There are powerful historical, constitutional, empirical, and policy justifications for a return to the practice of having juries, not judges, impose sentences in criminal cases. The fact that Americans inherited from the English a mild preference for judge sentencing was more a historical accident than a case of thoughtful policy. Jury sentencing became quite widespread in the colonial and postcolonial eras as a reflection of deep-seated mistrust of the judiciary. The gradual drift away from jury sentencing was driven not by a new-found faith in the judiciary, but rather by the now discredited paradigm of rehabilitationism. Now that that paradigm has shifted to neoretribution, and that the essential moral character of the criminal law has been rediscovered, jurors should likewise be rediscovered as the best arbiters of that moral inquiry. A return to jury sentencing would also mesh nicely with the Court's struggle in its Apprendi line of cases to find a sensible way to distinguish between elements and sentence-enhancers under the Sixth Amendment. A Sixth Amendment interpreted to include the right to jury sentencing would also restore the textual symmetry between the Sixth and Seventh Amendments. There are no constitutional, empirical, or policy reasons why a defendant accused of committing negligence has the right to have both his guilt and damages assessed by a jury, but a criminal defendant has only half that right.
TABLE OF CONTENTS Introduction I. The Historical Case A. Ancient and Medieval Juries B. English Juries C. Colonial and Post-Colonial Sentencing Schemes D. The Penitentiary and Rehabilitation E. Judge Sentencing as a Vestigial Historical Accident II. The Constitutional Case A. The Seventh Amendment B. The Sixth Amendment as the "Not Seventh Amendment" C. The Boundaries Between Guilt and Punishment Begin to Fade D. Apprendi and Ring: The Boundaries Vanish 1. Apprendi 2. Ring E. Harris v. United States: Confusion Reigns F. What These Cases May Mean for Jury Sentencing III. The Empirical Case A. Judges Are Less Susceptible to Prejudice B. Judges' Sentences Are More Uniform and Therefore More Predictable C. Judges Are More Lenient D. Jury Sentencing Encourages Compromise Verdicts E. So What? IV. The Policy Case A. Trusting Jurors, Mistrusting Judges B. The Reemergence of Retribution C. Judicial Restraint D. Solving the Apprendi Dilemma E. Solving the Civil/Criminal and Capital/NonCapital Paradoxes F. Solving the Guidelines Problem V. Limitations A. Imposing Legislative Ranges B. Bifurcating Guilt from Punishment C. Keeping the Probation Decision with Judges D. Partial Waiver E. Deadlock and Nonunanimity F. Review Conclusion
One of the paradoxes of the American criminal justice system is that it reposes almost unassailable confidence in jurors' ability to reach just verdicts on guilt or innocence, but almost no confidence in their ability to impose just sentences. When Bad Bart is tried and convicted of a noncapital crime, in all federal courts, and in almost all state courts, his jury will have no role in his sentencing. (1) The jury's responsibility will begin and end with the guilt phase, and the trial judge will decide how Bart must pay for his crime, usually within limits set by legislatures or sentencing commissions, but with no input from the jury that convicted him.
Yet when Bart is sued in tort in the same courthouse for the same criminal act, his civil jury will decide both the guilt phase--that is, whether Bart acted negligently or intentionally--and the damages phase--that is, how much Bart should have to pay for his actions. (2) Few can imagine a civil system, or a Seventh Amendment, in which the jury's role would be limited to deciding liability and the trial judge would assess damages. (3) Yet few can imagine anything but that same artificial division of labor when it comes to noncapital criminal cases.
