Public Opinion and Criminal Justice: Emotion, Morality and Consensus

By McKillop, Dianne; Helmes, Edward | Psychiatry, Psychology and Law, April 2003 | Go to article overview

Public Opinion and Criminal Justice: Emotion, Morality and Consensus


McKillop, Dianne, Helmes, Edward, Psychiatry, Psychology and Law


The following article is a discussion of some of the findings of the first author's recent doctoral research on the public's reasoning about criminal justice. Psychosocial implications of the research are examined. Specifically, the discussion sounds a note of caution about assuming that the public is emotional or moralistic in its evaluations of offences or that there is a consensual body of public opinion about criminal justice. Analysis of research findings showed little evidence that the public makes punitive judgments about criminal offences on the basis of emotional or moral concerns and there was extensive variability in the data. The article provides sufficient empirical background to inform the discussion but it is not intended as a comprehensive research report..

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This article initially presents background to a program of research that investigated underlying factors in the public's reasoning about crime and punishment. The impetus for the research was the apparent inconsistency of evidence to support a widespread popular assumption that the public is prone to moral outrage and strong emotion, and that it is consequently punitive in relation to criminal offences. The second part of the article presents a summary of the empirical details of the research. The article concludes with a discussion of the implications of the research findings for psychosocial perspectives on criminal justice and for future research in this area.

Two persistent themes in the psychology-law and criminology literature are that public opinion on justice eventually finds its way into law (Lloyd-Bostock, 1991; Tomaino, 1997) and that the views of the public should be considered in criminal legislation and judicial decision-making. Green (1996) has stated that "public opinion should be the ultimate basis of the law" (p. 116) and Robinson and Darley (1998) asserted that there is a utilitarian justification for reflecting community sentiment in legal codes: "Where the criminal law commands the respect of the community it governs, the law's moral credibility itself provides a reason for law abidingness" (pp. 443-444). (1)

According to Robinson and Darley (1995), speculation by the criminal law community on the public's sense of justice commonly forms a basis for the proposition, adoption and interpretation of criminal law. Finkel (1995) called this sense of what ordinary people think is just and fair "commonsense justice" (p. 2). A growing public role in criminal justice processes has been illustrated by increased, often controversial, political responsiveness to what is believed to be public opinion. Recent events in Australia have shown that perceptions of public indignation about specific offences have the power to effect strong and rapid changes to the processes of government and law. Perceptions that the public is outraged, afraid and, consequently, punitive have led to the enactment of laws that many regard as draconian. An example from Western Australia was the Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA), described by Harding (1995, p. ix) as "oppressive, ill-conceived, sloppily drafted and peno-logically irrelevant"--and which has now been repeated, More recently, new legislation (the Criminal Code Amendment [Home Invasion] Act 2000 [WA]) was enacted as a direct response to a perception of public outrage over the conviction of a homeowner who seriously assaulted a burglar.

Measuring Public Opinion

As public sentiment does form part of the basis for law, it is important to know more about the ways in which the public evaluates criminal offences. There has been very little work done on analysing ordinary thinking about criminal justice, even though "the idea of ordinary, everyday extra-legal thinking, or common sense, as distinct from legal norms, concepts, and definitions, crops up in some form in a great many discussions of law and legal processes" (Lloyd-Bostock, 1991, p. …

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