| Why do we hide sentences from jurors?
As a public defender, I once defended a case that was, to put it mildly, a long shot. One veteran attorney in my office took one look at it and said, “Wow, that’s the worst case I’ve ever seen.” The evidence against our client was overwhelming, and there was no great defense to counter with. “What do you think our chances are here, maybe five percent?” I asked the veteran. “More like .000005.” My co-counsel and I fought as hard as we could, holding the state to its burden of proof on every element of every charge. We lost. But afterward, we spoke to some of the jurors, and they asked what the sentence would be. I told them that the client would probably be sent to prison for about seven years, and some of them gasped. “I thought he was guilty, but if I’d known that would be sentence, I never would have convicted––that’s just not fair,” said one juror. “That’s way too much,” said another.
In New York, and in the vast majority of jurisdictions, jurors are not allowed to know what sentence a criminal defendant will face if convicted. They are simply instructed to decide whether the prosecution has proven its case beyond a reasonable doubt, and trust the system to take care of a reasonable sentence. But as sentence lengths have shot up over the past few decades, it has become clear that verdicts do not always reflect the will of the people, as jury verdicts were designed to do.
The last substantial discussion about informing jurors of sentences was nearly 10 years ago, when a federal judge in New York, Jack Weinstein, wrote in United States v. Polizzi that a “brief historical review demonstrates the right of the jury in this case under the Sixth Amendment of the Constitution to know the sentencing impact of its decision—a right shared by the defendant.” The not-particularly-brief historical review concluded that, at the time of the country’s founding, jurors had the right to know punishments and, if they chose, not to convict despite evidence of guilt, known as nullification. “When a jury refuses to convict on the basis of what it thinks is an unjust law as applied, a misconceived prosecution, or an excessive penalty, it is performing exactly its role imposed by the Sixth Amendment.” His decision to grant a new trial was reversed by an appellate court. [The Open File]
According to The Open File, this could be an “idea for this time.” It is “a significant opportunity for lawmakers and voters (who can push ballot initiatives in some states) to increase transparency and promote proportionality at a crucial stage of juror decision-making. One scholar reminds us, ‘legislatures are free to experiment with the amount and type of constraints on jury authority.’” Jurors are people positioned to actively check the power of the prosecutor. One scholar recently wrote, “It’s always seemed crazy to me that punishments for crimes are public info, but in the jury box no one can know what will happen to the defendant, even when there’s a mandatory minimum. Juries should have this info to check prosecutorial overreach.” [The Open File]
Prosecutors will most likely come out in force against such a move. In 2015, for example, Atlanta Judge Wendy Shoob ruled that jurors should learn that a defendant, charged with armed robbery for using an air gun, would be sentenced to life without parole if convicted of armed robbery. If the jury found him guilty only of robbery by intimidation, she would have sentencing discretion. Prosecutors immediately moved for a mistrial, and when that motion was denied, the jury returned its verdict: not guilty on armed robbery, guilty on robbery by intimidation. The DA responded by filing an ethics complaint against Shoob. [Andrew Fleischman / Mimesis Law]
Such opposition reveals an insecurity that prosecutors are actually representing the people, as they are mandated. “[I]f community oversight of a criminal prosecution is the primary purpose of a jury trial, then to deny a jury information necessary to such oversight is to deny a defendant the full protection to be afforded by jury trial,” wrote a federal judge in Tennessee in a 1993 decision. “Argument against allowing the jury to hear information [about the sentence] that might lead to nullification evinces a fear that the jury might actually serve its primary purpose, that is, it evinces a fear that the community might in fact think a law unjust. The government, whose duty it is to seek justice and not merely conviction … should not shy away from having a jury know the full facts and law of a case.”
In 1991, the Delaware legislature moved the central responsibility for capital sentencing from juries to judges. Legislators were motivated to do so because they believed replacing juries with the judges would increase the likelihood that capital murders would be punished with death sentences. Speaking to the local media around the time of Delaware’s legislative debate, House Speaker Terry Spence said: “Elected officials are tired of these juries that don’t impose the death penalty.” One study exhaustively analyzed capital sentencing during the three decades during which Delaware shifted responsibility for death sentencing from the jury to the judge, from 1977 to 2007. Its findings confirmed that the legislators were right: Capital sentencing by judges in Delaware is associated with a substantially greater likelihood of death sentences. [Valerie Hans, John Blume, et al / Cornell Law School]
Research has found that American judges rely on many of the same cognitive shortcuts and biases as people who don’t have legal training, making judges and juries likely to overlap in their decision-making errors. Other studies reveal that judges are more inclined than juries to convict, as juries tend to demand more evidence to convict than do judges. In capital cases, however, where jurors must be “death-qualified,” the jury pool is more conviction-prone, more supportive of prosecutors’ arguments, and more suspicious of defense attorneys. One might expect death-qualified juries to be more punitive than judges, but evidence suggests even in the capital sentencing context, juries may be more favorable to defendants. [Valerie Hans, John Blume, et al / Cornell Law School]
In a 2013 dissent, Supreme Court Justice Sonia Sotomayor called into question the constitutionality of judge sentencing in capital cases for two reasons. First, the Sixth Amendment requires juries––not judges––to find facts making a person eligible for the death penalty. Second, allowing judges to impose the ultimate punishment leaves the practice subject to challenge under the Eighth Amendment’s ban on cruel and unusual punishment. In evaluating such claims, the Court seeks to determine whether a practice is out of step with “evolving standards of decency.” The fact that only a few states currently allow judges to impose death sentences renders the practice suspect on that basis. [Valerie Hans, John Blume, et al / Cornell Law School] And jurors, who are ordinary citizens called upon to bring their common sense to the criminal system, and can therefore represent evolving standards of decency, are robbed of their ability to do so.
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