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Argentina's Schifrin case and the ngland's Austin and Saxby case are two examples. In both cases, a school teacher was found guilty of taking part in a demonstration. The decision was then appealed by the 3igh 4ourt o% Appeals in 4riminal law. The Appeal 4ourt said the decision would ha5e represented 7a %ormidable contribution to chaos, anarchy, and the destruction o% rights
Argentina's Schifrin case and the ngland's Austin and Saxby case are two examples. In both cases, a school teacher was found guilty of taking part in a demonstration. The decision was then appealed by the 3igh 4ourt o% Appeals in 4riminal law. The Appeal 4ourt said the decision would ha5e represented 7a %ormidable contribution to chaos, anarchy, and the destruction o% rights
Argentina's Schifrin case and the ngland's Austin and Saxby case are two examples. In both cases, a school teacher was found guilty of taking part in a demonstration. The decision was then appealed by the 3igh 4ourt o% Appeals in 4riminal law. The Appeal 4ourt said the decision would ha5e represented 7a %ormidable contribution to chaos, anarchy, and the destruction o% rights
Democracy and Criminal Law: The Case of Social Protests
1 Roberto Gargarella Two examples Let me begin this presentation by introducing two judicial decisions, one that was made in Argentina in 2002, in the Schifrin case; 2 and the other that was written in ngland in 200!, in the Austin and Saxby case" #
$ will %irst address the Argentinean case" $n &!!', the schoolteacher (arina )chi%rin too* part in a demonstration in the )outh o% Argentina, in demand %or higher salaries" The demonstration was organi+ed by school teachers, and included the participation o% students and their parents As it was common during those years, protesters decided to bloc* roads ,in this case -ational Route -" 2#'. in /ariloche, in order to ma*e their claims audible" )chi%rin was then tried and %ound guilty, as one o% the leaders o% the protest, %or breaching the law" Remar*ably, the decision against )chi%rin, which was written by 0ederal 1udge Le2nidas (oldes, included an order saying that she should abstain to participate in public demonstrations composed o% by more than &0 people, and which too* place in inter. jurisdictional routes, %or the %ollowing two years" The decision was then con%irmed by the 3igh 4ourt o% Appeals in 4riminal Law ,the Cmara Nacional de Casacin Penal. $n the opinion o% the Appeal 4ourt, the in5alidation o% 1udge (oldes6 decision would ha5e represented 7a %ormidable contribution to chaos, anarchy, and the destruction o% rights8" 9 $n the central part o% its judgment, the 4ourt made re%erence to the democratic argument in order to condemn (arina )chi%rin, a school teacher who had ta*en a leading role in the bloc*ade" :uoting (iguel *medji;n, a %amous constitutional theorist, the 4ourt maintained that according to Argentina6s 4onstitution there was 7only one legitimate %orm %or expressing the so5ereign will o% the people,8 which was su%%rage" Through this means ,it added. the people 7accept or reject the alternati5es that the political class poses to them"8 The decision by the Argentinean Appeal 4ourt appeared in a context that was still characteri+ed by high le5els o% go5ernmental or para.go5ernmental political repression against demonstrators ,e5en though since 2002, and a%ter the death o% two young political acti5ists <(ariano =ostec*i and >ar?o )antill;n@, the o%%icial discourse on the matter was one o% no.5iolent.repression" According to a report by the 4enter %or )ocio.Legal )tudies <4L)@, an institution that is considered to be situated close to the go5ernment, there were &A deaths o% protesters in the period 200#.20&&" (oreo5er, in >ecember 20&&, the Argentinean 4ongress passed the Antiterrorist Law, which was in line with similar legislation adopted in other Latin American countries, such as cuador or 4hile, where the antiterrorist law has been 5astly used against demonstrators and political acti5ists" & $ want to than* Antony >u%%, Albert >+ur, lena Larrauri and $an Loader %or comments on a pre5ious 5ersion o% this paper" Also, $ want to than* the Le5erhulme Trust %or a grant that allowed me to complete this research" 2 )chi%rin, (arina, n" #!0B , 0#C0'C2002 3 Austin v. Commissioner of the Police for the Metroolis, D200!E F=3L B" 9 )ee report by the 4enter %or )ocio.Legal )tudies <4L)@ at httpGCCwww"cels"org"arCagendatematicaCindex"phpHin%oIdetalle>oc0JidsI&2JlangIesJssI2'JidcIA&# 1 Let us now turn to the second case, which too* place in ngland" Kn (ay >ay, 200&, there was a mass rally organi+ed against globali+ation, at Kx%ord 4ircus, a commercial area in the 4ity o% London" The police had in%ormation about the meeting and assumed that there would be outbrea*s o% public disorder, as it had happened in pre5ious demonstrations in the last two years" Towards the end o% the demonstration, police surrounded about #000 people ,some o% them who were in5ol5ed in the demonstration, and some o% them who were not. and re%used to allow many o% them to lea5e" As a result, more than &000 people were retained against their will %or around ' hours, without %ood, drin* or access to toilets" Geo%%rey )axby and protester Lois Austin were among those who were then retained by the police" -one o% them had been in5ol5ed in the exercise o% 5iolence" They sought damages alleging depri5ation o% liberty, which was contrary to Art" B, uropean 4on5ention o% 3uman Rights and s ' 3uman Rights Act" $n the 3igh 4ourt, Tugendhat 1 claimed that the restriction o% rights was justi%iable under Article B"&", and that se5en hours was well within the scale o% 7promptly8 re%erred to in the Article" B $n his 5iewG 7The court must allow %or the %act that it may be 5ery di%%icult %or the police to identi%y the target or predict the scale o% 5iolent disorder" $ conclude that the court should accord a high degree o% respect %or the police o%%icers6 appreciation o% the ris*s o% what the members o% the crowd might ha5e done i% not contained" At the same time the court should subject to a 5ery close scrutiny the practical e%%ect which derogating measures ha5e on indi5idual human rights, the importance o% the rights a%%ected, and the robustness o% any sa%eguards intended to minimise the impact o% derogating members on indi5idual human rights"8 B Article B" & reads as %ollowsG Article ! " #i$ht to liberty and security% &" 5eryone has the right to liberty and security o% person" -o one shall be depri5ed o% his liberty sa5e in the %ollowing cases and in accordance with a procedure prescribed by lawG a" the law%ul detention o% a person a%ter con5iction by a competent court; b" the law%ul arrest or detention o% a person %or non.compliance with the law%ul order o% a court or in order to secure the %ul%ilment o% any obligation prescribed by law; c" the law%ul arrest or detention o% a person e%%ected %or the purpose o% bringing him be%ore the competent legal authority on reasonable suspicion o% ha5ing committed an o%%ence or when it is reasonably considered necessary to pre5ent his committing an o%%ence or %leeing a%ter ha5ing done so; d" the detention o% a minor by law%ul order %or the purpose o% educational super5ision or his law%ul detention %or the purpose o% bringing him be%ore the competent legal authority; e" the law%ul detention o% persons %or the pre5ention o% the spreading o% in%ectious diseases, o% persons o% unsound mind, alcoholics or drug addicts or 5agrants; %" the law%ul arrest or detention o% a person to pre5ent his e%%ecting an unauthorised entry into the country or o% a person against whom action is being ta*en with a 5iew to deportation or extradition" 2" 5eryone who is arrested shall be in%ormed promptly, in a language which he or she understands, o% the reasons %or his arrest and o% any charge against him" #" 5eryone arrested or detained in accordance with the pro5isions o% paragraph &"c o% this article shall be brought promptly be%ore a judge or other o%%icer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial" Release may be conditioned by guarantees to appear %or trial" 9" 5eryone who is depri5ed o% his liberty by arrest or detention shall be entitled to ta*e proceedings by which the law%ulness o% his detention shall be decided speedily by a court and his release ordered i% the detention is not law%ul" B" 5eryone who has been the 5ictim o% arrest or detention in contra5ention o% the pro5isions o% this article shall ha5e an en%orceable right to compensation" 2 The case con%irmed that the police ha5e a wide range o% powers to use 7e5en against peace%ul protesters i% a %ew protesters are or may be disorderly8 <0enwic* 200', ''&@" Later on, the 4ourt o% Appeal rati%ied that a police cordon was a law%ul response to the particular circumstances o% the (ay >ay situation" Also, and more signi%icantly, the 3ouse o% Lords asserted that what was decisi5e in the case was the purpose or moti5e behind and the intentions o% those who implemented the cordon <(ead 200!, A@" $n the case at sta*e ,as Lord )cott put it. the purpose o% pre5enting damage to property and injury to persons ran*ed 5ery high in the moti5ations o% the detainers" The harsh attitude that the 1udiciary adopted, concerning public protests and popular mobili+ations, %ollowed a renewed approach by the legislature in these matters, which began to ta*e place in the mid.&!L0s" $n %act, the nglish Marliament promoted a more repressi5e legislation at least since &!LA, when it passed the 7Mublic Krder Act8" This wa5e o% authoritarianism was extended and bolstered during the conser5ati5e period, and then re. a%%irmed with the -ew Labor go5ernment" The new legislation included the &!!9 74riminal 1ustice and Mublic Krder Act8; the &!!' 73arrasment Act8 <already with the -ew Labor in power@; the &!!L 74rime and >isorder Act8; the 200# 7Anti.)ocial /eha5iour Act8; the 200B 7)erious and Krganised 4rime and Molice Act8; but also <li*e in Argentina@ the 7Terrorism Act8 %rom 2000, which blurred the distinctions between terrorists and protesters" These two examples, $ belie5e, pose crucial Nuestions concerning democratic authority and democratic construction ,particularly so, in the %ace o% judicial decisions that actually limit the scope o% political participation, and legislati5e decisions that discourage rather than promote an acti5e citi+enryG Oho has or should ha5e the %inal say regarding the scope o% our basic rightsH 3ow should we decide those %undamental Nuestions about the meaning and content o% our basic democratic rightsH (ore generally ,as 1eremy Oaldron would put it. how should we decide our pro%ound disagreements concerning our most cherished rights <Oaldron &!!!@H )hould we decide those Nuestions through <what Oaldron called@ 7the right o% rights,8 namely our participatory rights, or rather through traditional, o5er.centrali+ed mechanisms o% judicial re5iewH
