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July 27, 2008

"Should juries know the likely sentence when deciding guilt?"

The title of this post is the title of this interesting BlueOregon post authored by Oregon state representative Chip Shields.  The post begins with a review of the remarkable Rodriguez mandatory sentencing case (previously blogged here and here) still working its way through the Oregon state courts.   But it ends with Rep. Shields setting out this legislative history and some provocative questions:

I trust juries, so in 2005, Sens. Carter, Gordly and I introduced HB 2986, which gives jurors information on the likely sentence the courts will impose upon a finding of guilt.  It died for lack of a hearing in the then Republican-led Oregon House.

I've been thinking of reintroducing that bill, so I checked in with one well-respected constitutional scholar on the issue.  I haven't gotten his okay to use his name yet, but he wrote back:

As a general proposition, I believe that all human beings should be as fully informed as possible about the consequences of all of their actions before they undertake those actions.  Before you put your hand on that hot stove, you should understand that you might get burned.  Before you jump into the Clackamas River at High Rocks, you should understand that you might drown in a whirlpool.  Before you get on TriMet without a ticket, you should be aware of the penalty if you get caught.  And before a jury decides to do X or Y or Z, its members should understand the results that could flow from that decision.

We all want as much information as possible about the consequences of our actions; why shouldn't we give a jury as much information as possible about the consequences of theirs?

So what do you think?  Should [defendants have juries know] they would be sentenced to [long prison terms if convicted]?  Or is justice best served by keeping that information from them and having juries only decide guilt or innocence?

Related posts on the Rodriguez case:

July 27, 2008 at 04:35 PM | Permalink


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Or is justice best served by keeping that information from them and having juries only decide guilt or innocence?

The jury should make their own sense of decision in guilt or innocence. I think that is fair. Good Post.(Death Penalty Blogger)

Posted by: Gluttony | Jul 27, 2008 4:54:30 PM

Which leads to the question: should the quantum of proof necessary to convict be greater if the sentence is 20 years to life, as opposed to "only" (sarcastic) 5 years? Should it be?

Posted by: babalu | Jul 27, 2008 5:21:49 PM

Juries shouldn't get this information because it is not relevant to their decision. Knowing the punishment will inevitably change how the jury views the prosecution's burden of proof. Will a jury be less likely to convict if they know the defendant will receive a long prison sentence? Will they be more likely if the defendant will get probation? Hey, if we truly want them to know the consequences of their decision let's tell them how the victim will feel if the defendant is acquitted.

Juries exist for a narrow purpose - to provide a relatively neutral way to resolve a dispute between the government and the defendant. The jury is not being asked to make a decision where they need to know "all of the consequences." This bill is nothing more than a call for jury nullification.

People who advocate this have a fundamental disrespect for the proper separation of powers and the rule of law. If you think that certain crimes are punished too much you should participate in the democratic process instead of tampering with the jury system to prevent the execution of the laws that the democratic process has given us.

Posted by: Alan O | Jul 27, 2008 5:57:51 PM

Seems to me that this could serve to increase the likelihood of jury nullification.

Posted by: Matt C. | Jul 27, 2008 6:04:17 PM

Alan O. is correct. The only real purpose of informing the jury of the possible sentence is to induce an acquittal in spite of the evidence.

If jurors think the possbile penalty is too harsh, the thing to do, as Alan O. points out, is to seek to have the legislature change it, not to say a particular case hasn't been proven when it has.

It's a fairly direct form of jury nullification. We've had jury nullification before in this country, most prominently and memorably when all-white juries in the deep South would not convict a white defendant for a crime against a black victim simply because they believed that ANY punishment given a white person in those circumstances was unacceptable.

This was a disgraceful outcome, and not merely because it was racist. It was also disgraceful because it was dishonest -- a refusal to base the verdict on the facts.

It would be no less disgraceful and no less dishonest if it were to be brought back now.

Posted by: Bill Otis | Jul 27, 2008 6:17:25 PM

As a general rule, I agree with Bill Otis. Juries have not yet earned the right to know the law. That takes years. They are mostly lay people who are inherently stupid. Besides, as Mr. Otis is fond of saying “We are in a time of war.” Therefore, there is no need to really care. Juries are there to convict. Nothing more.

