Democratising Punishment by Julian V Roberts and Jan de Keijser

Julian V Roberts and Jan W de Keijser (2014) ‘Democratising Punishment: Sentencing, Community Views and Values’, Punishment and Society, 16(4), 474-498

How far should public involvement in punishing criminal wrongdoing be facilitated? A recent movement towards greater participation from the ‘lay’ public has suggested that these voices are lacking in the criminal justice system as it is currently conceptualised. Those in favour of this movement towards ‘Democratising Punishment’ have argued that a crisis of legitimacy is impending as decision-making in criminal justice matters becomes ever more divorced from ‘common-sense’.

In light of this, one of the key rationales put forward by the democratising punishment scholars, the notion of ‘common-sense’, presents itself for examination. It is hard not to think of Gramsci’s view of common-sense as ‘a reservoir of historically discontinuous and disjointed ideas that functions as the philosophy of non-philosophers’ which suggested that it was hardly the wise arbiter it often purported to be (In Selections from the Prison Notebooks of Antonio Gramsci 1971).

In their forcibly articulated argument Roberts and de Keijser critique, and in turn, criticise the models of participation and rationales proposed by advocates of the democracy in punishment movement.

As Lon Fuller articulated, through the person of Justice Handy, in ‘The Case of the Speluncean Explorers’, the place of public opinion in justice has been a recurring question in legal circles:

‘I have never been able to make my brothers see that government is a human affair, and that men are ruled, not by words on paper or by abstract theories, but by other men. They are ruled well when their rulers understand the feelings and conceptions of the masses. They are ruled badly when that understanding is lacking.

‘Of all branches of the government, the judiciary is the most likely to lose contact with the common man.’

Fuller presented Justice Handy as entirely swayed by the ‘common-sensical’ views of the public, as revealed to him through opinion polls in newspapers; Handy used this evidence to solve the difficult case at hand, namely the saving of four men accused of murder (the case is worth a read, and it makes great dinner party/pub banter).

Interestingly, given the concerns of democratising punishment advocates about the apparent disconnect between the people and the courts, Ireland’s highly discretionary system would surely provide acute cause for concern. It ensures that there is even less input from democratically elected persons, while tools such as sentencing guidelines, for example, are not a feature of this jurisdiction.

Advocates of democratising punishment extol the virtues of community involvement. One issue not explored at length in Roberts and de Keijser’s article however is the assumed homogeneity of ‘community’ which must necessarily underpin these treatises. The concept of the ‘community’ in each of the models of participatory justice is presented without nuance or discussion of what this nebulous term actually consists. Using a vague term such as 'community' also serves to glorify and romanticise the idea of lay participation, in a manner which becomes difficult to sustain when subjected to scrutiny. The direct participation of ‘community’ in this abstract form would inevitably incorporate the discrimination and inequity of society; currently within a professionalised criminal justice system there is the veneer of equality and neutrality. This is allied to the dangers of a reduction in transparency and accountability, as laypersons would not be held accountable to the same extent as professionals acting within carefully determined parameters. The entire debate suggests that a key question must be answered - is dispassionate deliberation a desired trait in decision-making? If this is not agreed on, then proportionality and principled sentencing make way for emotive and expressive justice. The argument put forth by 'Democratising Punishment' advocates that sentencing is ‘dysfunctional’ is interesting in this vein. ‘Dysfunctional’ how? In reality, this appears to mean lenient. Therefore, public participation in sentencing poses a risk of increasing punitiveness in the form of longer sentences, with the resultant rise in prison populations and expense.

Following on from the uncertain concept of 'community', even juries in many jurisdictions, including Ireland (see the Law Reform Commission report on this), are rarely representative, inevitably showcasing a selection of society skewed towards certain sub-groups. The small proportion of criminal cases which end in a jury trial is also regularly glossed over in the fiction of the jury trial as the cornerstone of the legal system. The valorising of the jury trial also sits uneasily with calls for greater expert juries or calls for a complete absence of jurors, for example in sexual offence cases or in cases of financial complexity deemed particularly specialised.

The question of how public reactions are to be gauged is also problematic. The equation of a media with a public reaction raises issues of causation. To what extent can a media reaction be viewed as reflective of a public reaction? In Ireland, an intense media reaction to the Lavinia Kerwick case in the early 1990s led to the Criminal Justice Act 1993 in which victims were given an opportunity, through the use of victim impact statements, to express in court how the crime had impacted them. However, the untangling of genuine public disquiet from media noise is difficult to quantify and assuming that media reactions are a proxy for public opinion can have the paradoxical effect of shutting the public out of debate.

Ultimately, the democratising punishment argument appears to locate the citizen as consumer, and to prioritise concerns of getting value for ‘your’ money; a sleek criminal justice system, incorporating Points of View-style feedback, is envisaged. The question of how great the want is among the public to assume their starring role in the administration of justice is debatable, for example the record low turn-out at the elections for Police Commissioners in England and Wales, which suggested a tokenistic exercise in devolving power to a people who had little interest. Over the previous two centuries, civil society gradually gave up its role in the punishment of offenders, it is questionable to what extent it has the desire and capacity to participate in a meaningful way.

Ultimately, The Differential Association suggested that education and information campaigns targeted at the public may offer a more feasible means of incorporating public acceptance of criminal justice processes. Those present discussed the possibility of televising trials, for example The Murder Trial (aired by Channel 4) and the blanket coverage of the Oscar Pistorius homicide trial, both presented opportunities to assess how such a proposal could work in practice. However, inevitably, the entertainment imperatives and the danger of misleading editing presents issues of ethics, exploitation and sensationalism.

What is lost in the literature calling for greater democratisation is the idea that professionals in the criminal justice system are citizens; they are merely citizens that have been tasked with acting impartially and to the best of their ability according to pre-set parameters. Further, judges are already to an extent influenced by public opinion in sentencing. Arguably, the use of restorative justice practices are already an attempt to introduce the community into the criminal justice process, as is community policing.

Finally, justice cannot be devolved as a discrete area which operates without reference to other areas of policy-making. The criminal justice system comprises one part of a symbiotic relationship with other areas of policy and politics such as welfare and education. Should public participation extend to these diverse other areas? To consider criminal justice policy in isolation merely perpetuates the use of its institutions and agencies as a catch-all for failures elsewhere in society.

Roberts and de Keijser have presented a sharp critique of the main arguments for 'democratising punishment'; the article is written in an informal and colloquial style, and the arguments are concisely and convincingly stated.