Abstract
This essay asks if there is a role for an active public in ratcheting down the harsh politics of crime control in the United States and the United Kingdom that has led to increased use of the criminal law and greater severity in punishment. It considers two opposing answers offered by political and legal theorists and then begins to develop a participatory democratic framework for institutional reform.
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Notes
For a discussion of the complexities of criminal justice policymaking and how even progressive reform efforts have also led to penal expansion, see Gottschalk (2006).
See Freiberg (2001) for a review of this research.
Responsibility is intertwined with self-development, for Kaufman: “The main justifying function of participation is development of man’s essential powers—inducing human dignity and respect, and making men responsible by developing their powers of deliberate action” (1969, 189).
As student activist and editor of New University Thought Gabriel Breton argued, “The recognition of the right of every member in the society to participate in the affairs of society is not based merely on some attitude of democratic fair play, but on the knowledge that every individual bears the burden of the problems of society and of mankind, and that his own responsibility as a moral agent commits him to work towards their solution” (Breton 1962, 11).
Making sure the law is everyone’s responsibility by removing it from the professional or official province of a select group is what Montesquieu had in mind when he praised the English jury system: “The power of judging should not be given to a permanent senate but should be exercised by persons drawn from the body of the people at certain times of the year in the manner prescribed by law to form a tribunal which lasts only as long as necessity requires….In this fashion the power of judging, so terrible among men, being attached neither to a certain state nor to a certain profession, becomes, so to speak, invisible and null” (Montesquieu 1989, 158).
As one lay member of a restorative justice community board in Vermont put it, “we create a list of all those the offender has harmed and how, then we brainstorm for ways the offender can make repairs” (Luskin 2008).
See, e.g., Waldron (2006). Because he is mostly concerned with judicial review, but perhaps also because of the scarcity of jury trials today, Waldron does not mention the jury or consider how it improves both the democratic legitimacy of the courtroom and the moral reasoning capabilities available there.
For more on the jury’s value, see Dzur (2010b).
See Dzur (2011b).
Alschuler, Schulhofer, and Langbein offer abolitionist arguments. Alschuler favors a system of three-day jury trials (1983). Langbein would replace plea bargaining with a streamlined trial process involving panels of judges and lay magistrates (1992). Schulhofer recommends encouraging defendants to choose bench trials (1984). For more minor reforms, including caps, see Gazal (2006) and Lippke (2006).
Though the Supreme Court has mandated that for states with the death penalty juries must have a role in determining the sentence, all but a handful of states leave juries out of the decision in noncapital cases. Part of the general professionalization of American law in the twentieth century, it is time to question this restriction in noncapital cases. See Iontcheva (2003, 319).
Even though just a handful of states permit formal jury sentencing, a not inconsequential number of cases are involved. King and Noble estimate about 4,000 noncapital cases per year are sentenced by juries in these six states (2004, 887).
Alschuler calls it “one of the most cumbersome and expensive fact-finding mechanisms that humankind has devised” (1986, 1824).
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Acknowledgments
This paper has benefitted from comments by participants in the Criminalization Conference at Stirling University and the Political Theory Workshop at the University of Michigan. Special thanks to Roberto Gargarella and Lisa Disch.
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Dzur, A.W. Participatory Democracy and Criminal Justice. Criminal Law, Philosophy 6, 115–129 (2012). https://doi.org/10.1007/s11572-012-9149-x
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DOI: https://doi.org/10.1007/s11572-012-9149-x