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An account of the jury's function developed in American political thought links an equilibrium of power-sharing in the courtroom to the legitimacy of legal institutions, which weakens if either court professionals or juries dominate, if courts are too formal or informal. This paper explores this balance at the level of the individual criminal case, and suggests that the trial's formal and informal elements are equally necessary for a public form of communication that aims to involve all concerned parties. The jury trial serves to facilitate multivalent dialogue directed to fact finding and law application, but also to increased accountability: greater understanding and ownership of the law and its effects for jurors, defendants, and court professionals. This paper follows Duff's and other recent work on the trial, which suggests that as the criminal jury increases the trial's deliberative potential, it provides meaning punishment would otherwise lack for victims, offenders, and the public. This view aligns closely with critiques of communication deficits in traditional criminal courts by proponents of restorative justice reforms such as Braithwaite; they warn against a professionalized justice that permits formal rules, rigid roles and restrictions on the participation of victims and offenders to diminish the trial's normative potential. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The jury is a time-honored example of lay participation in an expert domain. Current practitioner and scholarly interest in planning cells, citizen juries, and the like draw on the traditional jury as model and symbol. Though symbolically still powerful, the jury's role in insuring power-sharing in the legal domain is weaker in practice than most realize. Contemporary nationwide efforts at strengthening the jury stem not from grass roots activism but from reform-minded court professionals increasingly dissatisfied with the current balance of power between professionals and lay people of the jury. This paper examines these reform efforts with an eye towards better understanding the political functions of the jury in American democracy. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Social orders punish to preserve themselves. What could be more straightforward? Yet every aspect of this simple declarative statement raises questions that are still open after centuries of normative argument: who has the right to punish, what sorts of punishment are permissible, what is the reason or purpose of punishment? All the central decisions that go into punishment need justification because it has such negative social meaning and clear harmful consequences for those on the receiving end. Our perspective in this paper is that normative debate persists unabated not out of lack of good arguments, but because punishment practices require public justification. This is so because punishment is done, by those on the sending end, on behalf of “public” interests, and because it is to be accepted as legitimate by fellow citizens on the receiving end. Our central claim is that punishment is something democratic citizens must “own up to” in ways we rarely do. We argue here that widespread civic participation in the domain of criminal justice is part of what legitimate punishment requires in a democracy. Yet we also argue that mere populism, such as the penal activism behind three-strikes laws, should not count as legitimation. Only public procedures of justification that hold citizens accountable and subject our preferences to scrutiny and questioning can count as legitimation. Our paper begins by showing how classical theoretical attempts at justifying punishment spiral into indeterminacy at precisely the points of most tension today: where citizens wish to assert the purpose and fix the severity of hard treatment for criminal offenses. Indeterminacy is the result of the failure to develop the public component of legitimation essential in democratic institutions. Another missing piece in modern penal theory is an explanation of how accountability is to grow among citizens active in shaping penal policy. We then turn to consider leading contemporary branches of consequentialism and retributivism and argue that they point in the direction of public legitimation and indicate the need for accountability. These features of the theories, we argue, are suggestive but underdeveloped. We need an account of public justification that can help us distinguish kinds of democratic participation that render punishment more acceptable from mere populism. Jurgen Habermas’s recent work in democratic theory is used to suggest the beginning of such an account. [ABSTRACT FROM AUTHOR]

This paper criticizes both an apolitical and a hyperpolitical account of professional expertise and authority in order to gain a better understanding of the democratic responsibilities of professions. Social trustee professionalism, the apolitical view, holds that in addition to task competence and fiduciary responsibility to particular clients, professionals are to serve public interests in central social ends, such as justice and health. By contrast, the anti-technocratic critique, the hyperpolitical view, sees professions as impediments to democratic expression of public interests because of their structural position between lay public and elected officials, and because of their prescriptive powers. Though the anti-technocratic critique is right to hold professions accountable for their effects on democracy, this paper argues that an adequate democratic theory of professional responsibility must recognize the ways professionals can enable democracy by encouraging lay participation in professional domains. The paper concludes with a suggestion for reconstructing professional roles to show how expertise and skill-based authority can interact favorably with lay participation. [ABSTRACT FROM AUTHOR]

Restorative justice, a normative theory and reform movement emphasizing dialogue and reconciliation between victim, offender, and community, has become part of the practice of criminal justice in the United States. This essay argues that restorative justice has a participatory core that distinguishes it as a normative theory of criminal justice. Advocates of restorative justice expect social change, especially the growth of non-punitive attitudes, to emerge from a public and de-professionalized context of adjudication. The role of lay participation in achieving social change, though prominent in restorative justice critiques of mainstream criminal justice norms and practices, has not been clearly articulated in practical terms. Significant ambiguities remain regarding the degree of lay participation, scope of authority, and the focus of restorative justice forums. The essay concludes that to have an effect on public attitudes towards crime and crime control policy, lay participation in restorative justice forums must be more widespread and more contentious than currently conceived. Barriers to more restorative criminal justice policy include limited public knowledge in this domain, lack of a sense of civic responsibility for improving criminal justice policy, and a traditional strain of punitiveness towards offenders. The first two barriers might be crossed by more widespread public deliberation in restorative justice forums, but the last will be much more difficult. [ABSTRACT FROM AUTHOR]

Professionals detract from and contribute to democracy. Radical critics of technocratic professionalism have shown how professionals can shrink the space of democratic authority when they perform public purposes. Further, critics point to how professionals’ sophistication in telling stories, healing, and delivering justice can make lay people less comfortable with their own abilities for producing objective news, good health, and justice. Yet a number of contemporary reform movements within professions see their domains as mobilizing rather than immobilizing, expanding rather than shrinking democratic authority. We need a theory of democratic professionalism to help us understand why reformers would seek to open up sites of authority that currently give them a good deal of power, status, and economic security. What value is task-sharing within the specific sites of professional authority for the professions themselves, for the lay people involved, and for the democratic goal of active participation in collective decision-making more generally? This paper turns to four thinkers -- Alexis de Tocqueville, John Dewey, William Sullivan, and Frank Fischer -- as guides to understanding democratic professionalism. [ABSTRACT FROM AUTHOR]