To further deepen the paradox, if Bart commits a murder and faces the death penalty, suddenly, the jurors trusted to award civil damages but not to impose noncapital sentences are the only ones trusted to decide life or death. (4) Apparently, jurors are necessary and trustworthy only at the two ends of the "importance" continuum--in civil cases where only money is at stake and in capital cases where a life is at stake. They are somehow unnecessary or untrustworthy in the vast middle, where only judges are trusted to impose prison sentences that can run from one day to a lifetime. (5)
Noncapital jury sentencing is not only rare in modern practice, it has received almost no support from the academy. There have been dozens of articles--most written in the 1950s and 1960s during the zenith of the rehabilitation movement--extolling the virtues of judge sentencing, (6) but only three suggesting that the orthodox view might be wrong. (7) Even in the handful of states where jurors still do participate in noncapital sentencing, some commentators have been calling for judge sentencing. (8) At the federal level, the axiom that only judges should perform noncapital sentencing is so entrenched that the only meaningful debate over the last several decades has been in the context of the Federal Sentencing Guidelines--whether, and how, federal trial judges' sentencing discretion should be curbed. (9)
But the Supreme Court's decisions in Apprendi v. New Jersey (10) and Ring v. Arizona (11) may have opened a new chapter in the heretofore muted debate about the wisdom of the orthodox rule. There are compelling historical, constitutional, empirical, and policy reasons to believe that trial judges' sentencing discretion should not only be curbed, it should be eliminated entirely and transferred to juries. (12) In this Article, I analyze these reasons, and try to demonstrate that, with well-developed limitations, including ranges fixed by legislatures, jurors are better than judges at imposing appropriate criminal punishment.
I. THE HISTORICAL CASE
A. Ancient and Medieval Juries
Most ancient and medieval juries were "presentment juries"--they acted like modern grand juries or preliminary hearing judges, and decided only whether there was sufficient evidence for the defendant to be further subjected to an inquiry by the king or other ruler. (13) Presentment juries were investigatory as well as accusatory. They were the ruler's watchdogs, and were selected by royal agents precisely because they may have had personal knowledge of the alleged crime or, more often, personal knowledge of the accused or of the victim. (14)
The notion that jurors were a kind of witness, rather than independent judges of the credibility of trial witnesses, was so deeply ingrained in the ancient and medieval presentment jury that it remained part of the English system until late into the fourteenth century. (15) Indeed, until that time, English law did not recognize the concept of an "impartial" juror. Jurors were selected by the king's agents to investigate crimes, and the more the prospective jurors already knew about the crimes, the better. (16)
Some historians believe the first precursors to the medieval jury were groups of citizens whose role was limited to deciding which particular trial by ordeal a defendant should face, (17) and that it was only later that they assumed the more traditional presentment role. (18) In either case, because these ancient and medieval jurors had no role in what is today called the "guilt phase," they of course also had no role in the punishment phase. The kings or other rulers decided ultimate guilt and imposed any punishment. (19) But that was not uniformly the case. There were some ancient juries that were trial juries and not presentment juries; that is, they decided ultimate guilt or innocence. Tellingly, those kinds of early trial juries also decided punishment.
For example, from the time of Solon in 700 B.C., ancient and then classical Greek juries--called dikasteria in Athenian law--not only decided criminal liability, but also imposed punishment. (20) The verdict of the dikasteria was final; no appeal was permitted. (21) The Romans inherited the dikasteria in an institution they called the Judice, which was a group of senators convened to resolve important disputes involving other senators or members of the imperial family. These trials were held in the Senate before a subgroup of fifty-one senators, who, as with the dikasteria, not only decided guilt or innocence, but also imposed punishment. (22)
Thus, the ancient and medieval division of trial labor, at least on the Continent, was drawn between the presentment role on the one hand, and the guilt and sentencing role on the other. Ancient and early medieval systems did not recognize separate guilt and punishment phases; they were part of the single act of trial. If jurors were involved in trials, they were perforce also involved in punishment. If they only acted as presentment jurors and not trial jurors, then of course they had no role in punishment, because they had no role in deciding ultimate guilt or innocence.
B. English Juries
There is a powerful myth, perpetrated most recently by critics of the Federal Sentencing Guidelines, that English juries had no role in sentencing, and that when the Sixth Amendment was adopted, the sentencing system that the Founders intended to incorporate was one with a long-standing and monolithic tradition of judge sentencing. (23) The real history is substantially more complicated. As one commentator has lamented, "[t]he single consistent tendency over approximately the past three centuries about the role of judges in setting criminal sentences has been the absence of any consistency." (24)
There is no doubt that in many English criminal courts the traditional unitary European jury trial became bifurcated, so that even when the presentment juries had fully evolved into trial juries, the sentencing role remained with the judge. (25) But it is also clear that English jurors in many different kinds of courts often imposed sentences, and that they continued to do so throughout the Middle Ages, and even, at least in some manorial courts, as late as the seventeenth century. (26)
To fully appreciate the hodgepodge that was the English criminal system, and therefore the far from homogeneous English "rule" of judge sentencing, one must understand five rather unique things about the history of the English jury.
