« NY Times editorial advocates (long overdue) federal crack sentencing reform | Main | Washington state following Ohio's lead to adopt a one-drug lethal injection protocol »

March 3, 2010

"Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction"

The title of this post is the title of this new piece on SSRN by Jeffrey Bellin.  Here is the abstract:

The American jury, once heralded as “the great corrective of law in its actual administration,” has suffered numerous setbacks in the modern era.  As a result, jurors have largely become bystanders in a criminal justice system that relies on increasingly severe punishments to incarcerate tens of thousands of offenders each year.  The American criminal justice system disposes of most cases short of trial and increasingly casts the jurors’ trial task as one of almost menial factfinding.  The jury is instructed to find the facts necessary for legal guilt, and suppress any concerns about whether a conviction and subsequent punishment is unjust.

Coupled with the proliferation of harsh, mandatory sentencing regimes, this gradual erosion of the jury’s role has led to a system that not only tolerates, but arguably encourages, injustice.  A defendant charged with a relatively minor offense may be convicted and sentenced to a lengthy prison term without any neutral figure (either judge or jury) determining that the punishment is proportionate to the crime.

For years, reformers have suggested that this recipe for inequity could be altered if jurors were informed whenever an unusually severe punishment would follow upon a guilty verdict.  The jurors, applying community notions of fairness and justice, could then vote to acquit despite proof of guilt, or at least steadfastly hold the prosecution to its burden of proof.  Specifically, reformers attack the status quo on two separate fronts, advocating that: (i) legislatures enact statutes designed to inform juries of unusually harsh sentencing provisions, and their right to nullify; and (ii) courts recognize constitutional rights that would have a similar effect. There are few signs of movement on either of these fronts.

Central to the reformers arguments has been the widely-shared assumption that the current legal framework does not permit defendants to inform juries of pertinent sentencing provisions. This Article challenges that assumption, suggesting a theory of relevance that could permit a significant number of defendants to present applicable sentencing provisions at trial, without any change to existing statutory or constitutional law.  The admission of such evidence would have implications beyond the trials directly affected.  The widespread introduction of punishment evidence, in concert with juries’ likely adverse reaction to that evidence, could alter the terms of the smoldering political debate concerning this nation’s harsh sentencing laws and the appropriate role of juries in enabling their application.

March 3, 2010 at 09:22 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction":


There is a 19th century Supreme Court case that indicates that the punishment for the crime should be an essential element of the crime sought to be charged, and must be set forth in the indictment to pass Constitutional muster. Nevertheless, in the last 60 years, Courts have ignored that opinion and taken the position that the jury should not be made aware of the potential punishment faced by the defendant, and that the jury's role is limited to determining guilt or innocence; sentencing is purely the province of the Judge. This idea offfends most Americans, who thing that part of being Judged by ones peers should mean that the jury has input on sentencing as well as guilt.

Posted by: Jim Gormley | Mar 3, 2010 10:03:50 AM


What's the cite for the 19th Century case? This is an issue I'm highly interested in.

Posted by: Webb Wassmer | Mar 3, 2010 10:32:25 AM

Jim your post made me think of the laughable situation of a judge telling a jury that sentencing is the sole province of the judge and then dishing out a 10 year mand min because "the legislature told me I have to."
(the defendant probably did not find this amusing)

Posted by: KRG def attny | Mar 3, 2010 10:48:42 AM

I would love to see this for crimes that land defendants on the sex offender list. A jury might think twice before convicting someone of public urination, or having consensual sex with a girlfriend four years younger.

Posted by: Res ipsa | Mar 3, 2010 11:49:46 AM

What juries? If 91% of cases are disposed of by pleas, and of the remaining 9% over half (5 percentage points) are bench trials, that leaves 4% of all cases going before juries. Sure, allowing jurors to hear about the sentencing implications may change the shadow in which plea bargains are hammered out, but at this point I don't think there is any empirical evidence on how strong that shadow is.

Skimming the paper, the author acknowledges this stat, but then doesn't seem to do anything with it, which seems like a significant flaw. But like I said, I just glanced at the paper.

Posted by: John Pfaff | Mar 3, 2010 1:46:27 PM

"Jurors, applying community notions of fairness and justice, could then vote to acquit despite proof of guilt."

Jury nullification is not the democratic or responsible way of dealing with mandatory minimum sentences.

One needs look no further than the current chaos in the civil jury system, where juries routinely impose wild punitive damage awards untethered to reality, for insight into what giving criminal court juries nullification power might bring.

We need a coherent, democratic, system of justice-not one subject to the whims of individual juries.

Posted by: mjs | Mar 3, 2010 2:12:40 PM

I have set forth before the arguments against nullification, and won't do so again here. I will, however, ask this of those sponsoring a greater role for the jury in assessing what is a "fair outcome."

What if the jury reasonably thinks the defendant is a bad man, or a dangerous man, and should be in jail notwithstanding that the government's evidence falls a tad short of proof BRD? Should the newly-empowered "fairness determining" jury then convict? If not, why not? If the jury is really there, not to assess the facts (absurdly dismissed by the author as "menial"), but to reach an outcome reflecting the community view of justice, why should only convictions be at risk? Why doesn't the community's view of justice work both ways?

I strongly suspect that those calling for a greater role for the jury take that stance ONLY so long as it works to produce the substantive outcome they want, i.e., that a factually guilty defendant walks. If it produces the mirror image, i.e., that a factually innocent defendant (or at least a not-proven-guilty defendant) gets imprisoned, then I suspect there would be a very different view of the expanded role proposed for the jury.

What's sauce for the goose, as they say. If you want juries to reflect their subjective assessment of a fair outcome instead of their factual determination of whether the defendant was proven to have done it, then be ready to buy the package even if, every so often, what you find inside isn't what you expected.

