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