I Changed My Mind: Because It Is A Cop-Out, Federal Judges Should Not Poll The Jury About Sentencing

July 13, 2016 (Fault Lines) — Like it or not, juries don’t sentence in the federal courts (except, sorta, in death penalty cases). But despite that fact, a few federal trial judges ask juries to tell them what the jurors think the proper sentence should be after the jury returns a guilty verdict. See, e.g., Noah Feldman, Child-Porn Case Turns Judge Into Sentencing Rebel, BloombergView (July 1, 2016) writing that:

A federal district court judge is always an unlikely rebel. But Judge James S. Gwin of Cleveland is in open revolt over the prison terms imposed by federal sentencing guidelines. Wednesday, an appeals court gave him its support, upholding a statutory minimum five-year sentence for child pornography when the guidelines were recommending as much as 27 years — beyond the legal maximum of 20 years. To help reach his decision, Gwin used a tool that he himself invented: he asked the jury members what they thought the sentence should be.

The Sixth Circuit opinion to which Feldman’s article refers is United States v. Collins, Nos. 15-3263, 15-3309 (6^th Cir., June 29, 2016) (affirming concurrent five-year sentences for receiving and distributing child pornography, 18 U.S.C. § 2252(a)(2) [carrying a statutory minimum of five years], and possessing child pornography [carrying no statutory minimum], 18 U.S.C. § 2252A(a)(5)(B); stating that: “Though we reiterate that juries lack ‘the tools necessary for the sentencing decision,’ Martin, 390 F. App’x at 538, they can provide insight into the community’s view of the gravity of an offense.”)

This new practice sanctioned by the Sixth Circuit—polling jurors about the proper sentence–strikes me in retrospect as both fundamentally wrong and fundamentally unfair. In short, the practice is a cop-out. But see Author’s post script with admission that follows.

First, while one can say, as, for example, Judge Gwin and the Sixth Circuit has said, that juries reflect the sense of the “community” about retribution (“gravity of the offense”), what the hell does “community” mean in the sentencing context?

Surely, no one thinks that 12 people selected at random can possibly know the sense of the community in Cleveland for purposes of sentencing. Moreover, the “community” is not Cleveland, and that is true even in the Northern District of Ohio.* Still further, the “community,” to the extent the word has any meaning at all in this context, is our nation rather than Cleveland—after all federal judges apply federal sentencing laws. Whether jurors in Nebraska are law and order types and jurors in Cleveland are on the other end of the spectrum should not make any difference whatever when it comes to a federal sentence.

Second, even if a poll is solely intended to get at retribution, a federal jury is manifestly ill-equipped to do so.  How can a single jury know the gravity of the offense without knowing about other cases in the same category? Take a kiddie porn case like the one in Cleveland. Shouldn’t the jury know about the wide variety of child pornography distribution cases in order to gauge the gravity of the offense committed by the instant offender?** If so, how does one accomplish the task of informing the jury about other cases in a understandable, accurate and comprehensive manner? The answer is, “You can’t.”

Third, if you are going to poll the jury about what sentence to impose, there are all sorts of intractable problems.  Does the jury, as a body, come together to urge one sentence. If you don’t have unanimity on the sentence, then all you have are individual opinions from which you cannot derive a consensus view of what the “community” thinks.  Even if you rely upon individual suggestions, how do you analyze the data? Do you use a mean or a median? If the judge wants a serious answer, shouldn’t the judge ask for an explanation for the proposed sentence?  And the band plays on.

Fourth, I have the distinct sense that federal judges who poll juries do so particularly in those cases where they think the Guidelines as whole are crazy or where the judges believes the Guidelines for a particular class of offenses are nuts. If that is what the judge believes, the Supreme Court has made it clear that judges are free to reject the Guidelines on a reasoned basis. Given the marginal utility of the opinions of jurors, the judge ought to have the guts to reject the Guideline sentence without using an uniformed jury as an excuse.

Fifth, the vast majority of cases—particularly nasty ones like child pornography—end up in guilty pleas. For example, in the Northern District of Ohio, pleas amounted to 94.4% of all criminal cases in fiscal year 2015. United States Sentencing Commission, Statistical Information Packet for Northern District of Ohio, at p.4 (Fiscal Year 2015) (click on Ohio Northern for PDF). There were only 35 child pornography cases terminated during that period of time. Id. at p. 8. At the very least, this means that the vast majority of defendants convicted of child pornography cases did not receive the purported “benefit” of sentencing polling.

In this vein, the jury responses for Judge Gwin’s case ranged from zero to 60 months’ incarceration, with a mean of 14.5 months and median of 8 months. Those beneficent recommendations ought to be compared to the fact that, for fiscal year 2015 in the Northern District of Ohio, the median sentence for child pornography cases was 108 months and the mean was 114 months. Statistical Information Packet for Northern District of Ohio, supra, at p. 10. Guilty pleas, comprising almost all but the very few cases that are tried, effectively deprive those offenders of recommendations from (overly?) lenient jurors.

Sixth, nearly every federal criminal jury trial I am aware of involves an instruction to the jury not to consider punishment when deliberating on the verdict. In my experience over nearly 25 year as a federal sentencing judge, I can assert with certitude that jurors take criminal cases very hard. Many times, when I meet with them privately to thank them for their service, tears are streaming down some of the faces. Almost all of them are emotionally wrung out. Rendering a guilty verdict against a fellow human being in a criminal case is a heart wrenching decision for the good men and women who serve on our juries. Asking them to pick a sentence out of the thin air after first telling them not to consider punishment in any way merely so the judge can consider the sentencing recommendation (or not) is plainly contradictory, cruel and unfair.

In summary, if we want jurors to sentence, then we ought to adopt such a system. Until then, polling jurors about what sentence should be imposed is a bad idea.

Richard G. Kopf
Senior U.S. District Judge (Nebraska)

*Trust me, having grown up in Toledo, I know that Cleveland is not Toledo. At this point, I invite Jeff Gamso to provide his best shot. I assure him I can take it.

**Assume a hypothetical where the instant offender used a peer-to-peer file (P2P) sharing program to receive and distribute images of the sexual penetration of infants. If true, shouldn’t the jury know that the great bulk of such P2P file distribution cases do not involve the rape of babies but rather sexually explicit conduct of pubescent or nearly pubescent minors.

Author’s post script with admission:  Behind the scenes, Scott Greenfield labors long and hard to improve posts submitted for Fault Lines. When I first submitted the foregoing to Scott, he wrote back within an hour or so.  His overly kind note stated:

Have you considered this earlier post of yours, Judging With One Eye, in the new post? You might also want to take a look at Judge Bennett’s post about Judge Gwin, where he took your earlier post into account. Should We Give Juries A Bigger Role in Sentencing?

In “Judging with One Eye,” I cozied up to the idea of asking the jury about sentencing after a conviction. Indeed, I drafted a form to do so. But I also observed that

This is just a germ of an idea. There are tons of problems with it. For example, should counsel or the defendant be given the opportunity to address the jury? (I think not.) I could give you a list of the specific difficulties, but the purpose of this post is not to get into those weeds even though they may be tall ones.

Well, after the Sixth Circuit decision, I strode, albeit hesitantly, into the tall weeds. After that, my opinion changed as reflected in this post. What does this tell you?  It shows that the frailties of recent memory affect all of us. But what it fundamentally tells you is that after about 25 years, I still struggle with how to sentence people. It is continual and conflicting struggle. Sometimes “good Rich” wins. Sometimes “bad Rich” wins. And so it goes.