First, England had no jury tradition before the Conquest. Although there was a time when antiroyalist historians claimed that the English had inherited the jury trial directly from the Romans through the Anglo-Saxons, historians now generally agree that that was not the case, and that there were no jury trials in England before William the Conqueror brought them with him as a royal institution. (27)
Second, the criminal jury came into ascendancy in England only by default. From the time of Charlemagne until the mid-1200s, criminal jury trials in all of Europe were exceedingly rare, and England after the Conquest was no exception. (28) Almost all criminal cases were decided by one of the three other recognized medieval trial forms: battle, (29) compurgation, (30) or ordeal. (31) It was only after those much more common trial forms were either outlawed or fell into cultural disrepute that trial by jury became, by sheer necessity, the accepted English method for determining serious felony cases. (32)
Third, the early English court system was remarkably heterogeneous, decentralized, and, in fact, rather haphazard. (33) The idea that judge sentencing was common in English courts during their formative years is belied by the fact that virtually nothing was "common" to these early courts. The increasingly divided nature of the English government exacerbated this decentralization. Any efforts by the king to standardize trial procedures were met with resistance from Parliament, whose antiroyalist members were increasingly the objects of royal prosecution. Indeed, almost all of the important and unifying trial reforms adopted after the ascendancy of the English criminal jury trial were imposed by Parliament as limitations on the prosecutorial powers of the king. (34)
Fourth, almost all serious crimes in England--from the formative jury period in the late 1100s and early 1200s all the way through the seventeenth century--were capital crimes. (35) As tensions between the ruled and rulers mounted, English juries began to nullify when they believed that a particular crime did not justify death. These nullifications were dubbed "pious perjury" by Blackstone, to reflect the justified but nonetheless perjurious violation of the juror's oath). (36) As pious perjuries increased, so did the king's prosecutors' mistrust of jurors.
Fifth, and perhaps most importantly, even when English judges imposed sentences, they had almost no discretion. There were, of course, none of the supervisory kinds of sentences seen in modern courts--deferred judgments, probation, or community corrections. Even imprisonment was not yet a recognized form of punishment. (37) Choices at sentencing were few: death for most serious crimes, banishment (or what the English called "transportation") for less serious crimes, and corporal punishment and/or fines for the least serious of crimes. (38) Most offenses had mandatorily set punishments. (39) Once the verdict was in, the judge's role in sentencing was simply to announce the mandatory punishment. Thus, Professor Thomas Green describes mid-fourteenth century jury verdicts as "judgments about who ought to live and who ought to die, not merely determinations regarding who did what to whom and with what intent." (40) Professor John Langbein makes similar observations in describing English criminal jury trials even as late as the eighteenth century: they were "sentencing proceedings," whose whole function was to persuade the jury "to reduce the sanction from death to transportation, or to lower the offense from grand to petty larceny, which ordinarily reduced the sanction from transportation to whipping." (41) Juries imposed the real sentences by their verdicts on the charged or lesser offenses; judges sentenced in name only. As discussed in more detail in Part I.D, it was not until the 1800s that the American invention of the penitentiary gave judges any significant sentencing discretion. (42)
It was in this cacophony of historical mash that the English developed their "tradition" of judge sentencing. And it was that weak "tradition" that followed the colonists to America.
C. Colonial and Post-Colonial Sentencing Schemes
Several colonies rejected what they perceived was the traditional English rule of judge sentencing, as weak as it was, and involved their jurors in both capital and noncapital sentencing. (43) This push toward jury sentencing was not just the result of the colonists' deep suspicion of judges; it also reflected the fact that the colonies were quicker than the English homeland to reduce the number of offenses carrying a mandatory death penalty. (44) The fear of pious perjury, and therefore of nullifying jurors, was thus substantially reduced. (45)
Federal courts had virtually no role in the criminal process in the early republic, let alone a sentencing role. Federal criminal law did not begin to become a significant part of the national criminal firmament until Prohibition. (46) As one commentator put it, "[i]f one is seeking the imprimatur of a traditional, typically American distribution of sentencing authority, the place to look is in the history of state, not federal, courts." (47)
Most states continued the mixed colonial tradition of jury sentencing. In fact, from 1800 to 1900, juries imposed sentences in noncapital cases in about half of all the states. (48) A handful of other states permitted juries in noncapital cases to make sentencing recommendations. (49) Thus, for the entire nineteenth century, sentencing schemes with no input from the jury were the American exception, not the rule.
