“Harsh Sentences Are Killing the Jury Trial.”

So begins the title to a fascinating article in the Atlantic.* I urge you to read it!

Consistent with my strongly held view that judges are no better than the average person when it comes to sentencing offenders, why don’t we junk judicial-sentencing in the federal courts, and let juries impose the sentence? What do you think?


*Thanks to a thoughtful reader for the tip.

9 responses

  1. Pingback: Sentencing and the Cult of Personality (Update) | Simple Justice

  2. There are lots of reasons to object to harsh sentencing laws, but I don’t think their threat to jury trials is one of them, nor do I think letting juries impose the sentence is, of necessity, the solution to much of anything (nor would it be, of necessity, a problem). Current “jury sentencing” is unbalanced: for instance, in civil cases the trial judge can set aside a jury award–their civil sentence–any time he disagrees with it. The jury’s sentence–civil or criminal–would need to be made proof against the trial judge’s overruling, also, for jury sentencing to be able to have any effectiveness.

    This claim, also, Plea offers have been around since the 1800s and are a well-established and necessary part of criminal practice proceeds from a false premise. However useful a plea bargain, fairly offered, might be, there is nothing necessary about them. Even a fairly offered plea deal has at its core the convenience of the court and the prosecutor by allowing them to close a case quickly and cheaply. That, by itself, isn’t a bad thing, but it’s little to do with the justice a trial, or a plea, should be providing.

    What about Defendants convicted of drug offenses with mandatory minimum sentences who went to trial received sentences on average 11 years longer than those who pled guilty? A meaningless statistic, given how the samples are so skewed by the selection. I’ve seen no efforts at normalizing for the nature of drug crimes (for instance), the criminal, his criminal history, etc so that the comparison actually might have validity.

    I think the article’s subtitle, As they coerce defendants into making plea bargains, prosecutors are also shutting everyday Americans out of the justice system, gets to the heart of the matter. Neither judges nor juries get to the sentence phase if the case never goes to trial. The two–prosecutorial abuse and sentencing laws (harsh or fair)–are problems, but their only connection is that abuse. Correct the one, and only then can we see the true level of negativity of the other. Leave the one in place, and with jury sentencing all we’ll get is that abusive prosecutor threatening, “Take the deal, or the jury will hang you.”

    Finally, [cheapShot]…while progressive liberals believe in an equitable system of justice. I suppose ordinary liberals don’t believe in such a thing, then?[/cheapShot]

    Eric Hines

  3. The whole idea of law is to reign in the chaos that unbridled human emotion brings into “reason”. Emotion acts short term. Reason is the product of patience, experience, and thinking things over as well as the collective cumulative experience of multiple generations. Which would make the better judge?

  4. There is something wrong when the “home of the free and land of the brave” has one of the highest incarceration rates in the world. (I’ve read that the US is third, behind those champions of human rights, China and North Korea,) It’s sad that mandatory minimums are on the way out, not because the public has realized they were wrong and injudicious, but because the financial costs of our enormous prison system have become politically unpopular.

  5. I’m from a state in which the defendant has the absolute right to choose whether to be sentenced by a judge or a jury with the exception of death penalty cases when it is always jury sentencing. Some types of crimes give juries a change to give probation when judges cannot.
    It’s always a crap shoot. A lot ot if is knowing your judge. Some judges hand out long sentences like they were Christmas cards and others tend toward shorter sentences. A few sweat over what to do and for my money, those are the best judges. They try to fashion a sentence that ensures public safety while giving the offender a chance to reform.
    Juries as a whole lack a set of standards for basing sentences. When they are confronted with a five-99 year or life sentencing range for murder or five years probation to 99 or life for armed robbery, they don’t have the background to determine how bad this particular offense is. Some murders are, after all, worse than others. It’s one thing to pull the plug on a spouse who is dying in terrible pain and quite another to kill someone just to see what it feels like.
    I like having the opportunity to work with clients to decide where to go on punishment. I wouldn’t want to see a change to mandatory jury punishment. But, that’s just me.

  6. Dean,

    If we depend upon jurors to render a decision on guilt, I don’t see we shouldn’t trust them to sentence. All the best.


  7. Sentencing should ALWAYS be on the Judge’s shoulders. Juries (and citizens, for that matter) are too subject to public sentiment to render fair and impartial sentences.

    However – I personally believe that all criminal charges should go to trial. EVERY SINGLE CASE. Or, withdrawn. I don’t care about the “burden” put on Courts by the increased volume of cases. Isn’t disposing of cases and conducting trials the reason the Courts are there in the first place?

    This would have the effect of actually forcing prosecutors (especially Federal prosecutors) to carefully evaluate cases. There *is* a reason that the US has the highest percentage of its citizens incarcerated or under supervision. One year imprisonment always is preferable to 10!

    Alternatively, the advantage that mandatories give prosecutors should be abolished. If a plea offer is made, then that should be the maximum that a defendant could receive after a trial.

    Plea negotiations should NOT be a “normal” part of criminal cases, nor should the vast majority of cases be the result of a plea bargain. Of course, there are a few cases here and there when a defendant has a true desire to plead guilty. Open pleas like that should be carefully scrutinized since many people plead or confess to crimes they did not actually commit.

    Russ Carmichael

  8. Judge,

    Interestingly, in Texas state courts, the jury does determine the sentence. There’s a guilt/innocence phase of the trial and then the sentencing phase. I wonder how Texas compares with other states as far as the decision to seek jury trial goes.

    One observation, it seems to me, and of course this is just intuition, but my sense is that juries sometimes split the baby – – if they’re unsure of the defendant’s guilt, they’ll impose a light sentence “just in case.” This may make an unsure jury more likely to convict someone and may mean lots of folks are getting a lighter sentence.

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