I am a little surprised that the “quoted” constitutional scholar above couldn’t give a better analysis then a bunch of folksy crap.

We always will have “nullification” in this country. After all, any time jurors render a “compromise” verdict it is nullification. At some level, any time a juror disagrees with a prosecutor is a form of “nullification.”

Whatever the case, claiming that an acquittal wasn’t based on the “Facts” is a common refrain of a prosecutor that can’t bother to take responsibility for putting on a good case. The jury is under no obligation to believe ANY of their witnesses. When a prosecutor loses, they need to understand that their witnesses (and they, themselves) are required to EARN the trust of the jury, and they simply did not.

Posted by: S.cotus | Jul 27, 2008 6:28:32 PM


"As a general rule, I agree with Bill Otis."

Knock me down with a feather.

"Juries have not yet earned the right to know the law. That takes years."

It's not a question of "right." It's a question of whether knowing the sentence would pose a risk of deflecting them from basing their verdict solely on the evidence.

"They are mostly lay people who are inherently stupid."

Einstein was a lay person.

"Besides, as Mr. Otis is fond of saying 'We are in a time of war.'”

Most regrettably, we ARE in a time of war, but that has nothing to do with jury nullification, which would have the same flaws in peacetime.

"Therefore, there is no need to really care. Juries are there to convict. Nothing more."

They are there to convict if the government proves every element of the crime beyond a reasonable doubt.

Posted by: Bill Otis | Jul 27, 2008 7:55:24 PM

Why do you bother?

Posted by: Jay | Jul 27, 2008 8:53:23 PM

"Therefore, there is no need to really care. Juries are there to convict. Nothing more."

Well Said Bill

Posted by: Gluttony | Jul 27, 2008 9:31:40 PM


Guilty as charged. It has something to do with my reflex, developed over years as an AUSA,to answer every charge, but I think it's just become addictive. I should try to be more disciplined.

Posted by: Bill Otis | Jul 27, 2008 10:18:08 PM

Every not guilty verdict is based solely on the evidence. The jury just decided not to believe the government’s evidence.

Posted by: S.cotus | Jul 27, 2008 10:23:13 PM

While knowledge about the likely sentence is not relevant to the jury's determination of guilt or innocence, I think this is an unduly narrow understanding of the jury's role in our legal system. The jury represents a check on the state -- a democratic safeguard against the awesome power of government. Seen in that light, surely a jury might better perform its function with knowledge about the likely sentence. One can denigrate this power by calling it nullification (and sometimes it indeed takes that form), but writ broadly, this power is central to the jury function.

Posted by: dm | Jul 28, 2008 1:02:35 AM

Sharp post, S.cotus. . .

Posted by: | Jul 28, 2008 9:15:29 AM

DM said it well. A good deal of the history behind the right to a jury trial indicates that the right is based on the idea that the government should not have complete control over putting people in prison. The jury acts as buffer when the government gets out of hand.
Finally, is S.cotus real or just being sarcastic? I am basing this question on S.cotus's comments in this section and prior comments?

Posted by: Tim Holloway | Jul 28, 2008 9:53:24 AM


I think S.cotus is real but I am not sure about Federalist who reminds me of an old Basic program called ELISA.

Posted by: John Neff | Jul 28, 2008 10:33:36 AM

The problem with this proposal is that the rules of evidence keep lots of information out of view of the jury during the trial.

If the jury is to be told the likely sentence so that they can make a "fully informed" decision, then they should also be told about the defendant's arrest and conviction record, hearsay evidence should be allowed in, the suppression remedy should be reconsidered, and 403 should only apply to prevent wastes of time.

As S. Cotus said, I also "am a little surprised that the “quoted” constitutional scholar above couldn’t give a better analysis then a bunch of folksy crap."

Posted by: | Jul 28, 2008 10:36:01 AM

Hey, I like the idea of giving jurors more information. Let's take it further. How about getting rid of restrictions on the admissibility of defendants' prior convictions? How about wholesale abolition of hearsay restrictions? Or just replacing the entirety of the Federal Rules of Evidence with a single rule that states that all relevant evidence is admissible? Surely only a faux-populist would gainsay the right of jurors to be informed of every fact relevant to the case at hand.