$n this paper, $ will be interested in exploring some o% these %undamental Nuestions, which appear in the crossroad between democratic theory and 4riminal Law" The aim o% this paper is two%old, partly descripti5e and partly normati5e" $n the %irst, descripti5e part o% this wor*, $ want to show what has been done in this intersection between the two disciplines" The purpose o% this descripti5e part is to help those interested in wor*ing in the area to ha5e a picture o% what exists and what is missing in the studies about democracy and the 4riminal Law, and thus to also stimulate re%lections on the topic" (y main interest, howe5er, will be normati5e, and the %inal part o% my paper will be dedicated to itG $ will ad5ocate %or a more direct and signi%icant impact o% democratic theory within the domain o% 4riminal Law" (ore speci%ically, the descripti5e part shall consist o% the study o% three examples showing %ruit%ul, possible interactions between democratic theory and 4riminal LawG the %irst related to criminal trials; the second related to the sentencing process; and the third related to the penal decision.ma*ing" $n the second part o% the paper $ will suggest a more pro%ound and basic integration between democratic theory and the 4riminal Law" $ shall illustrate my normati5e 5iew by re%lecting on its implications concerning situations o% social protests as the ones that $ introduced in the pages abo5e" >emocracy and 4riminal LawG An $ntroduction 3 There are numerous reasons why $ thin* we should strengthen the lin*s between democratic theory and 4riminal Law" 0irst o% all, %or those o% us who belie5e in the importance o% democratic sel%.go5ernment, it seems clear that there are %ew problems more rele5ant than those related to the use o% the )tate6s coerci5e powers" )econd, and more speci%ically, when we re%er to the 4riminal Law, we are re%erring to a 5ery speci%ic and worrisome aspect o% the )tate6s coerci5e powers" $n %act, )tate 5iolence may imply the in%liction o% pain and su%%ering, incarceration, and e5en death" $t seems ob5ious, then, that %or those who care about sel%. go5ernment, Nuestions about the limits and scope o% this particular *ind o% )tate 5iolence cannot escape democratic re%lection and controlG what is at sta*e here is all too rele5ant" 0inally, $ should mention that in societies as the one in which $ inhabit <namely Argentina, which $ do not thin* is too di%%erent %rom other Oestern societies@ the existence o% pro%ound and unjusti%ied ineNualities ma*e the whole problem still more serious" $n deeply uneNual and unjust societies, the ris* o% a biased, improper use o% the most dangerous )tate6s coerci5e powers seems to radically increase" $n these contexts, pri5ileged groups begin to use those coerci5e powers in de%ence o% their own un%air ad5antages" This situation gi5es us with additional reasons to care about how the )tate6s coerci5e powers are used, and ensure that they are subject to strict democratic regulation" -ow, there are good and bad news in this respect" The bad news is that, in spite o% the ob5ious existing connections between democratic theory and 4riminal Law, the two disciplines ha5e not tended to intersect" Molitical philosophers, in general, and democratic theorists, in particular, ha5e not demonstrated a great or signi%icant interest on basic Nuestions about 4riminal Law" This omission seems perplexing, gi5en that 4riminal Law actually deals with some o% the most rele5ant and dramatic issues related to the use o% the )tate coerci5e powers" Kne could then wonderG 7DOEhat explains the reluctance on the part o% 3abermas and most other theorists o% deliberati5e democracy to engage the topic o% punishment directly, despite their interest in the coerci5e dimensions o% the lawH8 <de Grei%% 2002, #L9@" Ta*e, %or example, the case o% three o% the leading political philosophers o% 20 th 4entury, namely 1ohn Rawls in the Anglo.American world, 1urgen 3abermas in continental urope, and 4arlos -ino in Latin America <3abermas &!!2, -ino &!L9, &!!A, Rawls &!'&, &!!&@" The three o% them ha5e been deeply interested on %undamental Nuestions related to the justi%ication o% )tate coercion ,they too* this justi%icatory problem as the most important problem %aced by political philosophy" At the same time, they all clearly understood that a proper re%lection about the justi%ied use o% the )tate coerci5e powers reNuired also re%lection about democratic theory <it is worth noting that the three o% them approached democratic issues through a deliberative concetion of democracy@" -ow, the %act is that e5en though they all recogni+ed the need to say something more speci%ic about 4riminal Law, its justi%ication, and its connection to democratic theory, none o% them decided to carry that re%lection much %urther" A The good news, howe5er, is that there ha5e been increasing theoretical e%%orts trying to repair those serious omissions" 0irst o% all, we ha5e seen, in the last %ew years, a growing theoretical interest in trying to establish the missing connections between 3abermas, -ino or Rawls6 conceptions o% democracy and justice, and basic issues o% 4riminal Law" Among other rele5ant writings, we %ind >+ur J (irchandani6s wor* connecting 3abermas6 democratic A -ino6s case is particular, in this respect" $n the %irst long o% his academic li%e, -ino wor*ed directly and almost exclusi5ely within the area o% 4riminal Law " <-ino &&!L0 &!L2, !L#, &!L#b, &!LB, &!LA, &!!&, 200'@" And he dedicated most o% the second long hal% o% his academic li%e to issues o% 4onstitutional and >emocratic Theory <-ino &!L9, &!!2, &!!A, 20&#@" 3owe5er, he almost ne5er came bac* to those initial issues about 4riminal Law and loo*ed them through the lens o% his well.articulated conception o% deliberati5e democracy" 4 theory and 4riminal Law <>+ur J (irchandani 200'@, Mablo de Grei%% doing the same with -ino6s democratic theory <de Grei%% 2002@, and )haron >olo5ich pursuing a similar tas* by using 1ohn Rawls6 theory o% justice <>olo5ich 2009@" $n addition to this, we %ind many other rele5ant writings trying to tie %undamental issues o% 4riminal Law together with central issues o% political philosophy and democratic theory" Among many other important writings ma*ing these connections we can ma*e re%erence to the wor* by 1ohn /raithwaite, Mhilip Mettit and Antony >u%% <see, %or instance, /raithwaite &!L!, &!!', &!!L, &!!!, 2000; /raithwaite J )trang 2000; /raithwaite J Mettit &!!0, &!!9, 2000; >u%% &!LA, &!!L, 200&, 2009, 2009b, 200B, 200Bb, 200Bc; Mettit &!!', &!!'b, 2002@
At this point, let me present the particular conception o% democracy $ will be ta*ing as my standpoint in the %ollowing pages" This clari%ication may be rele5ant, gi5en the pro%ound disagreements we ha5e concerning the meaning o% this essentially contested concept <Oaldron &!!9@" At the same time, and precisely as a result o% the breadth and depth o% the existing disagreements, $ do not want and will not ta*e as my standpoint a too demanding or too polemic 5iew o% democracy" )o, in what %ollows $ will ta*e as a regulati5e idea o% democracy one that is in line with the one that 3abermas, Rawls or -ino had in mind, when they wrote about deliberati5e democracy" This 5iew, at least, has the ad5antage o% being shared ,in one way or another. by numerous contemporary thin*ers wor*ing with theories o% democracy <among many others, /ohman &!!A; /ohman J Rehg &!!'; 4ohen &!L!; >ry+e* 2002; lster &!!L; stlund 200!@" $ do not want or need to propose as a regulati5e ideal an o5er.sophisticated or complex 5ersion o% deliberati5e democracy, which would only aggra5ate the le5el o% the existing disagreements" /y contrast, $ will be herein assuming a rather simple or standard 5ersion o% deliberati5e democracy, based on the %amous 3abermasian communicative aroach to democracy, according to which a justi%ied public decision reNuires the deliberate agreement o% &all those otentially affected' <3abermas &!!A@" There are basically two %undamental notes in 3abermas6 claim, which $ will ta*e as the two basic reNuirements o% a deliberati5e democracy" The %irst reNuirement relates to ublic deliberation, and the second to social inclusion" )o, according to the regulati5e idea o% democracy that $ will be ta*ing into account, a public decision will be in principle more justi%ied, the more it represents the product o% an inclusi5e debate ,a debate among 7all those potentially a%%ected"8 $n sum, %or those who assume this deliberati5e 5iew, legal norms should be the product o% i@ a broad collective ublic discussion; in which ii@ all those otentially affected by those legal norms ta*e part" (nclusiveness and ublic discussion appear, then, as the two main reNuirements %or a law to be considered a legitimate law" To put the same point di%%erently, decisions that are the mere product o% technocratic experts, or decisions that ha5e not been properly discussed by the people at large, would not be here considered adeNuately justi%ied" ' ' K% course, it is important to determine what *inds o% decisions $ am tal*ing about" The issue is extremely complex and reNuires much additional wor* but, in principle, $ will be thin*ing about decisions on %undamental public Nuestions or issues o% intersubjecti5e morality" This is to say, $ do not thin* we can justi%y democracy to become so5ereign concerning issues o% personal morality, both %or reasons related to democracy and indi5idual autonomy" An epistemic conception o% democracy, %or instance, would maintain that there are no epistemic reasons %or de%erring to democratic authority with regard to issues o% personal morality <-ino &!L9@" Also, there are issues related to the procedural and preconditions o% democracy that cannot be simply delegated to a mal%unctioning process o% democratic discussion <ly &!L0; 3abermas &!!A@" 3owe5er, it is not ob5ious to me that this paradoxical situation can easily be sol5ed through the use o% non.democratic procedures <which can also be expected to wor* properly, in the context o% a %eeble institutional system@" 5 Oith these clari%ications in mind, $ will now proceed to examine three areas were we %ind promising attempts to integrate the 4riminal Law and democratic theory" >emocracy and 4riminal Trials $n the last %ew years, 4riminal Law and democratic theory crossed their paths in di%%erent occasions, and these encounters were usually 5ery rich" Kne o% the most interesting areas o% intersection is that o% criminal trials, where the wor* o% Antony >u%%, 4arlos -ino or Mablo de Grei%% played a leading role" $n di%%erent ways, they ha5e all been ad5ocating %or communicati5e approaches that ha5e strong implications %or the criminal process" The communicati5e commitment aspect their approach puts their theories together with other, more established expressi5e theories o% punishment ,they appear to be in a relationship o% species and genus" 3owe5er, and e5en though communicati5e theories and so.called expressi5e theories o% punishment are clearly inter.related, it is important to di%%erentiate one %rom the other" $n general terms, it could be said that the main purpose o% expressi5e theories is communicati5e <rather than, %or example, rehabilitation, su%%ering or 5engeance@" Ohat expressi5e approaches want is to communicate condemnation to the criminal %or the wrongness o% the act he committedG they 7disa5owDE that act as one which is not to be tolerated or condoned8 <>u%% &!LA, 2#B@" 0or example, according to 1ean 3ampton6s particular approach to expressi5e punishment, punishment gains justi%ication as a result o% its <potential@ ser5ice to moral education" Thus, punishment is justi%ied 7as a $ood %or those who experience it8, rather than as a 7deser5ed e5il8 <3ampton &!L9, 2#'@" 3ampton compares this situation with the parent who punishes his belo5ed son, and statesG 7the in%liction o% pain by a parent on a belo5ed but naughty child, suggests to me that punishment should not be justi%ied as a deser5ed e5il, but rather as an attempt, by someone who cares, to impro5e a wayward person8 <ibid"@" Kne may disagree with 3ampton6s 5iew %or di%%erent reasons <i"e", concerning the contribution o% the depri5ation o% liberty to moral education@, but still agree with the basic purpose o% her enterprise, which is to approach to the 4riminal Law %rom a communicati5e perspecti5e" Oe may say something similar regarding another well.