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April 26, 2007

An interesting down under take on jury involvement in sentencing

Here is a fascinating story about a fascinating proposal to involve juries in sentencing decision-making being discussed in Australia:

A proposal by the NSW Chief Justice, Jim Spigelman, to involve juries in sentencing has been rejected by his fellow judges, who say it would be unworkable and erode confidence in the legal system.

The plan, which involves holding secret discussions between judges and juries on possible sentences, was raised by Justice Spigelman as a way to improve decisions and prevent outbreaks of public hysteria about supposedly lenient sentences.  But it has met with virtually unanimous opposition from across the legal profession, including judges, the Director of Public Prosecutions, the NSW Bar Association, the NSW Law Society and the Public Defenders Office....

The Chief Judge of the District Court, Reg Blanch, said there were "very significant practical problems" with trying to involve jurors in sentencing. "The process would be extremely difficult to administer, and it simply is not a practical option," he said.  "There [would be] an expected wide difference of views between jurors about questions relating to sentence."  Judge Blanch said juries were not interested in sentencing, and many would not return to the court for the proceedings, which frequently require psychiatric reports and are conducted six to eight weeks after the trial. 

Another District Court judge, Michael Finnane, said the plan to hold secret discussions was repugnant and would reduce public confidence in the justice system. "Our system of justice is based upon its being public, and the parties all know what the judge tells the jury," he said.  "The hardest task which I carry out as a judge is to sentence another human being … We place enough stress on jurors as it is by asking them to decide whether or not an accused person is guilty of a crime … To impose the stress of sentencing on an untrained person … would seem to me to be imposing a very heavy burden."

Some of these negative reactions seem especially interesting in the wake of yesterday's US Supreme Court decisions that were all about whether Texas jurors, making "difficult to administer" life-or-death capital sentencing decisions, were given proper instructions to ensure they shouldered the "very heavy burden" of judging whether a murderer should live or die for his crime.

April 26, 2007 at 11:08 AM | Permalink


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Some state apparently already do this, and sometimes the juries recommend more severe sentences.

Felony Jury Sentencing in Practice: A Three-State Study. (PDF)

Jury sentencing in noncapital cases is one of the least understood procedures in contemporary American criminal justice. This article looks beyond idealized visions of jury sentencing to examine for the first time how felony jury sentencing actually operates in three different states -- Kentucky, Virginia, and Arkansas. Dozens of interviews with prosecutors, defenders, and judges, as well as an analysis of state sentencing data, reveal that this neglected corner of state criminal justice provides a unique window through which one can observe some of the most fundamental forces operating in criminal adjudication today.

It turns out that jury sentencing in practice looks very little like jury sentencing in theory. Sentencing by jury is promoted for its democratic appearance, but its vitality may turn instead upon its ability to streamline case disposition and protect elected officials from political accountability for sentencing policy. Jury sentencing is viewed by these criminal justice insiders as a critical component of the justice system in each state, a tool they have adapted to deter trials, to accommodate elected judges, and to appease constituents who support ever higher sentences for crime. The article explores the implications of this research for sentencing reform, and criminal justice reform generally.

Posted by: George | Apr 26, 2007 2:06:42 PM

You never know until you try.

Posted by: ASS-U-ME | Apr 26, 2007 2:24:08 PM

A far simpler reform would be to inform juries of the statutory sentences permitted with each of their possible verdicts.

Posted by: ohwilleke | Apr 27, 2007 10:36:19 AM

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