Should We Give Juries A Bigger Role in Sentencing?
May 27, 2016 (Mimesis Law) – The criminal justice machinery nowadays begins with an investigation and winds its way to punishment.* Once the punishment is complete, aside from some states that disqualify felons from certain privileges, the state is finished breaking the defendant over the wheel. Unless we took the day off of school, we probably all know that the modern system of justice is thought to be kinder and gentler than the dark days of medieval Europe. We even have a constitutional aendment that says that we are past all that cruel and usual stuff from the days of yore.
Steven Pinker has famously argued that we’ve been living in a historic era of low homicide rates. Although Pinker’s larger argument about the fall of absolute violence has been criticized, the low homicide rate via crime, compared to earlier eras, still appears correct. As we became safer, secure, and exceptionally wealthy, we had more time to think about how to punish criminals.
Starting with my oddball Quaker ancestors, continuing through the Enlightenment, and through the early days of the American nation, there was a growing consensus that harsh punishments were uncivilized and unnecessary. Before 1815, committing one of 288 crimes in England would result in the death penalty. Between 1791 and 1892, England and Wales executed over 10,000 people and banished or imprisoned almost a million people; this means about every four days someone would have been executed.
America embraced imprisonment sooner, and turned away from capital punishment sooner, than England. This was all in an effort to reform the inmate and return that person to society as a productive citizen, which is why prisons were called penitentiaries, reformatories and workhouses.
Along the way, the idea of imposing indeterminate sentences gained traction, as a way to reward inmates who reformed faster than others. This was in contrast to the common law of England:
And it is moreover one of the glories of our English law, that the nature, though not always the quantity or degree, of punishment is ascertained for every offence; and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained, for every subject alike, without respect of persons.
For, if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates; and would live in society, without knowing exactly the conditions and obligations which it lays them under. And besides, as this prevents oppression on the one hand, so on the other it stifles all hopes of impunity or mitigation; with which an offender might flatter himself, if his punishment depended on the humour or discretion of the court.
Whereas, where an established penalty is annexed to crimes, the criminal may read their certain consequence in that law, which ought to be the unvaried rule, as it is the inflexible judge, of his actions.
This divergence of American law from English common law has frequently forced the Supreme Court to grapple with constitutional provisions written for a common law judicial system that no longer exists, examples here and here. But the Constitution still says what it says, regardless of how we conduct our legal process.
So, the idea of jurors having any input on the sentence would be an anathema to common law and early American jurisprudence, but Judge Kopf suggests that very thing:
I am more and more convinced that I need, somehow, to involve the jury when I sentence a criminal defendant. I hunger for some rough sense of the community’s attitude. I am particularly concerned about how the jurors, after hearing the case, view the seriousness of the offense, what sentence they think will promote respect for the law and what sentence they believe will provide just punishment for the offense. See 18 U.S. Code § 3553 (a)(2)(A). But, I remain convinced that I must be the ultimate decision maker, considering far more things than the jury is competent to consider.
Judge James Gwin went even further:
To test whether or not the Federal Sentencing Guidelines square with community sentiment on just punishment—a significant concern for a system of punishment centered on retribution—I conducted a jury study with the aid of several other district court judges. In general, we selected juries randomly and believed they reflected a fair cross-section of the community. Those jurors then learned the actual details of the criminal conduct, the defenses, and any mitigating facts. They saw and heard from the actual victims of the criminal conduct. * * *
The sample results show a marked difference between the Guidelines ranges and the jurors’ recommendations. Combining all of the cases, the median juror recommended sentence was only 19% of the median Guidelines ranges and only 36% of the bottom of the Guidelines ranges. The jury study, although limited, strongly suggests that the Guidelines are untethered to appropriate punishments as determined by jurors actually hearing the case. * * *
As I will describe, sentencing should treat similarly situated offenders in a like manner. But after establishing a system that treats similar offenders in a similar way, sentencing law should choose punishments that reflect community sentiment.
Both Judges raise an interesting question, who should decide what sentence to impose on the defendant?
Under most systems, the state legislature sets some range for the sentence to be imposed. And then through some form of guided discretion, the judge is asked to pick the correct sentence within that range. In the federal system, the judge is guided by the grid that puts the discretion in a narrow range; in Ohio, the judge utters talismanic words and picks a number in the range. They probably represent the two extremes.
In addition, the legislature, through prosecutors, imposes mandatory minimums on certain offenses, preventing the judges from going below a certain sentence. And, of course, judges cannot usually override jurors when they have rejected the death penalty.
But the upshot here is that the judges exercise most of the discretion left in sentencing. The tradition probably evolved out of the common law tradition of having the judge announce the determinate sentencing. Juries never did that. So, when indeterminate and discretionary sentencing became widespread, the judges’ role simply expanded to fill the newly-formed gap. Arguably, it was simply a matter of historical availability that we ended up with judicial rather than jury sentencing.
The idea of giving juries an increased role in imposing sentence is, to some degree, an old American idea made new again. It goes along with the old American idea that jurors can not only decide the law but nullify it too. The early Americans were quite aware that judges could easily be co-opted by the state, while juries were romantically seen as a check on the judiciary, thus a bicameral judiciary, like the bicameral legislature.
And after Apprendi, law reviews were awash with the idea that jury sentencing might be making a return by constitutional fiat. But the business-as-usual Booker opinion smothered that baby in the crib. The judge-driven system remains largely intact with a little more lip service given the jury’s role as fact finder.
If Judge Gwin is right in that the judicial system over-punishes relative to community, then jury sentencing would lower the punishment for many offenders. In Ohio, three-judge panels are more likely to impose the death penalty than a jury. While there appear to be constitutional, traditional, and even some legal impediments to increasing the role of the jury in sentencing, it is an American idea, like prisoner reform and indeterminate sentences. So, the role of the judge in sentencing is mostly an artifact of history.
Judges are the professionals, but jurors are the community members, who reflect the community values. So, should we give judges or jurors the discretion in choosing the sentence within the range? Or perhaps we should find a solution along the lines of Judge Kopf’s suggestion that includes both.
* Ed. Note: Except when there’s an acquittal or dismissal.