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Crim Law and Philos

DOI 10.1007/s11572-013-9269-y

Punishment, Deliberative Democracy & The Jury

Albert W. Dzur, Punishment, Participatory Democracy & The Jury,
Oxford University Press, 2012
Roberto Gargarella

Springer Science+Business Media Dordrecht 2013

Introduction: The context

Albert Dzur has written an engaging and controversial book, where he defends the jury as a
form of democratic justice. His proposal is particularly valuable in the context of
contemporary criminal justice, which seems particularly hostile to all kinds of initiatives
for democratic justice. With the help of Dzurs book, I want to briefly describe this
contextual situation, so as to be in a better position for assessing his reformist suggestions.
In the first place, the system of criminal justice is organized around tribunals that
produce distance with the public; impede victims, offenders, and members of the
public from recognizing the human suffering in both criminal offenses and in state punishment; and foster segregation, separation, and ultimately, dehumanization (Dzur
2012, 1720).1
A second element to consider is the way in which the dominant system of criminal
justice has reduced the institution of the jury to a minimum expression. As Dzur recognizes
from the very beginning of his book, in countries like Britain the jury has been confined to
only the most serious criminal trials, while in America it has been on the decline for
decades as state and federal jury trials have shrunk in absolute members and as a percentage of total cases (56) Supplanted by plea agreements, settlements, summary
judgements, and nontrial forums-Dzur adds- juries in the United States hear a very small
fractionaround 5 % or lower- of all cases (ibid.). As a consequence, he admits, commentators now talk about the eclipse, disappearance, and inevitably, the extinction of
the jury (6).

These problems will explain his justifiable enthusiasm with the jury, restorative justice and other legal
mechanisms that could contribute to close social distances between offenders and victims, and between the
people who commit offenses and the people who live near them and will live near them when the are done
making amends (39). These responses, Dzur assumes, can promote peoples civic capacities, stressing our
interconnectedness and relationships that link us together (ibid.).

R. Gargarella (&)
Universidad de Buenos Aires/CONICET, Buenos Aires, Argentina


Crim Law and Philos

In addition, and perhaps more significantly, the two main options that have been gaining
force in the place of a more democratic justice, clearly dishonours the values that democratic justice wants to protect.
The first alternative in question is penal populism, which once and again seems to recover
attraction within contemporary criminal law. One crucial, relatively recent example of penal
populism is the three strikes and youre out policy that California transformed in law in
1994 (an example that seems particularly upsetting for Dzur, who dedicates numerous pages
of his book to it). Penal populist measures are normally based on a suspicion of official
leniency regarding criminal defendants and convicted offenders, and rooted in a more
generalized distrust of officials in all branches of government along with the policy experts
and professionals who advice them (23). This general distrust in policy experts has usually
come together with pressures trying to assert public influence through bypassing the formal
government procedures seen as elitist and ineffective by many citizens (2324).
The second alternative in question is represented by the technocratic response to penal
populism (27). The implications of this response are serious because proponents of expert
justice challenge the very foundations of Dzurs project. They defy one of Dzurs main claims,
namely that lay citizens are well prepared to actively engage in politics and reflect upon fundamental legal issues. Not surprisingly, then, technocrats want to directly remove certain criminal
justice issues from the reach of the public. At the same time (and this results troublesome for
Dzurs project), defenders of expert justice want to achieve goals that are substantially similar
to the ones that guide Punishment, Participatory Democracy, & the Jury. Like Dzur, they dislike
penal inflation; they are against harsh punishment; and they want to treat offenders with mildness
and respect. The problem is that they believe that the only way of achieving these goals is by
depoliticizing democracy and reprofessionalizing criminal justice (27).
In his work, Dzur clearly distinguishes his proposal for a democratic justice from both
penal populism and expert justice (we shall come back to this issue below). At the same time,
the author tries to demonstrate the worth of the democratic alternative. In particular, he makes
a significant effort for justifying lay participation in criminal justice, an idea that is heavily
resisted or directly rejected within both legal and academic circles. Dzurs main argument in
this respect is that civic participation brings otherwise attenuated people into contact with
suffering human beings, draws attention to the ways laws and policies and institutional
structures prolong that suffering, and makes possiblealthough does not guaranteegreater
awareness among participants of their humanity (Dzur 2012, 14). Moreover, he claims this
kind of participation in public affairs helps individuals to become aware of the system of
cruelty in which the administration of punishment has become (16).

