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September 17, 2021

Making the important (but insufficient) claim that jurors should "know what the penalties for a guilty verdict will be"

A couple of month ago, I flagged here the notable new article by Daniel Epps and William Ortman titled "The Informed Jury."  I was pleased to see that this week Epps and Ortman brought their work to the pages of the Washington Post via this notable commentary under the headline "Jurors don’t know what the penalties for a guilty verdict will be. They should."  Here are some extended excerpts (with a bit of commentary to follow):

The American criminal justice system asks jurors to do something extraordinary: They make decisions that have enormous consequences for their fellow citizens’ lives — depriving them of freedom for decades, for example — without knowing those consequences in advance.  That’s because most American jurisdictions follow a rule of jury ignorance, meaning that neither judges nor lawyers may tell jurors what punishment a defendant could receive if convicted....

Keeping juries ignorant, however, exacerbates one of the U.S. criminal justice system’s worst tendencies — its inclination to grow more punitive.  Evidence from both history and social scientific experiments suggest that jurors are less likely to convict if they know a defendant’s punishment could be extremely harsh.  The rule of jury ignorance eliminates an important check on the system.  If politicians thought juries would be less likely to convict when a sentence was severe, for instance, they would be less likely to pass draconian laws.

Replacing ignorant juries with informed ones therefore could be an important criminal justice reform.  As a general rule, then, we propose that judges should tell jurors the range of sentences, including the statutory maximum and any mandatory minimums, that a defendant would face upon conviction. (We make the case in a forthcoming article in the Vanderbilt Law Review.)...

The argument that juries should be informed about sentences should appeal to both liberal and conservative justices of an “originalist” bent — with liberals focusing on how such a reform would democratize the criminal justice system, and originalists focusing on the fact that the ignorant jury lacks a solid historical foundation.

Indeed, juries informed about punishment were quite familiar to the founding generation.  In the 18th century, both in Britain and its American colonies, jurors understood that by finding a defendant guilty of a less serious crime (“libidinous actions,” say) instead of a more serious one (adultery), they could spare them from a death sentence.  Often they did exactly that, even when it was obvious to all that the defendant was guilty of the more serious offense.  It was only in the 19th century — when prisons and incarceration replaced the death penalty as the leading form of criminal punishment — that judges undermined jurors’ opportunity to shape punishment by shielding them from any knowledge of it....

Under our proposal, jurors would know about the punishments that await defendants on the other side of a guilty verdict: Judges would spell out the minimum and maximum sentences as part of their instructions to the jury.... In rare cases, juries would acquit even clearly guilty defendants where they saw the punishment as unjust.

But the transformative potential of informed juries goes beyond what they’d do in individual cases. Informing juries about punishment would alter the incentives for three key actors in criminal justice: Defendants might be more willing to roll the dice at trial (counting on juries to see the unfairness of sentences); prosecutors might think twice before “overcharging” (to avoid losing more cases); and lawmakers might hesitate before enacting severe penalties (after seeing the preceding developments). Informed juries could not single-handedly end mass incarceration or racial disparities, but they could be a step in the right direction....

Informed juries would also be more democratic juries; we’d effectively be asking a group of citizens to authorize a punishment before a judge could impose it. While most criminal laws are enacted at the state or national level, criminal juries are typically drawn more locally, from cities or counties.  Even when members of the communities impacted the most by punitive criminal justice are shut out of decision-making by lawmakers, they can still have a powerful impact in the jury room — if they have the relevant information on which to act.  Such juries would also better honor the spirit of the Constitution’s guarantee of a jury trial than the juries we have today.  Criminal juries were intended by the founders to be powerful checks on state power over criminal punishment; they weren’t supposed to just be narrow fact-finders.

How to bring this reform about?  Legislatures could direct courts to inform jurors about sentencing. Or courts could, on their own accord, reverse the wrong turn they made on juries more than a century ago. (Several federal court judges have expressed frustration over jury ignorance in recent years.)  By giving jurors the important power to determine the fate of those accused of crime, our system places a tremendous amount of trust in the judgment of ordinary people. We should trust juries with information that is critical to their making the soundest, most just decisions possible.

Long-time readers will not be surprised that I support this proposal.  Ever since being deeply moved by Justice Stevens' opinion in Apprendi and Justice Scalia's opinion in Blakely, I have been a avid supporter of having juries play a greater role in our criminal justice systems. (I even wrote an article some years ago making an originalist (and modern) argument that juries should be involved in federal habeas decision-making.) 

But I do not think it is enough to just have juries informed about sentencing possibilities, I think they should also have a direct role in sentencing decision-making.  Specifically, in order to better advance many of the sound goals that Epps and Ortman champion, I think citizen jurors, at least in the federal system, should be authorized and encouraged to provide sentencing advice to federal judges somewhat akin to how the federal sentencing guidelines now provide sentencing advice to federal judges.  That is, I would like to see citizen jurors provide a suggested sentencing range to federal judges, but that range would be advisory and serve as just one factor for the sentencing judge's consideration along with the other 3553(a) factors. 