*nown 7expressi5e8 5iew, such as the one ad5anced by 1oel 0einberg" According to 0einberg, 7punishment is a con5entional de5ice %or the expression o% attitudes o% resentment and indignation, and o% judgments o% disappro5al and reprobation, on the part either o% the punishing authority himsel% or o% those Pin whose name6 the punishment is in%licted8 <0einberg &!'0, !A@" 3owe5er, the %act is that 7expressi5e8 approaches to 4riminal Law, li*e the ones that 1oel 0einberg or 1ean 3ampton once o%%ered, ha5e only a thin connection with the central goals and ambitions o% a deliberati5e democracy" $n e%%ect, expressi5e approaches seem to be mainly interested in 7one.direction8 communication, where the o%%ender can only listen and %inally accept the message that the others want to con5ey to him" /y contrast, communicati5e approaches as those $ want to de%end here see the 4riminal process in a di%%erent %ashion, which seems more clearly related to the basic assumptions o% a deliberati5e democracy" $n e%%ect, in >u%%, -ino or de Grei%%6s communicati5e approach, the 4riminal process is concei5ed o% as a dialo$ic process, where the o%%ender is not simply seen as a passi5e recipient o% a public reproach" $n other terms, in the *ind o% communicati5e approach that they ad5ocate %or, the 4riminal process is seen as a 7two.way8. process, where one part tries to acti5ely address the other, resorting to his reason, rather than his %ear" The entire point o% the process is to engage into a moral dialo$ue with the o%%ender, trying to appeal to his reason and his understanding" 6 Oith the support o% 1urgen 3abermas and 4arlos -ino6s wor* on democratic theory, de Grei%% reads and interprets expressi5e theories o% punishment in a 7dialogic8 manner <de Grei%% 2002, #!0@" L /ased on those premises, he sees the criminal trial as a process where we engage with o%%enders as moral agents and do our best to appeal to their reason and understanding" 0or him, 7the point is not merely that in blaming someone we simply claim that there are moral reasons why he should ha5e a5oided acting as he did, but that we o%%er those reasons to him" $n blaming someone we engage him in a moral discussion whose aim is to get him to accept our judgment on his action8 <ibid", #!0.&@" K% course, the process may %ail, because the o%%ender remains unpersuaded by our arguments" (oreo5er, we need to be prepared to 7be persuaded by him to modi%y DourE original judgment on his conduct8 <ibid", #!&@" /ut the %inal point is the sameG 7the aim o% blaming is not merely to get people to change their beha5ior, but to do so %or the right reasons8 <ibid"@" At this point, de Grei%% 5iew on the criminal trial becomes indistinguishable %rom that o% Antony >u%%" Antony >u%% has de5eloped a communicati5e approach to the 4riminal Law during years, but it was only recently when he o5ertly made a connection between that 5iew and a deliberati5e idea o% democracy <>u%% and (arshall 200'; >u%%, 0armer et al" 200'@" 3e explicitly endorsed 7participatory and deliberati5e conceptions o% democracy8 in order to pro5ide support %or his 5iew o% the trial as a 7process o% calling to account, as just one o% the 5arious ways in which, as participants in the wide range o% practices o% reason that structure our li5es, we hold each other responsible8 <>u%% and (arshall 200', 220, 29&@" $n recent years, >u%% has pro5ided us with what is probably the best and more in%luential account about dialogic criminal trials, and how they could loo* li*e" 0or >u%%, 7to put someone on trial, and to punish him %or his wrongdoing, is to treat him as a member o% the normati5e community under whose laws he is tried and punished"8 The accused has to be addressed as a 7%ellow member o% a normati5e community whose 5alues he can be expected to understand and accept8 <>u%% 200L, &!LA@" (oreo5er, he has to ha5e a %air opportunity to be listened to, and his 5iews ha5e to be ta*en seriously and duly weighed" $n sum, in spite o% their <partially@ di%%erent theoretical bac*grounds and goals, the wor* o% >u%%, -ino or de Grei%% pro5ides us with interesting examples o% how democratic theory could intersect with 4riminal Law in order to reno5ate our thin*ing o% criminal trials" ! >emocracy and )entencing $n the pre5ious section, we explored di%%erent suggestions coming %rom democratic theory in relation to the organi+ation o% criminal trials, and how they could be impro5ed" 3erein, we shall explore some proposals, also deri5ed %rom democratic theory, concerning criminal justice sentencing" $n general terms, as we shall see, ad5ocates o% deliberati5e theories o% democracy <or similar@ ha5e shown interest in changing the sentencing process, so as to ma*e L Gi5en the rather 7natural8 or ob5ious connections between a deliberati5e 5iew o% democracy and a communicati5e understanding o% punishment, it is surprising that authors such as 4arlos -ino ,one o% the %irst scholars in de5eloping a robust theory o% deliberati5e democracy. did not %ully pursue that connection" -ino began and %inished his academic career writing about 4riminal 1ustice <-ino &!L0, &!!Ab@, but in the decades in between he de5eloped a power%ul democratic theory <-ino &!!A@" Mablo de Grei%% rightly points out to this missing lin* in -ino6s academic writings, re%erring to the %act that, e5en his latest writings, -ino still grounded his 5iews on 4riminal 1ustice on moral premises alone, lea5ing no clear role to his 5iews on democratic legitimacy <de Grei%% 2002, #L#@" ! To state this, howe5er, does not mean that one could not %a5or such 5ie won the trials %rom other di%%erent perspecti5es, not necessarily related to the democratic perspecti5e that is here de%ended" 7 it more deliberati5e and, more signi%icantly, more inclusi5e and open to ci5il society" $n this way, they ha5e challenged traditional legal approaches, which are distinguished by their indi5iduali+ed and juricentric %eatures" $n what %ollows, $ will %ocus on two main alternati5es to the pre5alent sentencing process" The %irst alternati5e that $ want to explore relates to studies on restorati5e justice" (ore speci%ically, $ will illustrate the %irst alternati5e through the inno5ati5e approach to restorati5e justice that was de5eloped by 1ohn /raithwaite, particularly in collaboration with Mhilip Mettit" $nspired both by a republican political philosophy and also by the enormous theoretical and practical wor* on restorati5e justice that has been done in the last decades, 1ohn /raithwaite and Mhilip Mettit ha5e de5eloped a complete and renewed approach to criminal justice <Ashworth 2002; /raithwaite &!!L; /raitwhwaite J Mettit 2000; 4ragg &!!2; (arhsall &!!!; Oalgra5e 2000, 200L@" Their theory was de5eloped in its most complete %orm in their boo* Not )ust *eserts, but they re%ined some o% their basic ideas in numerous other papers that they wrote indi5idually or together <see, %or instance, /raithwaite &!L!, &!!', &!!L, &!!!, 2000; /raithwaite J )trang 2000; /raithwaite J Mettit &!!9, 2000; Mettit &!!', &!!'b, 2002@. 0or /raithwaite and Mettit, the criminal system should be designed 7not primarily to punish o%%enders but, rather, out o% community.based dialogue, to bring home to them the disappro5al o% others and the conseNuences %or others o% what they did8 </raithwaite J Mettit &!!9, 'A'; /raithwaite J Mettit &!!0@" The idea o% %ostering community.based dialogues seems an interesting proposal, which is 5ery much in line with the principles and objecti5es o% a deliberati5e democracy" $nstead o% concei5ing the sentencing process as a process that is directed against an o%%ender who has been singled out because o% the %ault he committed, here it is understood as a collecti5e enterprise concerning a problem that, more or less directly, in5ol5es the entire community" The %inal goal o% that process is not to obtain an indi5iduali+ed sentence against a particular indi5idual who <most probably@ will be then punished through a loss o% liberty, which implies his being separated %rom the rest" Rather, the purpose o% these community.based solutions is to create the conditions %or ma*ing collecti5e dialogue possible" The idea is to repair a crime that was committed against the entire community, so as to restore the pre5iously existing situation, healing the social bonds that were damaged, and reintegrating the o%%ender to the community" $n consonance with those assumptions, /raithwaite and Mettit ha5e %a5ored 7a radical redesign o% the criminal justice system8, based on community accountability conferences as the ones that ha5e ta*ing place in -ew Qealand and Australia <and more recently in F)A, 4anada or the F=@, &0 which ha5e permitted deciding most criminal cases outside the courtrooms" && 4ommunity con%erences are a restorati5e justice practice, designed to bring %amilies and relati5es o% 5ictims and o%%enders together, to %ind their own solutions to con%licts <Qinsstag J Ran%raechem 20&2@" As Lode Oalgra5e has put it, the con%erence is an 7inclusi5e process8 aimed at %inding solutions to 7the problems and harms8 caused by particular o%%ences <Oalgra5e 200L, #9@" Through its emphasis both on inclusion and &0 $n these con%erences, 7a %acilitator in5ites the o%%enders to nominate as participants the people most important in their li5esSRictim<s@ also attend and are in5ited to nominate participants with a special relationship o% care to support themSthe selection principle is designed to structure both shaming and reintegration o% both o%%enders and 5ictims into the con%erence Sparticipation o% supporters o% both o%%enders and 5ictims is intended to structure reintegration into proceedings8 </raithwaite J Mettit &!!9, ''0; >+ur J (irchandani 200', &B2@" && According to their study, 7community accountability con%erences ha5e wor*ed better than courts in conditions o% the most extreme imbalance o% power imaginable ,cases in which the o%%enders were global corporations and 5ictims were illiterate citi+ens o% remote Aboriginal communities8 <ibid"@" 8 deliberation, the con%erence.method seems particularly appropriate %rom those who care about deliberati5e democracy" &2 $n sum, community con%erences represent an attracti5e alternati5e to pre5ailing approaches to sentencing, which properly honor the main 5alues o% democratic deliberation, namely dialogue, inclusion, persuasion or eNuality" &# Let me now examine a second alternati5e to juricentric, top.down approaches to sentencing, which comes %rom academic wor*s see*ing to re5itali+e the institution o% the jury" $n particular, $ want to %ocus my attention on recent wor*s by Albert >+ur, who has been trying to explicitly re.connect his studies on the jury with basic issues o% deliberati5e theory <>+ur 20&2@" A harsh critic o% both penal elitism and penal populism, >+ur demonstrates how, as a conseNuence o% these theoretical in%luences, the dominant system o% criminal justice tends to be organi+ed around tribunals that 7produce distance8 with the public; 7impede 5ictims, o%%enders, and members o% the public %rom recogni+ing the human su%%ering in both criminal o%%enses and in state punishment;8 and %oster 7segregation, separation, and ultimately, dehumani+ation8 <>+ur 20&2, &'.20@" $n addition, the pre5alent situation seems to undermine the chances o% alternati5e arrangements li*e the jury, which emphasi+es the importance o% public participation in penal sentencingG juries ha5e thus been con%ined to the margins o% the criminal justice system" According to >+ur, in countries li*e Great /ritain the jury has been limited to only the most serious criminal trials, while in America it 7has been on the decline %or decades as state and %ederal jury trials ha5e shrun* in absolute members and as a percentage o% total cases <ibid", B.A@8 7)upplanted by plea agreements, settlements, summary judgements, and nontrial %orums8 ,>+ur adds. 7juries in the Fnited )tates hear a 5ery small %raction ,around B percent or lower. o% all cases8 <ibid"@" As a conseNuence, he admits, commentators 7now tal* about the Peclipse6, Pdisappearance6, and ine5itably, the Pextinction6 o% the jury8 <ibid", A@" 0acing these tendencies, the purpose o% >+ur6s recent wor* has been trying to strengthen support to the jury, restorati5e justice and other legal mechanisms that could contribute to 7close social distances between o%%enders and 5ictims, and between the people who commit o%%enses and the people who li5e near them and will li5e near them when the are done ma*ing amends8 <>+ur 20&2, #!