Deliberative Democracy as the Background Theory

Although I share Dzurs lack of sympathy towards both penal populism and expert justice
and at the same time feel strongly attracted to his proposal for a more democratic justice, I
believe that his project still looks incomplete. More specifically, I think that his project
could be greatly strengthened with the help of a theory of democracy. This theory could
help Dzur both in his criticisms against the existing alternatives (expert justice/penal
populism) and in his (re)construction of a democratic substitute.
What I have in mind is a specific theory of democracy, namely a theory of deliberative
democracy. However, I should immediately add that I am convinced that some other
refined conceptions of democracy could also be useful for this purpose. In any case, the
good news is that many of Dzur references to democracy suggest that he is thinking along


Crim Law and Philos

lines that are very similar to those that correspond to a more robust theory of democracy,
such as a deliberative theory.
Now, in order to adopt a deliberative conception of democracy as his background theory,
Dzur would need to introduce some changes and refinements in his work. It is not only that the
deliberative view should come to play a larger place in his work, but also that his remarks on
democracyand particularly on the implications of democracyshould somehow be revised.
The particular version of deliberative democracy that I propose mainly assumes i) that all
those potentially affected by legal norms should participate in their construction; and ii) that
they should do so by engaging in a broad process of collective discussion. This particular
approach to deliberative democracy, I believe, is not pacifically accepted by all defenders of
this conception, but is still clearly linked to the view that many of its most prominent
defenders propose (see Elster 1986; Habermas 1996; Nino 1996a, b; Pettit 1997a, b).
Notably, the two main elements of this particular conception of democracyinclusion
and deliberationare very similar, although not identical, to the ones mentioned in Dzurs
book as the prerequisites of a legitimate law.2 Dzur, in effect, highlights the requirements
of inclusion and participation as the basic conditions of a legitimate law. However, it must
be noted, this second requirementparticipationcannot be taken as a synonym of
deliberation. Deliberation presupposes participation, but participation organized in a
particular way.3 For deliberative democrats, if the basic guarantees of a fair deliberation
are not in place (guarantees that favor a reasonable process of exchange of arguments), an
inclusive and participatory system could result in biased, prejudiced, self-interested
finally less impartial- decisions.4
The theory of deliberative democracy, which seems to fit well with Dzurs democratic
approach, has been quite productive within the area of criminal justice. We may recognize
traces of that view, for instance, in so-called expressive theories to criminal justice, which
justify punishment in relation to its particular communicative capacities (Feinberg 1965;
Hampton 1984).5 Contemporarily, the influence of this deliberative theory became clearer

In one telling paragraph, Dzur refers to the background legitimacy of the law as something the defendant
recognizes as his. Inclusion and participation thus must go all the way down, for in the absence of a political
community that treats citizens as co-owners, there can be no rightful expectation that one who violates the
law should feel ashamed and seek to make amends. How can he own up to violating a law that has not
treated him as a co-owner? (Dzur 2012, 91, emphasis added). The paragraph is particularly interesting
because it touches many of the critical interests of a deliberative view of democracy. It recognizes that the
legitimacy of the law is substantially linked to the way in which the law is created; it properly identifies that
inclusion and participation are fundamental prerequisites of a valid legislation; it adequately signals that a
legal system that does not treat every citizen as an equal (as a co-owner) is a flawed legal system.

I must acknowledge, however, that particularly at the end of his book, Dzur properly distinguishes
between three kinds of participation, namely plebiscitary, advocacy, and load bearing (163). He states:
criticism of democratic justice is best understood as criticism of the plebiscitary and advocacy participation
witnessed in the last generation. In addition, he highlights the importance of placing lay participants into
a dialogical context with others (164). However, I also think that these moves represent only a first necessary
step in the direction of astill missingmore robust and complete approach that connects a certain theory
of democracy (and I would also add a certain theory of justice) with criminal justice.

