Engaging the Public in the Development of Sentencing Policy

Abstract

The issue of the lack of confidence in the courts provides an opportunity for us to consider the question of how sentencing policy is formulated and whether there is room for improvement in the process. It is argued in this paper that the legitimacy of the courts and public satisfaction with sentencing can both be enhanced if we were to carefully provide for the inclusion of an informed and deliberating public into policy formulation. Such a strategy would not only quell the loose and ill-defined ‘public opinion’ that characterises the tabloids; it would also enhance the transparency and the public acceptance of policy. The paper considers the continuum of possibilities for including the public from the gratuitous exploitation of the public voice by populists and media entrepreneurs using top-of-the-head opinion polls through to informed public opinion, public consultation process and ultimately the democratisation of sentencing policy. It is argued that this continuum can be seen as reflecting both the amount of true power given to the public voice as well as the amount of respect given to public input. Much of the fear of public inclusion in elite circles concerns public opinion as depicted in the media which is largely ‘public emotion’. It is argued that, when properly integrated, the inclusion of the public voice in the policy formulation process will have the same salutary effect that the jury has on the criminal trial.