"A Democratic Restraint on Incarceration"

The title of this post is the title of this notable new paper on SSRN authored by Marah Stith McLeod. Here is its abstract:

The sentencing model proposed in this Article employs the democratic voice of the jury to restrain individual injustice and mass incarceration by having the jury establish the maximum term that an individual defendant deserves and by confining judicial sentencing discretion within that upper bound.

Undeserved punishment violates a bedrock principle of justice, yet criminal defendants are often imprisoned without assurance that their deprivation of liberty and exclusion from society is deserved.  Legislatures are under powerful pressures to authorize and even mandate carceral penalties that may exceed individual culpability; prosecutors have strong cost incentives to threaten undeserved penalties in order to induce guilty pleas, and to pursue them if defendants refuse to plead guilty; and judges face like institutional pressures to sentence defendants more harshly if they insist on trial.

In a liberal democracy, the people should share responsibility for ensuring that prison sentences imposed in their name are deserved and therefore morally just.  Moreover, lay juries, who can speak for the community, are better suited to this moral task than judicial insiders or outside experts.

Juries, therefore, should decide the maximum amount of incarceration, if any, that the defendant deserves. Constrained by this jury-set maximum, the sentencing court would then select a final penalty based on statutory sentencing goals, including the utilitarian aims of deterrence, incapacitation, and rehabilitation.  No prison term could be imposed that the jury had deemed undeserved.  Even legislatively-mandated minimums should be subject to jury override in order to avoid unjust incarceration.

This proposal would operationalize a widely endorsed sentencing paradigm often called “limiting retributivism.” Blending lay normative sense and judicial expertise, this hybrid model would enable juries to perceive and prevent carceral excesses.  It would also diminish plea-bargaining injustice, for prosecutors could no longer induce guilty pleas by threatening penalties that no reasonable jury would deem deserved.