Of course, a properly established deliberative system would not ensure impartialityno legal system
could guarantee that. However, I submit, it would maximize the chances of deciding impartiality, which for
present purposes should be enough.

According to Feinberg, punishment is a conventional device for the expression of attitudes of resentment
and indignation, and of judgments of disapproval and reprobation, on the part either of the punishing
authority himself or of those in whose name the punishment is inflicted (Feinberg 1965, 96). The
communicative approach, instead, sees the Criminal process as a two-way- process, where one part tries
to actively address the other, resorting to his reason, rather than his fear (see, for example, Duff 2001; Dzur
2012, 90).


Crim Law and Philos

and also more significant. We find interesting examples of its impact in Philip Pettit & John
Braithwaite works (i.e., Braithwaite and Pettit 1990, 2000), and also, and more clearly, in
communicative theories of punishment such as the one proposed by Antony Duff.6 Duffs
communicative approach, I believe, properly demonstrates how a theory of punishment
might take our democratic assumptions and commitments seriously.7 However, I should
also add, his theory has not yet gone all the way down (and up) examining the
implications of embracing such a theory of democracy.
Undeniably, both Duff and Dzur pay attention to some relevant consequences derived
from democratic theory regarding the criminal process and sentencing policies. In one way
or another, they both recognize that a serious commitment to democracy has strong
implications for criminal justice. Particularly so, given what a theory of democracy requires
in terms of civic participation, a reason-giving decision-making process and rational persuasion. However, it is equally or more important to pay attention to the implications of
democratic theory concerning the procedural rules for the creation of legal norms.
One interesting way to begin the study of these implications consists on focusing on
how a deliberative theory would respond to the challenges posed by both penal populism
and expert justice. As we shall see, by adopting a deliberative theory of democracy as a
background theory, we could not only strengthen our criticisms to both alternatives, but
also improve our chances of defining a proper substitute to them.

The Problem of Expert Justice8

Let us begin our exploration of penal elitism, from where we have left it, this is to say, from
Dzurs objections to it. Given the importance of the technocratic challenge, Dzur dedicates a
significant part of his book to responding to it. The author states: the way to a less punitive
criminal justice system is not through depoliticizing justice, but the opposite, repoliticizing
justice as a public practice (60). Accordingly, he examines a wide variety of arguments
(historic, moral, epistemic) capable of limiting the relevance of the proposal for an expert justice.
Dzurs specific criticisms to the technocratic alternative are based on the following three
arguments: (1) the potential hazardous consequences of expert justice; (2) the threat it
poses to civic dignity; and (3) the difficulties that bureaucratic insulation and official
autonomy create in societies characterized by (what John Rawls, for example, called) the fact

Communicative approaches propose to enter into a moral dialogue with the offender, in order to communicate to him the social condemnation for what he has done. What they emphasize is the importance of
expressing a social condemnation in the face of certain crimes, rather than deterring or incapacitating
offenders. In Duffs words, the Criminal Justice system should not seek the peoples obedience to its
demands, but their understanding and acceptance of what is required of them as citizens (Duff 2001, 80).
What we need is to strengthen his or her links to the rest of us, and convince him or her that there are
important reasons for him or her to obey the law (which presupposes that he or she has reasons to recognize
his or herself as an author of the law).

Given the rather natural or obvious connections that exist between a deliberative view of democracy
and a communicative understanding of punishment, it is surprising that authors such as Carlos Nino, an early
proponent of deliberative democracy, did not make or pursue that connection. Nino began and concluded his
academic career writing about criminal justice (Nino 1980, 1983, 1996b) and in between both extremes,
dedicated almost two decades to develop a powerful approach to deliberative democracy (Nino 1996a, b).
Pablo de Greiff rightly point out this missing connection, making reference to the fact that, in his latest
writings, Nino still founded his views on Criminal Justice from moral premises alone, leaving no clear role
to his views on democratic legitimacy (de Greiff 2002, 383).

See, in particular, chapters 2 and 8 of Dzurs book.