Posted by: Bill Otis | Mar 3, 2010 2:56:17 PM

Bill. I think that's an intelligent comment but one that misses the point. The evisceration of the jury's role has not been driven by a good/bad mechanic. Rather, it has been driven by the perceived need to tone down the randomness of juries as MJS comment demonstrates. The problem is that no one can agree on the proper methodology to produce a coherent system of justice. If nothing else, the SC oral argument in McDonald demonstrated that decisively.

The irony is that we haven't actually made the system any less random. We've shifted the randomness around so that now instead of crying about out of control juries we fight endlessly over procedural details. Our law has become even more obtuse and obscure than the famous religious discussion over how many spiritual beings can dance on the head of a pin.

My reply is simple. We should accept the notion that it's impossible for modern societies to administrator a system of justice. Random juries may not be the ideal but they are far more honest and a lot less arrogant.

Posted by: Daniel | Mar 3, 2010 3:48:19 PM

bill i think you miss the point. in the beginning juries had two duties.

first did the defendant comit the crime!

second was the law the defendant violate FAIR and REASONABLE

if BOTH were yes then you convict!

if he/she didn't comit the crime according to the jury you found them not guilty

IF they did and you also found the law the NOT FAIR or REASONABLE....you found them NOT-GUILTY

that was setup to be the FINAL check on the govt!

too many cases tossed by a jury of somoeone accused of violating a specific law meant there was MORE THAN LIKELY something WRONG WITH THE LAW and it was time to look at it again.

Posted by: rodsmith3510 | Mar 4, 2010 11:22:53 AM

rodsmith3510 --

Suppose a Mississippi jury in 1955 found that a white man did indeed intentionally and maliciously kill a black man, but that is was, as you put it, not fair or reasonable to punish whites for crimes against "inferior" beings. Under your theory, an acquittal would have been proper. And with all respect, that's all that needs saying about the theory.

Posted by: Bill Otis | Mar 4, 2010 4:24:34 PM


Perhaps rodsmith3510 is referring to something that was discussed in the first week of my criminal law class: how early juries in England would often nullify some of the dozens of felonies that would have resulted in an automatic death sentence. Those juries knew exactly what the punishment would be and might have decided that it would be unfair or unreasonable to sentence their neighbor to death for stealing a chicken.

Posted by: Shawn | Mar 4, 2010 6:32:52 PM

that's it exactly shawn. murder is murder i dont' care who does it to who. i'm sure most juries setup fairly would thing the same.

we are talking idiot laws that MAKE criminals where none existed before.

where the only victim is a so-called society that wouldn't even have noticed if the DA wasnt' screaming!

as for you idiotic sample from 1955 sorry that's not that same thing and you well know it. what was happening then was a criime that was being aided by the govt in those areas themselves. If the fault lied with anyone it would be the state and if necessary the federal govt who lacked the guts to come in and clean house.

Posted by: rodsmith3510 | Mar 4, 2010 7:37:41 PM

The logical extension of the decision in Jones v. U.S. and then the Apprendi v. New Jersey case, would be that a fact which pertains to a sentence should be charged in the indictment, presented to the jury at trial and found beyond a reasonable doubt. This is predicated on the Due Process Clause of the Fifth Amdt. (federal cases) and Due Process Clause of the Fourteenth Amendment (state cases) taken together with the notice and jury trial provisions of the Sixth Amdt.

I believe that this discussion should include consideration of the fine language of the Jones case.
Juries should sentence and juries should find the facts upon which a sentence is predicated. The Supreme Court has the obligation to not only reign in Congress and its sentencing commission, but the judicial branch and the usurpation of the jury function.

Posted by: Mpb | Mar 5, 2010 7:04:50 AM

Shawn --

I agree that there was a credible case for jury nullificaiton 250 years ago in England. But present day America is a different world, as you surely know. The main difference is that the will and sensibilities of the people are far better reflected in American legislatures than they were in the Parlaiment of yore. This because, in present day America, the franchise has expanded enormously, to the point where eligibility to vote now extends to essentially the entire adult population. Women are no longer excluded (indeed they are now a slightly greater share of the electorate than men); non-land owners are no longer excluded; the population between 18-21 is no longer excluded; and minorities are no longer excluded.

With present day legislatures vastly more democratic than 1700's Parlaiment, there is a vastly less persuasive argument for allowing juries (which because of their small size can be wildly idiosyncratic) to assume the legislative role of "voice of the people."

Posted by: Bill Otis | Mar 5, 2010 4:55:05 PM

hey bill! beeep beep beep beep! that's your location beacon so you can come back from the twiligh zone!

sorry last time i looked the idiots running our govt are so far REMOVED from the otehr 99.999999999999% of the citizens here they have no clue what is happening.

Posted by: rodsmith | Mar 7, 2010 2:57:56 PM

Where can I go on the web or how can I find a consistent and updated
history of which acts/bands have sold out in which cities? I am
looking for a comprehensive view on popular bands in the US that
regulary sell out their shows and when and where they do the best.
Possibly in chart form or something to that effect.

Posted by: generic propecia | Apr 23, 2010 5:30:23 PM

Incapacitation is a justification of punishment that refers to when the offender’s ability to commit further offenses is removed. This is a forward-looking justification of punishment that views the future reductions in re-offending as sufficient justification for the punishment.

Posted by: buy generic viagra | Apr 27, 2010 4:15:11 PM

Thanks! Great Blog! Very useful information!

Thanks again!

I’m glad to see this post.

Thank you guys!

Posted by: חלקי חילוף לרכב במרכז | Jan 3, 2011 8:19:11 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB