democratising punishment: sentencing, community views and values

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2014 16: 474Punishment & SocietyJulian V Roberts and Jan W de Keijser

Democratising punishment: Sentencing, community views and values

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Article

Democratisingpunishment: Sentencing,community viewsand values

Julian V RobertsUniversity of Oxford, UK

Jan W de KeijserLeiden University, the Netherlands

Abstract

This essay explores and critiques a theory of criminal justice which privileges the role of

public intuitions about punishment over more traditional influences on sentencing prin-

ciples and practice. This movement may be termed ‘Democratising Punishment’ and it

has important consequences for sentencing in all jurisdictions. Several recent books

advocate reforms such as deriving sentencing principles from public opinion research or

sentencing by juries rather than legal professionals. In the essay we critique this per-

spective and note the threats to principled sentencing arising from greater public

involvement in the sentencing of offenders.

Keywords

Community views, penal populism, sentencing

At sentencing, a court imposes a legal punishment on behalf of the community inwhich the crime was committed. What role, if any, should the community have indetermining the nature and severity of sentences imposed in its name? How shouldelected legislatures accommodate the views of the public? Should policy-makerscharged with devising penal policies be guided by what they believe the public

Corresponding author:

Julian V Roberts, Centre of Criminology, University of Oxford, Manor Road Building, Manor Road, Oxford,

OX1 3UQ, UK.

Email: [email protected]

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want? These and many related questions have spawned a great deal of scholarshipin recent years.

Penal policies from the 1990s onwards assumed an overtly populist nature,even in jurisdictions such as Canada, Denmark and Holland which historic-ally had pursued moderate criminal justice policies. ‘Get tough’ initiatives,including mandatory sentencing laws (such as ‘three strikes’ statutes), moreaustere penal regimes and a movement towards increased criminalisation pro-liferated across the West (see Pratt, 2007). Scholars have defined populistpolicies as those

advanced to win votes without regard to their effects. Penal populists allow the elect-

oral advantage of a policy to take precedence over its penal effectiveness . . .Penal

populism consists of the pursuit of a set of penal policies to win votes rather than

to reduce crime rates or to promote justice. (Roberts et al., 2003: 5)

Bottoms (1995: 40) had previously used the term ‘populist punitiveness’ to describethe same phenomenon: ‘the notion of politicians tapping into, and using for theirown purposes, what they believe to be the public’s generally punitive stance’. Thesequotes assert an explicit link between politics and state-imposed punishment.Populist penal policies are seen as a consequence of political opportunism exploit-ing an uninformed public opinion, one based on the result of superficial opinionpolls.1 If populist punitiveness is the problem, what is the appropriate response?

One solution to the problem of penal populism involves protecting the criminaljustice system from political influence – the so-called ‘insulation’ approach. Severalscholars have advocated the use of elite, expert-led policy bodies or ‘policy buffers’to ensure that sentencing policies and practices do not become politicised – therebyundermining principled and moderate sentencing (e.g. Bagaric and Edney, 2004;Lacey, 2008; Roberts et al., 2003). These ‘insulationist’ proposals have been criti-cised: Dzur (2012b: 118) for example describes them as ‘fundamentally flawed’,while Barker (2009: 181) argues that it is a mistake for penal policy makers to‘retreat behind . . . expert commissions’. Rather than insulating the justice system,some scholars recommend the opposite: to embrace actively a more populistapproach to sentencing. Thus a new form of penal populism has emerged, onewhich is non-punitive and apolitical – but also populist. Bibas (2012: xxix) forexample, argues that ‘the ailment of criminal justice is not excessive populism’,but insufficient popular input.

This variant of populism incarnates the definition provided by Pratt (2007: 35) inhis thoughtful discussion of the concept. Pratt noted a number of features, includ-ing the element that ‘popular commonsense should be prioritised over the expertknowledge of criminal justice officials’. What we label ‘new variant’ populism is apresumptively benign form manifested in claims for greater (and more direct)public involvement in criminal justice policy making. A number of recent develop-ments reflect these claims. For example, the jury has returned to jurisdictions whichhad abandoned the institution: Japan re-introduced the ‘Saiban-In’ scheme several

Roberts and Keijser 475



years ago and other South-East Asian countries intend to follow the Japaneseexample. In common law jurisdictions which never abandoned the jury, somescholars and jurists have called for sentencing by juries (Hoffman, 2003; Lanni,1999). Sentencing Councils and Commissions now routinely incorporate findingsfrom public opinion research in their guidelines, or include community represen-tatives in their membership. Finally, the introduction in England and Wales ofelected Police Commissioners – modelled on the experience in the USA – is anotherexample of a greater popular control over criminal justice. All these initiativesshare the objective of enhancing the influence of community views over penalpolicy and practice.

Distinguishing forms of penal populism

Punitive populism is politically motivated and employs a poll-based reading ofpublic opinion to determine sentencing policy and practices. Uninformed commu-nity views are harnessed for political purposes. New form populism is void of elect-oral significance and privileges the direct involvement of the community in thejustice system. The valence of this form of populism is neutral; when the commu-nity seeks a punitive response to crime, sentencing will become harsher. If thecommunity favours an alternative response, then the consequences for defendantsmay be less punitive. Punitive populists seek electoral advantage by mobilisingcommunity resentment against offenders. In contrast, the new populists seek amore engaged and informed citizenry which, it is claimed, will result in a moremoderate and humane criminal justice system. Yet the two forms of populism arenot wholly distinct species; they share a desire to import public views into punish-ment policies and practices, and to minimise professional interference. Punitivepopulists argue that populist justice trumps judicial authority, if the former isendorsed by the legislature: A ‘three strikes’ law backed by a large majority ofthe public should not be compromised by judicial interference.2 The more recentpopulists make a similar claim.

Central to the new populism is a desire to break down the institutional barriersbetween the criminal justice system and the community. Several recent books haveadvocated important reforms to sentencing which are consistent with this perspec-tive. Two leading scholars (Paul Robinson and Albert Dzur) and an experiencedcriminal justice practitioner (Stephanos Bibas) have published important mono-graphs which express this (re)awakened interest in community engagement. Thethree volumes are consistent with a growing interest in more participatory andcommunitarian models of justice.

The authors make strong claims for incorporating community views into crim-inal justice policy and practice in ways that fit our description of new form popu-lism – albeit with different objectives in mind. Thus Dzur (2012a: 141) notes that:‘the social distance between lay citizen and legal domain has fuelled dysfunctionalsentencing policy’. These barriers are alleged to disenfranchise the community,depriving members of input into their own justice system and blinding them to

476 Punishment & Society 16(4)



the adverse consequences of criminal justice policies. He warns of the ‘hazardousconsequences of expert justice’ (2012a: 157). In Punishment, ParticipatoryDemocracy, and the Jury, Dzur urges greater democratisation of criminal justicevalues and practices, in particular through the expanded jurisdiction of the jury toinclude sentencing.

