I am not a political theorist. In one reading of Albert Dzur's wonderful book, Punishment, Participatory Democracy, and the Jury, my “lay” perspective is beneficial. As I deliver my verdict on this book, which offers up jury sentencing and some lay restorative justice procedures as solutions to our current dysfunctional criminal justice system, I am perhaps less encumbered by some negative characteristics, as catalogued by Dzur, of experts: insularity and ignorance of how finely honed theories and long-standing practices are perceived or experienced by those affected; a sense of “overconfidence about their infallibility” (p. 155); and, at least in the criminal justice sphere (if maybe not among political theorists?), a certain harshness. Thus, although I cannot ultimately provide a reliable report on Dzur's handling of the building blocks of his arguments—the assertions of Tocqueville, Mill, Montesquieu, Anthony Duff, and Nils Christie, to name a few—perhaps I still bring a useful “outsider's” perspective.

If faith in the contributions of non-experts seems odd to you, Professor Dzur will very ably explain why, counterintuitively, the United States' much-vilified jury system, site of the truly empowered layperson, is one answer to the problem that ails us. And we are indeed ill. As Dzur writes, the United States is the “world champion” of incarceration; “one out of a hundred American adults is in prison or jail, 100,000 are in the juvenile justice system, and many more are economically dependent on the penal state” (p. 21). An important contribution of this book is a clear-eyed engagement with those in criminological circles who blame this on America's democratic impulses and so-called “penal populism,” with California's “Three Strikes” rule, voted on through the state's proposition system, as Exhibit A. Such critics call for greater use of expert panels to set and implement sentencing and prison practices, a sort of “Federal Reserve Board” for penology (p. 27), or, looking to other cultures, an increased professionalism among elites who influence sentencing, be they in criminal justice administration, law, or the media. Dzur aptly notes how out of step such proposals are with a core feature of American political life: a deep suspicion of elites, a suspicion, he argues, that fueled “Three Strikes” efforts as voters struggled to find ways to rein in repeat offenders, nonetheless imposing costs voters did not appreciate.

To bring some legitimacy, and, he hopes, sanity, to sentencing, Dzur looks to participatory and non-elite democratic institutions we already have. Juries—together with community-based sentencing groups, such as Vermont's Reparative Probation program—foster what Dzur calls “thick populism,” groups that, among other things, see themselves as working in collaboration with experts (judges), who promote heterogeneity of participation, and who value and generate a community-minded spirit of working together, thereby learning the skills of democracy—all of this is in contrast to the “thin populism” he sees in narrow political mobilization efforts, like the Three Strikes efforts. This collaborative model is central to his view of the jury, and he devotes a full chapter to critiquing theorists such as Tocqueville and Mill who saw the jury as usefully symbolic for legitimacy purposes and who emphasized its benefits to jurors, a la the “schoolhouse” of service. For Dzur—and empirical accounts such as Kalven and Zeisel's (Reference Kalven and Zeisel1966) would support him—legitimacy and civic skills may accrue, but juries also contribute something unique and important to outcomes. In Dzur's view, juries give representation, and voice, to community members who are better able than judges to grasp the individuating factors, and community sense, of each case. In addition, jurors would more routinely confront the realities of our current mass-incarceration system, which, in theory, could prompt an appropriate populist movement for change. While trying to distinguish his views from the knee-jerk, pro-nullification stances of groups like the Fully-Informed Jury Project—a challenging distinction to pull off—Dzur embraces the feedback mechanism jurors offer the law: their ability to communicate through verdicts that laws and practices are out of step with prevailing mores and to experience real power and responsibility for decisionmaking in light of this disconnect.

Because he is such a clear writer, I followed and applauded Dzur's argument. Yet my non-theorist perspective—my experience as an empiricist—generated the bulk of my reservations. The data on how juries actually sentence in non-capital cases, in those few states that allow it, suggest that juries are both more variable and more harsh than judges (see, e.g., Reference King and NobleKing & Noble 2005)—a sobering fact for Dzur's faith in the link between juror participation in sentencing and a more rational and humane system of punishment. Further, there is no entry in the index for “group decisionmaking,” and a reality Dzur does not much reckon with is group's tendency to “polarize,” ultimately favoring positions that are more extreme, in the direction of either leniency or severity, than those held by most members. This is particularly true of tasks, like sentencing, that involve a strong normative and moral component and which require jurors to use a very “noisy” scale (e.g., months in prison). How would we rein in the inevitable—and sometimes nefarious—variability that is part of the noble goal of making sentencing more individuated and humane? (Although they have been politically hijacked, we developed sentencing guidelines for a reason, after all.) I also have less confidence that jurors' “feedback” about laws and behavior will survive the lobbying efforts of the many groups that currently benefit from a high-incarceration society (see, e.g., Exxon-Shipping Co. v. Baker 2008 for an example of successful control over jurors' punitive damages). Such interests, and perhaps our jury-jaded society, may applaud the trend of the vanishing trial (Reference GalanterGalanter 2004) and the diminution of the jury, even as Dzur, and many other scholars, recognize the serious damage it does to our legal system. Lastly, pragmatically, it is challenging to envision how we mobilize for more juror participation: How do we get more people to serve? How do we find time in court calendars for case processing? For the appeals and retrials of sentencing?

I pose these questions as much for Dzur as for the next scholar—or the interested readers this book will find among political scientists, criminologists, jury scholars, and other sociolegal students/thinkers—whom I hope will continue the terrific conversation Dzur takes up about the good that juries do, for the system and for the jurors, and how we might harness that good to create a more just system.