Crim Law and Philos

of pluralism (157). These three criticisms, I believe, are fully consistent with the deliberative
approach. But the deliberative approach, at the same time, might enrich Dzur understanding
of the dimension and meaning of the problems he mentions. In effect, a deliberative
democracy is capable of providing a good explanation about why expert justice lessens rather
than increases our chances of deciding impartially; why our civic dignity is offended by an
elitist system of justice; and why the fact of pluralism requires criminal justice to be more
open to, rather than more distanced from, the people at large. Deliberative democracy helps
us, in sum, to better explain and challenge the biases that characterize our penal system.
Advocates of expert justice would dismiss all these claims. For them, the attraction of
expert justice resides precisely in its capacity to favour rationality and reasonableness within
a penal system that is always under the pressure of activists claiming for more and harsher
punishment. I think, however, that defenders of expert justice are in trouble: they do not take
the problems that deliberative democracy poses to their view seriously. One significant
example could illustrate the kinds of improper biases that deliberative democrats denounce
(biases that defenders of expert justice tend or need to neglect). I am thinking about the
example of most prisons, which everywhere exhibit a remarkably homogeneous composition,
in the context of profoundly heterogeneous societies, this is to say in the context of societies
characterized by the fact of pluralism. For deliberative democrats, that terrible result is not
surprising at all. In our societiesno matter whether penal policies are guided by penal
populism or expert justiceit has always been the case that certain offenses and groups
receive brutal punishments while other offenses and groups are kept almost untouched. For
deliberative democrats there are obvious connections between those extended, common,
always unacceptable outcomes, and the elitism that has always characterized our criminal
justice system. Criminal Law norms have always been in the hands of people who are
completely detached from (people who basically know nothing about) those who are usually
the most affected by these norms. The question, then, is whether we could reasonably have
expected something different from this elitist process. The answer is no: the biases that
characterize the entire system of criminal justice (biases that appear in the design of the penal
norms, their interpretation and their application) are no surprise, given the obvious fact that
we all have epistemic difficulties for properly recognizing and balancing the interests of those
we do not know an obvious fact that our decision-making processes do not take seriously
enough. This is precisely what deliberative democrats want to emphasize.
Taking into account these considerations, it is astounding to see advocates of expert justice
proposing remedies that can only radicalize the kinds of evils that we face. Take, for example,
what Philip Pettit has called the outrage dynamic that operates in sentencing policy, and his
response to it (Pettit 2002, 429. See also Zimring et al. 2001).9 The dynamic would take the
following form: first, the State exposes to society a certain evil; second, the exposure of this evil
leads, then, to popular outrage; and third, the popular outrage forces government to adopt new
(and normally repressive) measures (Pettit, 430). According to Pettit, this outrage dynamic
has becoming increasing influential within the criminal law, and actually explains many of its
recent developments. The dynamic would be fuelled by the sensational media, which [t]aping
into peoples voyeuristic and condemnatory appetites manages to attract the attention of the
people, and release their feelings of outrage and indignation.10 Facing this outrage, he concludes,

Dzur examines this approach in pages 27-30.


Let criminal evil be exposed in the media, especially with the vivid impressions that can be created in
contemporary television, and there will be no shortage of popular outrage (Pettit 2002, 434). The case of
Pettit is particularly surprising, given hisin generalrefined and enormously attractive approach to both
the issues of democracy and criminal justice.


Crim Law and Philos

the routine response of the government is to announce a determination to establish tougher