Posted by: NYC J.D. | Jul 28, 2008 10:48:59 AM

Alas, I see that this idea is gaining in popularity so quickly that "|" already beat me to it.

Posted by: NYC J.D. | Jul 28, 2008 10:50:53 AM

Something like this may absolutely be important in "Three Strikes" cases where a petty theft crime or some other charge could to decades in prison. It is most likely rare that a jury understands how long they may be sending an accused citizen to jail for in a third strike case. If they were more aware, they may be able to make a different decision and help the justice system reform this practice.

Posted by: JT | Jul 28, 2008 11:04:30 AM

I'm a defense attorney, and I can say that I wholeheartly agree with those who feel that juries should not know the potential (or mandatory) punishments faced by defendants who go to trial. The last thing I need is a juror thinking (in a case unlike the one discussed, but probably much more common), "well, maybe he did or didn't do it. But the punishment isn't that much so I'll err on the side of caution and convict."). Sure, it would be nice as a practical matter to be able to argue against some draconian mandatory sentences like this one. But I think some defense attorneys might be surprised at how often the jury would go along with it anyway. Plus, it's just not the proper role for the jury to consider punishment.

Posted by: Anon | Jul 28, 2008 11:06:36 AM

The problem as I see it is that a jury may lower the standard of proof where the defendant is facing a short sentance, which would be totally unacceptable. Maybe it should be left up to the defendant, if they want the jury to know the range of sentencing, the jury finds out, otherwise it isn't disclosed.

Posted by: Monty | Jul 28, 2008 11:08:18 AM

The case for advising a jury about the penalty is strongest when the judge is required to impose mandatory minimum penalty. In enacting such provision, Congress in effect imposes a minimm punishment in every case regardless of the circumstances of the crime and regardless of the background of the person who is convicted. In so doing, Congress impinges upon the traditional judicial function of sentencing as well as the jury's function of applying the law to the facts of the individual case before it. If Congress can do this, I see nothing wrong (and much good)in giving the jury information about the true impact of their verdict.

If Congess speaks for society at large, the jury speaks to the individual before Congess also impinges upon the jury's , and its implicit power of nullification.

Posted by: Michael R. Levine | Jul 28, 2008 11:42:42 AM

Sorry for typos in last message. It's too early for me. Please strike the last sentence beginning "If Congress...."

Posted by: Michael R. Levine | Jul 28, 2008 11:46:12 AM

I agree with Monty that I would hate to have BOP diluted. But the situation descirbed by JT may be more common than just three-strikes. I have experieced juries who are under a sort of pop-culture misunderstanding that "everyone gets a slap on the wrist" or "everyone gets probation." I had a client convicted of a first-time assault-type charge in a jurisdiction with pretty harsh sentencing. Juror told me afterward that she was sort of on the fence on guilt, but thought client would get probation so she voted to convict. When I told the juror that, because state alleged my client had a knife, it was a mandatory minimum 7 years in prison, no chance for probation, blood sort of drained from juror's face. So if default is that juries think that clients always get a light sentence and automatically dilute BOP, letting juries know about harsh sentencing realities might actually help restore BOP.

Posted by: Randall Hodgkinson | Jul 28, 2008 11:48:54 AM

Setting aside Mr. Otis’ constant barrage of insult that claim to be legal analysis, I have a suggestion:

Why not allow juries to overrule a sentencing at the option of the defendant? The jury would render its verdict on guilt. Then, a few months later they would come back and be presented with the entire record. The jury could then determine whether they wanted to revisit their “guilt” verdict. The government, of course, would have to justify its sentence. The government could use prior convictions, hearsay, and all the unreliable crap the government thinks counts for “truth” in this day and age.

This way, everyone gets what they want.

1) The government gets to send people to jail;

2) Defendants get to inform the jury of their actual sentence, not just their possible sentence; and

3) Juries don’t get blindsided by a government that correctly thinks that their brains are just too retarded to know what sentence someone will get.

