Sentencing by plebiscite

By Legal Eagle

The State Government in Victoria is running a survey to find out public opinions with regard to criminal sentences in Victoria. The Government press release touts it as a grand opportunity to seek public opinion on sentencing:

All Victorians now have the opportunity to have their say on sentencing through taking part in a survey that will help shape the criminal justice system.

The survey fulfils a Coalition commitment to seek the views of the community about key issues affecting the future of sentencing in our state.

Attorney-General Robert Clark today launched the survey, which is being run on MyViews, a new online survey site at, and supported by a number of Victorian media outlets.

“This survey will help inform the government about community views on sentencing and help shape decisions about future sentencing levels and other sentencing reforms in Victoria,” Mr Clark said.

The survey, which runs for four weeks, includes 17 case studies that feature aspects of real crimes heard in Victorian courts and asks participants to specify the sentence they would give.

Because I’m terminally curious, and interested in the psychology of sentencing, I went to do the survey. I had a suspicion that it would be very irritating, but I always want to give people the benefit of the doubt. Surprise surprise. It was extraordinarily irritating. Here’s a sample of the first question:

My first criticism is this: the factual summary is very short. My second criticism is that I don’t have enough information. Was Chris mentally ill or under the influence of drugs at the time of the crime? What was the evidence which convicted him of the crime? Had Adam and Chris had conflicts before? I needed much more information. There isn’t an option in the questionnaire for “I don’t have enough information to make a fair choice.”

They also don’t give you any comparative “anchors” (i.e. “Judges typically give a 6 year sentence for negligent manslaughter and a 21 year sentence for multiple aggravated murders”). I think the lack of comparative points is probably deliberate – they don’t want to prejudice you or influence you.

On an anecdotal level, I can tell you that the cases I saw in court did not look anything like the short precis in the media (which were often inaccurate in any case). Consequently, I always like to know more information.

Studies have shown that people generally do not believe that criminal judges are harsh enough, but that when people are given more information about a crime, they become less punitive, and the sentences they hand down are generally comparable with those handed down by judges. The seminal studies have been conducted by Anthony Doob and Julian Roberts (see eg, Doob and Roberts,  ‘Social psychology, social attitudes, and attitudes towards sentencing’ (1984) 16 Canadian Journal of Behavioural Science 269).

In the article cited above, Doob and Roberts undertook a number of experiments to see (a) if people thought that they had enough information to make fair sentences and (b) if people changed their attitudes of sentences when more information was given. At 274 – 5 from the article above, they explain:

We expanded on this notion… in a small scale (N = 116) telephone survey (of households chosen at random from the Toronto telephone book and the telephone book of a county to the north of Toronto). In one set of conditions, we asked people their views of one of two actual sentences that were handed down. For example, one group of subjects was asked, “How would you evaluate a sentence of two years probation and 120 hours of community service handed down to a man following his conviction on three counts of causing death through criminal negligence in the operation of a motor vehicle?” In addition to the choices of too lenient, too harsh, or about right, they were given an additional choice: “I would need more information in order to evaluate the sentence.” Two different cases — chosen from reported Court of Appeals cases on the basis that the sentences appeared unusually lenient – were used. …[W]e were successful in choosing cases that, on the face of it, had sentences which were unreasonably mild. Most people did not feel that they needed more information in order to judge the sentence. The other two conditions…had the same cases described except the information given was a summary (of approximately 170 and 520 words for the two cases) of the Court of Appeal judgement [sic] upholding the original sentence. Again, most people…did not feel that they needed more information to judge the sentence. However, they were substantially (and significantly) less likely to think that the sentence was too lenient and in the manslaughter cases even tended to think that the sentence was too harsh. Interestingly enough, although people are perfectly willing to evaluate a sentence on minimal information, most (87%  overall; 82% of those who originally thought the sentence to be too lenient) of those who indicated that they were not content with the sentence felt that there might be some special set of circumstances that would make the  sentence appropriate. In other words, there seems to be some latent understanding that sentencing in criminal courts is a complex issue and there might be special circumstances that would justify even an extremely  lenient sounding sentence. Without being probed, however, people appear simply to accept the information they have as adequate and, as we will see, this information would tend to support inferences that court sentences are too lenient.

