At first glance, our vast prison system (there are 2.3 million Americans behind bars) looks like a result of citizen action. Draconian sentencing laws often begin with referenda or with legislative votes that respond to popular pressure. The phrases “populist punitiveness” and “penal populism” are used to describe an international phenomenon: politicians seeking approval by posing as tough on crime and denouncing lawyers and other elites who would coddle or protect criminals.
But accumulated evidence suggests that when citizens deliberate, they arrive at merciful or nuanced decisions. For instance, when judges disagree with jury verdicts, it is generally because they think the jury was too lenient. Capital punishment is a popular policy in the United States, yet juries reach capital verdicts in very few cases. When a random sample of British citizens deliberated about criminal justice policy, they shifted markedly against the proposition that incarceration reduces crime and became much more protective of defendants’ rights.
(The previous paragraph and much of this post is indebted to a forthcoming book by Albert Dzur entitled Punishment, Participatory Democracy, and the Jury.)
Unfortunately, public deliberation is rare within the criminal justice system. The severe and inflexible penalties required by referenda strongly encourage plea-bargaining, which is one reason that the proportion of felony cases that go to trial has dropped from one in 12 during the 1970s to just one in 40 recently. Ninety-seven percent of criminal convictions in the federal system and 94 percent in the state systems result from plea-bargains and not trials. The people (using the ballot box) have chosen to remove the people (convened as jurors) from criminal law.
Why would they do that? In 1964, three quarters of Americans said they generally trusted the government and 53.4 percent said they generally trusted other people. By 2010, trust in government was down to 30.4 percent, and trust in other people had fallen to 34.6 percent, both having lost ground steadily over the decades. Distrust of people of color, especially young African American men, is particularly acute and directly relevant to the incarceration problem. (In fact, “distrust” is much too soft a word for public attitudes toward young Black people.)
If we trusted the government but not our fellow citizens, we might be willing to let judges set sentences. If we trusted our fellow Americans but not the government, we would be less eager to incarcerate citizens and more protective of the jury system. Trusting neither, we are tempted to require the state to put other people in jail without trials.
A minimum sentencing law is a simple, understandable rule imposed on a complex system. It is a classic example of the prevailing view of accountability as external and driven by numbers, rather than deliberative and determined by arguments. It transforms criminal cases from transparent public events, full of explicit moral rhetoric and judgment, into bargaining sessions managed behind the scenes by lawyers. That is a recipe for even lower trust, which encourages even more Draconian sentencing laws. The resulting crisis of incarceration is largely invisible because citizens do not serve on juries or even read about jury trials. Even though criminal justice is officially public business and transparent (in the sense that one has a right to obtain court records), it rarely impinges on public consciousness.
In Oklahoma in the 1990s, the League of Women Voters saw the state’s incarceration rate—the third highest in the nation—as a serious public problem. They also recognized that politicians were afraid of any reforms that could be depicted as weak on crime. So they organized a series of meetings across the state that involved nearly 1,000 citizens who held diverse views. Many participants expressed anger about the costs of incarceration and favored prevention and rehabilitation. Politicians and reporters attended these meetings and witnessed the prevailing mood, which changed their estimate of what would be popular. The League then recruited participants to advocate a bill that would reduce certain felonies to misdemeanors while devolving some authority over sentencing to “community boards with citizen representation.” The bill passed by wide margins. It reflected deliberative public opinion and it created a mechanism for the kind of sustained public engagement in criminal justice that might restore public trust.
The sentencing reform legislation was later repealed after lobbying by law enforcement officials. The state chose instead to reduce costs by expanding private, for-profit prisons. In 2008, companies that run such prisons spent almost $69,000 on Oklahoma state political campaigns and received almost $77 million in state funding; the state even imported prisoners from Arizona.
This chapter of the Oklahoma story is a reminder—as if one were needed—that engaged citizens face formidable enemies and need political reform to prevail. Nevertheless, community sentencing boards continue to handle non-violent cases in most Oklahoma counties. The state’s Department of Corrections argues that these boards save money and reduce incarceration by using employing to prison sentences.
Oklahoma’s community boards resemble other widespread initiatives in which the justice system engages lay citizens. “Problem-solving courts” specialize in particular issues, such as drugs or domestic violence. The judges work with social workers and representative of community groups to develop comprehensive solutions to local problems. In one impressive example, a housing court judge worked with a broad-based neighborhood group to fight urban blight and abandonment in Buffalo, NY. The judge used his power to fine landlords who violated the housing code, but he would also accept improvements satisfactory to the neighborhood activists. The activists would observe and report housing violations and, when properties were seized by the court, would take them over and rehabilitate them. The court and the neighborhood group chose their targets selectively to redevelop the community block by block and were able to raise the value of privately owned homes tenfold, essentially creating wealth for long-term residents.
