1 In most U.S. states, lay sentencing is limited to jury decisions in capital cases on whether the death penalty should be imposed. Six states also give juries some authority to sentence in noncapital cases (Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia).Google Scholar

2 See, e.g., for the United States, Alfred Blumstein & Jacqueline Cohen, “Sentencing of Convicted Offenders: An Analysis of the Public's View,” 14 Law & Soc'y Rev. 223 (1980); for England, Nigel D. Walker & Mike Hough, “Introduction: Developments in Methods and Perspectives,” in Nigel D. Walker & Mike Hough, eds., Public Attitudes to Sentencing (Cower: Aldershot, 1988).Google Scholar

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4 See, e.g., Douglas Lipton, Robert Martinson, & Judith Wilks, The Effectiveness of Correctional Treatment: A Survey of Treatment Evaluation Studies (New York: Praeger, 1975). For a somewhat less pessimistic view of possibilities of rehabilitation, see Lee Sechrest, Susan O. White, & Elizabeth D. Brown, eds., The Rehabilitation of Criminal Offenders: Problems and Prospects (Washington, D.C.: National Academy of Sciences, 1979).Google Scholar

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6 See, e.g., Andrew von Hirsch, Doing Justice: The Choice of Punishment (New York: Hill & Wang, 1976) (“Von Hirsch, Doing Justice”); Kay Knapp, “Impact of the Minnesota Sentencing Guidelines on Sentencing Practices,” 5 Hamline L Rev. 237 (1982).Google Scholar

7 For England, 64% said that the courts give out sentences that are too short to persons convicted of committing crimes; Gallup, Gallup Political Index, No. 252, August 1981 (London: Social Surveys (Gallup Poll) Ltd., 1981). For the United States, 83% said that judges do not deal harshly enough with criminals; Timothy J. Flanagan & Maureen McLeod, Sourcebook of Criminal Justice Statistics—1982 (Washington, D.C.: U.S. Department of Justice, 1983).Google Scholar

8 See, e.g., Mike Hough & Pat Mayhew, Taking Account of Crime: Key Findings from the Second British Crime Survey (London: HMSO, 1985) (“Hough & Mayhew, Taking Account of Crime”); Shari Seidman Diamond & Loretta J. Stalans, “The Myth of Judicial Leniency,” 7 Behav. Sci & Law 73 (1989); Douglas R. Thomson & Anthony J. Ragona, “Popular Moderation Versus Governmental Authoritarianism: An Interactionist View of Public Sentiments Toward Criminal Sanctions,” 33 Crime & Delinquency 337 (1987). For evidence from simulated cases that the public prefers more severe sentences than are given by the courts, see Blumstein & Cohen, 14 Law & Soc'y Rev. 223.Google Scholar

9 See Lars Molin, “Some Information About the Role of Lay Assessors in Swedish Courts,” in Nigel Walker, ed., The British Jury System (Cambridge: Institute of Criminology, 1975).Google Scholar

10 See Casper, Gerhard & Zeisel, Hans, “Lay Judges in the German Criminal Courts,” 1 J. Legal Studies 135 (1972).CrossRefGoogle Scholar

11 See Frank Milton, The English Magistry (London: Oxford, 1967) (“Milton, The English Magistry”).Google Scholar

12 See William Felstiner & Ann Drew, European Alternatives to Criminal Trials and Their Applicability in the United States (Washington, D.C.: U.S. Department of justice, 1978) (“Felstiner & Drew, European Alternatives”).Google Scholar

13 See Zdenek Kcystufck, “The Function of the Lay Judge in Czechoslovakia,” in Lawrence M. Friedman & Manfred Rehbinder, eds., Zur Socziologie des Gerichtsverfahren (Opladen: Westdeutscher Verlag, 1976).CrossRefGoogle Scholar

14 See Promorski, Stanislaw, “Lay Judges in the Polish Criminal Courts: A Legal and Empirical Description,” 7 Case W. Res. J. Int'l L. 198 (1975).Google Scholar

15 See Doris Marie Provine, Judging Credentials: Nonlawyer Judges and the Politics of Professionalism xii (Chicago: University of Chicago, 1986) (“Provine, Judging Credentials”).Google Scholar

16 See, e.g., Casper, & Zeisel, , 1 J. Legal Studies 135.CrossRefGoogle Scholar

17 R. M. Jackson, The Machinery of Justice in England 285 (7th ed. Cambridge: Cambridge University, 1977) (“Jackson, Machinery of Justice”).Google Scholar