They conducted a further set of experiments described at 276 – 7:

[I]n a series of four experiments using a total of 568 people (recruited from visitors to the Ontario Science Centre and from various other public places in Toronto) we compared subjects’ reactions to different accounts of four separate cases. In three of the studies we compared one or more newspaper accounts to court-based documents, and in the fourth, comparisons were made only among different newspaper accounts of the same sentence. The results from the four studies were simple and clear: In all cases the same sentence was evaluated differently according to the actual account that was read. Generally, the subjects who read the transcript were the most likely to think that the sentence was appropriate. In no cases were the readers of the newspaper accounts more likely to approve of the sentence than the readers of court-based documents. The last of the studies in this series had the most impressive results, in part because the case involved was one where the newspaper had not only given the case a good deal of attention (approximately 2700 words) but it had also criticized the judge in an editorial (the following day) for giving the sentence he did. …there is no doubt whatsoever that readers of the newspaper would feel that the sentence was too lenient. What is important, however, is that people evaluating exactly the same sentence for the same man for the same offence, when given the information available to the court (summarized for subjects in 1700 words) saw this same sentence as too harsh. …[T]he respondents were not happy with the manner in which the judge arrived at his decision if they read the news account. If, however, they had the court-based information available to them, they were considerably more content with the judge’s decision.

The accused in this case appealed his sentence notwithstanding the fact that his hometown newspaper had said it was already too light. It seems safe to assume that the newspaper was not happy to report that the Court of Appeal had “nearly halved” his sentence. The irony, of course, is that the readers of the news account probably agreed with the editorial stand taken by the newspaper and were probably quite upset to hear that the Ontario Court of Appeal had reduced the sentence. The Court of Appeal, on the other hand, would seem to have been quite well in step with public opinion based on court documents in that they, like the public who had access to court-based information, thought that the original sentence was too harsh. The Court of Appeal, however, would appear to have been out of step with public opinion about the case as created by the newspaper account.

If you look at the Sentencing Advisory Council website, you will see that a variety of research has been conducted which confirms this research. Consequently, the general trend is this: people who have the information before the court think that judicial sentences are appropriate. People who have a newspaper-style article with limited information are more likely to think that a sentence is inadequate.

Back to our questionnaire. The cynical part in me thinks that this questionnaire has been devised to provoke a law and order response. The scenarios listed are deliberately devoid of detail or extenuating circumstances which leads people to be more punitive. As Jeremy Sear says in a post at An Onymous Lefty:

The problem: people when fully informed did not follow the tabloid “we want tougher sentences” script.
The solution: take out the “being fully informed” bit, trick citizens into thinking they support tougher sentences than they actually do.
The result: more people in prison for longer – huge increase in public expenditure on prisons; significant increase in crime; more lives ruined.

Similarly, the Law Institute has been very critical of the survey, saying that the survey is void unless the public is fully informed. It simply does not give an accurate indication of what people think if it does not give enough information. As Doob and Roberts show in their experiments, even including an option for “I do not have enough information” is not enough – many people are likely to think they have enough information even on a very limited version of a case.

Dave Bath at Balneus has also taken apart the very structure of the questionnaire, and I must say that I agree wholeheartedly. The structure is rather odd. It doesn’t give you any extenuating circumstances within the fact scenarios themselves, but rather asks questions at the end about whether you consider various factors important in deciding a sentence. As Dave said,

…[T]he end of the survey [included] a list of factors that might alter sentencing, things like whether the person was drunk, low IQ, impact on the victim…  This should have come first, before the section asking for judgements on case studies.  (Ask any teacher about well designed exams – you do the bits with individual elements first to get people warmed up, then give the questions that require all the elements to be integrated!)

The people putting the question together know the difference this arse-about structure makes … and how reticient people would be to go back umpteen web pages to moderate prior judgements after being prompted by a general principle.

Even then, the list of general principles was devoid of nuance, and some pretty basic elements were not there.

Sure, there was low IQ to moderate sentencing, but nothing about significant depressive episodes or financial stress.  Nothing to allow you to say “financial distress or depression or low IQ are reasonable reasons to lighten a sentence if it’s a theft not an assault; previous good character and being intoxicated/remorseful might moderate sentencing if you’ve put a brick through a window, but not a face.”

Oh, there is room for general comments on sentencing – but on the PDF for you to write on and email back, you could bare fit a tweet in that box!

Please, people, take the results of this survey with a grain of salt. I’m not adverse to consulting the public about sentences, as long as you give them full information. This is not a fairly designed survey, and I suspect it is attempting to establish a particular result.

It’s easy to say “throw away the key” when you’re not the one responsible for making a determination, and you are relying on limited information; I think that most people feel differently when they are the person who has to make the decision, and when they have full information.


