Warner conducted studies on 987 jurors from 124 criminal trials in the County Court of Victoria between 2013 and 2015. If the jurors returned a guilty verdict for the case, they were immediately asked what they believed to be the appropriate sentence for the convicted defendant. Researchers then compared the sentences recommended by jurors to the sentences subsequently given by the judges.
In nearly two-thirds (62%) of cases, the jurors would have bestowed more lenient sentences than did the judges. An arm of the Australian Broadcasting Corporation reported on the story and saw an inconsistency between juror behavior and public opinion:
Public opinion polls regularly suggest that 70 to 80 per cent of judges are ‘too lenient’.
‘There just seems to be a general perception out there in the community that judges are just too soft on criminals,’ says governor of Tasmania and law professor Kate Warner.
‘You often see newspaper reports of “the prisoner walked free”, and certainly top-of-the-head public opinion polls do suggest that people think judges are out of touch.’
Again, the irony here is that the research shows it is the jurors who arrive at more lenient sentencing preferences, relative to the judges. This incongruence between the surface-level public opinion and the judgments reached by jurors underscores the importance of jury deliberation. Albert Dzur has emphasized the negative consequences of excessively retributional justice, which can be read as a judicial system over-responsive to an unreflective public’s appetite for punishment. This study isn’t the first to suggest that deliberative juries can be more lenient; past reviews have shown juries to largely agree with judges, but acquitting more often when there is disagreement.
This power of deliberation on juries may have meaning beyond legal institutions, as argued in The Jury and Democracy. The mediating nature of deliberation might have useful political applications, given that legislative disagreement and brinkmanship continues to stand in the way of mutually beneficial progress. With polarization between the parties is greater than at any point in the modern past, proposals for citizen deliberation hold considerable appeal as supplements or alternatives to conventional politics, as argued by Matt Leighninger in The Next Form of Democracy.
Empowered public deliberation might yield policy change on key issues, where public sentiments are strong and consistent. For instance, 89% of Americans agree that there is too much money in politics. Likewise, 82% of Americans agree that they are bothered at least somewhat by the share corporations pay in taxes. Even 65% of Americans agree in a path to citizenship for illegal immigrants currently residing in the United States. Past experience with deliberative polling shows that, if anything, multi-day deliberation can increase those large majorities.
On the other hand, this study from Australia shows that public judgment can shift considerably when given the reins of power. In this case, attitudes shifted on punishment, but only sustained experimentation will show how it shifts on the wider range of issues on which we might need a more deliberative public input.