18 Other lay tribunals may be more expensive. Jury trials are more costly than bench trials primarily because a professional judge must preside at both.Google Scholar

19 But see Tyler, Tom R. & MacCoun, Robert J., “The Basis of Citizens' Perceptions of the Criminal Jury: Procedural Fairness, Accuracy, and Efficiency,” 12 Law & Hum. Behav. 333 (1988), which provides evidence that citizens generally perceive juries to be fairer than judges, and that their preference for juries is strongest when the trial involves a serious crime. This result is consistent with the US. practice of letting juries decide whether the offender in a capital case should receive the death penalty in states (e.g., Illinois) in which sentencing is otherwise left to the court.Google Scholar

20 See John Reichert, “Lay Judges and Assessors: A Comparative Perspective,” in L. Silberman, Non-Attorney Justice in the United States: An Empirical Study 353 (New York: Institute of Judicial Administration, 1979).Google Scholar

21 “The Shadows and Silences of Real Life,” 1 Collected Papers 476–77 (1911).Google Scholar

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23 See Lloyd E. Moore, The Jury: Tool of Kings, Palladium of Liberty 83–86 (Cincinnati: Anderson, 1973).Google Scholar

24 With the exception of reduced costs.Google Scholar

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31 Id. at 187.Google Scholar

32 See, e.g., Elizabeth Burney, J.P.: Magistrate, Court, and Community 56–72 (London: Hutchinson, 1979).Google Scholar

33 Skyrme, Changing Image at 54 (cited in note 25).Google Scholar

34 Id. at 56–63.Google Scholar

35 Royal Commission on Justices of the Peace 1946–1948 (1948).Google Scholar

36 Baldwin, John, “The Social Composition of the Magistry,” 16 Brit. J. Criminal 171 (1976).CrossRefGoogle Scholar

37 For example, in 1977 of the almost 50 stipendiary (professional) magistrates, only one was a woman. Skyrme, Changing Image 47 (cited in note 25).Google Scholar

38 Roger Hood, Sentencing in Magistrates' Courts (London: Stevens, 1962).Google Scholar

39 Roger Hood, Sentencing the Motoring Offender (London: Heinemann, 1972).Google Scholar

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42 Although three magistrates are always assigned to a court session, among the 910 cases observed before lay magistrates in London as part of this research, 212 (23%) were dealt with by panels of two magistrates.Google Scholar

43 See note 7.Google Scholar

44 See text at notes 32–37.Google Scholar

45 See note 8.Google Scholar

46 Forty London lay magistrates were randomly selected from the list of active magistrates, 30 without and 10 with legal qualifications. Thanks to the endorsement of the project by the Lord Chancellor's Office and the generosity of the magistrates, 36 (90%) of the lay magistrates and 16 of the 18 stipendiary magistrates I contacted agreed to be interviewed. Interviews lasted between 1 and 3 hours.Google Scholar

47 In some London courts, like Bow Street where the Chief Metropolitan Stipendiary sits, the lay magistrates hear more than their share of the traffic offenses.Google Scholar

48 All observations were conducted between February and June 1981. Observers had received three weeks of training in the courtroom before observations began.Google Scholar

49 All theft and burglary cases with a first hearing date between 1 July 1979 and 30 May 1981 were selected. Among these 855 cases, 85 could not be followed to completion because the paper trail ended before disposition (38) or the defendant failed to appear for a hearing (47).CrossRefGoogle Scholar

50 Kapardis, Andreas & Farrington, David P., “An Experimental Study of Sentencing by Magistrates,” 5 Law & Hum Behav. 114 (1981).CrossRefGoogle Scholar

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52 See, e.g., Heinzelmann, Fred, “Mandatory Confinement as a Response to Community Concerns about Drunk Driving,” 10 Just. System J. 265 (1985), for a description of the current public pressure for mandatory confinement as a penalty for drunk driving.Google Scholar

53 Burrows, John, “Burglary Investigations: Victims' Views of Police Activity,” 2 Policing 172 (1986).Google Scholar

54 Borstal training is a sentence of incarceration for offenders between 15 and 21 years of age. Its purpose is remedial and educative, and it is an indeterminate sentence of between six months and two years.Google Scholar

55 Walster, Elaine, “Assignment of Responsibility for an Accident,” 3 J. Personality & Soc. Psychology 73 (1966); see also Phares, E. J. & Wilson, K. G., “Responsibility Attribution: Role of Outcome Severity, Situational Ambiguity and Internal-External Control,” 40 J. Personality 392 (1972).Google ScholarPubMed