In youth courts, panels of teenagers are empowered to sentence their peers for minor offences. In restorative justice programs, violators negotiate agreements with representatives of their community to repair the harms their actions have caused. Modern restorative justice was first proposed by outsiders to the legal system (Mennonite activists and others), but it has grown thanks to the support of prosecutors and corrections officials, who see substantial financial savings and much higher satisfaction among victims and other residents. Like youth courts, restorative justice has shown promising effects on recidivism. These reforms also engage citizens in deliberations within the legal system.
By expanding such opportunities, we may be able to change the national conversation about crime and punishment. Restorative justice tends to satisfy both victims and offenders. Jurors who successfully reach verdicts in conventional trials hold more favorable views of political institutions (including the jury trial itself), trust their fellow citizens more, and are more likely to vote in regular elections compared to citizens who are not randomly selected for jury service or whose trials end without verdicts. That finding suggests that by making traditional juries (or modern alternatives such as restorative justice programs) more common and more prominent in the public discourse, we could raise public trust in courts and reduce the demand for Draconian sentencing. If alienation from institutions and from our fellow citizens is a root cause of the incarceration epidemic, these strategies offer the best hope for a solution.
1. Arie Freiberg and Karen Gelb (eds.), Penal Populism, Sentencing Councils, and Sentencing Policy (Sydney, Australia: Hawkins Press, 2008) provides an overview.
2 The seminal study is Harry Kalven, Jr. and Hans Zeisel, The American Jury (Boston: Little, Bropwm, 1966), but confirmation comes from Theodore Eisenberg, Paula L. Hannaford-Agor, Valerie P. Hans, Nicole L. Mott, G. Thomas Munsterman, Stewart J. Schwab, and Martin T. Wells, “Judge-Jury Agreement in Criminal Cases: A Partial Replication of Kalven & Zeisel’s The American Jury, Cornell Law School research paper No. 04-025 (2004).
 James S. Fishkin, The Voice of the People: Public Opinion & Democracy (New Haven: Yale University Press, 1995), pp. 215-6
 Richard A. Oppel Jr., Sentencing Shift Gives New Leverage to Prosecutors, N.Y. Times (September 25, 2011), http://www.nytimes.com/2011/09/26/us/tough-sentences-help-prosecutors-push-for-plea-bargains.html?pagewanted=all
 Syllabus of Missouri v. Freye, Supreme Court, no. 10-444 (2011), p.2
 American National Election Studies data, analyzed by the author.
 Matt Leighninger, The Next Form of Democracy: How Expert Rule is Giving Way to Shared Governance … and Why Politics Will Never be the Same (Nashville: Vanberbilt University Press, 2006), pp. 127-34
 Jim Campbell, “Oklahoma Prison Sentencing Reform has Factious History,” Tulsa World, Feb. 14, 2011.
 Oklahoma Department of Corrections Annual Report, 2009 via http://www.doc.state.ok.us; National Institute on Money in State Politics, table.
 Becky Lawmaster and Sharon Neumann, “Community Sentencing: The Department’s ‘¢ents-able’ Alternative to Incarceration,” Inside Corrections, January 2009, pp. 9-12, via http://www.doc.state.ok.us/.
 Ronald J. Oakerson, Jeremy D.W. Clifton, Neighborhood Decline as a Tragedy of the Commons: Conditions of Neighborhood Turnaround on Buffalo’s West Side,” 2011, under review, manuscript cited by permission. I recognize the significant danger of corruption (not reflected in this case), so oversight would be important.
 National Association of Youth Courts website; Robert A Wolf, “Principles of Problem-Solving Justice,” Bureau of Justice Assistance, Center for Court Innovation, 2007 (via www.courtinnovation.org/)
 Albert W. Dzur, Democratic Professionalism: Citizen Participation and the Reconstruction of Professional Ethics, Identity, and Practice (University Park: Pennsylvania State University Press, 2008), pp. 175-9.
 Dzur, Democratic Professionalism, pp. 205, 252.
 Michael O’ Hear, “Rethinking Drug Courts: Restorative Justice as Response to Racial Injustice,” Stanford Law and Policy Review, vol. 20, no.9 (2009), p. 128. O’Hear argues that problem-solving drug courts do not reduce racial disparities but that restorative justice would build “constructive citizen-police interactions,” “stronger relationships among community members,” and “the sort of social capital that permits communities to address their own problems more effectively (p. 137).
 John Gastil, John Gastil, E. Pierre Deess, Philip J. Weiser, Cindy Simmons, E. Pierre Deess, Philip J. Weiser, Cindy Simmons The Jury and Democracy: How Jury Deliberation Promotes Civic Engagement and Political Participation (New York: Oxford University Press, 2010).