Even in those states that invested trial judges with the exclusive power to sentence, their discretion, not unlike the discretion of English judges, was mostly a mirage. (50) Nineteenth-century sentencing schemes were tightly controlled by legislatures. As late as 1870, state legislatures commonly set a specific period of incarceration for each offense. (51) As in England, the real sentencers continued to be the jurors by way of their verdicts.
D. The Penitentiary and Rehabilitation
Judge sentencing did not begin to make significant inroads into the colonial and postcolonial practice of jury sentencing until the penitentiary became the predominant form of punishment. The penitentiary was a uniquely American invention, begun by the Quakers in Pennsylvania in 1790. (52) When penitentiaries became the punishment of choice, suddenly sentencers had enormous discretion, at least in the early years before legislatures stepped in, to decide how long a particular miscreant should spend in penance for a particular crime. It was perhaps an understandable reaction to this completely new form of punishment to turn its enforcement over to judicial professionals. By the beginning of the 1900s, jury sentencing in state courts was beginning to be the exception, not the rule, though it was by no means uncommon. (53)
When the rehabilitative ideal began its ascendance in the early 1920s and 1930s, judge sentencing became even more common and jury sentencing even less common. The idea behind rehabilitation was that the primary purpose of the criminal law was not to punish or to deter, but rather to cure criminals of their antisocial tendencies. (54) Once this quasi-medical model became dominant, the idea that mere jurors could decide how long a criminal "patient" needed to be "hospitalized" was absurd. Only qualified, trained judicial professionals could hope to have any insight into such treatment. (55)
Despite these trends, the colonial tradition of keeping the sentencing power with jurors was so strong that as late as 1960--at the very apogee of the rehabilitation movement--roughly one-quarter of all states (thirteen of them) still retained jury sentencing in noncapital cases. (56) Even as late as 1990, eight states retained the tradition of jury sentencing, (57) though today there are only five holdouts. (58)
E. Judge Sentencing as a Vestigial Historical Accident
Given this history, a case can be made that the weak English predilection against jury sentencing had its origins in the rather arbitrary fact that presentment jurors never got to participate in the guilt phase, let alone in the sentencing phase. Contrast the history of the criminal presentment jury with the history of civil juries. Assizes were regularly convened throughout England as early as the Norman Conquest, for the specific purpose of having jurors hear and resolve civil disputes. One of William the Conqueror's first official acts was to convene assizes in every English county to settle land ownership disputes between the Norman conquerors and the Saxon conquered. (59) Indeed, the beginning of the golden age of English juries is generally credited to Henry II, who in 1166 established a uniform and permanent set of assizes for resolving real estate disputes. (60) The fact is that in the formative years of the jury trial, the English simply did not treat criminal cases very seriously, at least early on, when the king's prosecutors were not yet nipping at Parliament's heels. (61)
When the historical accident of judge sentencing eventually became dominant in American state and federal courts, that dominance was itself the direct result of two conditions that no longer exist today: judges had almost unlimited discretion to impose penitentiary sentences, and the purpose of those sentences was to rehabilitate. Today, indeterminate sentencing is largely a thing of the past. Almost every state, either directly by legislatures or indirectly by state sentencing commissions, has imposed relatively narrow limits on potential prison sentences depending on the nature of the crime. Congress has imposed the mother of all limitations in the form of the Federal Sentencing Guidelines.
The virtual extinction of indeterminate sentencing was the result of the spectacular demise of the rehabilitative ideal. (62) Today, the system punishes criminals because criminal acts deserve proportionate retribution, not because criminals deserve to be rehabilitated. As discussed in more detail below, (63) there is no better place to lodge the moral obligation of determining what particular punishment a particular crime deserves than in the very jury that heard all the particulars.
