
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 (6th 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.
Nothing wrong with changing one’s mind. Just remind any critic of what Emmerson once said:
“A foolish consistency is the hobgoblin of little minds.”
A hackneyed shibboleth- true, but accurate none the less.
Also, I suspect that when judges poll the jury as the judge did here, they do not provide the full range of information that a sentencer is required to consider, such as (in a case like this):
1) the victim statements from those whose images were further distributed by the defendant;
2) info on the images and movies (in federal prosecutions, these typically number in the hundreds or thousands) which were found on defendant’s computer but not specifically named in the indictment and hence not charged at trial.
3) Unredacted versions of the most offensive images, which may feature sadism, abuse of infants, children crying while being abused, etc.
4) uncharged evidence indicative of an interest in physically molesting children, which was properly excluded from the trial under rules 404 and 403, but which (if properly proven) is relevant to sentencing under section 3553.
To me, as to Judge Kopf, the jury-poll seems to be a way for judges to justify their already-decided-on opposition to the guidelines–and I sus that such motivated reasoning leads them to further shade their description and “instructions” to the jury at the polling stage.
Judge,
I’m always ready to pick up the thrown gauntlet.
You’re partly right.
Toledo is not Cleveland. (The residents of both cities, I suspect, consider that a good thing.) It follows, I suppose, that the Northern District, which also includes a courthouse in Youngstown and sucks in jurors (and of course defendants) from such powerhouse communities as Texas https://en.wikipedia.org/wiki/Texas_Township,_Crawford_County,_Ohio (population 384 according to the 2010 census) and Vermillion (home of the seriously excellent French restaurant Chez Francois, the highest rated restaurant in Ohio per Zagat), is a pretty diverse place and no jury of 12 will accurately represent the views of the entire district. Then again, I’ve yet to see any indication that the sentencing guidelines accurately represent the views of the national community.
The larger question, though, is whether the views of a dozen jurors, asked a generic question after sitting through a trial and finding a defendant guilty, are worthy of some consideration. Whatever they may not know about other cases or other ways of committing the offense at issue, they know something about what the defendant did in this case.
And their responses indicate something. Just what? Hell, Collins is clear that if Gwin just did what the jury recommended (however he understood that – 8 months, 14 1/2, whatever), they’d have reversed. But it’s something he can throw into the hopper. For whatever it’s worth.
And why not? I can’t think of a reason.
As for those folks who don’t go to trial, hell, the judge can ask down at the car wash what the workers think the guy deserves for doing whatever. But more to the point, the decision to plead is driven by many considerations. The pleader gives up a lot (as does the government). By the way, there may be cases where the jury would prove more bloodthirsty than the Guidelines.
Jeff,
I knew you would strike hard. But mentioning Youngstown was below the belt!
By the way, for those unfamiliar with Youngstown look up Bo Pelini.
All the best.
Rich Kopf
Meow!!!!!
jill, your a catty sort but terrifically funny!
All the best.
Rich Kopf
Oh, Rich!!! “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.” Not exactly out of thin air, my dear friend. They actually heard and decided the evidence against the offender. Granted they likely know little about the offenders’ criminal and social history, but Judge Gwin compensated for some of that by giving the jurors the offenders’ criminal history.
I have done the same thing after most trials sans the criminal history. I would estimate in over 100 trials. Never once has a juror suggested a sentence as high as the guideline range. My memory is so bad and like your district our caseload so high that I have never remembered what the jurors have said about an appropriate sentence in any given case. But I do confess their collective judgments have likely shaped or at least reinforced my my sentencing philosophy as Moreover suggests in his comment.
What Judge Gwin and I, and I am sure others do, may not be a great idea but I suggest it is not as horrible as you imply. With respect, more “cruel and unfair” sentences result from guideline-centric judges in my not so humble opinion. You seem to see this as a black-white binary issue. I suggest it is full of nuanced shades of gray. Once again, we disagree but I have the greatest respect, admiration and fondness for you as a colleague and greatly appreciate your lengthy and amazing public service as one of the most extraordinary district judges in the nation.
Mark,
Perhaps my initial flirtation with the idea is the one I should have maintained. By the way, your suggestion in the following comment is really a good one. The PEW center can really do amazing stuff that might help the Commissioners.
As you know, I hold you in high regard and disappoint myself when we disagree. That normally means I’m wrong.
All the best.
Rich
P.S. Perhaps if the U.S.S.C. did their job and sought out community views on sentencing as required by the original SRA, this could be a moot point. And who better than an actual juror to give input than asking a generic question of members of the general public about the fairness of the Guidelines? The public in general believes sentencing is too lenient but that’s in the abstract. Jurors at least have the benefit of the context of an actual case with the face of a real human before them.
Rich,
I have never thought of it as right/wrong when we disagree. Only that VERY reasonable minds (well, at least yours) see it differently. That’s a healthy thing and I often moderate my original thinking on an issue based on your compelling logic and straight talk. My JA was just telling me how fortunate I am to have you as a most trusted friend and colleague – and she nailed it. Best
mark
Judge Kopf,
I’m not a lawyer, but it strikes me that there may be other ways of looking at this situation as a cop out. The people serving in a jury share some responsibility in determining sentencing options through their participation in the democratic process and the production of laws. Additionally, as part of the community, they are participants in building the kind of consensus necessary to guide these decisions. If community members never face the difficult sentencing questions, isn’t that also a cop out on their part?
thanks,
Neil
Neil,
You make an excellent point. From the perspective of the jurors and judicial system writ large, it might be constructive for jurors to participate in a formal manner in sentencing. But, when you use a hybrid approach I think you run into the problems I address in the post. Then again, Judge Bennett and Judge Gwin (both excellent judges) like the hybrid approach. I was initially attracted to it as well. So, perhaps it is best for me to cop-out. I admit that reasonable people can disagree on this subject.
Thanks for your comment. All the best.
RGK
Trying to think about how the framers view of jurors as community representatives play into this. Of course, when the framers were thinking about juries, they were thinking of much smaller communities. While requiring, for federal cases, that jury trials had to be held in the district in which the case arose, they would have anticipated relatively homogenous districts with maybe one larger city which would provide the bulk of the jury pool. Now, in most federal districts, you have several divisions with each division based around at least a mid-size city.
My big problem with jury polling as opposed to jury sentencing is that jury polling does not necessarily include instructions on the options and the presentation of evidence in a guilt-only trial is focused on what is needed to prove guilt, not all of the things that the judge would use at sentencing.