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September 4, 2023

Guest post: "A plea for juries — at sentencing"

6a00d83451574769e202788010ea87200d-320wiI am very pleased to have the opportunity to publish this guest post from Marah Stith McLeod, who is a Associate Professor at Notre Dame Law School and the authors of a number of great sentencing articles.  I am grateful to be able to platform here a brief account of her latest article, "A Democratic Restraint on Incarceration" (which I first flagged in this post):

Several recent postings on this blog have focused on the value of juries as organs of democratic self-governance. Americans retain an abiding trust in juries as legitimate decisionmakers — far higher than the trust they place in judges, prosecutors, and defense attorneys. Serving on a jury, moreover, tends to increase the jurors’ understanding of, and trust in, the criminal justice system, and tends to make jurors afterward more likely to participate in civic life. 

We have in recent years witnessed significant challenges to American democratic institutions and a loss of confidence in the competence and ethics of our elected leaders.  In a recent guest essay in the New York Times, Wharton organizational psychologist Adam Grant argued that if we want more effective and ethical leaders, we should choose them not by election but by sortition — by random selection from a pool of candidates.  Grant proposes a system in which laypeople who pass a civics test can join the candidate pool.

We should take Grant’s proposal seriously.  Fortunately, as Grant observes, “we already use a version of a lottery to select jurors,” and criminal juries have historically played crucial roles in promoting a just and flourishing civil society. Justice Sonia Sotomayor recently described juries as “democratic institutions called upon to represent the community as ‘a bulwark between the State and the accused.’”  When it comes to reforming our criminal justice system, juries may be exactly the kind of democratic institution we need most.

Juries’ current role as finders of fact, however, is not enough.  Juries also should have the power to limit penalties — especially the decision to strip a defendant of his liberty and suspend his civic existence.  Elected politicians may be voted out of office if they vote to reduce criminal penalties, and judges have powerful incentives to maintain a trial penalty in order to induce future defendants to plead guilty.  The jury is free of these punitive incentives.  And legislatures may find it much easier to allow juries to impose constraints on punishment, because juries enjoy unusual levels of public trust and make only case-specific decisions.

In A Democratic Restraint on Incarceration, I argue that trial juries should be empowered to set an absolute maximum amount of incarceration based on what a defendant deserves, and the trial court’s sentencing discretion should be capped at that amount.  Sentencing courts could sentence below jury-set maximum desert, but never above it. Legislatures should grant juries case-specific authority to depart even below mandatory minimums in order to avoid undeserved excesses.

A skeptic might doubt juries can make a real difference in a criminal system dominated by plea deals. But the effects of a new jury power to constrain post-trial penalties would reverberate across pleaded cases as well, for prosecutors could no longer credibly threaten defendants with post-trial prison terms that no jury would deem to be deserved. Defendants would gain a valuable bargaining chip, and prosecutors would lose an unjust tool, correcting — if only slightly — the imbalance of power in plea negotiation.

The unique trust the public places in juries makes them ideal institutions to restrain carceral excesses.  Rather than waiting for our elected officials to repeal or mitigate unjust penalties, we should let juries take the lead.

September 4, 2023 at 07:29 PM | Permalink


There is indeed an "imbalance of power" in plea negotiations: The prosecutor has evidence, which usually works, and the defendant has attempts at witness intimidation, which usually don't.

As for jury sentencing, it's fine by me if but only if we buy the entire package, to wit, that the jury can disregard statutory boundaries on sentencing to go either below them or above them. Why is the jury worth respecting in only one direction?

Posted by: Bill Otis | Sep 5, 2023 1:41:49 AM

While I'm a bit more parsimonious than Bill, and don't see this far-fetched proposal ever happening, it's not a terrible idea. But then, it makes a common assumption, that juries are merciful and kind toward defendants. Only someone who has never tried a case would trust another person's life to such an assumption.

It seems far more likely that a typical jury would recommend life without parole for jaywalking if it could. Granted, this proposal only ratchets down, but if anyone seriously tried to implement it, the chances that it would end up as a two-way street (to be fair, you know, because everybody loves fairness). That's a risk not worth taking.