Posted by: S.cotus | Jul 28, 2008 12:05:05 PM

The problem with this idea, as Alan O. and Monty have already pointed out, is that you always want them to turn out your way and not the other guys. A felony conviction is a felony conviction that can seriously mess up your life even if the criminal sentence is probation. I think it is realistic to fear that juries will be more likely to convict if they know the sentence is light and less likely to convict if they know the sentence is harsh. While this may be fine to those who wish sentences would be less harsh, it would be a disaster for those for are actually innocent but the jury is to lazy to take the time to puzzle it out because, "no harm no foul".

There are sound policy reasons why our current system is set up the way it is. I wouldn't trifle with it.

Posted by: Daniel | Jul 28, 2008 12:49:55 PM

If I were were to acquit someone based on their knowledge that the sentence upon a verdict of guilty would be disprportionately high (in the jury's opinion), isn't that the very definition of justice? How could someone say that would be an injustice (except the whiny victim, of course).

Posted by: bruce | Jul 28, 2008 12:50:19 PM

Mr. Levine:

"In enacting [mandatory minimums], Congress in effect imposes a minimm punishment in every case regardless of the circumstances of the crime and regardless of the background of the person who is convicted. In so doing, Congress impinges upon the traditional judicial function of sentencing..."

If Congress has intruded on the function of the judicial branch, the way to deal with that is by raising a separation of powers argument on appeal of the sentence. To my knowledge, no federal mandatory minimum sentence has ever been successfully attacked in that way. If you know differently, I'm all ears.

"...as well as the jury's function of applying the law to the facts of the individual case before it."

The jury's traditional function is more specific than your language would indicate. It is to determine whether or not the facts of the case establish that the defendant committed each element of the offense BRD.

"If Congress can do this [enact harsh mandatory minimums], I see nothing wrong (and much good)in giving the jury information about the true impact of their verdict."

What language in the Constitution gives juries in individual cases the authority to override the judgment of Congress as to the parameters of sentencing?

And apart from the absence of precedent approving such a role for the jury, there is the question whether it would be such a good idea in any event.

One jury might think that the mandatory minimum punishment for crime X is excessive. A second might think it's just fine. Should the defendant's fate rest on whether he gets the first jury or the second?

In addition to that, there is the question I suggested yesterday, to wit, what are we to make of the racist or otherwise politically radical jury? There are areas of the country in which civil rights laws are viewed as government oppression against states' rights. In those areas, it has hardly been unheard of, at least in the past, for all-white juries, in the face of incontrovertible evidence of guilt, to refuse to convict white defendants for crimes against black victims simply because the jury views ANY punishment of a white person in such circumstances as being unacceptable.

The problem is that, once the principle of nullification takes root, there is no way to stop or even contain it. A nullification-based acquittal of the worst lynch mob cannot be appealed, because NO acquittal can be appealed.

There may be people ready to live with verdicts produced by the jurors' political opinions instead of their neutral assessment of the evidence. But I am not among them, and I don't know of any judges or legislators who're among them either.

Finally proponents of nullification tend to think that it will be used only in the service of a brand of leniency of which they approve (for example, in drug cases). But that position is both unprincipled and, as an historical matter, incorrect.

Posted by: Bill Otis | Jul 28, 2008 12:55:21 PM

Let me throw this out there:

Point 1: If a “substantive” purpose of justice is deterrence, then we must assume that everyone in society has a general idea of what sentences are available for what crimes. Everyone knows that the penalty for murder is high. The penalty for speeding is low.

Point 2: People make decisions based on this calculus In point #1.

Point 3: Juries can and do consider the credibility of witnesses and the “motivations” of the defendant. So, it can be argued (or a juror can consider on their own) that the defendant wouldn’t do X given the penalties and the marginal reward. While this specific argument probably can’t be made to a jury, variants will make it to a jury.

Therefore: Why not give the jury a bit more knowledge so that it can better understand the motivations of the defendant. A three-time loser actually has LESS incentive to commit minor crimes, because the possible jail time is higher. Of course, these people are poor, and the jury will consider the fact that poor people are just born criminals, anyway. (And the prosecutor will attempt to lead them into that conclusion.)

