Academic journal article Duke Law Journal

The Case for Jury Sentencing

Academic journal article Duke Law Journal

The Case for Jury Sentencing

Article excerpt


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.



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
   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
   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



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. …

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