Posted by: shg | Sep 5, 2023 7:29:35 AM

Bill, I agree that one *could* have a jury set both an upper and a lower bound based on community conceptions of what a defendant deserves. (Juries could not constitutionally impose a sentence above a previously ordained statutory maximum.) But I, like many limiting retributivists, view the floor set by desert as more flexible than the ceiling set by desert (and I defend this position at some length in the paper). Society has many goods to pursue, not merely retribution, even if desert is recognized as both a requisite and a reason for punishment. Mercy is another reason to allow sentences below minimum desert (though one may question whether judges are best suited to decide whether to dispense mercy). Since the minimum should not be binding, and asking the jury to assess minimum as well as maximum desert would add significant complexity to the jury’s task (the jury would presumably have to be informed about non-carceral penalties as well, which would require entirely different proportionality analysis), I don’t recommend that the jury assess minimum as well as maximum desert. But a state *could* require juries to do so if it wished, and still have the chief benefit of the proposed approach—which is to avoid undeserved excesses.

For reference, some jury sentencing states already provide that the jury's recommended sentence is a fixed maximum, which the judge may depart below--but not above.

The biggest hurdle, in my view, is getting a jurisdiction to truly commit to limiting retributivism—to punishing people no more than they deserve, no matter how useful a higher penalty would be. If one takes seriously the principle that punishment must be deserved, however, we must restrain ourselves in exactly that way.

Posted by: Marah Stith McLeod | Sep 5, 2023 9:39:57 AM

Shg: you think it is more likely that juries would recommend life without parole for jaywalking if they could (than that juries would constrain sentencing excesses). Even accepting the point as hyperbole, it suggests a disdain for jury judgment that is unfounded. Studies show that juries take their jobs very seriously, and it’s not reasonable to claim that laypeople would embrace wildly disproportionate penalties. Their views of desert may be harsher than judges’-- for some crimes at least--but in jury-sentencing states jury sentences are not always harsher than judicial sentences (and for some types of offenses, juries tend to prescribe lower sentences than judges). That’s true even though jury-sentencing states usually give juries selective information and sentencing options, in ways that skew toward harshness (such as by informing juries about parole eligibility without telling them that people rarely get parole when first eligible, and by allowing juries to consider only carceral penalties but not the non-carceral ones available to sentencing judges).

Part of the idea, too, is that the general public now influences criminal penalties (through their legislators) based on limited and skewed information (largely informed by media accounts that are sensationalized and incomplete). Juries must look more closely at the details of a case and the defendant’s culpability—based on both aggravating and mitigating information. And that will promote better informed citizens and wiser lay input on criminal law and policy. (If we used juries in a broader range of cases, it would be even better, but limited progress is better than none.)

Posted by: Marah Stith McLeod | Sep 5, 2023 9:43:48 AM

Marah --

Thanks very much for your answer. The fly in the ointment is that there's lots of variation on what "desert" means in any individual case. I'm sure there are cases, although perhaps not that many, in which the jury would impose above the present statutory maximum. So where we go on the reform front depends on whether our primary aim is to restrain incarceration or to give more power to juries. You will hardly be surprised that I'm more inclined toward the latter.

At all events, I'm happy to hear from you again, and I hope we'll have a chance for another dinner near Georgetown Law. It's been quite a while.



Posted by: Bill Otis | Sep 5, 2023 10:40:46 AM

My home state, Kentucky, does exactly what the author suggests in criminal cases: in addition to finding a defendant guilty or not guilty, the jury also suggests a sentence, within the statutory boundaries that they have been instructed upon. Thereafter, the Judge must sentence at or below the sentence that the jury recommends. In a case where a male teacher was sentenced 40 years after he had repeatedly raped and sexually abused a high school student of his for several years, the jury recommended only 6 years, which the judge imposed -- after explaining that if it was up to him and he wasn't constrained by the jury's recommendation, he would impose a life sentence on the 64 year old man. Kentucky's system can also be seen, perversely, in one of the most notorious criminal cases in the history of Fayette County, Kentucky. Defendant Will Lockett (a black former soldier) killed 5-year old Geneva Hardman (a white child) and was apprehended. Vigilantes wanted to lynch Lockett. The Governor called out the National guard to protect the jail. Pistol shots were fired at the police and guardsmen by the lynch mob, and they returned fire, killing 6 and wounding 20. Eventually a train of U.S. Army soldiers arrived in Lexington. Their commander declared martial law for a few weeks, and the soldiers escorted Lockett to the state penitentiary, for his own protect, removing him from Fayette County. Lockett appeared for trial on a first-degree murder charge on February 9, 1920, and pleaded guilty. A jury was empaneled for the sole purpose of determining punishment, be it life in prison or the death penalty. The jury imposed a death sentence, which was carried out at the state penitentiary 31 days after the verdict. The entire punishment phase, including picking the jury, took only about 20 minutes. Because the defendant had pleaded guilty, there was no appeal of his death sentence. Today, Kentucky law provides for an automatric appeal of all death sentences to the Kentucky Supreme Court.

