Search

Sentencing policies routinely assign harsher sentences on repeat offenders, yet we know little about public attitudes toward recidivist sentencing premiums – beyond the predictable finding that people are more punitive when the offender is a recidivist. This article summarizes findings from a survey which explored public attitudes to prior record sentencing enhancements. The research addressed public reaction to two key inquiries (1) whether older priors should carry less weight at new sentencing hearings; and (2) whether juvenile priors should be counted at adult sentencing hearings. Many guidelines count all prior convictions forever, and juvenile priors are almost always included in the offender’s criminal history score. Are these practices consistent with community views? Results indicate that in contrast to current practice in the U.S. guidelines jurisdictions, the public significantly discounts older priors, and favor disregarding at least some juvenile priors. The policy consequences for sentencing commissions are discussed.

Public opinion surveys have long documented public criticism of ‘lenient’ sentencers. There are two principal perceptions contributing to negative attitudes: a lack of community input and the view that sentencers determine sentence according to their own views. This study embeds an experimental design within a representative survey of respondents in England and Wales (n = 1,004), supplemented by laboratory-based work (n = 230) and focus groups. Results demonstrated that the public is ill-informed about both the magistracy and the sentencing guidelines. In addition, providing information about sentencing changed public attitudes to sentencing and reduced public punitiveness. Respondents were less critical of disposals and less punitive in their own sentence recommendations when they had been given context about the structure of sentencing.

A considerable body of scholarship has explored the jury as a legal institution but community reaction to the institution and function of the jury has not, to date, been the subject of a review. The present article fills this void by addressing a number of important questions about public attitudes to the jury. The focus is upon public attitudes to the criminal jury in England and Wales, although limited comparisons are made with public opinion in other jurisdictions. The results demonstrate widespread support for, and confidence in, the criminal jury, both in this country and in other common law jurisdictions. The research record also demonstrates strong public opposition to proposals to restrict the right to trial by jury. There is some evidence, however, that support for the right to trial by jury may decline in the context of offenders charged with terrorism‐related offences.

The literature on sentencing for murder falls into four categories. First, ‘black letter’ law sets out how the courts should punish convicted murderers and what should happen to them after conviction. Second, empirical research sheds light on the way that the sentencing provisions for murder determine the number of years served in custody prior to release on life licence. Third, a number of studies have documented what the public know or believe about sentencing for murder as well as how the public think murder ought to be punished (e.g., Mitchell and Roberts, 2012). Public opinion research is relevant to the sentencing for murder since public views are often employed to justify retention of a mandatory sentence (see Mitchell and Roberts, 2012). Fourth, there is a wealth of academic commentary advocating sentencing reform (e.g., House of Lords Select Committee, 1989; Committee on the Penalty for Homicide, 1993; Morris and Blom-Cooper, 2011; Mitchell and Roberts, 2013).

Much of the scholarship on legitimacy and criminal justice has focused on the ways that perceptions of legitimacy are shaped by contact with criminal justice professionals, notably the police. This chapter explores the relationship between the nature of the sentencing regime and public perceptions of penal legitimacy, or what we refer to as “empirical legitimacy ” (see Hinsch, Political legitimation without morality, (pp. 39–52). London: Springer, 2008). Part I explores public attitudes to sentencing and the reasons why the public in many countries may perceive their sentencing system to lack legitimacy. Part II explores ways of enhancing public perceptions of sentencing legitimacy. This includes the outline of what a “high legitimacy” sentencing regime would look like. In order to be perceived as legitimate, a sentencing regime needs to contain certain essential features. It must be (and must be perceived to be): (a) clear and transparent; (b) consistent in application and therefore predictable; (c) sensitive to the input of all relevant parties; (d) grounded in sound principles. Finally, we argue that the sentencing system must be communicated to the public in an understandable fashion in order to avoid erroneous expectations. The mere existence of sound sentencing principles is insufficient to ensure a high degree of empirical legitimacy.