II. THE CONSTITUTIONAL CASE
There was surprisingly little discussion of the right to a jury trial in the records of the constitutional debates, let alone any discussion of whether juries in criminal cases should continue the colonial practice of imposing sentences. Edmund Randolph's original draft of Article III had no provisions guaranteeing either criminal or civil juries. (64) The unamended Constitution that came out of the Philadelphia convention mentions jury trials in only one place: Article III, Section 2, Clause 3 secures the right to jury only in federal criminal cases, which, as discussed in Part I.C, were rare indeed. (65) Although there was considerable discussion about judicial review of jury verdicts, (66) and also about what seems today to be the rather arcane question of whether the federal venire should be drawn from a unit as large as a whole state, (67) there are no recorded discussions about the allocation of sentencing power as between judge and jury. In fact, the only significant preratification discussion of jury trials at all was Alexander Hamilton's explanation in Federalist No. 83 for why Article III, Section 2, Clause 3, secures the right to a jury only in federal criminal cases and not in civil cases. (68) And although Hamilton wrote extensively about the allocation of judicial power among the federal courts (69) and between the federal and state courts, (70) he did not discuss the allocation of power between judge and jury.
The texts of the Sixth and Seventh Amendments likewise make no mention of whether the right to a jury guaranteed in those amendments includes the right to have the jury impose sentence and award damages. (71) Until recently, almost all of the Court's discussions about the constitutional role of the jury have focused on the Seventh Amendment, not on the Sixth Amendment, though what the Court has not said about the Sixth Amendment, and what it has said by way of comparing the two, has been instructive. It is therefore to the Seventh Amendment that I first turn.
A. The Seventh Amendment
Unlike the Sixth Amendment, the Seventh Amendment does not apply to the states, (72) though it does apply in federal diversity cases, (73) provided, of course, that the substantive state claim is the kind of legal claim that would otherwise be triable to a jury. (74) The language of the Seventh Amendment is arguably the clearer of the two, not only guaranteeing a jury in all "suits at common law," but specifically limiting that right to cases involving more than twenty dollars' worth of controversy. By coupling the right to a jury trial with these scope and damage limitations, it may seem evident that the Seventh Amendment contemplates that parties in these kinds of common law actions have a right to have the jury decide both liability and compensatory damages. Interestingly, the Supreme Court did not expressly adopt that view until 1998, in Feltner v. Columbia Pictures Television, Inc. (75)
The Seventh Amendment is more explicit than the Sixth Amendment in another important way: after granting the right to jury trial in certain civil cases, that right is reinforced by the so-called "Reexamination Clause." That clause provides that "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." (76)
B. The Sixth Amendment as the "Not Seventh Amendment"
Until Apprendi, some of the most significant insights about whether the Sixth Amendment might require jury sentencing came from what the Court had not said about the issue. When the Court declared that the Sixth Amendment's right to a criminal jury is so fundamental that its guarantees are part of basic due process, and therefore applicable to the states, there was no suggestion that this fundamental right might extend beyond the guilt phase to punishment. (77) More recently, when the Court upheld the constitutionality of the Federal Sentencing Guidelines, the debate, of course, was not whether the Sixth Amendment forbade judge sentencing, but rather whether the nondelegation and separation of powers doctrines forbade anything less than absolute and monolithic discretion by sentencing judges. (78)
On rare occasions, the Court has made slightly less oblique comparisons between juries assessing damages and juries imposing sentences. In Cooper Industries, Inc. v. Leatherman Tool Group, Inc., (79) the Court compared the award of punitive damages in a civil case to the imposition of a fine in a criminal case, and used that analogy to conclude that the Seventh Amendment does not apply to the award of punitive damages. (80) Justices Scalia and Stevens, in their partial dissent in Tull v. United States, (81) made similar analogies.
Despite the unarticulated assumption behind all of these longstanding analogies--that criminal defendants do not have a right under the Sixth Amendment to have their sentences imposed by juries--the Court did not expressly announce that rule until 1984, in Spaziano v. Florida, (82) a death penalty case upholding Florida's trifurcated capital sentencing scheme. (83) The Court concluded that neither the Eighth Amendment nor the death penalty cases decided under it required that a distinction be made between death cases and nondeath cases for purposes of who must impose the sentence. It announced, with …