  1. Posted August 3, 2011 at 7:35 pm | Permalink

    I thought the “underage sex” this was perhaps the one with the least relevant information. There are hints that they might have planned it, a first time for both, and maybe as nice a first time as one could have – and I’d rather my daughter (if that young again) had something like that underage than something less genteel a year later, with a legal but one-night-stand. In fact, it’d make a difference who made the complaint – the girl? the school having to notify because of gossip they’d heard? How do you assess harm without that kind of information?

  2. Posted August 3, 2011 at 7:44 pm | Permalink

    Oh… yeah…. no contact email address for the site I can find …. meaning we cannot email in free-form ideas … (The only emails I can find are foi and privacy addresses). Intentional? Do we have to write a physical email to Department of Justice, MyViews Survey, Reply Paid 87276, Melbourne VIC 8060 – and would they even have to take this into account as a matter of proper administrative procedure? Is is possible for the legal groups to demand an email for related correspondence?

  3. Posted August 3, 2011 at 8:30 pm | Permalink

    Dear Victorian Government: YOU FAIL CRIMINOLOGY FOREVER, SRSLY.

    Here are some other little details that no amount of well-meaning form-filling will reveal.

    1. Most crime is committed by the same pool of people, against the same pool of people. It is not a jungle out there; rather, certain areas are a bit jungly, but only if you’re a ‘local’ (that poor people spend a great deal of time robbing and assaulting other poor people is one of the depressing discoveries working in the criminal justice system engenders).

    2. There is a very tight correlation between some crimes, and no correlation between others. Someone who has burgled a house and been violent towards the householders (a ‘hot robbery’) is much more likely to later commit rape than other people with ‘priors’ for different crimes. Sexual harassers and rapists, for example, are not the same people. Meanwhile, most murderers have no or few prior convictions (and these latter are often minor).

    3. Unfortunately, locking people up for longer does reduce crime (this is actually one of the strongest findings we have, so much so that the relationship between more prisons, longer sentences and reduced crime is probably causal).

    4. Prison is a more effective deterrent than the death penalty.

    5. Media reporting of court cases is egregiously bad. But then, we knew that already around here…

    I think there’s something in criminology to offend people from all points of the political compass.

  4. Mel
    Posted August 3, 2011 at 9:36 pm | Permalink

    The conservative in me supports long sentences while the nanny stater in me supports rehabilitation programs for crims save the most wicked, like kiddy rapists.

  5. Posted August 4, 2011 at 5:43 am | Permalink

    As imperfect as it is to let lawyers and judges determine how criminals are punished, it’s a lot better than letting just anyone have a say, and a million times better than giving the task to politicians. Democracy can be an ugly thing sometimes and when it shifts into its moral outrage gear I don’t trust it to make just decisions.

  6. Patrick
    Posted August 4, 2011 at 6:57 am | Permalink

    Dave, I am pretty sure there was a public consultation process which you could have participated in.

  7. Posted August 4, 2011 at 8:38 am | Permalink

    [email protected] – um, pretty sure THIS is the consultation process as the new government is just starting to do its thing.

    Actually, I do like the old Athenian model where juries (a BIG jury) voted innocent or guilty, then if guilty, voted between a sentence proposal from each of proposition or defence – so both proposals were pitched “about right”. Democratic, but with full info.

  8. Patrick
    Posted August 4, 2011 at 10:33 am | Permalink

    Dave – have you tried the ‘contact‘ page, available from the top of page menu bar?

    The Sentencing Advisory Council appears a pretty reasonable body; have you tried their sentencing game online?

    You will be pleased to know, SL, that they even have research on does imprisonment deter.

    I acknowledge the crappy design of this questionnaire, but some commenters here appear to be focusing overly on criminology and not enough on policy/politics.

    Bearing in mind that I support legalisation of drugs, so I’m not a pure laura norder voter by any means, I do think there is room for stiffer sentencing. I think that each case in detail usually does reveal (certainly in my experience has) a sorry sordid tale of woe on all sides.

    But that just highlights the maxim that hard cases make bad law. Someone who has brutally raped someone might well be a pathetic sorry case, but I still think there should be a presumption of a sentence of decades in jail.

  9. Posted August 4, 2011 at 12:07 pm | Permalink

    [email protected] That would be the process that sentenced Socrates to death, helping to create centuries of intellectual antipathy to democracy?

