Mimesis Law
4 June 2020

Why Don’t Prosecutors Want Jurors to Know the Sentence?

Sept. 25, 2015 (Mimesis Law) — The rules of evidence are rules of inclusion, we’re told. Prosecutors often urge that juries need to hear the whole story, whether that be gruesome crime scene photos, testimony from experts that a child’s account of a crime is accurate, or even (maybe especially) allegations of past criminal conduct by the defendant. Arguments that a defendant is a thug, or that jurors need to “send a message to the community” by convicting him are supported as reasonable calls to action.

But if there’s anything that prosecutors don’t want jurors hearing, it’s what will happen after the trial is over.

Judge Wendy Shoob[1] in Atlanta, Georgia found that out when she ruled that jurors should learn that Jarvis Taylor, who was charged with armed robbery for using an air gun, would be sentenced to life without parole if convicted. By contrast, if the jury found that he merely committed robbery by intimidation, she would have discretion to sentence him.

This was a bold move. While Georgia does not have any laws that say jurors can’t hear the sentence the defendant will face after conviction, it is a pretty long-standing practice not to mention it, and jurors are frequently told that they are not supposed to consider punishment.

Naturally, jurors frequently ignore this rule. The best evidence of this is found in “compromise” verdicts, where a jury might not be unanimous that the defendant is guilty beyond a reasonable doubt, but choose what they believe to be a lesser charge. But without being instructed on what sentences will follow, juries are typically terrible at this.

So, for instance, a jury might choose to acquit an alleged child molester of the first eight counts of his indictment, then convict on something that sounds less severe, like “incest” not realizing that it carries a mandatory minimum 25 year sentence.

In Georgia, armed robbery lays a similar trap for the jury because the sentence is the same regardless of the risk posed to the victim. Using a real gun or a knife to rob someone is armed robbery, of course, but so is using a squirt gun or a rubber knife. And holding a candy bar to someone’s back to take their wallet is just as serious as a loaded bazooka. Even cocking your hip out so that the person you’re robbing might think you have a weapon carries the full penalty.

A jury might assume that a judge would consider whether the weapon was real in punishment, but the law requires a minimum sentence of life for anyone with a prior felony. For someone like Taylor with three prior felonies, that life sentence will be served without the possibility of parole.

When Judge Shoob instructed the jury, the State immediately moved for a mistrial. After that motion was denied, the jury returned its verdict: not guilty on armed robbery, guilty on robbery by intimidation. Taylor was sentenced to 30 years, with 10 to be served in prison.

Prosecutors oppose telling jurors the likely sentence for criminal acts because they don’t want jurors acquitting in cases of likely guilt simply because the mandatory minimum sentence is unconscionably harsh. If a jury knew that, for instance, sleeping with your brother’s ex-wife’s adult daughter required being placed on a sex offender registry even if there is no biological relation, they might hesitate to convict.

While at the time of the founding, laws were simple enough that jurors frequently knew which felonies would carry a death penalty and which would impose less severe punishment, prosecutors now benefit from a system of laws that is too complicated for ordinary citizens to understand.

It also strips prosecutors of a powerful weapon, the ability to stack a bewildering array of charges against a defendant and hope that the jury chooses to convict on one. Studies show that even judges are prone to vary their rulings to appear more fair, and a jury might feel it is being unreasonable if it chooses to acquit on all counts in a 40 count indictment.

Judge Shoob gave excellent reasons for her decision, pointing out that hiding sentencing from the jury only makes sense if it’s the judge’s job to sentence people.

“The Legislature has given the prosecutors the right to set the sentence with its mandatory sentences and recidivist punishment under the appropriate statutes. When the prosecution does not use this power carefully and equitably, and the judge is removed from sentencing decisions, the only thing that stands between the individual and the power of the State is the jury system.”

The State’s response to Judge Shoob’s decision has been to move to recuse her from a wide variety of cases, and to pursue an ethics complaint against her. But, because Georgia grants the State little ability to appeal in criminal cases, it will be a long time before an appellate court ever weighs in on whether juries will get to understand the gravity of their decision.

Until then, we might want to seriously reconsider a system that values the unreviewable judgment of a prosecutor over the discretion of both judge and jury.

[1] Full Disclosure: I briefly interned with Judge Shoob while in law school.

10 Comments on this post.

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  • Keith
    25 September 2015 at 8:53 am - Reply

    the jury returned its verdict: not guilty on armed robbery, guilty on robbery by intimidation. Taylor was sentenced to 30 years, with 10 to be served in prison.

