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February 16, 2023

"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.

February 16, 2023 at 10:23 PM | Permalink


Good to see a discussion of public confidence in the system. According to this poll published a month ago in The Hill (https://thehill.com/finance/3812900-here-are-the-most-and-least-trusted-professions-in-the-us/), the police have a high or very high rating from 50% of the public. Following them are judges (39%) and the clergy (36%). Bringing up the rear are journalists (23%), and, last and certainly least in the criminal justice system, lawyers, with 21% (or less than half what the police have).

This of course won't stop lawyers and law professors from holding forth with acid criticism of those (the cops) the public holds in much higher esteem for honesty and trustworthiness.

I'm just glad the poll didn't ask about cops v. lawyers in terms of arrogance.

Posted by: Bill Otis | Feb 16, 2023 10:56:41 PM

That last remark was not intended as a crack at Doug. I'm also a law professor.

Posted by: Bill Otis | Feb 17, 2023 2:07:04 PM

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