Sentencing and public opinion: An empirical study of punitiveness and lenience and its implications for penal moderation

Abstract

This study explores the character of the public’s attitudes to the punishment of individual offenders. Unnever and Cullen’s theory of empathy and, to a lesser extent, Garland’s concept of the offender as ‘other’ provided the guiding framework. Four serious cases, involving six offenders, were presented by the actual sentencing judges to over 470 participants in 32 groups around Victoria, Australia. The participants individually imposed sentences on these offenders; as well they gave reasons for their sentences and discussed the judges’ sentences. The findings are consistent with Unnever and Cullen’s theory, but only partially consistent with Garland’s concept. Thus, for each offender, the sentences ranged from lenient to harsh in the circumstances, but tended to lenience, although there were some swingeing sentences. Moreover, the reasons for and against mitigation were, respectively, empathetic and non-empathetic in character, but in some of the justifications of harshness the offender appeared to be treated as ‘other’. These two theories and the data are viewed as relevant to understanding the factors favouring and hindering penal moderation, and in this way to providing a means of addressing the public’s apparent punitive sentiments relating to sentencing. To this end, Loader’s ideas about penal moderation were found to be helpful.