sentences or, in the event that sentences are already at a maximum, to call for stricter policing or
greater efforts to apprehend the offender (ibid. 435).11
Deeply concerned by the implications of this outrage dynamic Pettit suggests
adopting an alternative institutional arrangement as a remedy one that fits well with the
principles and assumptions of expert justice. This remedy is one whereby general sentencing policy is taken out of the direct hands of parliament and given in the first instance
to a body that operates at arms length from parliament and government (like a central
bank). In this way, the area of sentencing policy would be totally removed from the
immediate pressures of popular outrage (ibid, 442).
From a deliberative perspective, the problems affecting these kinds of approaches are
apparent. First of all, those proposals deny, rather than honour, the principles of deliberative democracy, by suggesting that criminal law show be taken away from the hands of
the people. A deliberative democrat may agree with the proposal of carefully crafting the
criminal law, but never with the idea of leaving that process in the hand of experts: by
doing so, the chances of making the law more impartial decrease, rather than augment.12 In
addition, deliberative democrats would follow Pettit in his criticisms of the outrage
dynamic, but not in his responses to that problem (Mart 2009). For a deliberative
democrat, the solution requires strengthening the deliberative aspect of democracy,
rather than weakening its inclusive aspiration.13 In fact, if we recognized, with Pettit,
that the main origins of the obnoxious outrage dynamic resided in the sensationalist
media, or the peoples lack of information, or the absence of adequate forums of debate,
then the reaction should be the obvious one (which does not seem to be the obvious to
Pettit), namely, to promote public discussions, create new forums for political debate,
generate new sources for the transmission of impartial information, reduce the influence of
money in the media and in politics, etc. In this respect, I believe, Pettit and some others
have properly acknowledged (some of) the sources of the problem, but have offered us a
solution that seems to ignore those same findings and, what is worse, contradicts some of
the main aspirations of the deliberative view.14

In the conclusion of their book on punishment and democracy (aimed at analyzing the three strikes
legislation in California), Zimring et al. reach basically the same conclusion. For them, a reason to insulate
punishment from democratic political processes is to avoid placing a vulnerable area of governance in an
arena where it can be used as an opening wedge for broader attempts to undermine the credibility of
government (Zimring et al. 2001, 232).
For the same reasons, a deliberative democrat would not simply accept the creation of new countermajoritarian devices.

Unfortunately, even Dzur ends up opening more room than necessary to the technocratic view. Thus, at
the end of his book, Dzur admits the possibility that citizen participation in adjudication can lead counterproductively to greater punitiveness in the form of more criminalization, harsher penalties, penal
shaming, and degradation (163). Also, in his conclusion he claims: I have shown that it is not a dominance of experts but an equilibrium balancing formal procedure and technical expertise with informal
elements and lay knowledge that helps realize the goal of seeing, talking with, and treating the offender as a
particular individual and as a person worthy of respect (161). From a deliberative perspective, none of
these claims seem in principle reasonable.

This is basically the same conclusion reached by Dzur and Mirchandani 2007; and Johnstone 2000. For
them too, far from illustrating the need for buffers between the public and criminal justice policy making,
the penal populism evidenced in three strikes laws shows the need for an even deeper, albeit better informed
and more closely engaged, kind of public involvement (Dzur and Mirchandani 2007, 163).


Crim Law and Philos

The Problem of Penal Populism15

Let us now focus on penal populism, and how to distinguish the democratic alternative
from it.16 Following the work of Anthony Bottoms, Dzur relates penal populism with
politicians using for their own purposes, what they believe to be the publics generally
punitive stance (22). This characterization of penal populism allows us to recognize
one of the main failures of that view: penal populism claims a democratic pedigree that
it does not have. Penal populism is unable to give a proper space to the actual, diverse
and plural voices of the people voices that the democratic proposal wants to incorporate into the criminal justice system. This is why Dzur adequately presents penal
populism as a case of democratic deficit not surplus, a popular movement without the
kind of social capital that would lead to constructive engagement in criminal justice
policymaking (33).
Now, it is important to clarify exactly why penal populism is a case of democratic
deficit, so as to be then better prepared to repair that democratic deficit. My guess is that,
for Dzur, the main problem with penal populism basically concerns the way in which this
view (in spite of its democratic rhetoric) actually disavows civic participation. But this is,
in fact, only one of the many problems affecting penal populism. A deliberative theory, I
believe, would help us to recognize these deficits better, beginning from the way in which
penal populism both fails to comply with the requirements of inclusion and deliberation.
Penal populism is not only an elitist view, but also one that does not recognize the value
of collective discussion and the exchange of reasons. Penal populists seem ready (even
eager) to confuse democracy with the occasional expressions of some people in a modest
Thus, in societies guided by penal populism, criminal law norms are created and
interpreted in the absence of (or disregarding the importance of having) a fair collective discussion: those norms are usually crafted in a process that is basically
dependent on money, and in the context of profound social and economic inequalities
inequalities that penal populism take as given. So, even if opinion polls were true in
indicating a convergence between tough criminal policies and majority opinions,
there would still be a long way to go before saying that we are in front of a
democratic response (what reason would we have for considering democratic the
work of a few acting in the name of what some people occasionally said in an
opinion pool?). One could reach such a rash or temerarious conclusion only after
subscribing an impoverished notion of the term democracy. By contrast, if one
adopts the viewpoint of a deliberative democracy (or similar ones, I would add), one
cannot but deny the democratic character of those decisions or interpretations. A
truly democratic choice, the deliberative perspective would claim, would be the one
that emerged after an inclusive process of collective discussion. Collective deliberation has very little to do with an elite acting in the name of the whole, and even less
with the aggregation of (what are, in the best case) individual and isolated responses
to occasional surveyssurveys that could be undoubtedly useful for other purposes
and in other spheres, like in a commercial market. Democracy is and should be
understood as something substantially different from the market: issues of justice


