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November 27, 2006

What's wrong with urging a sentencing jury to "send a message"?

Thanks to a listserve posting by Eugene Volokh, I learned the Kentucky Supreme Court recently issued an intriguing ruling about arguments to a sentencing jury in Brewer v. Commonwealth, No. 2004-SC-000742-MR (Ky. Nov. 22, 2006) (available here).  Specifically, Brewer disapproves of prosecutorial arguments to a sentencing jury that it should "send a message" to the community by imposing a harsh sentence.  Here are key passages from the Brewer opinion (with cites omitted):

It is unquestionably the rule in Kentucky that counsel has wide latitude while making opening or closing statements.  And it is equally well established that a prosecutor may use his closing argument to attempt to persuade the jurors the matter should not be dealt with lightly. So the Commonwealth's exhortation to the jury to recommend that Appellant be sentenced to the maximum allowable sentence is neither surprising nor improper.  But what is troubling is the "send a message" portion of the Commonwealth's argument.  Although we disapprove of the comments in question, we find them to be virtually indistinguishable from those we recently found to not constitute palpable error in [prior rulings]....

Lest this opinion be misconstrued, we do find that the Commonwealth's exhortation to this jury to "send a message" to the community was improper.  We strongly urge the prosecutors throughout the Commonwealth to use extreme caution in making similar arguments.  Indeed, had a timely objection been made, we may have found the Commonwealth's comments to constitute reversible error. But, as in [prior cases], upon a consideration of the overall trial and the context in which the comments in question were made, we do not find that there is a substantial possibility that the Commonwealth's argument seriously affected the overall fairness of the proceedings. Thus, we decline to find that the Commonwealth's comments rise to the level of palpable error.

Eugene wonders exactly what is improper about urging a sentencing jury to "send a message."  In addition, I have certainly seen this sort of argument used by many prosecutors in many jurisdictions.  Have any other courts held or suggested a "send a message" sentencing argument is improper?  On what basis?

UPDATE:  Eugene adds some points here on his blog, which has generated some additional interesting commentary.

November 27, 2006 at 09:10 PM | Permalink


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Tracked on Nov 27, 2006 9:44:57 PM


Realize for a moment that every time that prosecutor (or any prosecutor in that DA's office, or the entire Commonwealth for that matter) gives closing argument, he or she will say the exact same thing, that the jury should "send a message in this case" by giving the harshest sentence. Jurors certainly assume that for a prosecutor to say this, this case must be unusually egregious, because most people don't get the highest sentence possible. The jurors are not aware that this is a standard speech/request in every single criminal jury trial this and every other prosecutor makes to the jury. So, it's unfairly prejudicial in that respect.

Also, while certainly arguable, I do not think it is the job of the criminal justice system to "send messages" above and beyond that which a reasonable punishment inherently provides.

Let me put it this way: If the punishment fits the crime, what is the message for?

Posted by: Bruce | Nov 27, 2006 10:23:51 PM

What did you and the rest of the country get out of "Send the message to business community" in regards to the 24.3 years sentence given to Jamie Olis of Dynegy in March of 2004, who as of now has served over 31 months in the slammer and is still there. Seeing all the 'guilty pleas" in the last few years in white collar crime arena, I think most of the business world has already gotten the message.

Posted by: Sleepless in Killeen, TX | Nov 27, 2006 10:54:05 PM

Bruce, while I share your initial instincts, I also think that the appropriateness of requesting that a "message be sent" depends largely on the message's intended audience. In other words, taking your final statement in this context, I don't think there is anything wrong with saying in a particular case: "We should send a message to this defendant that society cannot tolerate these types of crimes and that the punishment needs to fit the crime."

Additionally, even if your intended audience for the "message" is other defendants (i.e., general deterrence), it would not seem inappropriate to request that a jury send a message that the conduct in question not be forgiven simply based on particular characteristics of the defendant or the defendant's crime. In other words, there doesn't appear to be anything prejudicial with asking a jury to send a message to other bank employees that stealing money to leverage investments, even though the bank didn't happen to lose any money, should not be tolerated.

With all that said, it would seem at least somewhat prejudicial to simply state in every case that the jury should send a message. Such a generic statement can certainly be misleading and can suggest that the harshest punishment possible is warranted in a given case. Therefore, to mitigate any prejudicial effect, perhaps counsel should be required to state such "message" statements with sufficient particularity to identify both the audience of the "message" and the justification.

Posted by: Shawn Davisson | Nov 27, 2006 10:55:47 PM

cross-posted comment from Volokh.com:

I think the chief problem raised by "sending a message"-type arguments by a prosecutor is that those arguments can remove individualization from the sentencing process. Rather than saying the offender should be sentenced for the particulars of his or her crime, the prosecutor is making the defendant accountable for a larger population of potential criminals. At least in the context of capital sentencing, there is some case law to support the notion that prosecutors have to be careful in making those types of arguments. See e.g., Romano v. Oklahoma, 512 U.S. 1, 7 (1994) ("States must ensure that 'capital sentencing decisions rest on [an] individualized inquiry,' under which the 'character and record of the individual offender and the circumstances of the particular offense' are considered.") (quoting McCleskey v. Kemp, 481 U.S. 279, 303 (1987)). However, I doubt that anything as simple as "sending a message" would result in reversible error, but I understand why the Kentucky court is loathe to allow the prosecutors to push the envelope further in that area.