Bibas, author of The Machinery of Criminal Justice also condemns the ‘profes-sionalization of the last two centuries’ which has created a gulf between the systemand its stakeholders, including the general public. He claims that criminal justicehas gone astray because it has avoided ‘popular moral judgment’ (2012: 109)and his solution is to ‘help public views to influence outcomes in individualcases’ (2012: 132).

Intuitions of Justice and the Utility of Desert summarises over a decade of empir-ical research by Robinson and his colleagues upon public attitudes to sentencing.Robinson advocates aligning sentencing practices with community values, claimingthat closer alignment will enhance the moral credibility of the law and therebypromote compliance with the criminal law.

The reforms proposed in these books would have a far-reaching impact on thepractice of sentencing. If sentencing principles were redrawn to reflect communityintuitions directly, punishment trends would look very different – sentencing stat-utes and guidelines manuals would need to be re-written; replacing professionaljudges with juries would also profoundly alter sentencing arrangements in alljurisdictions.

These three volumes are also linked by their authors’ scepticism of currentcriminal justice practices, their enthusiasm for incorporating community views3

and their faith in the ability of laypersons to take sophisticated moral decisions.The benefits of a more populist approach to sentencing for Robinson appear to lieprimarily in higher levels of compliance with the law. Dzur, in contrast, does nothave such instrumental concerns in mind; incorporating community views is simplya means to a more participatory regime of punishment, and a more humane systemof justice. For Bibas, participatory criminal justice is not justified on instrumentalgrounds but rather by its inherent moral value.

Overview of essay

This essay examines some of the claims made by these recent works. We begin bydiscussing the direct involvement of the public proposed by Bibas. We then explore aproposal advanced by numerous scholars (sentencing by jury) before turning to theproposals made by Paul Robinson. We conclude with some thoughts on the appro-priate role of the community in sentencing policy and practice. Ultimately, whilesharing these authors’ desire to achieve a more moderate sentencing regime, we seemore dangers than benefits in their proposals. In the essay we will argue that:

. direct public oversight of criminal justice decision making is likely to underminethe rule of law and consistency, as well as principled decision making;




. sentencing by jurors is unlikely to increase public confidence in sentencing, or toresult in more principled or moderate sentencing outcomes;

. there is little reason to believe that compliance with the law or perceptions oflegitimacy are affected by the extent to which sentencing practices are alignedwith community views;

. transferring jurisdiction from legal professionals to laypersons will undermine aprincipled approach to sentencing.

Direct public oversight

The most radical proposals for public oversight of criminal justice are advanced byBibas (2012: 27) who emphasises how far US criminal justice has drifted from thecommunities it governs; it has become technical and opaque. The professionalisa-tion of justice has taken away conflicts from the parties involved, and produced amechanised criminal justice dominated by efficiency concerns, as illustrated by pleabargaining.4 Bibas paints a picture of US criminal justice based on the contrastbetween self-interested insiders and excluded outsiders. Like Dzur and Robinson,Bibas is concerned about the system’s legitimacy. He argues that bringing consid-erations of justice, mercy, punishment and forgiveness more into the open ‘shouldenhance citizen’s perceptions of the justice system’s legitimacy without leading toexcessive conflict over values’ (2012: xxv). Moreover, while criminal justice hasbecome largely hidden from the community, the visible injustices it producesundermine the moral credibility of the law (2012: 51). In contrast to Robinson(see later), Bibas is not interested in instrumental concerns underlying the democ-ratisation of criminal justice. In fact the dominance of the inherent moral value heattaches to involving the public trumps any other concerns. So much so thatpopularised justice can and may even stand in the way of more traditional goalsand principles. At its heart, the argument for involving the community as for-warded by Bibas (2012: xxvii) is deontological:

Including more parties will slow down proceedings, cost more, and reduce the volume

of criminal cases that the system can process. In other words, reforms may reduce the

aggregate amount of retribution, deterrence and incapacitation that the system can

mete out. But sometimes it is worth sacrificing quantity for quality.

While Bibas’ characterisation of US professionalised criminal justice is compel-ling, his solutions are extreme, and mean that the baby goes down with the bath-water. For example, Bibas (2012: 131) would like to blend restorative justice (RJ)conferences with neighbourhood juries to determine punishment decisions. WhileRJ is not about punishment and neighbourhood juries stand in the way of a con-sistent and proportionate distribution of justice, the benefits of such proposals areelusive and can only be understood by reference to an inherent moral value of suchinitiatives. He further proposes citizen advocates rotating through police




departments and prosecutors’ offices where they would review enforcement andprosecutorial decisions, plea agreements and sentence recommendations. One canonly imagine the reaction of busy prosecutors or police officers to this proposal.Imagine, too, the chaos (and lack of fairness) that would ensue. Conflicts betweenprofessional and intuitive judgements would be inevitable. Confronted with evi-dence that is unlikely to result in a conviction, a prosecutor may well decide not toprosecute the case. Members of the public might well look at the same evidence anddecide it is worth rolling the dice – after all what is there to lose? They may well notsee the arguments against prosecution, either because the evidence is weak orbecause a prosecution is not in the public interest.

The new populism also addresses the crime victim, particularly as reflected inthe Bibas volume. Another way of breaking the professional monopoly on deci-sion making in the courts is by giving power to crime victims. At present, senten-cing in most countries allows limited victim input into the prosecution andpunishment branches of criminal justice. But victims are not generally allowedto recommend a specific sentence. The reasons for this are obvious; victims havelittle knowledge of the appropriate sentence for any particular crime, the prin-ciples and objectives of sentencing or of the offender’s needs. Bibas would givecrime victims far more influence than at present. They would be able to questiondefendants during the trial, appeal sentences and plea agreements between theState and the defendant. Prosecutors would have to pay much more attention tovictims: they would have to solicit victims’ views affirmatively in time to influencedecisions. In addition, victims would be able to provide feedback on police andprosecutors’ performances ‘just as eBay routinely solicits members’ feedback’(2012: 149). It is the criminal justice equivalent of Expedia-style restaurantreviews. Under Bibas’ reforms victims would also have substantial say over sen-tencing ‘because victims’ desires carry great weight with many jurors. But thepublic’s sense of justice would still set the bounds to reflect what defendantsdeserve’ (2012: 158). Taken together, we see far more dangers than benefits inthe Bibas populist reform agenda.