This article presents findings from a survey that systematically explores public opinion, youth crime and justice in England and Wales. Particular emphasis was placed upon public reaction to restorative sentencing. The survey uncovered a number of misperceptions about youth crime. Few respondents rated youth courts as doing a good job, and most thought that sentences imposed on young offenders are too lenient. A considerable gap existed between the sentences that respondents wanted to see imposed on young offenders and the sentences that they assumed would be imposed. Generally speaking, expected sentences were less harsh than favoured punishments. When respondents were asked to impose sentence in case scenarios, there was significantly less support for custody as a sanction when the young offender had made some restorative steps such as writing a letter of apology and promising to make compensation to the victim. When asked about alternatives to imprisonment, significant proportions of respondents found alternatives to be satisfactory substitutes for imprisonment, a result consistent with research in other jurisdictions.

This article reviews public opinion research relating to imprisonment. Thefocus is upon British attitudes, but wherever possible we place findings from this countryin an international context. Most members of the public report little familiarity with theprison system – few people report having had any direct contact with a penal institution.A common finding around the world is that most people believe that prison conditions arequite easy; this belief helps to explain low public levels of confidence in the prison system.Despite these trends, the public does not wish to make prison life harsher merely for thepurpose of punishment. People want and expect prisoners to improve their lives whileinside, although there is widespread scepticism that rehabilitation is possible in today’sprisons. Although the traffic of people in and out of the prison gates today is large,nevertheless the prison is a silent world still shrouded in mystery. (Blom-Cooper1976, p.72) Despite the efforts of legislators to counter the problem, prison popula-tions are stable or rising in most western jurisdictions (see below). Oneexplanation for this state of affairs is the apparently strong public supportfor imprisonment as a sanction. Judges and magistrates feel underpressure to respond to public pressure on this issue (see Hough, Jacobsonand Millie 2003). However, relatively little is known about public viewsregarding imprisonment, as the emphasis in the public opinion literaturehas been upon sentencing rather than the nature of custody per se.Weknow that when asked to sentence offenders convicted of serious crimes ofviolence, most people support the imposition of a term of custody. It isequally clear from several reviews that the public believes the sentencingprocess is too lenient (for example, Cullen, Fisher and Applegate 2000;Roberts and Stalans 1997; Roberts 1992) and also that people in differentcountries underestimate the severity of current court practices (forexample, Roberts and Hough 2005; Roberts 1998; Mattinson and

Within the past decade, restorative justice has emerged as a truly global phenomenon. Although retributive justice has dominated the penal landscape, more recently, restorative principles at sentencing have attracted increased attention. Restorative sentencing emphasizes the importance of compensation and reconciliation between victims and offenders and pays less attention to establishing proportionality between the seriousness of the offense and the severity of the sentence imposed. Although voluminous (and proliferating), the scholarly literature on restorative justice has to date neglected one critical issue: public opinion with respect to this justice paradigm. Public opinion researchers too, have generally overlooked this topic. The goal of this paper is to determine which elements of the new paradigm generate public approval, and which features are likely to encounter or provoke public opposition, drawing upon related international research published in English over the past 20 years (1982–2002). The review reveals widespread support for “restorative” sentencing options, such as community service, compensation, and restitution, particularly when applied to young offenders. However, it also seems clear that public support for these alternatives to punitive sentencing options declines as the seriousness of the offence increases, suggesting strong public adherence to the retributive principle of proportionality in sentencing.

Surveys conducted over the past twenty years in several English-speaking countries reveal that most members of the public subscribe to a number of misperceptions about juvenile crime and justice. Regardless of actual trends, significant majorities believe youth crime to be increasing, and most people have quite negative views of youth courts. The public display considerable ambivalence with respect to juvenile justice. While strong majorities favor punishing violent juveniles with the same severity as adults, there has always been considerable support for rehabilitation. There is a clear consensus among scholars that public concern about youth crime, particularly violent crime, has been a driving force behind reforms that facilitated the transfer of accused juveniles to adult criminal court and made penalties harsher for offenders sentenced in youth court.

