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July 18, 2004

Jury Sentencing: a range of possibilities

I finally had a chance to read closely EDNY District Judge Weinstein's two jury sentencing opinions (background and downloads here). Both are must reads for those who want to think deeply about what Blakely might represent and about how we might construct a new sentencing world with significant jury participation. Here I want briefly to note various ways juries might be seriously involved in sentencing decision-making:

Juries as comprehensive fact-finders: We might require juries to be the finders of all (or at least all significant) sentencing facts. Notably, Blakely only requires juries to be finders of aggravating facts, allowing judges still to find mitigating facts. But though the Constitution apparently permits this distinction, we might still think a sounder system would have juries decide all these facts.

Juries as fact-finders and sentence advisors: We might want juries not only to find facts, but also to advise judges about appropriate punishments. Notably, Justice Scalia's concurring opinion in Ring suggests that the Apprendi/Ring/Blakely line only requires jury fact finding and that judges can still be given authority to make ultimate sentencing decisions. But though the Constitution may not require juries to do anything more than find (aggravating) sentencing facts, we might still think a sounder system would have juries also recommend sentences based on these facts.

Juries as fact-finders and sentencers: We might want juries not only to find facts, but also to impose specific punishments. Again, though the Constitution may not require juries to do anything more than find (aggravating) sentencing facts, we might still think a sounder system would have juries impose specific sentences based on these facts.

Judge Weinstein's opinion in US v. Khan considers these issues through the lens of the interests of the Founders, and he asserts that the "authors known to the founders had a high respect for the wide powers of the jury over law, fact and punishment." However, Judge Weinstein also adroitly notes that consideration of these issues "must begin with the humble acknowledgment that the founders, if they could at all understand our current bloated federal criminal law and the labyrinthian structure of the Guidelines, would be appalled or bemused."

Finally, Judge Weinstein astutely notes that jury participation in sentencing "is the mode in capital cases" and that "six states ... currently allow jury sentencing in noncapital cases." He also cites the robust and growing academic literature exploring jury sentencing (to which should be added this terrific forthcoming article by Professors Nancy King and Rosevelt Noble examining how felony jury sentencing actually operates in Kentucky, Virginia, and Arkansas).

In short, Judge Weinstein, as always, gives us lots to think about.

July 18, 2004 at 08:17 PM | Permalink

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Comments

I took a course in federal sentencing during my 2L year. I was appalled that judges could sentence people to years in prison for conduct never charged in the Indictment let alone proved to a jury. It bothered me that "beyond a reasonable doubt" did not apply at sentencing. It enraged me that if a judge thought a defendant lied on the witness stand (by a mere preponderance standard of the evidence!), then that judge could sentence him to additional years in prison. Forget charging him with perjury. For about a jury finding the defendnat guilty beyond a reasonable doubt. Federal sentencing is worse than plea bargaining.

I worked on a criminal case where a person was convicted of 3 counts of a specific "piracy" crime. The sentencing range would have been 30-36 months. BUT, items found during the search of our client's home let to a maximum sentence of 20 YEARS. Everyone knew that the AUSA could not prove that our client was going to use these 80 other alleged "piracy" devices for other acts of "piracy" - the AUSA could not even prove attempt. Yet the judge was going to sentence our client based on 83 counts of piracy, and not the 3 he was convicted on.

I read numerous cases where these practices were upheld. I was never persuaded. If the government wants a defendant's sentence to be based on 83 counts of a crime, then the AUSA should be required to charge and prove it. Arguing otherwise reads out the Sixth Amendment.

Posted by: Federalist No. 84 | Jul 18, 2004 11:30:02 PM

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I was never persuaded. If the government wants a defendant's sentence to be based on 83 counts of a crime, then the AUSA should be required to charge and prove it.

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