Beyond Judicial Solitude: Listening in the Politics of Criminal Sentencing

Abstract

Criminal sentencing has grown into an increasingly interactive process featuring a multiplicity of potential actors—prosecution, defence, the individual convicted of the crime, probation officers and case workers, victims or their families, the police, community representatives, community workers, and even academics. The philosophical foundations of sentencing scholarship, however, regularly assume a model of judicial solitude in which sentencing judges are separate and apart from other actors. This article suggests the need to take sentencing’s interactivity and its politics seriously and draws on democratic theory to address this gap. Accordingly, it argues that listening—as conceived of by deliberative democrats—is essential to a relational ethic that ensures both the legitimacy and quality of sentencing decisions, particularly in cases involving marginalized communities. In doing so, it turns to judicial practice and highlights both the need and possibilities for listening to be taken up as an explicit feature of judicial ethics.