Problematically, because roughly 95% of all criminal cases are resolved by pleas, informing jurors at a traditional trial only impacts a handful of cases.  I think Epps and Ortman are right that all other other actors in our criminal justice system will be impacted by informed jurors, but I am not sure the impact will always be significant (or positive).  But my vision of advisory federal sentencing juries includes the possibility of making them available in all cases even if the defendant chooses to accept guilt and plead guilty.  Of course, the parties could still bargain around these juries (just as now parties can sometimes bargain around the federal sentencing guidelines), but I suspect in a lot of challenging and important cases some or all of the parties would see the benefit of citizen juror involvement in making a suggested sentencing recommendation.

September 17, 2021 at 11:34 AM | Permalink


I saw this referenced on Twitter and the thread had (mostly) people support the idea of jurors being so informed.

One law professor strongly disagreed as did a few other people.

I have mixed feelings about the idea and think it is reasonable to have the jurors only focused on the (rather important) factual issue.

Now, I'm open to the idea and in the civil context jurors regularly have a role in setting the damages.

But, jurors already are a "check" -- in grand jury systems, they have the power not to indict. In petit juries, they have the power not to convict. And, I think the average juror realizes at the very least that people are liable for serious time when convicted of felonies.

I think jurors already have a lot on their plate and can be schooled on playing a more educated role in the fact portion. For instance, possibly they can be allowed to ask questions [when I was on one jury, there was a significant thing left out; maybe for reasons we couldn't be told, but I would have asked about it] or take notes.

I'm not sure how much more they should be given tasks here. Again, I'm OPEN to the idea.

Posted by: Joe | Sep 17, 2021 5:34:04 PM

This seems pretty weak to me.

Just as a general matter, I find originalist arguments underwhelming. This one is no exception. For example: "juries informed about punishment were quite familiar to the founding generation." I mean great, so what? Were they actually formally instructed on potential sentences or were did they just happen to be aware of that as part of their everyday knowledge? It's not stated in the excerpt, but just from the wording of the sentence I take it to be the latter. Were it the former, I'd expect to see some oddball argument—not present here—that the jury trial right actually includes a right to a jury informed of punishments. So at most people on juries back then happened to know the punishments coming into it. Not surprising really. I'm no legal historian, but I think there weren't as many crimes back then, people were more aware of such things, and numerous felonies all carried the death penalty as opposed to the different gradations we see nowadays.

Moving on past originalism now. "such a reform would democratize the criminal justice system" / "Informed juries would also be more democratic juries" — huh? Given all the secrecy around deliberations etc., juries are already a black box when it comes to just guilt/acquittal. Likewise, it can be very hard to ferret out and address the various kinds of juror misconduct. Add to that all the influence that the prosecution and defense have on jury selection. It's not particularly democratic or transparent in the first place. So I'm sort of unsure how throwing sentencing into the mix makes things any more democratic. Rather, it seems like doing that would just make the whole process more opaque.

Last one. "If politicians thought juries would be less likely to convict when a sentence was severe, for instance, they would be less likely to pass draconian laws." — sorry, that's just embarrassingly incoherent and silly. No offense, but only a law prof could ever produce an absurd claim like that. And it ties back nicely to the previous point about democratic processes. Somehow a random group of unelected people with no accountability deliberating entirely in secret is more democratic than an actual legislature? Spare me. If constituents don't want "draconian laws" they have existing tools at hand. For example, you know, engaging with their representatives like people normally do in democracies.

It probably goes without saying, but I also agree with much of what Joe wrote.

Posted by: kotodama | Sep 17, 2021 11:24:16 PM

It is my understanding that some juries already have a role in sentencing (put aside capital cases).

That would be an interesting thing to examine.

Posted by: Joe | Sep 18, 2021 12:00:41 AM

I don't know about other cases, but yes, juries are already involved with DP. That said, I'm not sure having juries in DP cases is even that helpful—where the definition of "helpful" might be up for debate, but to me at least means avoids some injustices and leans a bit sympathetic to defendants. I'd have to see the data on that.

Again, I'm not totally opposed in principle to juries at least having some input on non-DP sentencing. Juries in civil cases obviously make determinations beyond just the pure binary one for liability. For example, in patent cases (which I'm more familiar with, but certainly many others too), you get a jury number on damages. In my experience though, they tend not to arrive at an independent calculation. They just pick between one of two numbers spoon-fed to them by the experts.

