Measuring jurors’ views on sentencing: Results from the second Australian jury sentencing study
| Published date | 01 April 2017 |
| Author | Arie Freiberg,Julia Davis,Helen Cockburn,Caroline Spiranovic,Kate Warner |
| Date | 01 April 2017 |
| DOI | 10.1177/1462474516660697 |
| Subject Matter | Articles |
Punishment & Society
2017, Vol. 19(2) 180–202
!The Author(s) 2016
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DOI: 10.1177/1462474516660697
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Article
Measuring jurors’ views
on sentencing: Results
from the second
Australian jury
sentencing study
Kate Warner
University of Tasmania, Australia
Julia Davis
University of South Australia, Australia
Caroline Spiranovic and Helen Cockburn
University of Tasmania, Australia
Arie Freiberg
Monash University, Australia
Abstract
This paper presents the results of the Victorian Jury Sentencing Study which aimed to
measure jurors’ views on sentencing. The study asked jurors who had returned a guilty
verdict to propose a sentence for the offender, to comment on the sentence given by
the judge in their case and to give their opinions on general sentencing levels for
different offence types. A total of 987 jurors from 124 criminal trials in the County
Court of Victoria participated in this mixed-method and multi-phased study in
2013–2015. The results are based on juror responses to the Stage One and Stage
Two surveys and show that the views of judges and jurors are much more closely
aligned than mass public opinion surveys would suggest.
Keywords
public opinion, punitiveness, sentencing
Corresponding author:
Kate Warner, University of Tasmania, Private Bag 89, Hobart, Tasmania, Australia.
Email: kate.warner@utas.edu.au
Criminal punishment has long been seen as a necessary evil that must be justified by
principle, carried out for good reasons and inflicted only when deserved. The crim-
inal law reflects the values of the community and so, in a democracy, the views of
members of that community are often considered to be relevant when setting
appropriate limits on the levels of criminal punishment (Cullen et al., 2000).
Judges who sentence individual offenders and governments who control sentencing
through legislation have shown a willingness to respond to community demands
and values (Gleeson, 2005; Schulz, 2010). However, because uninformed opinion
cannot provide a sound basis for determining such matters, the problem facing
both arms of government is finding a reliable method of measuring community
views. This article presents the key findings of an innovative study conducted in the
Australian state of Victoria between 2013 and 2015, which asked 987 jurors who
had returned a guilty verdict in a criminal trial to propose a sentence for the
offender and to comment on the sentence given by the judge in their case. The
results suggest that, except in cases involving the sexual abuse of children under
12 years of age, judges in Victoria can take comfort in the fact that in general
their sentences are in line with members of the public who have been selected for
jury service.
Despite the broad agreement that some degree of public input into sentencing
policy and practice is desirable (Roberts, 2014: 228) and that any gap between
judicial practice and community views needs to be addressed, if only to correct
public misperceptions (Roberts, 2011), the question of how best to gather and
interpret these community views has not been easily answered (Ryberg and
Roberts, 2014; Yankelovich and Friedman, 2011). Research on public opinion
reveals that responses vary depending on the methods used by the researchers
and the amount of information given to the participants. When members of the
public are asked to assess general sentencing levels via representative surveys,
between 70% and 80% reply that the sentences given by judges are too lenient
(Doob and Roberts, 1988; Gelb, 2006: 11; Hutton, 2005; Mackenzie et al., 2012),
but these results have been criticised as being based on ignorance about sentencing
and the kinds of crimes and offenders that are typically dealt with by the courts
(Gelb, 2006, 2008). Indeed, when more detailed individual scenarios are presented
and respondents are invited to ‘be the judge’ in a specific case, members of the
public do not appear to be as punitive as the representative surveys suggest
(Diamond & Stalans, 1989; Hutton, 2005; Lovegrove, 2007; Mirrlees-Black,
2002; Roberts et al., 2003; Stalans, 2002). This conclusion has not always been
accepted by some sections of the media or politicians who continue to attack judges
and call for tougher sentencing in the name of ‘the public’ (Lasry, 2009; Schulz,
2010; Warren, 2010).
Both methods of collecting opinion have been criticised. Some social scientists
contend that the picture of punitive public opinion is simply a ‘methodological
artefact’ of the representative polling process (Gelb, 2006; Hough and Kirby,
2013). Others argue that methods encouraging a more considered response do
not truly elicit mass public opinion but rather present the views of an
Warner et al. 181
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