All Western nations have passed mandatory sentencing legislation that removes or greatly curtails judicial discretion. These mandatory sentencing laws have proliferated in recent years with predictable consequences for prison populations. A response to public demand for more severe sentencing is one of the justifications for mandatory sentences of imprisonment. In addition, politicians use mandatory sentencing legislation to enhance their standing in the eyes of the public. Politicians appear to assume that the public is strongly supportive of these laws, though scientifically valid surveys are never cited to support these assumptions. This article reviews the international findings from surveys that reveal that the public is deeply divided about mandatory sentencing. Part of the reason for this is that there is more support for proportional sentencing than for utilitarian goals, such as deterrence or incapacitation. In addition, survey data suggest that the electoral advantage of promoting these laws has been considerably overstated.

Contributors Introduction: Exploring the Normative Significance of Public Opinion for State Punishment, Jesper Ryberg and Julian V. Roberts Chapter 1: Penal Theory, Moral Intuitions, and Public Opinion, Jesper Ryberg Chapter 2: Proportionality Theory and Popular Opinion, Matt Matravers Chapter 3: The Proper Role of Community in Determining Criminal Liability and Punishment, Paul H. Robinson Chapter 4: Proportionality in Sentencing: The Need to Factor in Community Experience, Not Public Opinion, Mirko Bagaric Chapter 5: Penal Theory and Popular Opinion: The Deficiencies of Direct Engagement, Jan W. de Keijser Chapter 6: Why Should We Care What the Public Thinks? A Critical Assessment of the Claims of Popular Punishment, Frej K. Thomsen Chapter 7: Public Opinion and Democratic Control of Sentencing Policy, Christopher Bennett Chapter 8: Criminal Prosecutors: Experts or Elected Officials?, Richard L. Lippke Chapter 9: Stakeholder Sentencing, Thom Brooks Chapter 10: Repellent Institutions and the Absentee Public: Grounding Opinion in Responsibility for Punishment, Albert W. Dzur Chapter 11: Clarifying the Significance of Public Opinion for Sentencing Policy and Practice, Julian V. Roberts Notes Bibliography Index

Objective: One justification for a statutory ban on physical punishment is that passage of such legislation changes public attitudes towards the use of this form of parental discipline. The experience in Sweden is often cited as an example of legislation which changed public opinion. The aim of this brief article is to review the public opinion findings in Sweden in order to evaluate in greater detail the impact of changing the law. Method: A search was conducted to generate all published and publicly-available quantitative surveys of the public in Sweden and elsewhere. Results: The results of time-series analysis of the data are clear. The 1979 legal reform in Sweden did not reduce the level of public support for parental use of corporal punishment as a means of disciplining children. Support for physical punishment began declining years before the reform was passed and the decline was in no way accelerated by the law reform. Changes in public opinion may have generated the legal reform, but the reverse is not true. Data from other jurisdictions also support the view that there is no relationship between the status of the law and the nature of public views with regard to corporal punishment. This result is consistent with analyses of the effects of legal reforms in other areas. Conclusions: The Swedish ban on corporal punishment did not affect public attitudes. Changing public views requires other initiatives.

Research on public opinion over the past three decades has consistently established that the British public are critical of sentencers, and that this criticism exists independent of crime trends and even dramatic changes in criminal justice policies. This finding points to the possibilities that the findings are an artefact of the approach used by these surveys or that public opinion is formed in ignorance of actual practice. The 1996 British Crime Survey (BCS) contained a section of questions designed to test these hypotheses. Respondents were asked a series of questions about their knowledge of, as well as attitudes towards, sentencing practice and sentencers. Results indicate that judges received significantly more negative evaluations than any other group of criminal justice professionals. The public systematically under-estimate the severity of sentencing patterns, and this is significantly related to attitudes to sentencers. When asked to provide a sentence in a specific case of burglary, members of the public favoured sentences that were on balance little different from, and if anything more lenient than, current sentencing practice. Discussion focuses on the policy implications of these findings, as well as their relation to research in other jurisdictions.