Sentencing by juries

If the idea of panels of laypersons trooping through prosecutors’ offices and review-ing decisions sounds unwise, what about greater public engagement through anexisting feature of criminal justice: the jury? Dzur (2012a) argues that an enhancedrole for the jury at sentencing. He is not the only scholar to call for sentencing byjuries (e.g. Bennett, 2014; Hoffman, 2003; Iontcheva, 2003; Lanni, 1999). Bibas(2012: 158) also advocates juries determining sentence following ‘common sense’advisory guidelines rather than ‘the mathematical gobbledygook of the US senten-cing guidelines’. Bibas (2012: 161) sees merit in a system in which individual jurieswould make decisions about the appropriate factors to apply at sentencing: ‘Jurieswould decide for themselves how remorseful and sympathetic defendants were andhow much of a break they deserved.’ This sounds like a recipe for widespread




disparity resulting in more lenient sentences for offenders for whom jurors havesympathy, harsher outcomes for those perceived to be undeserving.

The traditional arguments in favour of sentencing by jury include ‘democra-tising’ sentencing in a number of ways. More recently, it has been argued that thepublic’s lack of knowledge of sentencing is a virtue: ‘jurors bring a fresh eye tosentencing or possibly to evidence at trial’ (Dzur, 2012a: 54; see also Bennett, 2014).It is unclear why one’s first encounter with a case of armed robbery would facilitatea more accurate determination of its seriousness relative to other robberies (andother offences more generally); yet this is the kind of calibration that courts arerequired to perform in order to ensure proportionality both within and betweenoffence categories. Similarly, how would one’s first exposure to a plea in mitigationprovide a more reasoned response? Or for that matter, with respect to evidence attrial, how does a lack of experience increase an individual’s ability to determinewhether testimony is inconsistent with other evidence adduced? A fresh pair of eyesmay be useful in solving crossword puzzles, but surely not when sophisticatedmoral or legal reasoning is required. The intuitive claim implies that in this par-ticular area of technical legal decision making, novices have something to add tospecialised expertise and experience. This claim is shared by populist politicianswho regard expert or academic knowledge as irrelevant to the debate over punish-ment policy.

The empirical claim

Two general questions need to be addressed. First, is jury sentencing likely to makelegal punishment less punitive? Second, are juries better able than judges to reach aprincipled sentence? The first question is answered more easily than the second; theimpact would surely be minimal – the number of jury trials is so small that even ifjuries were to impose much more lenient dispositions the overall effect would benegligible. Regarding the second question, the putative benefits of sentencing byjury need to be evaluated against the potential dangers. Would sentencing by juriesbe less consistent or principled than sentencing by judges? Dzur assumes that trialsby judge alone are as subject to the deficiencies of jury trials – this may or may notbe true, but judge–jury equivalence in terms of their ability to produce soundverdicts and principled sentencing seems unlikely in light of the extant evidence.He also argues that ‘jury sentencing would produce sentences that are more attunedto the individuality of the case, and more reflective of considered public opinionthan the current system’ (2012a: 140). Bennett (2014: 153) makes similar claims. Weare more sceptical about the alleged superiority of lay adjudication. Moreover, theclaim has yet to be supported by empirical evidence.5

The claim being made here is two-fold: first, that jury sentencing would be moreproportionate, and more sensitive to differences among cases than sentencing byjudges, and second, that jury sentencing would better reflect public opinion andresult in greater public satisfaction with sentencing. But as noted in our discussionof Robinson’s research (see later sections of the essay), mere congruence with




community opinion carries no normative significance. The fact that a particularsentence is consistent with what an informed member of the public wants does notmake it a better disposition in the sense of being more proportionate or moreprincipled. Indeed, it does not necessarily even make the sentence a more popularone, since informed views are unrepresentative of general opinions (see De Keijser,2014). Reviewing the voluminous research on sentencing by juries is beyond thescope of our essay, but some representative and recent findings are worth noting.The literature relates to two separate contexts: jury sentencing in the small numberof US jurisdictions where juries sentence offenders for non-capital felonies, andsentencing in capital cases, where the jury decides whether to impose the deathpenalty or life imprisonment.

Research upon jury sentencing: Threats to consistency and proportionality

Consistency is a fundamental element of any sentencing regime. Indeed, sentencingreforms introduced around the world over the years all seek to achieve greaterconsistency. In jurisdictions without formal sentencing guidelines (almost allcommon and civil law countries) consistency is promoted through judicial prece-dent, appellate review, sentencing statutes and other sources of guidance. Overyears of sitting, judges develop their knowledge of these arrangements and developfamiliarity with sentences imposed for different offences. The conventional modelof a criminal jury is for jurors to serve on a single trial and then be discharged,usually never to be called for jury service again. How, therefore, can they knowwhether a six-year sentence is consistent with sentences imposed for similar offencesin the past? In the absence of guidelines, if jury sentencing became the norm,consistency would surely diminish. And if justice becomes much more decentra-lised, even to the extent of the neighbourhood juries that Bibas advocates, consist-ency would at best become a very local outcome. Professional judges who havesentenced many cases and followed appellate judgments are better equipped topreserve the essential principles of consistency and proportionality and to followdetailed sentencing guidelines or statutory provisions. As Wright (2003) and othershave noted, knowledge of sentencing practices over time which judges accumulateis the most difficult problem for jury sentencing advocates to overcome.

Consistency. Research sheds light on the consistency of sentencing by juries relativeto judges. King and Noble (2004, 2005) compared the sentences imposed by a jurywith sentences imposed by a judge and found that jury sentences were more vari-able than judicially imposed trial sentences. This result chimes with earlier researchand with the perceptions of judges and other legal professionals: Weninger(1994: 29) found judges were ‘almost unanimous that jury sentences were muchmore disparate than judges’. This opinion might be dismissed as reflecting self-interest – were it not for the fact that judges expressed confidence in the ability ofjuries to reliably determine verdicts, and also the fact that this view of juries is alsoshared by defence counsel and prosecutors.6 Warner and Davis (2012) report




Australian findings that reveal the often capricious responses of jurors. In thisstudy, jurors were first asked to impose sentence in a case they had just heard.Later, having been informed of the sentence imposed the same jurors were againasked what sentence should be imposed. On the second occasion approximatelyfour out of 10 now favoured a more punitive sentence than they had previouslychosen. It is unclear why so many abandoned their first opinion so readily; what isimportant is the volatility of jurors’ reactions. These findings suggest that senten-cing would become less consistent if juries replaced judges.

Moderating sentence severity. What of the claim that juries would moderate senten-cing practices? Before commenting on that literature, it is worth noting the findingsfrom research comparing public sentencing preferences. A number of scholars overthe years have compared ‘sentences’ derived from samples of the public to senten-cing patterns from the courts. The findings from this research have corrected theimage of a public which is invariably more punitive than the courts. When peopleare given a detailed case description to consider, the sentences they favour aregenerally much closer to judicial practice than would have been thought in lightof opinion polls about sentencing (e.g. Doob and Roberts, 1984; Roberts andHough, 2005b). However, the two remain apart – the typical result is for actualsentencing trends to be more lenient than sentences derived from public samples. Insome jurisdictions (such as the Netherlands) the gap between courts and commu-nity is striking, even after the latter have been provided with a great deal of infor-mation about the case for sentencing (De Keijser et al., 2007). This researchtradition therefore offers no support for the position that greater public involve-ment in sentencing would lead to more lenient outcomes.

The studies on sentencing by juries support these public opinion findings.7

Comparing sentences imposed by juries and by judges is complex from a methodo-logical perspective but an important early study by Weninger (1994: 33) found thatcontrolling for contaminating factors ‘juries imposed longer prison terms for alloffences . . . and that differences between judge and jury sentences, running in thedirection of greater jury severity, increased as the offences became more serious’.For the most serious crimes, offenders sentenced by juries received sentences yearslonger than comparably placed individuals sentenced by judges.8 The most sophis-ticated research is reported by King and Noble (2004, 2005). Their careful multi-variate analysis controlling for a range of explanatory variables found thatsentence lengths imposed by juries were significantly longer. Some of the differencesbetween judicial and jury-based sentencing may be explained by differences in thekinds of cases sentenced by juries as opposed to judges, or other process-relatedfactors (see discussion in King and Noble, 2005). Yet there is no evidence thatjuries are consistently more lenient than judges in the states where both determinesentence.

A final illustration of the relationship between jury sentencing and severity canbe found in the experience with death penalty cases in the USA. The example isparticularly appropriate because in this context jurors are screened – ‘death




qualified’ – to ensure that they are impartial with respect to the decision to sentencethe offender to death or life imprisonment. They therefore constitute an ‘elite’version of the jury, one that might be expected to perform more competentlythan juries in less serious cases. Despite this, studies have shown that capitaljurors are ‘unreceptive to mitigation and predisposed to vote in favour or execu-tion’ (Trahan, 2011: 1). Once again, jury input is associated with a punitiveresponse to offenders. ‘Democratic values’ in this example translates to valueswhich undermine principles of fundamental justice: promoting democratic values– participatory populism – may increase the number of executions.

Advocates of jury sentencing must therefore confront the likelihood that senten-cing could easily become more punitive as a consequence of becoming more popu-list. It appears, in face of the evidence, that the only argument left to promote jurysentencing would be to stress some inherent moral value of democratised punish-ment. Clearly this would have to prevail over traditional criminal justice valuessuch as consistency, proportionality and moderation (see our earlier discussionof Bibas).

Principled decision making: Compromise verdicts and jury nullification. Another potentialproblem arises from jurors’ knowledge when deliberating upon the verdict thatthey will ultimately also impose sentence in the event that they decide to convict.9

This awareness may affect their decision making, which is why common law sys-tems try to ensure that the jury remains unaware of the likely sentence to beimposed in the event that the defendant is convicted. If jurors believe that thedefendant has committed some wrong – but not perhaps the exact offence forwhich he is being prosecuted – they may elect to convict of the offence but thenimpose a more lenient sentence than would be proportionate for the offence ofconviction.

This kind of ‘compromise’ verdict is a good example of unprincipled populism atwork; the task for jurors is to determine whether the State has proven all theelements of the offence to a criminal standard. If sentencing the offender the chal-lenge is to impose a sentence which reflects the principles of sentencing and sen-tences imposed for similarly placed offenders – not something harsher or morelenient because they think the alternative is more appropriate. A sentencing jurymay in especially serious cases be tempted to convict on the basis of insufficientevidence and subsequently ‘compensate’ for their hesitation that preceded convic-tion by imposing a more lenient sentence. This hypothesis of compensatory pun-ishment was tested and rejected in the Netherlands in a study with professionaljudges (see De Keijser and Van Koppen, 2007). Yet would lay persons be equallycapable of avoiding such fundamental pitfalls in legal decision making? We haveour doubts; research has demonstrated that laypersons reason intuitively ratherthan logically in legal contexts (e.g. Simon and Scurich, 2011).

Jury nullification represents a more extreme manifestation of the dangers ofincreased populism. An increase in nullification verdicts is one cause for concernif juries determine sentence. Dzur condemns nullifications which arise when jurors




commence trial with the explicit intention of thwarting the course of justice byprejudging the verdict. He takes the position that ‘nullification is acceptable if jurieshave followed the norms of participatory justice’ (2012 a: 136). On his model then,jurors must enter the experience with an open mind, consider the arguments andevidence carefully and conduct a thorough discussion of the issues in deliberation –but they remain free to thwart the course of justice. The threat to consistency andfairness represented by nullification does not evaporate just because the verdict isbased upon a ‘careful consideration of the facts and the law’ (2012a: 135). A personmay carefully consider all the facts and still decide on the basis of an erroneousconclusion.

It may be argued that jury nullification and judicial decision making are nodifferent; he writes that nullification is ‘simply an overly dramatic and derogatoryname for the kind of discretionary power also held by the judge which can decide toallow some kinds of evidence but not others, some lines of questioning, not others’(Dzur, 2012a: 136). Yet the exercise of judicial discretion at trial and jury nullifi-cation are clearly distinguishable. A judge who declines to hear evidence or whorules on an application with important consequences for the likelihood of a con-viction is applying the rules of evidence. All judges are subject to these rules, andany resulting acquittals should reflect the reasoned application of rules, not thejudge’s personal inclination to acquit or convict, or her personal support for, oropposition to a particular law. The rules of evidence are designed to ensure fair andjust legal decision making and to protect defendants against arbitrariness. Jurynullification involves exactly that – the collective view of a small group ofpeople; they may nullify because they perceive the law to be unjust – a classicinvocation of the discretion to nullify, or, more often, for less lofty reasons includ-ing animosity towards the prosecution, the police or simply unprincipled sympathyfor, or antipathy towards, the defendant.10

Can the limitations on jury sentencing be remedied?

One possible solution to the limitations on jurors’ lack of knowledge of sentencingpatterns and precedents would be to provide juries with the relevant statistics andguidelines. While this may help promote consistency across juries and over time,juries would still need to make many discretionary decisions – including the criticaldecision about departures from guidelines; if the death penalty data are anyguide (see earlier), it seems likely that the current trend for downward departures– currently much more frequent than upward departures – would reverseitself. Moreover, providing guidelines is possible only in the USA andEngland and Wales; all other jurisdictions employ complex statutory provisionswhich enumerate a range of sentencing purposes, principles and aggravating/miti-gating factors. Often these statutes encourage sentencers to consider other factors‘relevant to sentencing’ and none provide guidance as to the weights which shouldbe assigned to these factors. Confronted with this form of guidance jurors wouldbe at sea.