@" These responses, >+ur assumes, can promote people6s ci5ic capacities, stressing our 7interconnectedness8 and 7relationships that lin* us together8 <ibid"@" Again, what we ha5e here is an approach to sentencing that is openly lin*ed to deliberati5e approaches to democracy, and modelled by its %undamental principles o% collecti5e dialogue and social integration" $t is worth noting the way in which these more democratic alternati5es promote a decentrali+ed, open, hori+ontal, collecti5e, discussed, case.sensiti5e way o% producing &2 3owe5er, it seems also clear that this conclusion depends on some additional normati5e premises, %or instance related to <say, communitarian or republican@ theories o% justice, which some deliberati5e democrats may %ind unappealing" &# 4ommunity con%erences, so concei5ed, are 5ery di%%erent %rom mediation processesG here we do not get 7mediation between two indi5iduals, but a problemsol5ing dialogue between two communities o% care8 </raithwaite J Mettit &!!9, ''2; 0iss &!L9@" These inno5ati5e practices con%ront ob5ious ris*s </raithwaite J (ug%ord mention, %or example, those o% 7re.pro%essionali+ation, patriarchy, ritualistic proceduralismSand inappropriate net.widening@, which tend to be compensated by some o% its attracti5e 5irtues <they mention 7the general direction o% change is away %rom these pathologies; it is depro%essionali+ing, empowering o% women, oriented to %lexible community problem.sol5ing and, %or the most part, narrowing nets o% state control8, /raithwaite J (ug%ord &!!9, &AL@" 9 sentences, which pro%oundly contrasts with the dominant model o% top.down, 5ertical, juricentric decisions, epitomi+ed by the system o% sentencing guidelines that has gained increasing in%luence in the Anglo.American world <Ashworth J Roberts 20&#@" &9
This exploration, $ hope, helps us illustrate the ways in which democratic theory has inter5ened or can inter5ene in basic academic debates within the 4riminal Law" The examples that $ presented expose the richness and potential o% the democratic approach, and at the same time demonstrate the capacity o% democratic theory as a critical tool in the %ace o% hardly justi%iable dominant practices" >emocracy and Menal >ecision.(a*ing )o %ar we ha5e explored possible connections between deliberati5e theory and the criminal trial and sentencing processes" 3erein, $ want to pay attention to the way in which deliberati5e democracy may help us challenge the two %orces that ha5e been dri5ing penal decision.ma*ing in the last decades, namely enal elitism and enal oulism. >emocracy, $ will maintain, reNuires all norms, but particularly 4riminal Law norms <gi5en the dramatic implications they ha5e@ to be %ully discussed by all those who may be a%%ected by their existence or their absence" Although, in principle, penal elitism and penal populism are presented as opposed 5iews, the two approaches seem to be closely connected in their actual, shared elitism" +litist views appeal to the eole,s interests, without e5er as*ing the people about their actual 5iewpoints" (eanwhile, oulist views appeal to the eole,s will- without e5er engaging with them in a %air con5ersation about their actual 5iewpoints" $n the end, none o% these 5iews seems to ta*e seriously the 5iewpoints o% the actual people that they claim to represent" 0rom the perspecti5e o% a deliberati5e democracy, both approaches are unattracti5e because o% the way they deal with democracy6s two main reNuirements, namely social inclusion and deliberation. litist approaches to criminal justice .as $ will understand them here. emphasi+e the role o% technocratic experts in e5erything that concerns the 4riminal Law <and conseNuently dismiss the importance o% issues o% social inclusion@, while populist approaches ha5e at least a rhetoric o% social inclusion, while dismissing the 5alue o% %air public deliberation" Ta*ing into account these 5ery basic characteristics, one could also maintain that penal elitism is, %or democrats, particularly %lawed in what concerns social inclusion, while penal populism is particularly %aulty in what concerns collecti5e deliberation" Let me explore these two 5iews separately" i. Penal +litism and *emocracy According to >a5id Garland, enal welfarism dominated policy.ma*ing 7in the decades %ollowing the )econd Oorld Oar8 <Garland 200&, &9B.A@" >uring the years o% its ascendancy, 4riminal Law policies were created by go5ernmental experts and pro%essional practitioners" These policies were the product o% 7expert *nowledge and empirical research8, and they usually assumed that re%orm and social inter5ention were plausible responses to crime <ibid"@" -ow, %rom a democratic perspecti5e, penal wel%arism can be seen as a clear example o% elitism ,in this case, elitism o% the liberal type" As some criminologists ha5e put it, it was the time o% the 7Mlatonic guardians8G 7Oe were the Mlatonic guardians; there was no Nuestion &9 To state this, howe5er, does not mean that decentrali+ed models simply manage to sol5e all the problems that the system o% sentencing guidelines was directed at sol5ing" 10 about that" Oe had a pretty good idea o% what needed to be done, and we thought it was right8 <Ryan 200#, &A; Loader 200A, BA#@" $n the %ace o% pre5ailing elitist policies <no matter the way they co5er their elitism, or the rhetoric they employ in their de%ense@, the responses coming %rom deliberati5e democracy must be clearG more inclusion and more discussion" $n occasions, but not %reNuently, theorists o% the 4riminal Law ha5e ac*nowledged the importance o% these democratic reNuirements" $an Loader, %or example, has objected to the rule o% the 7Mlatonic guardians8 in criminal justice, and suggested the promotion o% democratic institutional re%orms in the area" $n his words, 7we need to design institutional ways o% li5ing with, and see*ing to ma*e as inclusi5e and in%ormed as is possible, the mediated public contests about crime and punishment that ha5e become a recurrent %eature o% our time8 <Loader 200A, BL2@" 0or him, 7open public debate about crime and punishment is not something that democratic societies are or should be able to shy away %rom" $ndeed, under the right conditions, such dialogue can buttress the public reason that Mlatonic guardians ta*e to be %ragile, and help counter the spontaneous con5ictions that they %ear willSrun dangerously amo* through the institutions o% criminal justice8 <ibid"@" Oe %ind similar democratic responses in the wor* o% Loader J )par*s" According to them, 7Nuestions o% crime, order and justice are ,and should be. settled through political contest and debate8 <Loader J )par*s 20&&, #0@" &B $n my 5iew, these initial responses point to the right directionG penal decision.ma*ing has become an unjusti%iable elitist practice; democracy needs to meet the 4riminal Law e5en at this le5el; we should not be a%raid o% opening the discussion o% crucial issues o% public interest to the general public" 4oncerning these %undamental points, deliberati5e democrats cannot agree more with Loader, )par*s and other theorists who ha5e stressed the importance o% insu%%lating democracy to the 4riminal Law" -ow, and ha5ing said this, we still ha5e to see what are the concrete practical implications o% these initiati5es" Oe *now some o% them, %or instance in what concerns policing policies, and they seem 5ery appropriate <see, %or instance, Loader &!!A, &!!', 2000@" 3owe5er, it is still not clear %or me how much these proposals di%%er %rom other still elitist 5iews that ha5e been de5eloped in this area, which $ want to at least brie%ly explore in the %ollowing paragraphs" &A &B $t is not clear, howe5er, how much these 5iews di%%er %rom the one presented by Mettit 2002, which we will examine in the %ollowing paragraphs" &A (ainly, $ am thin*ing about the more recent wor* o% philosophers li*e Mhilip Mettit" Mettit has de5eloped an interesting and no5el approach to democracy <Mettit 2002, &!!'b, 20&2@ and, particularly ta*ing into account those attracti5e de5elopments, the proposals that he presented in the %ace o% increasingly puniti5e policies seem somehow surprising" Mettit seems to be particularly concerned with what he calls 7the outrage dynamic8 that operates in the area o% criminal justice <Mettit 2002, 92!" )ee also Qimring et al 200&@" The dynamic would ta*e the %ollowing %ormG %irst, the )tate exposes to society a certain e5il; second, the exposure o% this e5il leads, then, to popular outrage; and third, the popular outrage %orces go5ernment to adopt new <and normally repressi5e@ measures <ibid", 9#0; similarly, Qimring et al 200&, 2#2@" Ta*ing into account this 7outrage dynamic8, Mettit suggests ta*ing the sentencing policy 7out o% the direct hands o% parliament and gi5en in the %irst instance to a body that operates at arm6s length %rom parliament and go5ernment8 <li*e a central ban*@" $n this way, the area o% sentencing policy would be totally remo5ed 7%rom the immediate pressures o% popular outrage8 <ibid, 992@" $n my 5iew, e5en i% we accepted his descripti5e presentation, as $ do, we would still ha5e no good reasons to ad5ance proposals as the ones he ad5ances" 0rom the standpoint o% a deliberati5e notion o% democracy, one should at least ma*e two objections to Mettit6s 5iew" The %irst objection has to do with the deliberative reNuirement o% democracy" $% we recogni+e with him that the main origins o% the obnoxious 7outrage dynamic8 reside in the sensationalist media, or the people6s lac* o% in%ormation, or the absence o% adeNuate %orum o% debate, then the reaction should be the ob5ious one <which does not seem to be the ob5ious to Mettit@, namely, to promote public discussions; open new %orums %or political debate; create new sources %or the transmission o% impartial in%ormation; reduce the in%luence o% money in the media and in politics; etc" <this is basically the same conclusion reached by >+ur and (irchandani 200'; (art? 200!; and 1ohnstone 2000@" )econd, and concerning 11 ii. Penal Poulism and *emocracy Ohile penal elitism was particularly in%luential during the &!B0s, and the years that %ollowed the consolidation o% Oel%are )tate, the new experience o% 7law and order8 appears as a more contemporary phenomenon, associated with neo.conser5ati5e and neo.liberal policies and, more speci%ically, to political phenomena as those that we *new as 7Thatcherism8 and 7Reaganism8 <Garland 200&, &9B.A@" $nitially, Antony /ottoms used the phrase 7populist puniti5eness8 to 7con5ey the notion o% politicians tapping into, and using %or their own purposes, what they belie5e to be the public6s generally puniti5e stance8 <&!!B, 90@" 0or >a5id Garland, penal populism re%ers to a 7new experience8 o% 7law and order8 were experts are distrusted and legal decisions are greatly in%luenced by popular opinion and the media <Garland 200&, &9B.A@" $n %act, the term 7populism8 has became associated to politics o% 7though on crime8, and emotional responses usually %ollowing some horri%ic crimes that generate intense media attention <Roberts et al 200#, 5iii; Garland 200&@" &' The new populist %ormula represented an unbeatable and success%ul combinationG it was a highly pro%itable political proposal that promised great achie5ements in terms o% crime reduction, and which was, at the same time, highly justi%ied and legitimi+ed in democratic terms" The pro%itable political character o% these new policies seems to be out o% the Nuestion" /y contrast, their e%%ecti5eness and justi%ication has been the object o% much dispute" $n terms o% e%%ecti5eness, some authors maintained that, in balance, the costs imposed by these policies were excessi5ely high, and some others suggested that the new 7tough on crime8 policies were, in actual practice, much less e%%ecti5e than announced </ene*os J (erlo &!!B; Greenwood et al &!!9; )tol+enberg J >6Alessio &!!'