I've written before on the cancer of vox pop democracy, where all matters of policy must run the gauntlet of the vox pop test - which is to say that it must instantly appeal to a majority of shoppers at Fountain Gate who have a microphone shoved into their face and asked something like "Are you in favour of letting pedophiles go scott free so they can repeat offend?"
I've always thought that the jury is a fine institution for the way in which it avoids the pitfalls of this kind of thing while being radically democratic. Here we have ordinary people, but they've been informed of the case and deliberated on the matter. In talking about Campbell Newman's implementation of his promise to impose mandatory sentencing this article includes a link to a Tasmanian study in which those who had good knowledge of a case were surveyed to see if they thought the sentence was inadequate or the judge was 'out of touch'. 90 per cent said no.
I wonder if it might not be salutary to have juries regularly and publicly record their reaction to the judge's sentence in each case.
I think the first article is off the mark -- I imagine many people that support mandatory sentencing support it not because it reduces crime, but because they think that sentencing is too lenient in many cases for moral reasons. In this case, it is the issue of fairness that appeals to people ("did you get the type of punishment you deserve") and not trying to reduce crime. In addition, given that putting people in prison is really expensive, and thus must form one of the constraints in terms of how long the average sentence should be, there might well be some truth in the idea that sentencing really is more lenient than the average person's moral judement thinks it should be, even once all circumstances are accounted for. Hence it isn't surprising that mandatory sentencing has some support within the community.
There's lots of research showing that people generally DON'T think judges are "soft on crime" or "out of touch" once they're privy to all relevant information.
It's not just that people are surveyed on such questions by reference only to whether they think the sentence may have a deterrent effect (as conrad suggests). Deterrence is only one of numerous factors in sentencing. When they know the circumstances most people agree with the judge's sentence on moral, deterrence or just about any other ground. In fact if anything most surveys end up finding that the informed man in the street would have given a MORE lenient sentence than the judge actually imposed. Judges actually aren't (by and large) out of touch. The media laura norder nonsense is, as Nicholas implicitly suggests, a result of media framing the issue for cheap ignorant sensationalism.
The problem with Nicholas's suggestion is precisely the fact that there are already lots of data showing this. It's unlikely that the ignorant bogan masses (or any disengaged general audience) is going to have its attention more meaningfully attracted by regular surveys of juries than by the existing regular academic surveys (unless you can find a way to hogtie the audience and force it to pay attention as actual juries must do) . Sadly I think laura norder will remain "low hanging fruit" for cheap unprincipled demagogues (which means any politician if desperate enough and all radio shock jocks and commercial TV current affairs shows).
Does this evidence exist where people don't know what sentences the judges gave? The problem with saying "here's the case, here's the evidence, and this was the sentence" (as in the other linked article) is that it doesn't distinguish between people agreeing with the proposition given by someone in authority and what they may have thought otherwise.
Yes there's been research conducted on numerous different bases, including blind surveys where subjects are given all relevant information/evidence about the crime and the offender's circumstances etc, but not told what sentence the judge actually imposed. Generally the lay subjects impose the same sentence or a lighter one than the actual judge.
I've heard of these results for a while now and always assumed that I must be wrong but found them unusual.
Conrad's fine questioning makes me wonder if the 'lay people' surveyed include a disproportionate number of middle-class indigent students who happen to be wandering a college campus or its environs.
That would make a lot of sense! I can certainly imagine that there would be a number of sexual offences cases where otherwise extremely reasonable suburban mums and dads would think that perpetuity was erring on the side of caution, for example.
In fact in my experience the 'normal person' regards the discussion of 'extenuating circumstances' and aggravated sexual assault as a category error.
btw: Nick, your twitter links are to your logged-in page. I (probably happily for you!) can't access those.
Patrick There aren't many occasions where one can say with complete confidence that someone else (in this case you) is unequivocally completely wrong, but this is one of them. See this Australian Institute of Criminology report.
Research in Victoria by the DoJ found similarly that people were comfortable with sentence levels when they understood all relevant information.
What is concerning is the Pavlovian response to sensationalistion of crime and sentencing by newspapers and other traditional media.
People with a financial interest in criticizing perhaps should not be allowed to profit from false claims.
Could I just object that was a survey of Tasmanians?
That said, I'm not that fussed, since I have accepted (without great thought) these kinds of results as being right for a while now, it was just conrad's questioning that made me doubt them.
I'm not surprised to find myself something of an outlier, either.
Sorry about that Patrick, and thanks for the tip.
Oops - this was a thank you to your previous tip about my link. Wordpress does some strange things.
Ken, you've written this:
But I wrote this:
(Emphasis added)So I'm suggesting at the least that on each case the specific jury in that case be surveyed for its view of the sentencing. One could take it further than that. One could have the jury offer an opinion to the judge before sentencing, or one could have the jury do the sentencing - with or without some fairly substantial advice from the judge. I'm surprised these ideas haven't surfaced more on this thread - though presumably there's a literature on the idea.
Nicholas A criminal barrister friend says that that mandatory sentencing combined with 'plea bargaining' results in many pleading guilty to a lesser offense - regardless of guilt or innocence- thus resulting in reduced court costs for government legal aid.
Love the picture but feel compelled to add that it is no jury in the background (not that you directly suggest that) but rather a chorus of bridesmaids.
Should have said a criminal law barrister friend .
+! for Nicholas's idea. There's a lot to be said for simply giving greater publicity to the workings of our existing institutions, especially the good ones. This is something you see in organisations all the time: grumbling stops when you tell people more about what's actually happening. It doesn't always happen, but it's usually worth a try.
The comment above is supposed to say "plus one" not "+!". I'd like to put this down to WordPress too, but it's probably just my typing.
David you are spot on.
mind a lot prefer simple (and unbelievable) fantasy's to messy realities.
Would the press coverage of sentencing be more discursive if it had a jury's pre or post sentencing opinion to report?
Would this enable the public to get a popular insight into the process so understanding is increased as I take David Walker to be suggesting while remaining in the popular press and so not disappearing beyond the scope of Ken's bogan masses.
The complexity f the sentencing process is one that the public ought to to engage with - but how to do this in populist grabs?
'The judge found ..... the defendant's husband was..... and the jury considered....."
hmmm ..... the judge wouldn't be 'finding' anything if there was a jury though - I guess he/she would be; 'on passing sentence the judge said ' - the number of things that I just don't know is debilitating.
The Herald-Sun disagrees!
The Victorian Sentencing Advisory Council (which appears to be getting picked up by other states) obviously has some well-researched views on this matter.