As to the secondary point that limiting these types of arguments makes deterrence an improper argument for prosecutors. I'm not sure why this is such a bad thing. Legislatures are free to prescribe punishments or punishment ranges to criminals with deterrence in mind. However, once the trial begins, it is more just, in my mind, to focus on the particular wrongdoings of that particular defendant.

Posted by: Corey Rayburn Yung | Nov 27, 2006 11:32:44 PM


The problem is that "We should send a message to this defendant that society cannot tolerate these types of crimes and that the punishment needs to fit the crime" is never how it's phrased. It's always the notion that the jury should sentence this defendant higher than the mere facts and circumstances of the crime require to let other people know what could happen if they do what this defendant did. The "message" is a higher than otherwise given punishment. Say X is the proper, just punishment. The punishment asked for is X + Y where Y is the "message." Not X + Y = just punishment. X = just punishment, plus Y to send a message. Y is therefore unjust as a matter of logic.

Couple this with the fact that every jury is told to "send a message" and you have injustice at every sentencing.

If a guilty verdict and a just punishment doesn't send a message then we need a new system, assuming message sending is a proper function of the criminal justice system. Deterrence certainly is, and to the extent deterrence is a "message" then I suppose it is proper. But I think the way these requests are phrased by prosecutors suggests, if not requires, that the "message" be above and beyond mere deterrence.

Posted by: Bruce | Nov 28, 2006 8:21:32 AM

From a defense attorney:

Just picture how fast a prosecutor would object and how quickly the judge would grant the objection if a defense attorney tried to get a jury to "send a message." Like, "this young man only smoked marijuana, it has medical benefits, send the government a message that this drug war is unjust, etc., etc." It is the same case when the defense tries to give a jury an idea of what sentence a defendant faces.
The problem with that is that it removes the trial from the question of determining what happened, who to believe and whether the evidence supports the charges. By sending messages the jury box is turned into a pulpit...
Yet, despite all this, most courts don't find it objectionable when a prosecutor tells a jury to "send a message."

Posted by: laughingboy | Nov 28, 2006 8:37:56 AM

Does it matter who the message is intended for? I'm not sure much attention gets paid for the typical forgery sentence, but for the high profile cases, maybe there is a message. It sounds like a carry over from civil suits though. Like giving the plaintiff(s) a high award to send a message to big corporations that they can't...... It does seem somewhat out of place in sentencing.

Posted by: davidw | Nov 28, 2006 9:59:24 AM

The problem with the "send a message" crap is that it misstates the jury's role. The jury's role is to dispassionately consider the evidence and decide whether the State has proven beyond a reasonable doubt the fact or facts at issue - usually the elements of a crime. Telling the jury to "send a message" distracts it from its only legitimate job. The judge can "send a message" with the sentence. But unless the jury is actually assigning the sentence - which I don't think is the case in Kentucky, although I might be wrong - the sentencing jury's job is the same as the guilty/not guilty jury's job - to find facts. The consequences of that factfinding should be up to the judge and are not the jury's concern.

Posted by: Ben | Nov 28, 2006 10:39:19 AM

Unless it's changed recently, Kentucky juries do set the sentence, in addition to finding guilt/innocence. It is a "win" of sorts when the jury comes back with a sentence that is below what the prosecutor had been offering.

Minnesota has long prohibited the "send a message" final argument by prosecutors. E.g., State v. Merrill, 428 N.W.2d 361 (Minn. 1988); and,

Prosecutor's arguments which, in effect, urged the jury to send a message to the children of the world "that we will protect you" was improper and with other errors compelled reversal as a matter of law. State v. Peterson, 530 N.W.2d 843 (Minn. Ct. App. 1995).
It was improper for the prosecutor to urge the jury to protect society or send a message with its verdict by stating it was "fortunate in this case that we found out soon enough, because the progression of perpetration and control of a victim demonstrated by [defendant's] history leads from sexual contacts to multiple incidents of penetration over an extended period of time," and "It's time in this country that we start believing kids ... . At least there is some pride in Dodge County law enforcement." State v. Duncan, 608 N.W.2d 551 (Minn. Ct. App. 2000) (cumulative trial errors denied a fair trial).

Posted by: Michael C. Davis | Nov 28, 2006 12:32:00 PM

Yeah, I concur with laughingboy in that the message sending is nothing more than reverse jury nullification. The same way they'd scream if the defense attorney said "send a message" that the drug war is unjust, that these laws should not be enforced because they are violative of individual liberty, and that prison should not be an option because it poses a huge burden on taxpayers (therefore acquit or give probation), they should not be able to do the same thing from the prosecutorial point of view. The jury's job is to find facts, not send messages.

I also have a problem with the perennial "plea for law enforcement" that so many cases permit. Can I have a plea for taxpayer relief? What about a "plea for justice" which means ignoring the law?

Posted by: Bruce | Nov 28, 2006 1:31:40 PM

I've assumed from the outset that we are talking about a prosecutor telling the jury to send a message at sentencing, not at guilt/innocence. I don't think there is any dispute that it would be manifestly improper at the guilt phase. I'd instantly move for a mistrial if the prosecutor said "find him guilty to send a message." I assumed we were talking about the state's summation at sentencing, in those states (like Texas) where there is jury sentencing. Reading the excerpt from the opinion above, it sure sounds like this is not in rerence to the guilt phase of the trial.

Posted by: Bruce | Nov 28, 2006 1:38:13 PM

The first line of DAB's post clarifies that this debate is in the context of a "sentencing jury."

Posted by: Shawn Davisson | Nov 28, 2006 2:27:54 PM

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