@" $n any case, and %or the purposes o% this paper, $ will here %ocus on the criticisms that were directed to the democratic justi%ication o% these sentencing policies" Let me start this analysis by ma*ing three points, which are connected to the two main concerns o% deliberati5e democracy, namely issues related to inclusion and issues related to debate" 0irst o% all, populists tend to appeal to the 7people6s will8 but, in %act, they %reNuently do not bother in actually consulting the people they re%er to" Mopulists do not seem to be actually interested in engaging with those they constantly in5o*e" As 1ohn Mratt ,one o% the the inclusive reNuirement o% a deliberati5e democracy, it seems clear that his proposal is problematic in its suggesting ta*ing penal policy ma*ing away %rom the hands o% the people, and proposing the adoption o% new counter.majoritarian institutions" >eliberati5e democracy does not propose inclusi5e discussions o% public issues out o% a pre%erence %or multitudinous meetings, but rather because it considers that well.designed collecti5e deliberations %a5our impartiality <(art? 200!@" 17 Kne o% the best *nown, recent cases o% penal populism appeared during the early &!!0s, a%ter the state o% 4ali%ornia introduced its 7three stri*es and you are out8 mandatory legislation %or sentencing <Qimring et al 200&@" The case is also particularly signi%icant %or those interested in exploring the critical capacity o% deliberati5e theories o% democracy" 4ali%ornia was not the %irst F")" state in adopting harsher sentencing policies o% the type, but its case became salient because its renewed puniti5e strategy was subjected to popular consultationG the three.stri*es rules recei5ed a '2T o% 5otes in appro5al" The new mandatory.sentencing law pro5ided %or progressi5ely longer sentences with an increasing number o% prior con5ictions %or serious %elonies" 0ollowing the 4ali%ornian example, by the mid.&!!0s almost e5ery F")" state, and also the %ederal go5ernment, had enacted some type o% mandatory sentencing legislation" These e5ents only con%irmed the presence o% a renewed populist trend in 4riminal Law <we shall come bac* to this point below@, which began to regain %orce in numerous Oestern countries, %rom ngland to Argentina <Garland 2002; Ryan &!!!; 1ohnstone 2000, )o++o 20&&@" The idea was that the majority o% the people demanded tougher sentencing policies, and that democratic )tates should obediently %ollow those popular claims in order to success%ully con%ront crime" 12 leading academics wor*ing with penal populism. put it, 7penal populism8 re%ers to those politicians and groups who claim to sea/ on behal% o% 7the people8 in relation to the de5elopment o% penal policies <Mratt 200'@" Mopulists usually reNuire the adoption o% 7tougher8 criminal policies as i% it were simply ob5ious that such a policy was what the majority o% the population demanded" This has been a typical populist attitude in Latin America, where policies o% 7though on crime8 ha5e also acNuired a growing rele5ance during the last decades" &L 4learly, this is also a typical case o% populism %ailing to ta*e the inclusive character o% democracy seriouslyG thus, and in spite o% its rhetoric, populism simply becomes another 5ersion o% penal elitism" The second point concerns populists who re%er to opinion polls o% one or another *ind, in order to Nuic*ly extract puniti5e lessons %rom them" $n these cases, democratic theory would %irst recommend pausing %or a while and do not hurry in our race %or puniti5ism" Authors such as Antony /ottoms, %or example, ha5e demonstrated the complexity o% the people6s attitudes to crime and punishment </ottoms &!!B; Roberts J 3ough 2002; Roberts J 3ough 2002b@" Oriting against the unsophisticated assumptions and dramatic conseNuences o% the new populist policies, /ottoms has established that 7we cannot spea* in any straight%orward %ashion about Ppublic opinion6 on crime in a way that automatically eNuates it with a hea5ily puniti5e approach8 </ottoms &!!B, 90@" Re5iewing the exiting literature on the topic, Gerry 1ohnston has also concluded that 7a care%ul trawl through the results o% sur5eys will turn up plenty o% e5idence to the e%%ect that public opinion is Pmore di5erse, and less outrightly puniti5e than DisE usually supposed8 <1ohnstone 2000, &A9@" The third point is, howe5er, the most rele5ant one %rom the perspecti5e o% a deliberati5e democracy" $t re%ers to the importance o% distinguishing between 7mere opinions8 and 7deliberati5e judgements,8 and in5ites us to resist tri5iali+ations concerning democracy and collecti5e debate" 0or example, studies such as the one presented by >a5id Green in the 0ritish )ournal of Criminolo$y 200B ha5e been rele5ant in helping to distinguish between 7public opinion and public judgment about crime8 <Green 200A@" $n his wor*, Greene tried to build a case %or more de%ensible assessments o% in%ormed public opinion on crime control and penal policy <Green 200A@ Green6s article, among others, came to pro5ide support to one o% the basic claims o% deliberati5e democrats in this area, which actually explains their insistence about the importance o% promoting actual democratic debates" 0or deliberati5e democrats, the idea is that collecti5e public discussion is crucial %or allowing each person to 7launder8 her own pre%erences <Goodin &!LA@" Through public debates ,it is here assumed. each person has the possibility to correct her own mista*es; incorporate new and rele5ant in%ormation to her reasoning; dilute unjusti%ied prejudices; clari%y ambiguities and contradictions in her thin*ing, etc" This is why deliberati5e democrats support institutional systems that do not ta*e the people6s pre%erences as 7gi5en8G they see people6s declared pre%erences or 7mere opinions8 as endogenous outcomes o% a process that in5ol5ed, o%ten, prejudice, resignations and injustice" This is why, in the end, they ma*e a clear separation between the mar/et and the forum <lster &!LA; Gutman J Thompson 2009@" &! &L At the 5ery moment $ was writing these lines, in my country, Argentina, the main opposition leader was attac*ing a rather liberal proposal %or 4riminal Law re%orm, through populist arguments" 3e also mentioned , although nobody seems to be ta*ing his threat seriously. that he would start collecting signatures against the re%orm" )ee, %or example, httpGCCwww"clarin"comCpoliticaC4odigo.Menal.(assa.consulta. re%ormarloU0U&0!9L!0B&9"html httpGCCwww"in%obae"comC20&9C0#C0LC&B9LA9L.massa.comen+o.la.junta.%irmas.contra.la.re%orma.del.codigo. penal 13 Green6s article .%ocused on the 4riminal Law, and theoretically grounded on the wor* o% deliberati5e democrats such as 1urgen 3abermas. helps emphasi+e the pre5ious point" $n his 5iew, 7most typical conceptions o% public opinion are not based on deliberation8 <Green 200A, &B0@" 0or him ,and this is the main conclusion o% his study. 7public opinion8 should be simply deemed as 7unin%ormed, unconsidered opinion, tending to lac* 5alidity on contentious issues, measuring top.o%.the.head reactions to Nuestions about which little is *nown8 <ibid"@" Kther studies, also inspired by deliberati5e theories o% democracy, such as the one by >+ur and (irchandani, insist on a similar point, and present 7puniti5e populism o% three stri*es laws as mere opinion8 <>+ur and (irchandani 200', &A#@" >+ur and (irchandani ma*e an exhausti5e analysis o% neo.puniti5e populist policies, and demonstrate the %laws o% puniti5e polls %rom a democratic standpoint" 0or them, deliberati5e decisions reNuire 7rational- oen- on$oin$ and ultimately value luralistic DdebatesE', which cannot be %ound, in any signi%icant way, behind the adoption o% three stri*es laws <>+ur and (irchandani 200', &A9@" These studies, $ belie5e, ha5e been doing an important ser5ice, by urging us not to accept mar*et polls as eNui5alent to democratic debatesG there is a huge di%%erence between them, which should always be ta*en into account, and most particularly at times o% designing new public policies" These wor*s ha5e also come together with some interesting theoretical and practical e%%orts directed at the promotion o% deliberati5e polls, which seem to be suitable mechanisms %or measuring public 5iews about criminal justice issues, certainly more promising than traditional polls <Green 200A, &9'; Lus*in et al 2002 @" 20 >emocracy all the way downG >eliberati5e democracy, social protests and authority 3erein, $ shall explore di%%erent %orms in which the criminal justice system could be changed, in ways that strengthened and expanded its democratic character" /e%ore doing that, let me brie%ly summari+e our %indings so %ar" 0irst o% all, we ha5e explored how criminal trials could be re.imagined and re.organi+ed according to more robust democratic theories" K% course, to state this does not mean that things ha5e changed or somehow impro5ed in the direction o% more democracy, in the last %ew years" $n %act, one could say, 5ery little has changed, and the examples with which we began this exploration <Austin and Saxby- Schifrin@ only con%irm that uncom%ortable news" 3owe5er, it is still important to reali+e that democratic theory has demonstrated being well.eNuipped to deal with these issues, in ways that are both normati5ely attracti5e and practically plausible" Oith regard to sentencing, again, we ha5e seen that there are interesting proposals, also well. in%ormed by democratic principles, which .ideally at least. could be used to replace the present practice or guide the elaboration o% plausible re%orms to it" The %act that changes are &! Kpinion polls may be use%ul to recogni+e the most immediate or urgent consumers6 choices, but democracy is not and should not be interested in that" >emocracy is not about how to satis%y the consumption pre%erences o% the majority, but rather about how to ensure pro%ound and broad agreements on %undamental public issues about justice, %reedom or eNuality" 20 The 4enter %or >eliberati5e >emocracy, %rom )tan%ord Fni5ersity, describes deliberati5e polls as 7an attempt to use tele5ision and public opinion research in a new and constructi5e way" A random, representati5e sample is %irst polled on the targeted issues" A%ter this baseline poll, members o% the sample are in5ited to gather at a single place %or a wee*end in order to discuss the issues" 4are%ully balanced brie%ing materials are sent to the participants and are also made publicly a5ailable" The participants engage in dialogue with competing experts and political leaders based on Nuestions they de5elop in small group discussions with trained moderators" Marts o% the wee*end e5ents are