Consider a typical sentencing statute such as the Sentencing Law in Israel.11 Thisstatute directs courts at sentencing to create a ‘proportionate sentence range’appropriate to the case at bar, drawing upon factors related to the offence, andthen to determine (a) whether to depart from this range (and if so, by how much),and (b) if not, to select a sentence within the proportionate range incorporatingcircumstances relevant to sentencing but which are unrelated to the commission ofthe crime or the culpability of the offender for the offence. How competent wouldlaypersons be in applying such a statute? In deciding whether to deviate from aproportionate sentence in order to promote the offender’s rehabilitation a courtneeds to know something about rehabilitation, about the kinds of rehabilitationprogrammes available and the likelihood that these will address the offender’s risklevel and needs (see Andrews and Bonta, 2010). How will juries acquire thisknowledge?

Another possible remedy to the problem of jurors’ lack of knowledge wouldinvolve them serving for a period of time – say six months – and encompassing anumber of trials, rather than being discharged after a single trial (Bennett, 2014).Requiring jurors to serve for such periods would be impractical.12 In any event,jurors could never attain the competence or knowledge level of a sentencing judge.Moreover, the greater the degree of professionalisation in this respect the less likelyit is that the jury’s decision will reflect community values in the first place – bring-ing us to the paradox found in Robinson’s research (see later sections of article).

One final concern invokes the normative claim for community input, which isthat the seriousness of crimes reflects social consensus about the relative harms ofdifferent offences. Thus, if the community regards offence X as a significantly moreserious crime than offence Y, empirical levels of punishment should reflect thisdifference. But seriousness levels cannot be determined on an ad hoc basis everytime a jury is empanelled to sentence: the severity of the appropriate punishmentshould reflect more deeply rooted population norms and not the decisions of indi-vidual juries, which are volatile and will change on a daily basis.

Proper role of the criminal jury: Tribunal of fact, not law

Advocates of sentencing by jury (e.g. Hoffman, 2003) condemn the inconsistencywhereby juries decide upon a verdict only to lose jurisdiction to a professionaljudge who imposes sentence. Yet juries have always formed a tribunal of fact,and have been ascribed the task of determining verdict, but not sentence. Jurorsevaluate evidence adduced at trial according to rules of evidence (devised andpoliced by professional jurists) without having to decide whether a piece of evi-dence or particular testimony is admissible. It has long been the practice thatdetermining admissibility and applying complex sentencing principles has beenleft to legal professionals, sitting as a tribunal of law. There is no sound practicalor normative reason to assume that lay persons would perform better at such tasks.

The division of labour between jury and judge makes sense because the func-tions of the judge and jury are manifestly different. Dividing jurisdiction in this




manner is no more inconsistent than an arrangement whereby a judge deter-mines sentence and a parole board determines whether to release the prisoneron parole. The former decision requires professional legal training and experi-ence; the releasing decision requires experience with after care, rehabilitationand predicting re-offending. Different mandates call for different professionalexpertise and experience. Twelve members of the public may be more able toreach a decision based upon the evidence adduced at trial; fact finding maybenefit from a multiplicity of perspectives and possibly group deliberation(although these too need to be substantiated empirically). But professional train-ing is required to determine, for example, whether a series of prior convictionsshould count at sentencing, and to what degree. In most common law systemscourts weigh previous convictions according to a number of dimensions; olderconvictions are either discounted or disregarded entirely for the purposesof sentencing. They are also the subject of contested claims by counsel atsentencing hearings, and judges are probably more competent at arbitratingbetween competing claims on the basis of legal criteria. In short, whether agiven factor is relevant to sentence is not a question of intuition, of jurors’gut feelings.

Public intuitions of sentencing: Empirical desert

If transferring sentencing authority from experienced professionals to members ofthe public seems unwise, another way of democratising punishment involves retain-ing professional sentencers but rewriting sentencing principles and practices toreflect directly public views. Scholars have long sought a convincing justificationfor crafting sentencing policy and practice to accommodate public views. Claimshave been made that the relative seriousness of crimes is in part a function of socialreaction, or that culpability reflects the degree to which society deems individualsculpable, but a convincing retributive criterion for determining relative (and abso-lute) crime seriousness has proved elusive. Robinson cuts through this Gordianknot by replacing retributivism with an explicitly utilitarian rationale for commu-nity input: public opinion should guide sentencing in order to ensure compliancewith the law.

The instrumentalist argument for empirical desert

The principal argument and the methodology of Robinson’s book may be sum-marised as follows. A high degree of community agreement exists regarding therelative blameworthiness of various criminal cases, especially for a core of wrong-doing. For this core, consisting of theft and violent offences, community agreementis universal, invariant over cultures and demographics. As one moves away fromthis core, the extent of agreement diminishes. Robinson measures community intu-itions of justice empirically by means of a scenario-based methodology: subjects arepresented with brief case descriptions and asked to assign levels of liability and




punishment. The scenarios are varied along the lines of the specific issue that isbeing examined, such as culpability levels or self-defence.

The argument for empirical desert is overtly instrumental. A mismatch betweencommunity views and the criminal law will undermine the moral credibility of thecriminal justice system, lead to reduced compliance with the law and underminecommunity norms. The argument has two forms, a weak and strong version. Theweak argument is that the criminal justice system’s moral credibility and subse-quent effectiveness may be enhanced if it assigns liability and punishment accordingto empirical desert (see p. 176). The strong argument is that:

The incorporation of community judgments of justice into law’s liability and punish-

ment rules is essential to law’s crime control effectiveness because it is only by earning

moral credibility with the community it governs, that the criminal law can, among

other things, harness the powerful forces of social influence and internalized norms.

(p. 141, emphasis added)

The strong argument predicts that moral credibility of the criminal law willcrumble if it does not reflect shared intuitions of justice. Ultimately, this wouldresult in the demise of the system. For instance, referring to community views ofextra-legal punishment factors (XPF), Robinson claims:

If the criminal justice system is to maintain its moral credibility with the community it

governs, and thereby harness the powerful forces of social and normative influence, it

cannot be seen as giving deference to an XPF that the community rejects nor as

ignoring an XPF that the community broadly supports, yet this does indeed happen

in current practice. (p. 532)

Such a strong claim raises important questions relating to the measurement ofcommunity views and to evidence of the detrimental effects of a mismatch betweencommunity views and the law.

Empirical desert implies unprincipled sentencing

A further claim by Robinson is that the traditional crime control mechanisms ofgeneral deterrence and incapacitation ought to be replaced with the ‘normativecrime-control’ principle by which the criminal law tracks community views thatresult from empirical research (see p. 535). One aspect of this claim is particularlyworrisome, and that is the implicit rejection of principle per se. Populist sentencing,rebranded as ‘normative crime-control’ is proposed as the guiding factor at theexpense of principled sentencing. Nevertheless, Robinson continues to argue interms of ‘principle’. In distinguishing empirical desert from deontological desert,for ‘determining the principles by which punishment is to be assessed, it looks notto philosophical analyses but to the community’s judgments of justice’ (p. 164). Theconnection between ‘principle’ and community views eludes us, however.




