This was the question John Humphreys raised recently, arguing in favour of it. His reasoning was that the popular election of judges would generate better outcomes because the Laura Norder bias of the general public would counterbalance the incentives he believes judges have to be a bit soft on perpetrators.
He felt that it is perfectly natural and normal for judges to be a bit soft, because in the general scheme of things criminals aren’t evil or vicious, and harsh penalties would do little to really protect society. Or something like that – we were a bit drunk, so the memory is a bit hazy.
I was at a loss to understand why counteracting this supposed tendency would be better overall, but John insisted that some stronger penalties would provide better incentives to criminals and would-be criminals – ie, they would be discouraged from crime to a greater degree than currently. This was in preference to the other method of making judges harsher, which is mandatory minimum sentencing. John rightly opposes taking judgement out of judges’ hands, and thinks allowing judicial autonomy is preferable, moderated by the incentive to please prospective voters in the next election.
The group we were with at the time, a rather brainy bunch, seemed sceptical (if not downright opposed). The arguments were various – A, is the softy bias real? B, would the counter-incentive be too little, roughly similar, or far too powerful in its own right? C, do we really want judges considering changeable popular opinion or their employment when sentencing, instead of trying to be as professional and neutral as possible? D, might not the dynamics of the electoral process drive judges towards a centrist position, just as has happened to Labor and the Liberals, thus negating the whole point? E, the worst crimes don’t respond well to punitive incentives, like murder in the heat of the moment. F, elections take time and money.
Throughout this barrage of opposition (all in good fun), John remained steadfast. I want to ask my readers, what do YOU think?
John, please feel free to comment and correct any mistakes or misapprehensions I may have, or to flesh out your arguments.
Interestingly, it turns out that a good portion of the USA’s courts are popularly elected. Their experience raises another problem – disparity between judges, mirroring the differences in their electors. Thus certain courts are perceived to be more liberal or conservative than others, leading to jurisdiction shopping and calling into question a fundamental precept of the rule of law – equality before the law.
To be fair, this disparity doesn’t go away for appointed judges, but I think that’s more to do with Americans’ propensity to view judicial appointments as salvos in the culture wars. I don’t believe we have it quite so bad here in Australia. But I could be wrong, and I’m happy to be set straight.