Repairing Damaged Democracy? Toward an Improved Model of Public Consultation in Penal Policymaking

David A. Green, University of Cambridge

ABSTRACT
Changes in the way penal policy decisions are made have rendered some governments (e.g., in the United States, England and Wales, Australia) nearly powerless to resist the urge to legislate reactively in the face of high-profile crimes. This is often premised upon assumptions that the public will is generally and indiscriminately punitive. However, cross-national research utilizing more sensitive measures of public attitudes has consistently shown that the public possesses much more nuanced views about what they believe ought to be done with offenders. The result is often regrettable, unjust, and counterproductive policies that fail to ease the public's concern in the face of high-profile crimes and that, in failing, tend to undermine the legitimacy of government policymakers. By contrast, other countries (e.g., the Nordic countries and the Netherlands) appear to retain structural features that in most cases impede such knee-jerk legislating. This paper has two purposes: First, it draws upon comparative research to examine the apparent impedimentary role played by "consensus democracy" in countries successfully resisting most populist pressures. Second, it makes the case for structures of "deliberative democracy" in those countries that currently lack such structural impediments. These structures are meant to facilitate deliberation and public judgment in political decision-making processes, to ensure the full range of public and expert views are considered, and to generate more precise assessments of the will of an informed public.

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Updated 05/20/2006