And a specific comment.

>>A felony conviction is a felony conviction that can seriously mess up your life even if the criminal sentence is probation.

Not always. In some states it can be later reduced or expunged. But why shouldn’t a jury know that they are going to ruin someone’s life. Everyone else in the room knows what is at issue.

Posted by: S.cotus | Jul 28, 2008 1:05:20 PM

This law is a fair response to injustices created by mandatory minimum sentences.

I would advise anyone interested in this issue to read Judge Weinstein's historical overview of nullification in US v. Polizzi. Among other points, Weinstein demonstrates that juries have historically served as more than a mere fact-finding body, but also as a check on prosecutors and the state.

In cases where unjust mandatory punishment would automatically follow a finding of guilt, juries should be entitled to take this into account before returning a verdict. (In bench trials, judges are surely aware of the consequences of their verdicts - why the should the jury be in a different position?)

I am not convinced by Bill's counterexample of racist juries in the South. The issue in those cases was not punishment, but guilt. Unless he proposes to somehow completely the power of jury nullification, I don't see how this problem could be eliminated. Nor do I see why some instances of jury nullification in instances where it would lead to an unjust result necessarily means that jury nullification is itself inherently bad (anymore than instances where mandatory minimums lead to unjust punishment necessarily means that punishment itself is bad).

If this law nevertheless seems "unfair," I would propose a compromise. After returning a verdict of guilty, the jury would be empowered to decide whether or not to apply the mandatory minimum.

Posted by: rn | Jul 28, 2008 1:54:01 PM

I'm all for jury nullification. I think defense attorneys should be able to affirmatively argue for it. But I don't think it should be able to be based on the sentence the defendant faces. The two concepts (nullification and knowing the sentence) are entirely separate to me.

Posted by: Anon | Jul 28, 2008 4:32:12 PM

Bill, I'm not buying your analogy to Southern racist juries. The issue in those cases wasn't the length of the sentence but whether the defendants deserved any punishment at all. If there's a class of people that the community simply doesn't want to punish, then it will nullify regardless of whether it's told the minimum sentence, and for that matter regardless of whether it's told anything else.

The kind of nullification at issue here strikes me as much more like what happened in Britain during the Bloody Code era, in the late 18th and early 19th centuries. Juries during that period would frequently hand up "partial verdicts" finding the defendant guilty of a non-capital offense. For instance, if the defendant was charged with theft in a dwelling house or theft of goods worth 40 shillings, both of which were punishable by death, the jury might find him "guilty, but not in the dwelling house" or "guilty to the value of 39 shillings." Defendants given such mercy were usually transported or, after the Navigation Acts, imprisoned for a few years in the Thames hulks.

Note that these nullifications very rarely took the form of outright acquittals. Instead, they were nuanced judgments as to punishment. The juries believed that the defendants had done wrong, and thus didn't acquit, but that they also didn't deserve to hang, and thus convicted of a lesser included offense rather than a capital felony.

I've seen similar things happen in contemporary drug cases. In one recent case I know of, the jury was asked to choose whether the defendants were guilty of trafficking 0 to 500 grams of cocaine, 500 grams to 5 kilograms, or more than 5 kilograms. They convicted each defendant of trafficking 500 grams even though the evidence showed at least a 50-kilogram conspiracy. I'm not privy to the deliberations, but I'd guess that they had a pretty good idea that 500 grams carried a lower mandatory minimum. They may well have decided that the defendants were mostly lower-level guys (the kingpin cooperated) and that the government witnesses were real scumbags, so a 5-kilogram sentence wasn't warranted.

I have no particular problem with this kind of nullification - if the jury is to act as conscience of the community, then it should have at least some discretion as to punishment as well as guilt. And yes, I realize that the jurors' discretion won't always go in favor of my clients. I can live with that - not all of them deserve mercy.

Posted by: Jonathan Edelstein | Jul 28, 2008 9:01:15 PM

Why not just let juries continue to choose verdicts the way they select candidates--based on how they feel about them. That seems to be working quite well.

