Should Australian judges be popularly elected?

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.

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10 Responses to Should Australian judges be popularly elected?

  1. Legal Eagle says:

    Interesting post, Jarrah. I’ve written on this issue before myself. I’m not a fan of electing judges, as I don’t think it will result in the best person for the job. It will mean you get politicians rather than judges. The forum shopping point you make above is indicative of the problems which might occur.

  2. Jarrah says:

    That’s a good point – the process could substantially change the kind of person who gets to be a judge. Those who are elected are likely to have a comparative advantage in getting elected, not necessarily in being a good judge.

  3. Legal Eagle says:

    I thought of it because when I worked at the court, a couple of judges I knew would not have been nearly good enough at self-promotion to come within a bull’s roar of being elected. But they were absolutely fantastic at the job.

  4. The problem is that the best person for the job might not be the best person for the job.

    I think being a good judge naturally leads a person to being marginally too lenient (by making the right decision for now but undervaluing the incentive effect). I think being elected leads a person to being marginally less lenient.

  5. The equality before the law point is strange. Different States in Australia have always had different laws and I can’t see why that’s a problem.

    If the “election adjustment” to the “softy bias” is too little… that’s still an improvement. And if it’s too much by less than the softy bias is too little… that’s still an improvement. I accept it’s possible for it to be WAY too much, but I don’t think that’s likely. Judges are still judges.

    Your point (c) is exactly the point of the proposal. You can’t re-ask the question and pretend that re-asking it constitues a criticism! :)

    The centrist tendency is not the same as the judge tendency. A judge will converge to the centrist approach to punishing people… which is not the same as the average judge approach to sentencing people. So point (d) is out.

  6. Kevin says:

    You will become a lefty. Your trajectory is clear.

    Oh, and both your commenters are [GENIUSES]. That is all.


  7. Jarrah says:

    “I think being a good judge naturally leads a person to being marginally too lenient (by making the right decision for now but undervaluing the incentive effect).”

    Do you have anything other than your gut feeling about this? Say a study comparing elected judges to non-elected? I’m not being narky, I’m genuinely interested.

    “You can’t re-ask the question and pretend that re-asking it constitues a criticism! ”

    I think I can, if I re-state it by spelling out the implications. Saying judges might become less professional is definitely a criticism!

    (Though I admit it is similar to the perennial debate about politicians responding to popular opinion or standing by their principles/expert opinion.)

    And I don’t understand your point about D. Care to elaborate?

  8. Legal Eagle says:

    I think being a good judge naturally leads a person to being marginally too lenient (by making the right decision for now but undervaluing the incentive effect). I think being elected leads a person to being marginally less lenient.

    Like Jarrah, I want to know what the basis for this assumption is. Certainly, my own observations of non-elected judges are that there is a spectrum of views. Some judges are colloquially known as “hanging judges” (ie, not at all lenient). Some are more lenient. It really varies.

    Also, your point assumes that leniency is a Bad Thing, and that judges at present are too lenient. Let’s consider the criminal law. Sentences are not only about specific and general deterrence. I would argue that there are many different things at work in a criminal sentence, including rehabilitation, deterrence, retribution, punishment and protection of society. There’s more to the law than incentives and disincentives. It is also about trying to rehabilitate the offender (if possible) and giving the victim a sense of retribution for the wrong that has been done to him or her. Further, society punishes the offender for failing to adhere to our laws, and in some cases, custodial sentences are imposed for the protection of society (by removing the offender from society). So there’s a whole lot of things going on there which cannot merely be boiled down to deterrence.

    Secondly, I would query the assumption that judges are necessarily too lenient. The Executive Summary to the VSAC’s Report on Sentencing stated that:

    * In the abstract, the public thinks that sentences are too lenient
    * In the abstract, people tend to think about violent and repeat offenders when reporting that sentencing is too lenient
    * People have very little accurate knowledge of crime and the criminal justice system
    * The mass media is the primary source of information on crime and justice issues
    * When people are given more information, their levels of punitiveness drop dramatically
    * People with previous experiences of crime victimisation are no more punitive than the general community
    * People with high levels of fear of crime are more likely to be punitive
    * Despite apparent punitiveness, the public favours increasing the use of alternatives to imprisonment
    * Despite apparent punitiveness, the public believes that the most effective way to control crime is via programs such as education and parental support, rather than via criminal justice interventions
    * Despite apparent punitiveness, public sentencing preferences are actually very similar to those expressed by the judiciary or actually used by the courts
    * Despite apparent punitiveness, the public favours rehabilitation over punishment as the primary purpose of sentencing for young offenders, first-time offenders and property offenders
    * Despite apparent punitiveness, public support for imprisonment declines when the offender makes restorative gesture

    The report is well worth reading in full if you have a moment. As a former litigator and a former court clerk, I have sat through cases which have been reported in the media, and I have been startled by how different a case looks when you have sat through all the evidence rather than read a quick summary. The only criminal cases which are reported in the media are the “juicy” ones, where the result is newsworthy and sensational. Of course media outlets like to focus on outraged victims and/or their families in these cases.

    Further, and very importantly, the general public knows only a small proportion of the facts that come before a judge and jury. Studies have shown that when people are given more facts, their views of an appropriate response change. They are more likely to give a sentence which correlates with that of the judge or jury, because they see the complexities in the situation.

    So I’m wary of claims that sentencing is “too lenient”. In individual cases, mistakes happen, but it is not an across-the-board phenomenon.

  9. CFQ says:

    My initial feeling is concern about judicial appointment becoming primarily a popularity contest. The most charming, smooth-talking person isn’t necessarily the best for the job.

    What would the election process be? First past the post? Who could vote?

    Would all judges in all courts be elected? Who would be eligible to ‘run’? Who pays for campaigns?

    It’s an interesting idea, but it does bring a hell of a lot of questions.

  10. I didn’t assume or say that leniency was a bad thing. I said that being “too lenient” was a bad thing. That’s true by definition.

    As for my reason in believing in a leniency bias — it’s based initially on introspection. If I was a judge I imagine I also would allow myself to be influenced by the plight of the person in front of me. It would take a strong judge to resist. I also link this to my theory of “informational capture”, where people have a high amount of information about one issue but still make a poor judgement because that information isn’t in the proper context.

    There is some evidence that suggests the current average punishments are below the efficient amount of punishment to prevent crime.

    LE — I’m not saying that the average voter is less lenient because they are better informed. I agree with all of those dot points. I agree that judges will generally make the best decision in a static world (ie assuming the outcome of that case doesn’t influence future actions of people outside the case). But we don’t live in a static world.

    The primary rationale for punishment is the dissincentive effect, which is not immediately linked to any one example of punishment.

    This whole debate could be solved if we just privatised security forces and courts and allowed competition and choice to determine which rules we lived under. Such competition existed in Vanuatu 100 years ago when new arrivals had to choose between the French and English legal systems. :)

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