broadcast on tele5ision, either li5e or in taped and edited %orm" A%ter the deliberations, the sample is again as*ed the original Nuestions" The resulting changes in opinion represent the conclusions the public would reach, i% people had opportunity to become more in%ormed and more engaged by the issues"8 )ee httpGCCcdd"stan%ord"eduCpollsCdocsCsummaryC 14 necessary seems to me ob5ious ,and again, the actual practice in Austin and Saxby or Schifrin simply con%irms this intuition" Mrotesters were reproached and %inally condemned in ways that actually undermined the 5ery practice o% protesting that democrats consider 5ital %or democracy" 4ertainly, such decisions ,openly hostile to democratic contestation. may be explained by numerous reasons" 3owe5er, it is di%%icult not to lin* them with the juricentric, top.down, indi5iduali+ed decision.ma*ing process that produced the %inal judicial decisions" Alternati5e processes ,we can hypothesi+e. more sensiti5e to an inclusi5e process o% deliberation, would at least be more sensiti5e to the demands o% the less ad5antaged, which in many occasions seem to %ind it so di%%icult to present their 5iews in public and thus enrich our democracies" 0inally, we paid attention to the penal decision.ma*ing process" $t seems clear that, without the introduction o% democratic changes at this stage, nothing could really change in the areaG %rom the democratic perspecti5e, it is clear that we need better and %airer criminal trials, and also better sentencing process, but no impro5ements would be actually possible i% the laws to be applied and interpreted in each case were unjust" According to our discussion so %ar, democratic theory has been 5ery help%ul in the area, by pro5iding us with critical tools %or objecting to both penal elitism and penal populism" The democratic critiNue o% both these dominant penal currents is o% primary importance" 3owe5er, these objections are not enough %or our purposes" Oe do not just need to object to the pre5alent decision.ma*ing process in the area, which has been so dramatically elitist %or so long, but also need to start thin*ing about democratic ways o% replacing it" Again, our initial examples pro5ide us with excellent illustrations to what $ am saying" K% course, one way %orce certain interpretations, and show that there are no reasons %or applying the existing normati5e in such a restricti5e way" /ut 7%inding ways out8 is not the right answer to an unjust or repressi5e legislationG the problem starts %rom the 5ery %act o% ha5ing those laws, call them Anti.terrorist Laws, li*e in ngland, Argentina or cuador; or Anti.)edition Laws; or Anti.)ocial /eha5ior Laws" Fnder the light o% these %indings, my conclusion is that it is both possible and desirable to in%orm and shape the 4riminal Law with democratic theory, all the way down" $n any case, it seems clear that in order to reach a %ull integration between the 4riminal Law and democratic theory, there is still too much theoretical and practical wor* to be done" 0or the purposes o% this paper, and gi5en the space and time constraints that limit this exploration, $ will concentrate my attention on three issues, concerning how this integration is being de5eloped and could be impro5ed" The %irst has to do with conse1uences o% deliberation %or the 4riminal Law; the second has to do with the openness o% deliberati5e democracy to conflicts- and social tensions in general; and the third has to do with issues o% democratic authority and 4riminal Law" i@ 2he Criminal Law and the beni$n conse1uences of democratic deliberation" >uring many years, a simple <but empirically unsupported@ assumption suggested the existence o% a strong correlation between political participation and puniti5ism" The idea <central to the abo5e. presented notion o% penal populism@ was that the 5ast majority o% the people were moti5ated by re5enge, and systematically de%ended more punishments and more se5ere punishments in what concerned the 4riminal Law" This story had ob5ious implications in terms o% public policyG one had to be care%ul be%ore opening the 7Mandora /ox8 o% political participation in the area o% 4riminal Law, gi5en the dramatic conseNuences that tended to %ollow %rom it <i"e", impulses o% re5enge; stricter punishments@" Assumptions o% this *ind played a crucial role in theoretical discussions about punishment and 4riminal Law, and mo5ed e5en 4riminal Law 15 theorists %rom the le%t to resist any aperture o% the 4riminal Law to democratic participation <0errajoli &!L!G 200L; Qa%%aroni 200#, 200A@" 0ortunately, in the last years we ha5e seen the de5elopment o% interesting empirical experiments that helped us to recogni+e that those alarming claims connecting democracy and puniti5ism were, to say the least, not ob5ious" The wor* o% 1ames 0ish*in <we ha5e already made re%erence to it@ has been particularly help%ul in this respect" The results o% the %irst deliberati5e pole that was carried out in Great /ritain %or discussing the issue o% rising crime and what to do about it, showed particularly interesting results" Kn the one hand, they o%%ered 7a picture o% better in%ormed and more thought%ul public opinion8 <Lus*in et al 2002, 9L9; >+ur 20&2, &&0@" Kn the other hand, they also showed the emergence o% less puniti5e attitudes among citi+ens, including a greater awareness regarding the implications o% prison and long sentences <ibid"@" These studies, related to the citi+ens6 attitudes toward crime, ha5e come together with other interesting empirical wor*s, pointing out towards other positi5e conseNuences o% democracy <and deliberati5e democracy, in particular@, in the area o% 4riminal Law" $ am thin*ing about studies that presented 7e5idence o% the 5irtues o% Ddeliberati5e democracyE in reducing mass incarceration8 <Taslit+ 20&&, &#L; Green 200A; /ar*er 200A, 200!, 20&#@" This new line o% wor* came to pro5ide empirical support to the idea that 7ci5ic engagement in a deliberative policy.ma*ing process can produce more eNuitable and less repressi5e public policies8, and do so by closing the gap between 7the public6s demands %or retribution and the criminal justice o%%icials6 technocratic responses to crime8 <ibid", 9&@" The idea is that 7public participation8 tends toward 7penal moderation rather than law and order politics, contrary to con5entional claims about too much democracy8 </ar*er 20&#, &9&; (iller 200L@" $n addition, we ha5e now better data about the importance o% %a5ouring the democratic integration o% %elons and %ormer o%%enders <Fggen et al 200A@" 2& $n my 5iew, the best case ad5anced by these empirical studies exploring connections between democracy and the 4riminal Law is a 7negati5e8 oneG they ha5e helped us understand in what way the 7brea*down8 o% democracy in many o% our societies accounts <or partially accounts@ %or the massi5e rise in incarceration o5er the past three decades </ar*er 200!, 20&#@" 22 All these empirical studies, o% di%%erent type, ha5e undoubtedly contributed to strengthen the case %or deliberati5e democracy in the area o% 4riminal Law" They allow us to imagine the possibility o% a %airer criminal justice system" 3owe5er, we do not need to appeal to these uncertain predictions in order to ma*e my case %or deliberati5e democracy" $% 7we8 <meaning those o% us who support deliberati5e democracy@ ma*e a case %or this particular understanding o% democracy, this is not because democracy tends to produce good conseNuences in issues related to crime, but %or reasons o% principleG we de%end democratic mechanisms because we understand that they o%%er us the best way <this is to say, the most justi%ied way@ %or dealing with our disagreements and 2& Ohile $ am writing this, in ngland ,where $ li5e at the moment. the (inister o% 1ustice is ma*ing it more di%%icult %or prisoners to recei5e boo*s %rom outside" )ee, %or example, httpGCCwww"theguardian"comCsocietyC20&9CmarC2BCminister.rules.out.rethin*.ban.sending.boo*s.prisoners " $n Argentina, my country, the worst criminals, prosecuted %or crimes against humanity, are pre5ented to ta*e courses o%%ered by the main national uni5ersity <F/A@ in the prisons where they are detained" )ee the decision by the national uni5ersity hereG httpGCCwww"uba"arCarchi5osUubaC20&2.0L.0LUB0'!"pd% 22 The studies that $ am ta*ing into account are in most cases %ocused on the phenomenon o% mass incarceration in the Fnited )tates" 16 uncertainties regarding issues o% crime" Ohen properly designed, they represent arrangements that we %ind to be %ully respect%ul o% our moral eNuality and eNual dignity" And we would de%end these mechanisms e5en in the case that the empirical studies began to show di%%erent results" 2# $n other words, we do not base our case %or deliberati5e democracy in the area o% 4riminal Law on the assumption that 7more deliberative modes o% criminal justice policyma*ing would be ,or at least could be. conduci5e to moderate rates o% punishment8 ,as some authors ha5e improperly suggested <Rowan 20&2, 99@" -ow, e5en though $ do not share this latter line o% criticism, $ do thin* that we should re%ine our approaches to democracy in this respect" Oe should sophisticate our use o% democratic theory; clari%y what conception o% democracy we support, and %or what reasons; and recogni+e that the most important ser5ice that democracy can ma*e to the 4riminal Law comes not at the explanatory, but rather at the justi%icatory le5elG democracy can help us obtain a more justi%ied 4riminal Law <$ will come bac* to this point below@" ii@ *emocratic deliberation and disrutive social rotests" The second clari%ication that is in order is the %ollowing" According to well.established approaches to deliberati5e democracy, democracy is basically about interchanging arguments" -ow, i% this were actually the case, then one o% the main claims o% this paper would be se5erely a%%ected" $n %act, $ am here objecting to traditional approaches to the 4riminal Law %or many reasons, but also ,and particularly. %or being improperly hostile to political disruptions and social protests" (ore signi%icantly, $ am here using the theoretical apparatus o% deliberati5e democracy %or critically assessing those 5iews" 3owe5er, i% it were true that deliberati5e democracy were only related to exchanging arguments, then such a 5iew o% democracy would help me to object di%%erent aspects o% the dominant approaches to 4riminal Law, but not some o% the aspects $ am most interested in objecting to <(edearis 2009@" 4learly, there are good grounds %or ma*ing this criticism to deliberati5e democracy, particularly i% one ta*es into account 1urgen 3abermas original de%inition o% the concept, which ties it too closely to the 7exchange o% rational arguments8" 3a5ing said this, howe5er, $ should clari%y, %irst, that many other adherents o% deliberati5e democracy ha5e adeNuately critici+ed this approach %or being improperly and unnecessarily narrow" 1ane (ansbridge and $ris (arion Voung, %or example, maintained that through their emphasis on consensus the exchange o% arguments and reasons, deliberati5e theories ha5e inadeNuately relegated other %orms o% communication as rhetorical and strategic communication" 0or instance, $ris Voung challenged 1urgen 3abermas6 5iew on deliberati5e democracy %or considering arguing as the pri5ileged and legitimate discourse in the public sphere" 0or her, pre5ailing deliberati5e theories improperly establish exclusionary norms o% dispassionateness, orderliness, ci5ility and articulateness <Voung 2000, 9B; 200&@" 4ontrary to 3abermas6 5iew, Voung maintains that alternati5e %orms o% speech <which may include rhetoric, street demonstrations and protest@ should also be considered 5aluable %orms o% discourse" $n her opinion, many o% these acts are oriented toward inclusion" 7D$nE a deep democratic society ,she a%%irms. the presumption should be in %a5our o% the protestors that their purpose is to persuade8 <ibid", 9L@" )imilarly, 1ane (ansbridge tried to resist such restricti5e approach to deliberati5e democracy" $n her words, 7DtooE %reNuently deliberation has seen only as aiming at an understanding that produces substanti5e consensus,8 thus unduly relegating con%lict" 3owe5er, she adds, 7good deliberation should also illuminate con%lict" $t should lead participants to a more nuanced understanding o% their sel5es and their interests, ideally less 2# 3owe5er, $ must recogni+e that $ do not see these positi5e de5elopments as ha+ardous de5elopments, but rather as the 7natural8 products o% more inclusi5e and deliberati5e settings" 17 in%luenced by hegemonic ideas, in a way that may put them in direct con%lict with other participants8 <(ansbridge 200B, &.2; also stlund 200!; 0ung 200B@" $ personally share this more expansi5e understanding o% deliberati5e democracy, which $ ha5e tried to de%end in other occasions, in connection with the 4riminal Law <Gargarella 20&&, 20&2@" (oreo5er, $ consider this to be the only consistent and attracti5e approach to deliberati5e democracy, and the one that merits our closest attention" This approach suggests that the most crucial and attracti5e %eature o% democracy is precisely its capacity %or ta*ing the 5iewpoints o% the dissidents ,the 5iewpoints o% those who disagree with the majority 5iew. seriously" Oithout a serious consideration o% those 5iewpoints, public decisions would lose the impartial character that should distinguish them ,an impartial character that gi5es deliberati5e democracy its meaning and sense" -ow, gi5en that in many occasions the expression o% dissident 5oices and 5iewpoints assume disrupti5e and unpleasant %orms <as in the particular cases o% protests $ am interested in considering@, $ will ta*e some additional time trying to justi%y why <and how@ deliberati5e democracy should <could@ protect those demands" 0irst, someone may want to say that deliberati5e democracy should protect the dissidents6 75oices8 or 7words,8 but not necessary their 7actions"8 3owe5er, it is 5ery important to recogni+e that some non.typically expressi5e beha5iour may contain expressi5e aspects" $n those cases, we need to ma*e additional e%%orts so as to preser5e the exressive comonent o% these actions, i% that were possible" 29 The 7%lag burning8 cases, among others, ha5e %orced legal scholars to thin* along these lines" 2B >octrinaires ha5e tended to conclude by saying that political messages can be con5eyed in many di%%erent ways, which do not necessarily ,and do not only. include 7words alone,8 written or spo*en" Thus, the action o% throwing an egg at a politician, which may be legally and morally condemned, usually con5eys a strong message , actually a 5ery strong critical message. in political terms" To neglect that part o% the story is to neglect a crucial part o% it" 2A Oe need to open up space %or the consideration o% the illocutionary asects o% non.5erbal acts, particularly within a theory that emphasi+es democratic deliberation" )econd, someone could object to what $ just said, by adding that the dissident claims <either through their 75oices8 or 7actions8@ do not need to adopt disrupti5e or improper %orms" 3owe5er, my impression is that we cannot expect dissidents, less demand them, to present their claims in a neat and Nuiet %orm, as i% they were writing an op" ed" in a newspaper <=al5en &!AB@" 2' Fsually, their demands ta*e disrupti5e %orms not because dissenters or 24 $n NL#0 v. 3ruit Pac/ers <#'' F")" BL, &!A9@, and examining the issue o% pic*eting, 1ustice /lac* maintained that when the action o% patrolling and that o% speech were so intertwined, court should 7weigh the circumstances8 and 7appraise the substantiality o% the reasons ad5anced8 %or the regulation o% the acti5ity o% pic*eting <ibid", at ''.'L@" As (" )cott summari+ed his position, /lac* stated that 7$% in%ormation con5eyed by the pic*eters is law%ul, pic*eting to con5ey that in%ormation cannot be deemed unlaw%ul8 )ee (" )cott <&!'9@, 7Mic*eting under the 0irst Amendment,8 2A 2he 4astin$s Law )ournal &A', &'B" 2B 2exas v. )ohnson- 9!& F")" #!' <&!L!@; 2in/er v. *es Moines Sch. *istr. #!# F")" B0# <&!A!@" 2A $n addition, i% speech <particularly, political speech@, is present, one could approach these cases with the criteria de%ined by the 4ourt in other %reedom o% expression.cases that included pro5ocati5e conduct or language" The 4ourt could in5o*e ,as it sometimes did. the clear and resent dan$er test to determine whether the actions in Nuestion a%%ord constitutional protection or not" 0or example, see 3einer v. New 5or/ #90 F")" #&B <&!B&@" 27 Against those who objected to those disrupti5e expressions maintaining that they could not be classi%ied as 7pure speech8 but rather as 7plus speech8 <as the F) )upreme 4ourt has put it@, 3arry =al5en maintained that one could reject the 7neat dichotomy8 between 7pure speech8 and 7plus speech8" )peech, %or him, always comes together with 7plus speech8G 7$% it is oral, it is noise and may interrupt someone else; i% it is written, it may be 18 protesters li*e to create con%lict, but simply because they need to be heard" $n modern societies, and particularly in those characteri+ed by high le5els o% ineNuality and impo5erished institutional systems, disad5antaged groups ha5e an unjusti%ied and disproportionally low opportunity to ma*e their claims heard <our institutional systems seem to be much more permeable to the claims o% the power%ul %ew, than to the claims o% the majority o% the disad5antaged@" Third, the %act that some o% these disruptions appear to be in con%lict with the law <i"e", breaching peace and order@ should not preclude %urther legal discussions and re%lections on the topic <7you just bro*e the law8@" /y contrast, it is precisely in those cases when we need to begin a 7theoretical ascent8, as Ronald >wor*in put it <>wor*in 200A, 2B@" 2L At that point, we need to start wondering, %or example, what di%%erent rights ha5e been 5iolated, and how to put them together, without simply assuming <as t seems to be the rule in these cases@ that protesters do not ha5e the law in their side, or that they do not ha5e %undamental rights to claim in their %a5our" To start with, protesters can claim to ha5e in their side not only rights to %ree speech and rights to petition and mani%est, as it was the case in Austin and Saxby- 67 but also more substanti5e rights, such as their social rights, as it was case in Schifrin" 0ourth, the %act that the rights o% protesters collide with other %undamental rights o% the public should not ta*e us to thin* that the rights o% the %ormer should be then curtailed so as to preser5e the rights o% the latter" $n other words, the %act that $ a%%ect your rights, when $ begin to exercise my own rights, does not mean that $ should stop exercising my right or had to exercise it in a di%%erent manner" Merhaps it is the case that 7you8 rather than 7$8 had to accept certain limitations in the scope o% your rights" Thin*, %or example, about the case o% the political cartoonist who o%%ends the honour o% a politician through her satiric drawings; or the case o% a public criticism against a public o%%icer, which includes %alse statements without rec*less disregard <thus, %or instance, in the New 5or/ 2imes vs. Sullivan case #'A F")" 2B9, &!A9@" $n these cases, we tend to accept that the right o% the a%%ected, rather than the right o% the 7o%%ender8 needs to be somehow curtailed or limited" 0i%th, some people seem to accept the right to protest but at the same time allow signi%icant curtailments o% it, when 5iolence appears or is li*ely to appear <thin*, again, about the Austin and Saxby case@" Against this 5iew, one could assert the %ollowingG the %act that a particular protest comes together with acts o% 5iolence says nothing against the importance or the need to protect and preser5e the protest" #0 Oe ha5e a long experience dealing with these litter8" Lea%lets, in this respect, do not 7simply litter"8 They are 7litter with ideas8" And this is why we need to ma*e an e%%ort to pay attention to the message at play <=al5en &!AB, 2#@" Geo%%rey )tone maintained a similar idea" 3e statedG 7-early all %orms o% communication necessarily inter%ere with some legitimate state interest" Lea%leting leads to littering; billboards and posters may be deemed unaesthetic; public spea*ing, whether or not ampli%ied, may annoy passersby; pic*eting or marching may obstruct tra%%ic; and so on8 <)tone &!'9, 290@" 28 0or him, the discussion becomes more interesting when judges began to recogni+e the need o% going beyond 7the legal materials o% their own jurisdiction that %all into the doctrinal neighborhood o% their immediate problem8, and ground their decisions on a 7much more general interpretation8 that embraced 7legal materials as a whole8 ,thus initiating a 7theoretical ascent8 <ibid"@" 2! 0or 3elen 0enwic*, Austin and Saxby has con%irmed that 7the police ha5e a 5ery wide range o% powers to use e5en against entirely peace%ul protesters i% a %ew protesters are or may be disorderly8 <0enwic* 200', ''&@" )ee also (ead 200!@" 30 $n addition, not all disruptions ma*e a protest in the street unpeace%ul" Thus, in recent cases, the uropean 4ourt o% 3uman Rights also recogni+ed that disruptions incidental to holding an assembly do not render it 7unpeace%ul,8 <Stan/ov and the 8nited Macedonian 9r$anisation (linden v. 0ul$aria, 2 Kctober 200&@, and also that the mere presence o% a %ew agitators did not trans%orm the assembly into a 5iolent one" 19 di%%iculties, %or instance concerning the right o% stri*e and situations o% 5iolence" That experience seems to be per%ectly applicable in these circumstances" Oe *now, %or instance, that we may per%ectly pre5ent or <once occurred@ deal with acts o% 5iolence separately, without putting into Nuestion the right to stri*e" Oe may gi5e %ull protection to the right to stri*e while ta*ing care o% those who create 5iolence separately" )ixth, it is normally assumed that protected expression, li*e the expression in 7public %orums,8 can be subjected to reasonable regulations" #& )o, what would be the problem in accepting the imposition o% regulations concerning the right to protestH The go5ernment, we *now, 7has the power to preser5e the property under its control %or the use to which it is law%ully dedicated"8 #2 This is so, particularly, regarding 7content.neutral regulations that come to establish limits regarding the 7time, place, and manner8 o% the expressions, so as to ensure the greater respect %or the rights o% all" ## Fsually, these regulations sur5i5e judicial scrutinyG e5erybody agrees on the importance o% accommodating the rights o% all; and conseNuently most people recogni+e as just and pertinent those directi5es that attempt to ensure our better coexistence" -ow, the %act that content.neutral regulations may ser5e an important public purpose. does not deny that content.neutral regulations may be unreasonableG in many occasions, they just come or ser5e to undermine the 5ery expression that they are supposed to reasonably regulate" #9 #& The 7public %orum8 doctrine was %irst ad5anced in 4a$ue v. C(9 <#0' F")" B0&.&L@ where 1ustice Roberts %ound a constitutional right to use 7streets and par*s %or communication o% 5iews,8 which he grounded on the %act that 7streets and par*sSha5e immemorially been held in trust %or the use o% the public and, time out o% mind, ha5e been used %or purposes o% assembly, communicating thoughts between citi+ens, and discussing public Nuestions8 <ibid", at B&B.A@" Going beyond this principle, in 3ood +mloyees Local !7: v. Lo$an Pla;a <alley, #!