Doing the same in criminal cases seems to me a lot more complex and riskier. For one, obviously, someone's liberty is at stake, not just dollars and cents. Another thing is, while at least even for DP juries it's still just a binary choice, outside that you have all sorts of permutations. The amount of jail time for sure, but also probation, conditions of probation, suspended sentences, community service, etc. etc. If, even when it's only damages, juries will just pick whichever number sounds good—or occasionally split the baby—why expect them to do anything different when confronted with competing proposals from the prosecution and defense?

Plus, if the idea is to benefit defendants, it may backfire. As I understand it, appealing a sentence from a judge is hard enough already. If the sentence comes from a jury instead, presumably it would carry additional deference.

Also, juries have all kinds of problems to begin with just in the liability context, so maybe let's fix those first before moving on to punishment.

Again, I'm not opposed in principle to the advisory jury concept Prof. B. proposes, with all the accompanying caveats of course. I guess I just wonder how much difference it would make. But if it's available and the parties are cool with it, sure why not.

In the end, I think some decent arguments could be made for jury input to sentencing, but as I said, the paper seemed to be lacking that. I discerned two strands of argument. As I said, one was originalism, which might be convincing for some, but it never works on me. The other was more along the lines of One Weird Trick/heighten the contradictions. I don't think that even passes the laugh test.

Posted by: kotodama | Sep 18, 2021 11:22:43 AM

Just an interesting note - At trial for a nonviolent marijuana offender a contingent of RCMP's from Canada came to testify. The defendant received a sentence of life without parole. Fifteen years later I received a message from the head of the RCMP team. He was surprised that the defendant was still in prison and had no idea that a sentence like that could be given. I'm know many jurors feel the same.

Posted by: beth curtis | Sep 18, 2021 12:15:16 PM

I appreciate kotodama's comments.

I also am sure juries would be surprised in some cases, but they would be surprised about appeals overturning their decision and a slew of matters. Jurors have a specific job to do & it's hard enough. There are ways to address that before adding more to it.

I also am not surprised if people from other countries are surprised at our excessive penalty system.

To be clear, I have heard lawyers say that certain non-capital criminal juries are involved in sentencing.

As to capital juries, the Stevens/Breyer argument is that an execution particularly warrants a result that reflects the community. The jury is argued to be better there than a judge. In at least some states, at least, it also results in less death penalties applied.

I also am inclined (as a theoretical matter as compared to the law specifically now) to think the death penalty is a special penalty that when applied basically is a judgment call that is at least partially a factual call that makes the jury deciding appropriate.

I realize that you can make an across the board argument there, but I think that goes too far. I oppose the death penalty, but if you are going to apply it, it is a moral call that is best done by a jury as a reflection of the community. As a rule as applied to the mass of the criminal justice system, that is a lot more complicated.

Something like LWOP can be close enough. I'm sure that is all debatable but it factors into my thinking.

Posted by: Joe | Sep 18, 2021 12:57:27 PM

Off topic, my state senator (Sen. Alessandra Biaggi) in NY has pushed for various criminal justice reforms, including dealing with solitary confinement. I also see this among the stuff my new governor did:

"Gov. Kathy Hochul on Friday ordered the release of nearly 200 detainees from New York City’s Rikers Island jail complex, underscoring the growing alarm about violence and unbridled disorder at the notorious facility."


More will be transferred, but the article notes that a lot of problems still remains. Noting the wide reach of criminal justice:

"Only 36 percent of detainees and 37 percent of the Correction Department’s staff are fully vaccinated, according to city data."

COVID is in part a criminal justice matter. Actions addressing it helps criminal justice.

Posted by: Joe | Sep 18, 2021 1:08:22 PM

If folks are interested in some (now dated) accounts of state jury sentencing experiences, Nancy King has a number of great papers from a little less than 20 years ago. Here are two:

Prof King is a bit pessimistic about the state jury sentencing experience, though I think it has rarely been well structured in the states AND non-capital jury sentencing circa 2000 is likely different than jury sentencing circa 2021 (just as we have seen with capital jury sentencing in modern times looking quite different than it did two decades ago).

Posted by: Douglas A Berman | Sep 18, 2021 7:26:33 PM

A related issue that I find troubling is that the Government frequently uses the statements of co-defendants to increase drug quantity or other sentencing evidence, but the defendant and his attorney sometimes do not have an opportunity to confront and cross-examine these witnesses at sentencing hearing, because the Constitutional right to confront and cross-examine ends at trial and does not continue to sentencing hearings. I have seen several defendants who ended up with very long Federal drug sentences, where the defendants says the witness was lying to curry the Government's favor in their own case, but they couldn't confront or cross examine that evidence against them.

Posted by: Jim Gormley | Sep 19, 2021 9:36:17 AM

Prof. B., appreciate the reading material suggestions. Both of those papers are quite bulky—oof!—but maybe one of these days I'll work up the determination to at least skim them.

Posted by: kotodama | Sep 21, 2021 11:46:57 PM

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