56 E.g., E. B. Ebbesen and V. J. Konecni Found that the simulated bail decisions of judges reflected greater use of community ties and less use of prosecutorial recommendations than did archival evidence from bail decisions in real cases. “Decision Making and Information Integration in the Courts: The Setting of Bail,” 32 J. Personality & Soc. Psychology 805 (1975); “An Analysis of the Bail System,” in id., The Criminal Justice System: A Social-psychological Analysis (San Francisco: W. H. Freeman, 1982).Google Scholar

57 The case characteristics used in evaluating sentence severity were as follows: (a) This offense: measures of offense severity, whether case involved a driving offense, whether case involved a violent offense, number of counts, whether other charges were taken into consideration, and whether other charges were pending. (b) Prior offense history: whether the offender had previously been in custody, number of prior convictions, whether the offender had a prior conviction for the same offense, whether the offender was under a prior conditional sentence, and months since last conviction. (c) Offender characteristics: age, whether offender had an occupation, stability of living arrangements, number of dependent children, gender, race, whether Irish, Welsh, or Scottish, rating of appearance and behavior, whether offender expressed remorse, drug or alcohol involvement, and whether offender claimed offense was unplanned, done on impulse, or a one-time occurrence. For distribution of the characteristics for the cases sentenced by the lay and stipendiary magistrates, see appendix table A1.Google Scholar

58 The case characteristics we used in evaluating sentence severity were (a) this offense: number of counts, value of what was taken, whether a person was listed as the victim, and whether food was taken: (b) prior offense history: number of prior convictions, whether the offender had a prior conviction for the same offense, whether the offender was under a conditional sentence, and months since last conviction; (c) offender characteristics: age, whether unemployed, and gender. For the distribution of characteristics for cases sentenced by the lay and stipendiary magistrates, see appendix table A2.Google Scholar

59 More predictable sentencing outcomes should also result. To test for greater predictability across judges, I ran separate regression models for the lay and stipendiary judges on the theft and burglary cases. While the stipendiaries were more predictable for the theft cases (20% of the variance accounted for versus 10% for the lay judges), they were less predictable for the burglary cases (14% versus 22%).Google Scholar

60 Skyrme, , Changing Image 60 (cited in note 25).Google Scholar

61 No statistical tests are performed because of the small number of legally qualified magistrates in the sample. The evidence that legal qualification moves the lay magistrate closer to the stipendiary in sentencing behavior is provided by the intermediate sentencing response observed for legally qualified lay magistrates across the several sentencing judgments recorded in table 8. Note, however, that the same eight legally qualified magistrates were involved in all of these comparisons.Google Scholar

62 Minority Verdict (1973).Google Scholar

63 Id. at 10.Google Scholar

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68 Id. at 51.Google Scholar

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71 For the shoplifting case, r=.01; for indecent assault, r= -.17; for burglary defendants, r= -.01 and r=.02; for assault occasioning actual bodily harm, r=.02.Google Scholar

72 Greater leniency does appear to result when laypersons serve on mixed tribunals with professional judges. In a study of 257 cases before Polish mixed tribunals, the lay judges influenced the penalties in 85% of the cases in which sentences were given. They were more lenient in 70% of the cases and were more concerned with the personal circumstances of the offender and his family than were the professional judges. Pomorski, 7 Case W. Res. J. Int'l L. 201–6 (cited in note 14). Casper and Zeisel observed a more modest effect of lay participation on the mixed bench in West Germany. In 1,093 sentencing decisions, the lay judges initially disagreed with the professional judge 20% of the time and the lay judges affected the sentence that the offender received in one-third of those cases. 1 J. Legal Studies at 190 table 40 (cited in note 10).Google Scholar

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74 As the official representative of the court, the stipendiary magistrate in a London court is much more visible to the community in his official role than is the lay magistrate. The newspaper reporter who writes about a sentence given the stipendiary describes “the irresponsible decision made by magistrate X.” The same story written about a sentence given by a lay panel is attributed, at least in London, to an anonymous group of “magistrates.”Google Scholar

75 The stipendiary magistrates also process cases about three times as quickly as the lay panels.Google Scholar

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81 John Hogarth, Sentencing as a Human Process (Toronto: University of Toronto Press, 1971).CrossRefGoogle Scholar

82 Id. at 58–59.Google Scholar

83 Id. at 59.Google Scholar

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85 See, e.g., Von Hirsch, Doing Justice (cited in note 6).Google Scholar

86 The mandatory prison sentence has been in effect since 1 January 1982 when Illinois Public Act 82–238(1) took effect and defined residential burglary as a Class I felony.Google Scholar

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