Popular Culture

A final kind of work takes this idea of "discursive struggle and negotiation" seriously as it examines the impact of media accounts, whether on the news or in dramatic programming, on "folk knowledge," with a view to understanding not the accuracy of that knowledge but rather its impact on the criminal justice system itself. Steiner, Bowers, and Sarat (2000), to take one example, describe the impact of representations of crime and justice in shaping folk knowledge concerning the punishment of murderers not given a death sentence. In particular they seek to understand how long people believe those sentenced to life in prison actually serve. They find that most people believe that convicted murderers sentenced to life in prison do not serve life, but are instead released early. The impression of leniency is conveyed best, perhaps, by news accounts of the recidivism of ex-convicts or persons on probation, parole, or furlough from prison (Hall et al.; Barak). Such cases easily become the focal points for public debate about the "crime problem" and how it should be dealt with (Roberts and Doob).

As a result, Steiner, Bowers, and Sarat contend most citizens give time-served estimates that fall below the mandatory minimum for parole eligibility for first degree murderers in their states. The single most common estimate of the amount of time convicted murderers who are given life sentences actually serve is "less than ten years." This relatively low estimate is consistent with the kind of narrative representation contained in the news media and in film and on television (Ericson, Baranek, and Chan).

Most importantly, Steiner, Bowers, and Sarat (2000) suggest folk knowledge has an important influence on how citizens behave when they are given decision-making power in the criminal justice system, namely when they serve as jurors in capital cases. They report that when jurors deliberate specifically about what the punishment should be, their specific release estimates become especially salient. In the context of group decision-making, folk knowledge of the timing of release is the currency of negotiation and decision-making. Jurors whose folk knowledge leads them to believe that murderers are less likely to be released early if given a life sentence may be more open to mitigating evidence and argument during sentencing deliberations. By contrast, believing that the defendant would soon be released may close jurors minds to mitigation, and hence to a sentence less than death. Thus folk knowledge of crime and punishment not only shapes individual judgments, but it also short-circuits existing legal procedures (in this case the requirement to consider mitigating evidence).