomes are less than fair. Thus, ethnic and racial overrepresentation in prisons has long been a subject of scholarly concern.

Study of the United States--and its uniquely punitive features--has tended to dominate the discussion of prison disproportionalities, yet prior research shows comparable extents of disproportion occurring in several countries and under varied punitive conditions. Indeed, it is now practically a criminological truism that “everywhere, the most marginalized groups of society are overrepresented in prisons”. However, cross-national research observing and measuring this overrepresentation remains scarce. Not only is this a noticeable gap in the literature, but the fact that prison disproportion occurs in various and varied places suggests an opportunity for cross-national analysis to uncover patterns that single-country analysis may be prone to overlook.

Ethnoracial prison disproportion has proven difficult to study in a cross-national context primarily due to the variety of ways in which societies and governments define ethnic and racial difference and differences in the extent to which national statistics include data on prisoners' ethnic and racial identities. A lack of data remains a significant barrier to the multinational study of prison demographics. Nonetheless, the heterogeneity of ethnoracial categorizations across countries--which has limited prior cross-national research to countries that share arguably comparable census categories--can be overcome. This article employs a method that extends the analysis of prison demographics across countries with differing census categories and that systematically addresses several understudied inquiries: what is the extent of ethnic, racial, and indigenous disproportion beyond what limited prior research has uncovered? How do these national prison populations compare to each other in terms of demographic proportionality? Finally, what can be done to explain any cross-national patterns of disproportion observed? For example, can national conditions--as defined by socioeconomic and criminal justice factors-- clarify why prison populations in some countries are more disproportionate than in others?

These inquiries are addressed using a novel data set covering eighteen democracies across six continents, compiled from publicly available and Internet-searchable prison and national census data targeting the year 2016. Democracies were chosen as the regime type for this study due to the democratic aspirations of nondiscrimination, equality under law, impartial law enforcement, and the tendency of democratic societies to collect statistical data related to the rights of minority groups. That is, democracies are places where further understandings of prison disproportion are more likely regarded as useful. Though many democracies do not make racial and ethnic demographic data on prisoners publicly available, the data set covers a wide range of democracies in terms of social, economic, and criminal justice characteristics, which allows for potentially more insightful comparisons.

This data is analyzed using a modification of the Ortona Index, which has been used previously to analyze disproportion in proportional representation systems. This tool is used to measure the difference in ethnoracial representation between each country's total and incarcerated populations, using the ethnic and racial categories employed by each country's respective census, therein determining the overall extent of prison disproportion for each case. This approach avoids the hazard of producing false equivalencies between groups in differing countries and allows the analysis to include any country that makes data available. The extent of disproportion found is represented by a “disproportionality index” by which countries are ranked and compared. I also provide a “range of representation” between the least and most incarcerated census categories in each case, which provides a cross-reference for the disproportionality indices in addition to providing further context.

The findings demonstrate that conspicuous levels of ethnoracial disproportion are typical, and may even be ubiquitous, in contemporary democracies. The extent of disproportion found in each case is also significant: even in countries with the most comparatively proportional prison populations, the most overrepresented census categories are shown to bear at least twice the risk of incarceration compared to their counterpart groups. In some cases, the risk of incarceration for the most overrepresented census categories was found to be more than thirty times that of their counterparts.

A preliminary analysis of socioeconomic and criminal justice factors shows that countries with more desirable ratings on the Human Development Index, World Happiness Report, and Democracy Index tended to have more ethnoracially disproportionate prison populations. However, these correlations were very weak. Further, more economically equal countries with smaller prison populations, lower incarceration rates, and fewer homicides are shown to have only marginally more proportionate prison populations compared to countries with less desirable conditions. For example, nations of northwestern Europe are found to have some of the most ethnoracially disproportionate prisons populations among the cases. Though hardly exhaustive, this analysis demonstrates that prison disproportion is not easily predicted by routinely compared national benchmarks.

Overall, the evidence suggests that despite considerable variation in the cultural and national conditions of the cases, ethnoracial prison disproportion is an unfortunate shared feature of many contemporary democracies. This is not to suggest that it only occurs in democracies; authoritarian societies likely fare no better and perhaps worse, although this needs to be confirmed by future studies. Nonetheless, it is significant that societies sharing a common set of liberal values--including the principle that ascriptive identity be neither an advantage nor disadvantage--are found to exhibit a potential indicator of widespread illiberalism, that is, a condition in which ascriptive identity correlates with risk of incarceration. The discussion considers the role of social inequality in producing such a pattern and also proposes that democracies may tend to implement criminal justice in such a way that pushes the punitive energy of the state toward the margins of society.

The article is organized as follows: first, I review the literature on previous cross-national studies of ethnic and racial disproportion in prisons. Next, I detail my method and discuss how it overcomes previous limitations impeding broad cross-national comparisons across large numbers of countries with distinct ethnic and racial populations. My findings demonstrate that ethnic and racial disproportion in prisons is a global issue that afflicts not only high-incarcerating countries with conspicuous histories of ethnoracial oppression but also countries with comparatively progressive penal regimes. I then discuss a selection of the cases in further detail to examine how well the method captures actual conditions. Last, although space does not permit a fully developed cross-national theory explaining this study's findings, the discussion considers a causal hypothesis that complements existing understandings of why prison disproportion occurs.

[. . .]

This study demonstrated a new method for comparing extents of ethnoracial prison disproportion between countries that overcomes prior methodological challenges that limited the scope of analysis. Using a novel data set of eighteen democracies, conspicuous prison disproportion is identified in every case, across varying political and economic development. The findings suggest that prison disproportion is not easily predicted by routinely measured national conditions, though moderately strong positive correlations were found between extents of disproportion and more desirable ratings in the Human Development Index and Democracy Index. The fact of persisting ethnoracial stratification among the cases and consequent group differentials in offending is one potential contributor to this pattern. However, while all the cases share a common feature of social inequality, they also employ a similar approach to crime that may disproportionately distribute risk of punishment across their respective ethnoracial strata. That is, democratic societies may tend to implement police in such a way that focuses the punitive energy of the state toward the social margins of society. Future cross-national research on prison disproportion in democracies may consider not only the causes of offending but also whether criminal justice systems as they are currently conceived and implemented are capable of delivering substantive legal equality under the social conditions in which they operate.

J. P. Anderson is an assistant professor of Political Science at San Diego State University, US.