& F) #0L <&!AL@ the 4ourt recogni+ed the right o% wor*ers to organi+e a paci%ic pic*et in a shopping center" 3owe5er, the 4ourt departed %rom this principle in other cases <see, %or example, 4ud$ens v. NL#0, 929 F) B0', &!'A; or Lloyd Cor. v. 2anner, 90' F) BB&, &!'2@; and also re%used to extend the category o% 7public %orum8 to other non.traditional %orum <see, %or example, (/scon v. Lee, &&2 )"4t" 2'0&, 2'&L, &!!2@" #2 =reer v- Soc/, 929 F")" L2L" ## Linmar/ Associates- (nc. v. 2ownshi of >illin$boro, 9#& F")" LB <&!''@" #9 -otably, both judges at the le5el o% the F")" )upreme 4ourt and in the uropean 4ourt o% 3uman rights ha5e de%ined a list o% conditions that content.neutral regulations need to respect, in order to be upheld" Thus, %or both these courts it is clear that regulations cannot come to undermine dis%a5ored political 5iews; must be aimed at ser5ing a signi%icant )tate interest; be narrowly tailored; lea5e open ample alternati5e means o% expression; and be applied in non.discriminatory ways <see, %or example, 7Grace 5" Fnited )tates,8 9A& F) &'&, &!, &!L#@" $n the uropean context, probably more than in the F")", 7there is a reasonable degree o% academic consensus regarding the need to protect public protest in order to sa%eguard minority interests8 <see 3" 0enwic*, &!!!, 7The Right to Mrotest, the 3uman Rights Act and the (argin o% Appreciation,8 2he Modern Law #eview- 5ol" A2, n" 9, 9!&.B&9, 9!#@" $t is generally recogni+ed that the 7denial o% a public %orum %or the exercise o% expressi5e rights bears uneNually on di%%erent groupsG it may amount in e%%ect to a denial o% the %ree speech rights o% certain minority groups since eNual access to other means o% exercising those rights will tend to be una5ailable8 <ibid", 9!9@" (eanwhile, in the F")", the )upreme 4ourt has tended to be 5ery de%erent towards content.neutral regulations, upholding them on most occasions <the 4ourt uphold, %or example, regulations o% these type establishing restrictions o% time; number o% participants; the decibel le5el o% speeches; or the placement o% signs" )ee K6-eill, &!!!, 9'A.'@" /ut e5en in this case, the openness o% the 4ourt did not mean that the established rules became toothless <and, o% course, e5en i% this were the case, that would not be a good reason %or not ta*ing seriously reasonable standards li*e the ones de%ined by both courts@" $n particular, the F")" 4ourt has paid attention to the di%%erential impact o% the content.neutral regulations, and made sure that the spea*er was a%%orded 7a %orum that is accessible and where the intended audience is expected to pass8 <Students A$ainst Aartheid Coalition v. 9 ? Neil, AA0 0" )up" ###, ##!@" Accordingly, in *r. Martin Luther @in$ )r. Movement v. City of 4hicago, 9&! 0" )upp" AA', the 4ourt struc* down a regulation that pre5ented a ci5il rights organi+ation %rom marching through a white neighborhood, because the 5ery idea o% the protesters was to reach that particular audience; and in Schneider 5" State, the 4ourt struc* down an ordinance reNuiring a permit %or any house.to.house can5assing, which in principle appeared as a permissible content.neutral regulation, because it disproportionably burdened groups with %ewer resources <#0L F")" &9', &!#!@" 20 0inally, one could claim that democracy reNuires the limitation, rather than the protection o% social protests, as $ ha5e suggested here" -otably, in %act, this is what many judges maintained, in their decisions about social protests" Remember, %or example, the judicial response that $ Nuoted, regarding the Schifrin case" 1udges o% the Appeal 4ourt then maintained that according to Argentina6s 4onstitution there was 7only one legitimate %orm %or expressing the so5ereign will o% the people,8 which was su%%rage" Through this means ,it added. the people 7accept or reject the alternati5es that the political class poses to them"8 -ow, against this important claim there is an ob5ious answer, which is, by the way, one that naturally and compellingly deri5es %rom the approach $ tried to de5elop in this paper" The main response in the %ace o% that argument relates to this simple, basic NuestionG 70ine, but could you be more precise and tell me what conception o% democracy you ha5e in mind, in your appeal to democracyH8 $t seems clear to me <and this has been my argument so %ar@ that a deliberati5e conception o% democracy not only resists that restricti5e judicial conclusion but also suggests a protecti5e, rather than a hostile approach to social protests ,particularly in the context o% deep and unjusti%ied ineNualities, as the Argentine one" /ut $ should say that $ am also con%ident that less sophisticated or ambitious understandings o% democracy would reach to similar outcomes <by the way, the same Argentine judges who were in5o*ing the -ational 4onstitution6s conception o% democracy were not ta*ing into account that that 4onstitution is strongly committed to numerous participatory mechanisms, %or example" Against what they claimed, the -ational 4onstitution did not limit democracy to periodical su%%rage@" iii@ *emocratic authority and le$itimacy of the Criminal Law. $n the pre5ious pages $ maintained that the case %or deliberati5e democracy did not deri5e %rom the supposed bene%its that it generated, concerning penal moderation; or the way in which it could illuminate our approach to social protests" /y contrast, $ claimed that the 5irtues o% deliberati5e democracy were connected to reasons o% principle, namely the way in which it honoured our eNual moral dignity" 4oncerning the %oundations o% the 4riminal Law, this same democratic, principled approach may play a uniNue, necessary role, by helping it to deal with the problem o% political legitimacy" -owadays, our 4riminal Law theorists seem to ha5e abandoned all serious re%lections about the legitimacy o% the Law, as i% the Nuestions posed by those concerns had been already answered, or i% the answers that were o%%ered were ob5iously acceptable" /ut the %act is that our 4riminal Law su%%ers %rom serious legitimacy problems" The origin o% these problems seems clearG criminal norms imply in5ol5ing the )tate in the imposition o% se5ere pain, as a daily response to o%%enses committed by certain citi+ens against other citi+ens" /ut this public response is ob5iously problematicG 3ow can we justi%y the imposition o% se5ere pain to any personH Ohy are we presupposing that the imposition o% pain represents a reasonable response to an o%%enseH 3ow do we justi%y the authority o% public o%%icers to distribute and impose punishments <more speci%ically, ta*ing into account the way in which they routinely do it@H Ohy should someone simply assume that retribution is a better response than reparationH Ohy should someone accept that isolation in a prison is better <or a means toW@ social reintegrationH As )haron >olo5ich has put it, 7DtEthe punishment o% criminal o%%enders can in5ol5e the in%liction o% extended depri5ations o% liberty, ongoing hardship and humiliation, and e5en death" Krdinarily, such treatment would be judged morally wrong, and roundly condemned, yet in the name o% criminal justice, it is routinely imposed on members o% society by state 21 o%%icials whose authority to act in these ways toward sentenced o%%enders is generally ta*en %or granted8 <>olo5ich 2009, #&0@" Fndoubtedly, the tas* o% justi%ying what the )tate does through its coerci5e powers is and will always be a di%%icult one, but those di%%iculties should not discourage usG the impossibility o% %inding the most per%ect answer should not pre5ent us %rom trying to a5oid the worst onesG the present situation is too dramatic to simple accept it as it stands" $n the %ace o% that drama, the democratic argument suggests that the tas* o% thin*ing about the shape, contents and scope o% our 4riminal Law should be done collecti5ely, through an inclusi5e process o% discussionG Ohat a%%ects us all should be decided by all" (ore precisely, the idea is that all %undamental matters about issues o% intersubjecti5e morality should be decided by 7all those potentially a%%ected8, so as to impro5e our chances o% deciding impartially" This aim reNuires us to ma*e a special e%%ort %or ensuring that the 5oices o% all, and particularly the 5oices o% the most a%%ected by crime and punishment <particularly including the o%%enders and the o%%ended@, be heard" #B $ share, in this regard, $an Loader6s 5iew, according to which an inclusi5e political deliberation is a good response, particularly in these di%%icult cases related to criminal justiceG 7The resulting opportunities %or public communication about contested problems and social con%licts may thus help, not only to engender a sense o% agency and political e%%icacy among <pre5iously excluded@ citi+ens and social groups, but also to introduce into debates on security greater *nowledge and political experience, re%lection on hitherto ta*en.%or.granted positions, and the possibility o% indi5idual and collecti5e learning8 <Loader &!!', #L'@" $ understand that there are still numerous problems to deal with, related to the proposed connection between democracy and 4riminal Law" 0or instance, how to organi+e this proposed democratic processH 3ow to ensure that we consider and properly balance the 5iewpoints o% allH 3ow to a5oid the ris*s o% pure majoritarism <that penal populism promotes@H These are di%%icult tas*s, but the seriousness o% the present situation should inspire us to wor* %or the introduction o% immediate and pro%ound re%ormsG %or decades, the 4riminal Law has been captured by small and pri5ileged elites that seem to use the 4riminal Law in their own %a5our, so as to preser5e the unjust ad5antages that they presently enjoy" Oe li5e in unjust and uneNual societies, and it is simply not acceptable to ha5e our criminal norms created, applied and interpreted by an elite that bene%its %rom this situation, and <Nuite ob5iously@ is ne5er a%%ected by those coerci5e powers that they administer" 3ope%ully, in %uture, not so remote circumstances, things will be di%%erent" Merhaps, in such a desired scenario we will able to recogni+e that democracy needs to preser5e and protect as rich treasures the 5oices o% those who dissent, 5oices that sometimes carry messages that we disli*e, in %orms that we disli*e, but %inally messages through which we learn how to li5e together"
/$/L$KGRAM3V Ashworth, A" <2002@, 7Responsibilities, Rights and Restorati5e 1ustice,8 0rit. ). Criminol. , 92, B'L.B!B" Ashworth, A" J Roberts, 1" <20&#@, eds", Sentencin$ =uidelines. +xlorin$ the +n$lish Model- Kx%ordG Kx%ord Fni5ersity Mress" #B Ranessa /ar*er calls it the 7participatory parity8 principle, namely the idea that 7those most a%%ected by crime control policies ha5e an eNual chance to impact the distribution o% these public goods8 </ar*er 20&#, &#&@" 22 /ar*er, R" <200A@, 7>eliberating 4rime and MunishmentG A Oay Kut o% Get Tough 1usticeH8 Criminolo$y and Public Policy- 5ol" B, n" &, #'.99" /ar*er, R" <200!@, 2he Politics of (mrisonmentA 4ow the *emocratic Process Shaes the >ay American Punishes 9ffenders- Kx%ordG Kx%ord Fni5ersity Mress" /ar*er, R" <20&#@, 7Mrison and the public sphereG toward a democratic theory o% penal order,8 in >" )cott, >hy PrisonB 4ambridgeG 4ambridge Fni5ersity Mress" /ene*os, M" J (erlo, A" <&!!B@, 7Three )tri*es and Vou6re KutG The Molitical )entencing Game,8 B! 3ed. 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