Posted by: Tosh Dawson | Jul 28, 2008 9:54:53 PM

So, let me get this straight:

Jury nullification is bad.
Prosecutorial discretion is good.

Is perfectly okay for a prosecutor to pick and choose what to prosecute and how. He can decide not to prosecute entire classes of crime based on completely racist or sexist judgments. His decision NOT to prosecute is not subject to any judicial review. This is prosecutorial discretion and prosecutors prattle on and on in panel discussion about how wonderful it is. (I am not saying that it is a bad thing, I am saying that they overstate their case.)

It gets worse. He can even decide that the legislature made a bad decision in enacting a law. Some prosecutors will simply refuse to prosecute certain drug crimes, especially when the amounts of drugs are low and the defendant is employed. After all, nobody wants to send employed drug-users to jail. Sending poor people to jail (for any reason – legitimate or not) is a always a good thing. One more poor person in jail is one less poor person in the street.

Yet, somehow when juries do things that people don’t like 1) they are assumed to have simply disregarded the evidence (as opposed to considering the evidence and rejecting the government’s case because it just wasn’t credible); and 2) any acquittal is called an improper “nullification” because it was done by a jury and not a prosecutor.

So, why is a jury nullifying something more legitimate than a prosecutor refusing to prosecute it?

Tosh, Juries do that now. The trick is that they can’t tell you that is what they did.

The other thing that I find really strange about this debate is the people that whine the most about “nullification” whine the most about acquittals, too. They simply don’t get the fact that a jury might not believe the government’s witnesses. This isn’t a reflection on the jury, but rather on the skill of the lawyer. The prosecutor is at fault.

Posted by: S.cotus | Jul 30, 2008 5:40:50 PM

S.cotus et al, I was being sarcastic. Juries and voters scare me more than backyard birthday party clowns.

Posted by: Tosh Dawson | Jul 30, 2008 8:47:12 PM

Why should any jury be kept in the dark about anything in our legal system? That is strange to me. We charge them with a huge responsibility yet we don't tell them everything. The possible punishment should always be considered. A juror could deduct that the punishment does not fit the crime. What other recourse does the general citizen have? A jury can send a message that the law is not correct in regards to the punishment. The court system belongs to the citizens, not the prosecutor, judge, or defense attorny. It's OUR system and everything should be known. A jury could also deduct something is fishy and that a person is getting railroaded. It's common sense. It's obvious in todays world the court room is no place for common sense. I'm sure the people who are not wanting the jury to know this are the same one's who claim only the guilty hide behind the bill or rights. Our own US Supreme court justices have said this is a gross and common misconception. The bill of rights is there to protect the innocent. I really don't think it's possible to get a fair trial at all.

Posted by: Steveis | Sep 26, 2008 7:15:58 PM


Posted by: Slave Labor | Oct 28, 2016 4:01:07 PM

Huh, easy to post. I found this discussion inane. The Bill of Rights enshrines certain populist rights in the Sixth Amendment as part of the social contract between the government and its obedient citizens. The issue is that the United States has started to systematically incarcerate everyone and uses this as a way to extract slave labor, pursuant to the qualifications against said enslavement in the Thirteenth Amendment. Further bureaucratic corruption has created a system that is systemically eradicating the lower classes by decreasing their life expectancy over time. By suffocating millions in the lower classes through obesity and other forms of social murder, capital in society is producing a disposable labor force analogue to Jewish workers in Nazi war and consumer good factories during WWII. The emphasis on procedure is pathos. The jury should know the punishment in order for the United States to correct its course away from being the world's most oppressive police state in the year 2016. Attorneys, as beneficiaries of this system have delusions of "justice" as they cause much more pain and negative neurotransmitter outcomes than the actual criminals themselves. It is interesting that a conversation about the effect of knowledge of sentencing discussing very little about the actual social outcomes of sentencing in a country that puts 750 out of 100,000.00 people in jail at any given time. A discussion about form over function put form over function. The refrain of "put the bad guys away" is so pathetically juvenile it does not merit discussion.

Posted by: Slave Labor | Oct 28, 2016 4:08:26 PM

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