Rape reform legislation in Canada was designed to change: 1) the way sexual assault cases were processed by the criminal justice system and 2) public opinion about crimes of sexual aggression. This article reports findings from a representative survey of the Canadian public and an experimental analysis of the effects of the legislation on public knowledge and attitudes. Results from the nation-wide survey indicated that most people are unaware of the semantic shift (from the old language of rape and indecent assault to the new crimes of sexual assault). However, there is awareness of the substantive legal changes introduced by the rape reform legislation (such as the fact that husbands are no longer immune from criminal changes involving their wives). It is clear that rape reform legislation has affected public knowledge of statutory reforms regarding crimes of sexual aggression. Results from the experimental component of this research show that the new sexual assault label has not achieved one of the important goals, namely of changing public perceptions of the nature of crimes of sexual aggression. Indeed, one negative effect predicted by feminist writers seems to have emerged: sentencing decisions made by the public for the offense of rape were less severe when the incident was described as a sexual assault.

Determining the factors which make a difference between a custodial sentence and a community penalty is one of the most challenging decisions for sentencers. Little research to date has explored the nature of public reaction to mitigating factors and the circumstances which may justify imposition of a community penalty even though the custodial threshold has been crossed. This article reports findings from a representative survey of the British public. Respondents were asked a series of questions designed to explore public reaction to sentencing cases at the custodial threshold. Public opinion polls suggest that the public respond punitively at sentencing, and have little sympathy for mitigating factors relating to the offender. In a series of questions, using experimental manipulations, respondents demonstrated considerable flexibility when sentencing cases near the custodial threshold. Significant support emerged for a wide range of mitigating factors at sentencing. The strength of public support for custody as a sanction was also explored by providing respondents who had imposed a term of imprisonment a possible alternative community penalty. Significant proportions of respondents found the alternative acceptable, even for relatively serious offences. © The Author(s) 2011.

Opinion polls in Canada, the United States, Great Britain, Australia, and elsewhere suggest that most members of the public would like their criminal courts to be harsher. Does media coverage of criminal sentencing contribute to a preference for harsher sentencing? Most people derive their information about sentencing from the news media and content analyses of news stories in Canada and the United States demonstrate that crimes of violence and sentences of imprisonment are overrepresented. Moreover, the news media provide little systematic information about the sentencing process or its underlying principles. This article reports the results of three studies examining the effects of media coverage on public opinion about sentencing. Subjects who read actual newspaper stories about sentencing that appeared in Canadian newspapers rated most reported sentences as too lenient. However, the specific account they read influenced their leniency judgments. Furthermore, in one experiment, participants assigned to read a newspaper account of a sentencing decision supported harsher sentences than participants who read a summary of actual court documents from the sentencing hearing.

Although there is now an extensive literature on public attitudes towards sentencing, and alternatives to traditional imprisonment, most of this research focuses on alternative sanctions other than community custody: far less is known about public reaction to terms of imprisonment served at home. One reason for this is the relative novelty of this sanction in many jurisdictions. Researchers have explored public reaction to some elements of community custody, such as home detention, electronic monitoring, and curfews; this work sheds light on public opinion regarding community custody, and will be examined here. As well, researchers in Canada have surveyed the public with respect to the community custody sentence, with interesting results. After discussing public reaction to alternative sanctions in general terms, this chapter explores the extent of public knowledge, and nature of public opinion regarding community custody. The research findings suggest that if community custody is properly conceived, and fully explained to the community, it is seen as a satisfactory substitute for institutional imprisonment for a wide range of offences. Public support for community custody seems to increase as the conditions imposed on the offender become more restrictive. However, for the present at least, the public appear to draw the line at using this sanction for the most serious personal injury offences. For these crimes, the public continue to regard penal sequestration as the only appropriate criminal justice response.