  10. Posted August 4, 2011 at 12:09 pm | Permalink

    [email protected] Your number 4 has clinched my opposition to the death penalty. The deterring issue was my only qualm, because I am aware of studies which suggested that capital punishment reduced the homicide rate.

  11. Mel
    Posted August 4, 2011 at 1:27 pm | Permalink

    The tendency of right libertarians to toy with the idea of the death penalty, given their professed views about the efficacy of the state on other issues, confirms my view that modern right libertarianism is a bastard child of godless conservatism rather than an outgrowth of classical liberalism.

    I would only support the death penalty if the presiding judge and jury are put to death in the event that a wrongful conviction is later found to have occurred 🙂

  12. Posted August 4, 2011 at 1:40 pm | Permalink

    Why bother with the questionairre?You have to spend a lot of time reading it and you’re probably not even be allowed to check your Facebook page. Besides it has long words like ‘community’.

    Let’s just broadcast trials and give the folks at home a thumbs up/down buzzer. Sure a lot of people will go down just for being photogenically challenged but on the other hand if someone shows they’re really sorry.

  13. Posted August 4, 2011 at 1:42 pm | Permalink

    The tendency of right libertarians to toy with the idea of the death penalty

    Think it’s about half and half. Don’t really know.

  14. Posted August 4, 2011 at 3:33 pm | Permalink

    [email protected]
    Socrates proposal for the sentence was to be given a decent sized pension and free meal for life – equivalent to “yes, I did the burg, as as punishment, give me a million dollars and a 3 month world trip”.

    The logic of the system, that both sides will make approximately correct “bids”, is pretty neat. So if something was “naturally” worth 3 years in the clink, the defendant bid 2 and the prosecutor bid 20, the defendant’s bid would “win”. If the prosecutor had bid 4 and the defendant bid a good-behaviour bond, the prosecutor would “win”.

  15. kvd
    Posted August 4, 2011 at 4:06 pm | Permalink

    I agree with [email protected] that sentencing should be left within the control of those who have greatest knowledge of both the specific case, and the whole spectrum of similar cases. This Vic. exercise is close to the worst sort of populist approach to ‘governing’ that I’ve heard of. Governments make laws; judges and juries apply them in specific instances. Both are representatives of ‘the people’ and should be and are given high respect for their quite separate roles.

    And I agree with Mel re capital punishment – not that it will ever be reintroduced here – but more for the reason that I feel long term imprisonment is far worse than the alternative. I guess that sort of fits with SL’s comments above about deterrence.

  16. Posted August 4, 2011 at 4:14 pm | Permalink

    It’s just struck me how vacuous politicians have become if they’re actually conducting marketing research in order to work out what sentences fit the crime. There’s a lot of pressure, most particularly from The Herald-Sun to demand tougher penalties. It’s hard to argue against it in some cases but there’s also extenuating realities that can’t be considered by anyone who doesn’t have the expertise and the time to do so.

    Yet the government has decided it will write laws by focus group. Political parties already use these marketing ploys to concoct their policies. Where does it end?

  17. Posted August 4, 2011 at 4:21 pm | Permalink

    [email protected] Yes, I was aware of Socrates’s eccentric strategy. I suppose rewarding good “bidding” behaviour is a virtue, but it seems an odd virtue to cite for a sentencing system.

    [email protected] What makes you think that opposition to the death penalty is or was a defining position of classical liberalism? An Enlightenment liberal published the first serious critique of the death penalty, but I suspect you will find classical liberals on all sides of the argument (e.g. Thomas Jefferson), as would be the case with other political philosophies.

    Given that there are studies which suggest the death penalty reduces the homicide rate, it is a big call to say “yes, I am in favour of this policy which means more people will be murdered”. This is surely a legitimate qualm. Even so, I had decided that I just did not trust the criminal justice system enough, even without the other moral issues.

    If it turns out in fact to have less deterrent effect than prison, then there is no problem, and all the other concerns make it a lay down misere to not have.

  18. kvd
    Posted August 4, 2011 at 4:22 pm | Permalink

    What Adrien said @16. (Which was exactly what I was trying to say, just above)

  19. Posted August 4, 2011 at 6:32 pm | Permalink

    You really don’t want to copy anything from the Athenian legal system (and, fortunately, modernity hasn’t). One of the reasons Socrates’ arguments in his Apologia sound so very odd to modern ears is because Classical Athens was a ‘presumption of guilt’ society: in lay terms, ‘where there’s smoke, there’s fire’. That’s why Socrates appears to be digging himself a colossal hole in his speech (which was how I reacted when I first read it, until the historical reality of humanity’s late development of the presumption of innocence was pointed out to me by a law tutor).