    Without the instruction to the jury on length of punishment, I can easily see a jury that doesn’t find reasonable doubt, but feels that they really don’t like a particular defendant because the “defendant is a thug, or that jurors need to “send a message to the community””, opting to go on a lesser guilty verdict to put him away. In other words, this is a different option, but I’m not sure it would necessarily be more equitable or fair. But in a system that removes the ability of Judges to tailor punishments to meet crimes, it’s a relief valve, of sorts.

    That being said, it would seem to have a whiff of another kind of “relief valve”, jury nullification. Isn’t the jury not only determining the facts, but judging whether or not the law (in this case the punishment) is valid for the particular situation?

    • Andrew Fleischman
      25 September 2015 at 10:06 am - Reply

      I think you’re right that there’s an element of jury nullification here. A jury could choose to acquit rather than impose a punishment that they felt was unwarranted. But that was a possibility that we had with us at the founding.

      And I think it’s only fair that defendants be allowed to argue for this sort of nullification (the jury should acquit because the sentence is too harsh, even if the evidence is sufficient) given that prosecutors get to argue the opposite variety (yeah the evidence is weak, but look at what a shitheel this guy is).

  • Ronnie Godfrey
    27 September 2015 at 9:51 am - Reply

    How does the average citizen fight to have these laws or rules changed

    • Andrew Fleischman
      27 September 2015 at 2:53 pm - Reply

      Georgia judges are elected. A good advocacy group could run ads designating which judges allow juries to hear about sentencing. Since it’s entirely up to the individual judge, that could be one effective method of enacting change.

      I’d love to see someone run on a juror’s bill of rights, like what Judge Mark Bennett advocates.


  • Robby King
    7 October 2015 at 3:54 pm - Reply

    Someone should write the article “Why Don’t Defense Attorneys Want Jurors To Know The Defendant’s Criminal History?” I assume Judge Shoob didn’t also tell the jury about the Defendant’s criminal history that lead to that potential sentence?

    • shg
      7 October 2015 at 4:01 pm - Reply

      There have been many posts about that, and it’s fairly easy to explain: prior criminal history shows a propensity to commit crimes, or even a particular type of crime, which is irrelevant to whether a defendant committed the specific crime for which he’s on trial. It’s is not probative, but highly prejudicial, which is why it’s not admissible as evidence except in very limited situations.

      So, unless someone thinks its a good idea for innocent people to be wrongly convicted, a defendant’s criminal history has no place at trial. Wait, you didn’t really want an answer, did you?

      • Rachel
        7 October 2015 at 9:25 pm - Reply

        The potential sentence a defendant may receive is also irrelevant to whether the defendant committed the specific crime for which he’s on trial (possibly even less relevant than criminal history, as sometime prior convictions or bad acts DO come in under a certain set of evidentiary rules).

        You want to be pissed about how the legislature has decided to treat recidivists and armed robbers? Fine. I can certainly see how some of it seems unreasonable. But that is on the legislature, not on prosecutors, judges, or jurors.

        • shg
          8 October 2015 at 8:41 am - Reply

          You are absolutely correct that sentence is similarly irrelevant as to whether the defendant committed the crime for which he’s on trial. The difference is that there are two legal concepts that apply: nullification (a disfavored doctrine) and compromise verdicts (unacknowledged but still very real). Our system strongly favors acquittal of the guilty over conviction of the innocent. This is a legal doctrine, not legislative.

          So given that the system is imperfect, if it’s to err, it must be in favor of acquittal rather than conviction. Some guilty defendants will get away with it, but that is the nature of what our legal system is meant to be. That’s why we use proof beyond a reasonable doubt rather than “well, he kinda seems like a criminal type of guy, so he probably deserves to be convicted.”

        • Andrew Fleischman
          8 October 2015 at 10:13 am - Reply

          We measure whether a punishment is cruel or unusual by the standards of the community. We don’t actually ask the community, mind you, we just ask some judges who vaguely guess at what the community might say.

          But telling juries the mandatory sentence after conviction provides a much better way to learn what the community will tolerate. If the sentence for a crime is so grossly disproportionate that no jury will enforce it, knowing the consequences, then it must be cruel and unusual.

          And if the sentence for a crime is NOT so grossly disproportionate that a jury will be horrified by it, then it does the State no harm. Bear in mind, we already presume that every citizen, of every age and mental capacity, has an encyclopedic knowledge of criminal laws and their consequences.

          In short, telling the jury the sentence only harms the State in those instances where it has chosen to inflict grossly disproportionate punishment, as determined by the community of people they are theoretically protecting.

          • Keith
            8 October 2015 at 10:30 am -

            We don’t actually ask the community, mind you, we just ask some judges who vaguely guess at what the community might say.

            Correct me if I’m wrong, but we do sometimes ask in the context of capital cases, right?