The research for the report, developed within the framework of the project Fighting unconscious bias and discrimination of Roma people in the criminal justice system, was carried out during 2019 and 2020. It has proved a real challenge due to the lack of existing information on the subject and the sensitivity of the matter. Our initial hypothesis was that institutional racism and unconscious bias occurs in those areas of the criminal justice system in which there is greater discretion, and this can result in unfair outcomes.
The study gathered the perceptions of both professionals and Roma people throughout Spain, which has allowed us to start to understand the real scope of the problem and where the solutions should be targeted.
Police stops, arrests and investigations
though the decision to stop people should not be based on their ethnic appearance, physical appearance and stereotypes continue to play an important role in identity checks and police stops.
Also, the lack of judicial control and guarantees at the police investigation stage raise serious concerns, as it is possible that stereotypical crime patterns that attribute certain crimes to certain groups are applied.
Courts, the media and stereotypes
Historical stereotypes that associate Roma people with crime are still deeply ingrained in Spanish society, and we cannot rule out their impact on the presumption of innocence of Roma defendants.
The media is capable of either further engraining or challenging prevailing stereotypes. Unfortunately, Spanish media often enforces the most widespread stereotypes about Roma people. Although this type of media coverage may not have a direct effect on decision makers, it can still trigger unconscious bias.
Stereotypes identifying Roma people as potentially dangerous criminals which, together with the stereotyped image of Roma people making crime a way of life, can lead to the extensive use of pre-trial detention. This is because many Roma detainees are classed as at risk of repeat offending. In cases that receive a lot of media attention, it is even more likely that pre-trail detention is used due to social and political pressure.
Although judges don't have full discretion when sentencing, they may still have prejudices about how likely it is that the defendant will be rehabilitated, and may have a negative effect on compliance, evaluation of mitigating or aggravating circumstances, or the suspension of the sentence.
Discriminatory comments towards Roma are widespread across the law enforcement and legal professions, which is a serious problem, because these professionals should be following the principles of impartiality and non-discrimination. There is no guarantee people who make seemingly "light-hearted" discriminatory comments with their colleagues will not unconsciously reflect the same prejudice in a defence brief, an accusation or a resolution, either directly, in the evaluation of evidence, or when reaching a conclusion.
The perception of inequality and discrimination in the Roma community nurtures different mechanisms of response towards discrimination, including mistrust, fear and isolation from society. In this sense, the mistrust of the Roma population towards the criminal justice system is clear, and they are especially mistrustful of the police.
Roma people are over-represented in the Spanish justice system
Unfortunately there is a lack of data ethnically disaggregated on crime, which means the statistics do not reflect the real situation. Collecting data on the ethnic origin of people within the criminal justice system is complex and raises many questions because the data is very sensitive. We must push for a data collection system that ensures that information is kept anonymous and secure and is used in an ethical and responsible way.