A Question of Consultation

Today's Law Reform Commission report floating the notion of allowing juries to participate in sentencing opens an interesting issue, and there's many ways to look at it.

The idea has, of course, gone over very well with the soft justice lobby - those who monopolise talkback airwaves following major crimes and sentences, mouthing the axiom that judges are `out of touch', and the sentences they deliver `not in keeping with community expectations'. However, as the Daily Telegraph (of all places) notes, the idea would also deprive these same callers of their ability of blaming politicians and judges for sentences they judge too lenient.

My immediate response to this comes from the mouth of Toby Ziegler of `The West Wing' : `Aw, c'mon! It's not meant to be a show of hands!'. The legacy of classical Greek democracy has left us with the romantic notion that decisions made by the public are inherently correct (though the public of Ancient Greece didn't include women or slaves). The theory of the democratic deficit suggests that this legacy is partially responsible for the mistrust of modern governments.

Perhaps to address this problem, public consultation is increasingly seen as an essential part of policymaking. No decision on where to put a highway, build a piece of infrastructure, or even introduce a new sort of chocolate bar has been done after extensive consultation. Currently, the town of Toowoomba is holding a referendum on whether it will allow recycled sewage to be fed into the water supply. Meanwhile, the NSW Government is offering a system of online (though fairly limited) consultation on its State Plan. Meanwhile, in some Scandanavian countries, citizens are summoned to participate in government policymaking as Australians are summoned to serve on juries.

Does consultation actually result in better policies? Optimistic consultation theorists suggest that the more someone knows about a topic, the more likely they are to be able to make the best decision. Pessimistic ones argue that consulation is a clever way that unsympathetic organisations can make people feel as if they are involved in decision making without having any requirement to follow their recommendations on one hand and, on the other, absolve themselves if the wrong decision is made, or gently prod proceedings in a certain direction and claim a ringing endorsement of the `right' decision by the wider public (the Republic referendum springs to mind here).

I think I'm somewhere in between these two views. I hate nothing more than someone who holds a passionate, and passionately misinformed, view. Consultation processes can engage and educate people who usually rely on others to make the hard decisions for them. Ideally, this would be what occurs on a jury. However, this is also what already happens on a jury. Giving total sway on sentencing to a body of people without the experience of countless similar, dissimilar, better and worse cases that a judge has, sounds pretty undesirable to me - and, I would imagine, the government if they think hard about it.