Mimesis Law
24 September 2020

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.

9 Comments on this post.

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  • jay
    27 May 2016 at 9:46 am - Reply

    I hate to tell you this guy, but gun rights is not the only collateral consequence of a felony conviction. And frankly, just having a misdemeanor charge on someone’s record is enough to change their lives drastically in terms of places they can live and employment. We live in a scarlet letter obsessed society. We brand everyone, we just pretend we’re civilized because we can’t smell the burning flesh.

    And it’s my understanding that Texan juries determine sentences, so if you’re actually curious, maybe start there.

  • TMM
    27 May 2016 at 10:34 am - Reply

    Several states allow juries to recommend sentences. In those states, there are two big issues: 1) are there any exceptions to jury sentencing (e.g., do repeat offenders still get jury sentencing); 2) what type of evidence is presented to the jury; and 3) what options does the jury get. In my state, the jury does not get to sentence repeat offenders; almost anything and everything is admissible in the sentencing phase of the trial; and the jury does not get to recommend probation or whether sentences are concurrent/consecutive and can recommend a fine (but not the amount of the fine). Defendants often opt to waive jury sentencing on the most serious offenses.

  • Jeff Gamso
    27 May 2016 at 11:24 am - Reply

    As Jay says, there are more than just a smattering of collateral consequences attendant on conviction for a crime. While the courts typically declare these to be essentially trivial, and certainly not punishment, they are often life-destroying. Judge Block this week, in United States v. Nesbeth, rejected a guideline range of 33-41 months for her trafficking offense and sentenced her, instead, to 12 months of probation recognizing that the severity of the collateral consequences she’d face from her conviction amounted to “civil death.”

    The truth, as judges who have polled juries routinely find, is that the “sense of the community” as reflected by the jurors is far less punitive than the sense of their legislative or (especially where elected) judicial representatives.

    When I practiced in Texas, the accused almost never waived juror sentencing. For good reason.

    • Greg Prickett
      27 May 2016 at 2:14 pm - Reply

      “When I practiced in Texas, the accused almost never waived juror sentencing. For good reason.”


      It is rare that a defendant would go to the bench for sentencing, because the jury is much more lenient.

  • jdgalt
    27 May 2016 at 4:15 pm - Reply

    How about giving the jury the right to know what sentence each charge would carry with it (at least the maximum and minimum, and preferably the actual sentence) before deciding whether or not to convict on that charge?

    I feel sure, for instance, that the jury might have refused to convict that so-called arsonist in Oregon if they’d known the charge carried a 20-year mandatory minimum.

    • Greg Prickett
      28 May 2016 at 2:38 am - Reply

      Why not let the jury set the sentence, like we do in Texas? It takes care of the problem you just mentioned.

      • Richard G. Kopf
        28 May 2016 at 7:34 pm - Reply


        I suck at sentencing. Would juries suck at sentencing less than hard cases like me? I don’t know, but it would not bother me to let juries sentence and, in the process, do away with the Guidelines–at least as an experiment. Say pick every other case and let the jury sentence and compare the outcomes. Outrageous experimentation on humans? Certainly, just like my hero (sorta) Dr. Josef Mengele

        All the best.


        • Greg Prickett
          28 May 2016 at 7:47 pm - Reply

          Most defense attorneys in Texas will advise a client to stick with the jury for sentencing. There are no guidelines, so the jury has the complete range of punishment to consider. So for a burglary of a habitation, a jury can sentence the defendant anyway from 2 to 20 years, or probation, and it is binding.

  • Ken White’s 10 Libertarian Questions & the Criminal Justice System, Part 2
    10 June 2016 at 9:53 am - Reply

    […] tools for giving judges some emotional distance in the decision making. But it somewhat undermines the argument for allowing juries to sentence offenders, as the emotions of jurors are still aroused shortly after conviction. And we’ve had a quite […]