Of course, one may argue, based on the instrumental nature of empirical desert,that an overarching utilitarian effectiveness principle is at work here, but it never-theless leaves the system at the mercy of unprincipled community views.

Questionable support for the basic claim

Our first question is whether the strong form of his argument is overstated (see alsoBagaric and Edney, (2004) for doubts about legitimacy claims regarding communityviews of justice). The arguments for empirical desert appear intuitively attractive.The argument predicts that without connecting to shared community intuitions thecriminal justice system’s moral credibility will continue to decline, eventually leadingto system failure. From an empirical point of view, this claim is problematic becauseit cannot be falsified by looking at existing criminal justice systems – which have yetto collapse. Why, in light of long-standing public criticism, have existing systems notyet lost all their moral credibility and collapsed? One answer may be that they are onthe brink of collapse and it is simply a matter of time until the moral credibilityreservoir is completely drained. The alternative explanation is that existing criminaljustice systems already incorporate popular opinion in more diffuse and indirectways, at least to the extent that it has protected the systems against total loss ofmoral credibility. Robinson appears to doubt this: ‘Lay intuitions assign liabilityand punishment in ways that systematically conflict with the rules of liabilityand punishment that coercive crime control strategies would follow’ (p. 108).

Either way, both answers make the strong version claims for empirical desertimpossible to falsify. Moreover, there is a marked and fundamental differencebetween observing that the community would (for example) support a differencein grading of an offence depending on the degree of culpability (p. 335) and claim-ing that ignoring such community views will be detrimental to the moral credibilityand effectiveness of the justice system. Similarly, focusing on justificatory defences(i.e. self-defence), Robinson concludes from one of his scenario studies that strikingdifferences between community views and the criminal law indicate that large seg-ments of the community are ‘deeply dissatisfied with the criminal justice system’(p. 300). While the observation of a marked difference may be the result ofempirical research, the stated implication is not.

Weak version claims

If the strong argument cannot stand its ground we are left with the weak argument,namely that the moral credibility of the criminal law and thereby compliance withthe law can be enhanced by reflecting community views. From an instrumentalistperspective, we now have a simple question to answer: will the moral credibility besufficiently enhanced to justify the abandonment of principled sentencing? We seeno convincing arguments for a positive answer to this question. Moreover, even theweak version of the argument seems overstated, as there are many other charac-teristics of criminal justice systems that may concern the public more.




For instance, in the Netherlands public opinion has been strongly punitive fordecades while levels of public confidence in the courts have been high (see DeKeijser, 2014; De Keijser and Elffers, 2009; Dekker and Van Der Meer, 2007).The same respondents who expressed deep dissatisfaction with levels of punishmentimposed by judges also favoured an independent and professional judiciary thatmaintains a certain distance from public opinion. Elffers and De Keijser (2007)asked respondents to rank order 10 essential traits of a criminal court judge.The three most favoured were: ‘just’; ‘impartial’; and ‘independent’. More tellingly,approximately three-quarters of the sample indicated that judges should focus oncharacteristics of the case, rather than on public opinion. While the issue of puni-tiveness is not the same as intuitions of relative blameworthiness, these findingsindicate that even if the justice system fails to deliver what the public desires, itslegitimacy is not necessarily affected – at least in the Netherlands, and possiblyother countries too.

Apart from extreme violations of any common sense conceptions of ordinalproportionality (e.g. a murder resulting in a simple fine or theft being punishedby life imprisonment), it is likely that other community beliefs about justice are as,or even more important determinants of moral credibility of the justice system thanempirical desert. In other words, the expected effectiveness of empirical desert,based on scenario studies, is in reality swamped by myriad other factors that areimportant for a system’s moral credibility, legitimacy and effectiveness. How, then,can the basic claim for the utility of desert be substantiated? The most concreteempirical support can be found in Robinson’s chapter ‘Building moral credibilityand the disutility of injustice’. The author explains that the studies described in thischapter ‘were designed to test for evidence that a criminal justice system’s reducedmoral credibility produces disillusionment that, in turn, undermines the deferencethat moral credibility brings’ (p. 177). The reported studies measured subjects’respect for the law, and their behavioural intentions to cooperate, support andcomply with the law. As such, these studies, on which the book’s claims rest,remain at the level of attitudes and behavioural intentions of small samples ofsubjects undergoing experimental manipulations.

The studies show that when confronted with striking discrepancies between theoperation of existing criminal law doctrines and the subjects’ own intuitions ofjustice, general attitudes towards the law become more negative and expressedwillingness to cooperate, support and comply with the law declines. Robinsonconcludes that ‘the greater the disillusionment, the less likely people are to cooper-ate with the criminal justice system and to defer to it as a moral authority thatshapes societal norms and the internalization of norms’ (p. 183). The problem hereis three-fold. First, the limited external validity of these experimental studiesregarding the relation between empirical desert and a system’s moral credibilityand effectiveness is ignored. Second, all variables are measures of attitudes andbehavioural intentions, whereas the claim involves people’s behaviour in responseto the law and effectiveness of the criminal justice system. Third, recent empir-ical tests of the empirical desert claim have failed to support the hypothesis.




Slobogin and Brinkley-Rubinstein (2013) conducted a series of empirical trials andconcluded that their research ‘suggests that a failure to track community members’views on punishment does not have a significant or lasting impact on their willing-ness to be law abiding systems’ (pp. 123–124).13

In short, there is insufficient evidence for the effectiveness claims of empiricaldesert. Studies which measure actual behaviour, not merely behavioural intentions,are necessary. Furthermore, Robinson cites survey studies that generated correl-ations between people’s perceptions of the moral legitimacy of certain laws andtheir self-reported behaviour under those laws. Apart from some well-documentedcautions about self-report data (cf. Thornberry and Krohn, 2000), such correl-ations do not constitute evidence of a causal relationship between moral credibilityof the law and behaviour. Finally, we believe that an adequate test of the moralalignment–compliance hypothesis awaits a more robust empirical test, for exampleby monitoring and relating levels of compliance with public perceptions of moralalignment.

Which community intuitions?

If penal policy and practice are to track (and match) shared community intuitionsof justice, the questions what exactly is being measured in empirical research andwhat that stands for become all-important. After all, moral credibility can only beprovided by the larger community, not by an unrepresentative group of respond-ents whose views may be very different. Levels of agreement and facts on whichpeople agree or disagree depend on how the research is conducted. Public responsesare highly dependent on context, information, opportunity to deliberate and ques-tion wording (see Indermaur et al., 2012; Roberts and Hough, 2005b; Stalans,2002). ‘Deliberative’ methodologies produce more coherent and nuanced publicviews than simplistic single-item survey questions (Green, 2006; Hutton, 2005).In a similar vein Robinson’s argument is that with a sophisticated methodologyinvolving scenarios, true intuitions of justice will emerge.