    Humanity had to wait for the Romans for the presumption of innocence. The Roman jurists also thought that a democratic polity would be too natively vindictive to come up with the presumption of innocence. Every time I see sentencing debates of this type, I’m inclined to agree with Ulpian & co on that point.

  20. TJW
    Posted August 5, 2011 at 1:02 am | Permalink

    Would it be possible to forward me copy of Doob and. Roberts’s journal article? I no longer have access to academic databases. It would technically be for educational purposes so hopefully you’d be comfortable with that.

    I have looked at Karen Gelb’s report but I want to understand the methodology of Doob and Roberts’s study in greater detail.

    As far as the Vic Gov survey, it will suffer from self selection bias regardless of the quality of the questions but as long as it is only used for anecdotal or illustrative purposes, I don’t have a problem with it.

    WordPress should record my email accessible to admins of this site.

  21. RipleyP
    Posted August 5, 2011 at 8:11 am | Permalink

    In this I step from the skeptical to the cynical with a standing start as it just appears to be another “Tough on Crime”, “People Power” and other assorted be seen to do something on crime game by the government.

    However to get my skeptic back in control I am actually hoping the cynic is right. I would hate to see policy based on populist ideas. The assumption in accepting popular opinion is that the popular opinion is right.

    Yes it is government of the people but if all the people believe those of a different skin color are worthy to be treated as 2nd class citizens does it make it right or true? (I know this is an extreme example for comparison but I still can’t drop the fact I meet people who still believe this, as in met one today).

    Hence I think we can be guided by populist thinking to look at ideas but science and study need to be underpinning much of our decision making. Hence criminology is something that should influence more than popular opinion.

    As such I would submit this is a stupid poll and hope the cynical mind is right for a change.

  22. Posted August 5, 2011 at 8:56 am | Permalink

    Humanity had to wait for the Romans for the presumption of innocence

    And asking who benefits from the crime. And… it’s really amazing how long it takes for humans to develop common sense innit?

  23. Posted August 7, 2011 at 1:57 am | Permalink

    Adrien, yes… ‘Cui bono?’is a very Roman question. It hadn’t occurred to anyone before the Romans to ask it.

    It is salutary, I suppose, to realise that democracy can be very bad, and that at least some of the people who had very little time for it (in this case, the Roman jurists) held their views on the basis of evidence, not prejudice.

  24. Posted August 7, 2011 at 2:20 pm | Permalink

    Cui bono was the innovation of an individual. I’ve heard somewhere that Cicero was toast too if he lost that one.

    One way to ensure your defense attorney is enthusiastic in getting you off the hook. Cut down on the ranks of public defenders somewhat.

  25. TerjeP
    Posted August 7, 2011 at 4:03 pm | Permalink

    The tendency of right libertarians to toy with the idea of the death penalty

    I’ve known libertarians to defend the principle of the death penalty and I’ve done so myself. But when push comes to shove few of them, including me, actually think that we should reinstate it.

  26. K
    Posted August 7, 2011 at 6:41 pm | Permalink

    This survey is ridiculous. They’ll tell you the offender was drunk, but not whether he was a repeat offender?

    They can’t possibly expect to gain any valuable data from this…

  27. Patrick
    Posted August 8, 2011 at 8:54 am | Permalink

    I’m not entirely libertarian (I do believe in a safety net, for example) so maybe I don’t count; but I am in favour of the death penalty. In short I think that in perpetrating some acts people take themselves so far out of the range of acceptable behaviour that they have in effect rescinded their own membership of humanity; so I would shoot them as I would a dog (or hang, perhaps).

    I certainly baulk at the idea of paying for their ongoing incarceration.

    Yes, I know, the death penalty in the US is far too expensive (and in China it is far too cheap). But I would have a specific process around it as a sentencing matter only and only available in a narrow range of cases.

  28. TJW
    Posted August 15, 2011 at 4:25 pm | Permalink

    Did you end up forwarding that PDF? Sorry if you’re busy, just wasn’t sure if you sent it and it got spammed or something.

One Trackback

  1. By The Tabloid Justice Consultation « Balneus on August 3, 2011 at 7:24 pm

    […] information on the inadequacy of information and sentencing practice, see "Sentencing by plebescite" by LegalEagle at Skepticlawyer (2011-08-03) … and follow the links. LE, a lawyer […]

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