“Vigilantism and ‘Public Confidence’: The Pertinence of Public Opinion to Sentencing”

The title of this post is the title of this new essay authored by Michael Tonry now available via SSRN. Here is its abstract:

Public confidence in courts, judges, and sentencing, and belief in the legitimacy of legal institutions, as exists in Scandinavia, Germany, and the Netherlands, are self-evidently good things.  Politicians in England and Wales often avow the importance of “public confidence” in explaining why they promote or adopt especially repressive (e.g., Antisocial Behaviour Orders, Imprisonment for Public Protection) or illiberal (e.g., abolition of double jeopardy doctrine) legislation.  Three non-trivial issues lurk.  First, the rhetoric gets the causal ordering wrong.  As Justice Auld observed, public confidence is not “an aim of a good criminal justice system; but a consequence of it.”  Second, there is an underlying belief or assumption that “the public” disapproves current practices and wants changes made.  Masses of research show, however, that most depictions of the public’s views are unreliable and provide inadequate bases for policy making.  The public knows astonishingly little about criminal justice, opinions are shaped by media coverage and sensationalism, and considered views are not relentlessly punitive.  Third, there is more than a whiff of vigilante thinking in the idea that public opinion should be the basis for laws that prescribe or judicial decisions that concern punishments of particular people for particular crimes.