DOI: https://doi.org/10.1093/oxfordhb/9780197750506.013.36

Abstract: Many statistics show that people in certain groups are penally disadvantaged. From this it is natural to infer that such people are subjected either to direct penal discrimination or to at least to some form of discrimination whether that is direct or not. This chapter’s aim is to examine these inferences, not the conclusions they are supposed to establish. Pointing to the important notion of structural discrimination, it suggests that penal disadvantage could reflect structural rather than direct discrimination, in which case the first inference is problematic. Turning to the second inference, it notes that men are penally disadvantaged. On the assumption that men are not subjected to penal discrimination—direct or structural—one needs to be more specific about when penal disadvantage permits an inference to penal discrimination of some kind. The chapter argues that it is difficult to say what, specifically, the inference requires.