See, in general, chapter 2 of Dzurs book.


For a discussion and examples of the concept of penal populism, see Roberts et al. (2002), Garland
(2002). Contrasts between elitists and populists may be found, for example, in Ryan 1999.


Crim Law and Philos

demand collective and substantive democratic agreements, rather than episodic or

spasmodic expressions of the market (Elster 1986).

Coda: Deliberative Democracy and the Place of the Socially Excluded

The particular emphasis placed by deliberative democrats in the idea of inclusion helps us
to sharpen the existing contrast between communicative approaches and penal populism. In
addition, it allows us to raise an important concern, which also plays a central role in
Albert Dzurs work too.17 I am thinking about the problem of social exclusion, and the
importance this problem should have in our assessment of the criminal law.
Once again, a deliberative perspective would contribute in strengthening Dzurs
approach: it would allow him to define more precisely what is wrong with social
exclusion, and also help him imagine what to do to confront it. For the deliberative
view, the systematic absence of certain viewpoints from the discussion of the content, boundaries and precise meaning of the criminal law, seriously undermines the
impartialityand therefore, the validityof the law in force. Those kinds of
restrictions tend to result in decisions that are more biased, less considerate of the
interests of everyone, and less impartial (Nino 1996a, b).18 By contrast, one could
add, a more informed, transparent and inclusive deliberative process would lessen
(although never eliminate) the chances of producing decisions impaired by personal
biases and logical or informational errors. This explains why the democratic decision-making process demands an ongoing, unending, inclusive collective
Together with other theorists of the criminal law, Dzur appropriately highlights the
gravity of this problem, we can call it the problem of systematic marginalization,19 as one
that affects the preconditions of criminal liability (Duff 1998, 2001).20 The deliberative
perspective would agree with this approach but still press for taking the consequences of
this issue further, thus exploring with more details its implications regarding the creation,
application and interpretation of the criminal law. However, the study and evaluation of
these implicationsof utmost importance for all those interested in having a just system of
criminal justicemust be reserved for a future opportunity.


Dzur, for example, talks about the exclusionary tendencies that undermine the general legitimacy of
criminal courts, which he sees as a constant feature of modern societies (Dzur 2012, 92).
This consequence is related to a crucialMilleanassumption of the deliberative view, which is that
each person is the best judge of his or her own interests. This is what makes the participation of every person
in the deliberative process, necessary. As a result of this, one can conclude that the systematic absence of
part of the population from that process of creating and interpreting the law make it less likely to properly
balance the needs, interests and demands of all different individuals and groups. I refer to these as situations
of legal alienation (Gargarella 2012).
Duff has maintained, in this respect, that Sufficiently persistent, systematic, and unrecognized or
uncorrected failures to treat individuals or groups as members of the polity who share in its goods undermine
the claim that they are bound by its laws. (Duff 2001, 195196). Based on partially similar reasons, Jeffrie
Murphy maintained that modern societies largely lack the moral right to punish (Murphy 1973, 221) and
also that in the absence of a major social change institutions of punishment are to be resisted by all who
take human rights to be morally serious (ibid., 222).
In Duff words, [a]ny account of punishment which makes the justice of an offenders punishment
crucial to its justification must face the problem of whether we can justly punish offenders whose offences
are closely connected to serious social injustice which they have suffered (Duff 1998, 197).


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