The pivotal question here is whether the intuitions of justice as measuredthrough this methodology using a select group of respondents reflect the intuitionsof the community as a whole. Robinson labels them as community intuitions andthis must be the case for the basic claim of empirical desert to stand its ground.‘Shared intuitions’ may be documented across jurisdictions and cultures, as long asthey are identified using the same methodology. As a result, the methodology maybe reliable, but is it valid? Would such shared intuitions of justice be recognised bythe general public who do not respond to a set of related cases or criminal justicedevelopments presented to them within the context of a scenario study? Do peoplecasually reading crime stories react in the same way as subjects in these laboratorystudies?

The reactions of a small, unrepresentative sample who have participated in asophisticated experiment are unlikely to correspond to the opinions of the generalpublic. The salience of the information as well as the way that this information is




processed (in an experimental setting) bears no relationship to everyday reflec-tions about punishment. The consequence is that by following experimental sub-jects’ views the criminal law in fact connects not to shared community views butto scenario study respondents’ views. The two views do not (necessarily) coin-cide, meaning that Robinson’s empirical desert, by virtue of the methodology,may be counterproductive from exactly the moral credibility and legitimacypoint of view.

Robinson contrasts general uninformed public opinion with the results of hisscenario studies. The general public is ill-informed and is misled by politicians andthe news media; as a result, their conceptions of justice are flawed (p. 139). Hefurther claims that his methodology is appropriate ‘because psychologists havediscovered that subjects often do not have mental access to the principles andprocesses they use to make decisions’ (p. 240). But if ordinary people haveflawed conceptions of justice and have no mental access to their principles of just-ice, what do these ‘shared intuitions of justice’ that are produced through thescenario studies represent? This question is relevant because violations of such‘shared intuitions’ may not even be recognised as violations by members of thecommunity – they will only be considered violations within the context of thesescenarios in a controlled research setting. So do we really want to apply this to thecriminal law’s rules for deciding when someone is to be liable for a criminal attempt(see p. 240)? Connecting to public views as measured by a scenario methodologyseems an unconvincing basis for such far reaching decisions. We prefer a principledapproach to sentencing.

Our fears are echoed by Robinson. In response to concerns about the represen-tativeness of scenario study findings for the general population, he claims that ‘thequestion here is different from the standard questions regarding sample size andpopulations. In the standard survey, one wishes to generalise about, for instance,what percentage of the population will assign the death penalty to the perpetratorof the murder described. To establish that percentage accurately, large and care-fully stratified samples are necessary. That is not the sort of generalisation thesetests were meant to draw. Instead, the research was concerned with the patterningof the different liability assignments made by each individual, and the similarity ofthe resulting patterns across individuals’ (p. 435). The puzzle is that in this section,Robinson stresses the internal validity of his scenario studies, whereas throughoutthe book, he maintains that the law should track community views in order tomaintain or improve moral credibility and compliance. In order to sustain that lineof reasoning, the external validity of the scenario studies is of pivotal importance.Are shared community views captured by this scenario methodology? Is a liabilityrating for a particular crime in a within-subjects scenario study representative ofwhat the general public thinks? Surely not.

To summarise, we doubt whether the effects emerging from these studies aregeneralisable to the larger community. If the views of scenario study respondentsdo not match opinions held by the wider community, we would expect the oppositeeffect on compliance.




The core of shared intuitions of justice

Robinson reviews the evidence for two explanations of the core shared intuitions ofjustice: evolutionary or social learning. He strongly prefers the evolutionaryapproach, according to which core intuitions are innate. However, Robinsondoes not use that particular or any similar phrase. Why not? He provides an elusiveanswer to this question when he claims that the social learning approach and theevolutionary approach are not in conflict:

Babies do not come into the world with intuitions of justice intact; rather they acquire

them over time in a predictable and largely sequential way through interaction with

their environment. In this sense, the evolutionary explanation envisions some involve-

ment of the surrounding culture. (p. 56)

Robinson claims that it matters not if they are inborn or the result of learningprocesses. What counts is that they are so fundamental and universal that they are‘not open to easy change or manipulation’ (p. 62). Moreover, the only importantfact appears to be that there exists a core of shared intuitions of justice to whichpenal policy and practice needs to connect if the criminal justice system is tomaintain its moral credibility. We believe that the origin of core values mattersbecause it has important implications for the malleability of intuitions. If they arenot innate, they can be learned or changed within a generation. Indeed, does itmake sense to talk about an invariant core of shared intuitions of justice if in factthey are learned and can just as easily be referred to as effectively internalisedsocial norms?

One of the essential shared intuitions of justice in the core, according toRobinson, is the universal desire to punish wrongdoers. Restorative justice scholarshave argued against an evolutionary approach to the origins of such a desire topunish. According to them the desire to punish is (largely) a learned response thatcan be altered and influenced. Not surprisingly, Robinson attacks the RJ conceptionof the desire to punish. Nevertheless, there are many examples of restorative con-ferences and victim offender mediation schemes that are considered satisfactory notonly by those directly involved, but also by the larger communities (see Roberts andStalans, 2004; Walgrave, 2008). Moreover, it remains to be seen if successful andnon-punitive restorative justice programmes have indeed led, as Robinson wouldpredict, to a decline in moral credibility of the respective criminal justice systems.

Further evidence is reviewed for the ‘nearly universal human intuition that ser-ious wrongdoing deserves punishment’ (p. 19). The evidence cited stems partlyfrom social scientific research. For example, in several studies respondents wereprovided with the response category ‘no punishment’. The fact that even for theleast serious cases very few respondents selected that response alternative is inter-preted as strong evidence for this universal intuition to punish (see Chapter 2). Theother source of evidence is found in animal studies, and brain science evidence tosupport the idea that the universal intuition to punish is a biological fact.




The discussion is reminiscent of the intuitionist general justification for retributivepunishment as formulated by Moore (1987) and criticised by others (e.g.Walker, 1999).

However, punishment is a fundamentally different concept in theory and in legalpractice (at least in modern western jurisdictions) from deeply engrained humanemotions such as revenge. The raison d’etre for a system of state punishment is toreplace vengeance, which is self-serving and arbitrary ‘taken by anyone who feelsinjured and wishes to retaliate. [ . . . ] Revenge is harmful to the legal order’(Van Den Haag, 1975: 10–11). The scholarly literature stresses the point that pun-ishment is a disinterested act that is not guided by emotions and is subject to rules(see Nozick, 1981; Van Den Haag, 1975). As such, state punishment stands in theway of personal emotions of revenge. The core intuition of justice that Robinsonrefers to as a deeply engrained desire to punish is more likely to be the emotion ofrevenge. The two are fundamentally different.

Robinson affirms that the criminal law should track and reflect communityintuitions of justice, thus gaining and maintaining moral credibility. Moral cred-ibility, in turn, is necessary for compliance with and effectiveness of the criminallaw. We have examined both the strong version and the weak versions of this claimfor empirical desert in light of the evidence and remain unconvinced of eitherversion. Moreover, we have argued that the very concept of shared communityintuitions of justice is not captured by Robinson’s scenario methodology. If theviews of liability and punishment of respondents in scenario studies do not matchshared community views, no beneficial effect in terms of moral credibility is to beexpected from empirical desert. In view of the above, we are left with not muchmore than a remote threat that the criminal justice system will lose its moral cred-ibility if it does not connect to community intuitions (the strong argument) and thehope that moral credibility will be enhanced (the weak argument) if the systemconnects to community intuitions. A threat and a hope are insufficient to institu-tionalise this form of new populism at the expense of principled sentencing. Finally,whatever one’s perspective on the likely benefits or burdens of implementing empir-ical desert, it is far from evident that this type of new populism is what thecommunity itself actually desires.

Conclusions

To conclude, we regard proposals to introduce greater – and more direct – publicinvolvement in sentencing as a threat to principled sentencing. Our objections arefounded on two grounds: findings from relevant research, and our analysis of thenature of legal punishment. Put simply, the evidence does not justify greater publicinvolvement, and public opinion is normatively problematic with respect to senten-cing. The new populism may not appear to threaten a more punitive environment,yet sentencing is about much more than moderating the penal excesses of contem-porary state punishment. It is also about principles, and we fear that these will beswept away by a tidal wave of populism. Replacing professional judges with jurors




at sentencing would move sentencing closer to community values, but at a cost interms of principle. Revamping sentencing practices to conform to intuitions derivedfrom carefully staged experiments involving samples of the public is unlikely topromote greater compliance with or confidence in the criminal justice system. Noris there any convincing evidence that sentencing by juries would be more lenient,more principled, or attract greater public support than sentencing by judges. Indeed,there is good reason to believe that deriving sentencing principles or sentencingfactors directly from the public would result in less principled sentencing.

The sentencing process should not turn its back on the community, however.At its heart, the imposition of legal punishment is a social exercise – the expressionof disapprobation on behalf of the collectivity. This reality has important conse-quences for the sentencing process. Space limitations prevent us from offering athorough exegesis of the solution but there are many ways in which sentencing mayreasonably reflect public opinion (for competing perspectives, see Ryberg andRoberts, 2014). Sentencing guidelines authorities should continuously monitorthe nature of public opinion with a view to identifying discrepancies between judi-cial practice and community views. Some legal regulations may be out of touchwith contemporary society. There may also be legal rules on aggravating andmitigating factors, on culpability and excuses that may be explored. Once theseare identified, the authority can decide whether to adjust practices or simply make agreater effort to engage the community. In addition, the State should make muchgreater efforts to inform the citizenry of the nature and consequences of sentencingon the lives of offenders, families and communities. Ultimately, however, principleshould trump populism in the determination of sentencing practices.

Whether the democratisation of punishment enhances or inhibits punitivenesswill depend upon a range of factors, including the ambient level of public antipathyto offenders, recent crime trends, the influence of tabloid media, high profile crimesand the extent to which the courts are insulated from community input. We see nointrinsic or inescapable connexion between punitiveness and populism – althoughhistorically they have coalesced in western democracies. However, we believe thatthe more overtly populist, the less likely it is that sentencing will adhere to prin-ciples such as proportionality, consistency, and restraint with respect to the impos-ition of criminal sanctions. Ultimately, populism and principle are incompatible.

Acknowledgements

The authors thank Michael Tonry, Andreas von Hirsch and the anonymous reviewers of thisjournal for comments on an earlier draft of the essay.

Notes

1. When public attitudes to issues such as mandatory sentencing, the death penalty or

life without parole are examined more thoughtfully (by asking about specific cases or

providing people with information about an issue), they reveal far less punitive

responses to crime (see Roberts and Hough, 2005a).




2. For example, politicians object to ‘judicial escape hatches’ which permit courts to

impose a lesser sentence in the event that exceptional circumstances are found.

3. Dzur (2012a: 14) asserts that ‘lay participation improves institutions because citi-

zens can help produce better decisions than professionals’.

4. ‘The rise of lawyers not only excluded victims, silenced defendants, and bypassed

jurors through plea bargaining; it also hid criminal justice outside open court, just

as prisons hid punishment behind high walls’ (Bibas, 2012: xix).

5. A populist approach to sentencing reflects a view that sentencing is an equal-

opportunity exercise, where intuitions may well be as or more valid than

legal or professional expertise. One jury sentencing advocate argues that:

‘Complex engineering, economic, or medical questions are better left to

experts . . . criminal law, is not generally a highly technical field, and sentencing

even less so’ (Iontcheva, 2003: 343). In our view, making subtle distinctions between

complex cases and applying sophisticated legal principles is more complicated than

this quote implies.

6. The research on juror decision making in capital sentencing reveals that jurors

often fail to act as disinterested adjudicators. For example, Bowers et al. (1998)

found that many jurors decide in favour of the death penalty in advance of the

hearing and then cleave to that decision thereafter. These authors conclude that

there is ‘no easy or obvious remedy’ to this kind of unprincipled lay participation in

capital sentencing (1998: 1546).

7. This research is also described by Iontcheva (2003: 361) as ‘inconclusive’.

8. As the review by Iontcheva (2003) notes, some studies fail to find juries are more

punitive than judges.

9. In many jurisdictions (such as Canada) judges both adjudicate at trial and sentence

the offender, yet unlike jurors they are trained to ensure that their verdicts are

unaffected by the knowledge that they will also ultimately impose sentence.

10. To conclude discussion of jury sentencing, we note that the New South Wales Law

Commission conducted a careful review as well as an extensive public and profes-

sional consultation, after which it concluded: ‘It is difficult to conceive of any form

of jury involvement in sentencing having advantages significant enough to out-

weigh the serious incursions into the integrity of the criminal justice system that

would inevitably result’ (NSW Law Reform Commission, 2007: 54).

11. For an English translation of the statute and commentary, see Roberts and Gazal-

Ayal (2013).

12. In addition, one of the benefits for Dzur of the jury is that they ‘hold office for a

short time’ (2012a: 141).

13. For a response to this article from Robinson and colleagues, see Robinson et al.

(2014).

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Julian V Roberts is Professor of Criminology, University of Oxford.

Jan W de Keijser is Associate Professor of Criminology at Leiden University,Institute for Criminal Law and Criminology.




democratising punishment: sentencing, community views and values

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