Posted by: Jim Gormley | Sep 5, 2023 12:45:29 PM

In my state, we have jury sentencing for first time offenders, but the defendant has the right to waive jury sentencing and still go to trial on the guilt phase. Additionally, the judge has the ability to go below the jury's recommended sentence (but not above). There are certainly charges on which defendant regularly waive jury sentencing (e.g., child sex cases) because they do not want to hear what the jury thinks is the appropriate sentence for such an offense. We just had a homicide case in which, after seeing how strong the victim impact testimony was, the defendant changed her mind and decided that she no longer wanted the jury to recommend a sentence.

Posted by: tmm | Sep 5, 2023 1:28:56 PM

Thank you, Bill! I would happily reconvene for another dinner!

And as for the "fly in the ointment" (variations in desert assessments), that is an issue with individualized assessments of desert generally -- not a problem specific to having juries rather than judges decide maximum desert. If one believes that undeserved punishment violates a principle of justice (as I do) then individual desert must be treated as a limit in practice. The question is only who is best at judging individual desert. I believe it's juries. And I see no evidence that juries -- expressing the views of 12 members of the general community -- would be more likely to go to extremes than would judges -- expressing their solitary, subjective perspectives. In any event, consistency can be overrated; we shouldn't repeat things simpyl because they have been done before--particularly when past practice has been undeliberative or unjust. And any pursuit of consistency across cases is crippled by the practice of plea bargaining, which runs on the fact that people who plead guilty pay a lesser price. So the best we can do, in my view, is make fully informed, responsible, reasoned, democratically legitimate decisions, facing the human beings involved.

Jim, thank you for talking about Kentucky. That is such an ugly story in the Lockett case. Very helpful that you note that judges in Kentucky can depart below but not above the jury sentencing recommendation. A big difference between Kentucky's approach to jury sentencing and my proposal is that I urge that the jury be empowered only to decide the maximum prison term (if any) that a defendant deserves (thereby setting a case-specific cap on judicial sentencing discretion), whereas Kentucky juries are asked to recommend final sentences for whatever purpose they deem relevant (including future benefits). My approach is designed to implement limiting retributivism in a way that is democratically legitimate but that preserves a crucial role for judicial expertise and experience in the selection of particular sentences.

I really appreciate your thoughts and feedback! Thank you!

Posted by: Marah Stith McLeod | Sep 5, 2023 1:53:46 PM


First off, just a layperson here.

You make a compelling case, but I have the same issues as Bill regarding this only going in one direction.

I just don’t agree with many of your premises. What you see as “excesses,” I see as just. You talk about “unjust tools,” and “imbalance of power,” but I see differently. You need to convince me that the tools are unjust and there is an unfair imbalance, not merely assume we all do.

And what you call a “trial penalty,” I call a “plea break.” The imbalance of power is not caused by an unjust tool, it’s caused by the defendant being guilty 95% of the time.

One final thing. If you want a democratic jury, let’s have it. No more kicking me out of the jury pool during voir dire only because I believe in putting certain criminals away for a long time. Including people like me would be a fairer and more representative slice of America.

If you are afraid of the ratchet tightening, then you are pursuing personal policy goals, not fairness.

Posted by: TarlsQtr | Sep 5, 2023 1:55:59 PM

Dear TarlsQtr,

Under a limiting retributivism framework, a sentence is excessive if it exceeds what a defendant deserves, which in an egalitarian democracy should be defined by reference to community norms. If present sentencing decisions were simply to reflect what communities deliberately deem in individual cases to be deserved, I wouldn't call them "excessive." In fact, however, sentences are often imposed without any focused assessment of what punishment is deserved-- which requires attention not only to culpability and crime but to the severity of the punishment. Instead, judges typically select sentences based on simultaneous consideration and pursuit of utilitarian and retributive goals. The result is that some sentences are designed primiarly for utilitarian goals -- incapacitation, for example -- and exceed the bounds of individual desert. To be sure, the public often assumes that sentences are deserved and may accept them as such, but the reality is that desert often is not being treated as a constraint in actual practice. In another article, I argue that judges should first decide how much punishment is deserved before separately deciding how much punishment would be useful -- and that they should never exceed the upper bound of desert (you could also argue they should never fall below the lower bound of desert, though I think there are prudent and principled reasons to treat the lower bound as more flexible). I made that proposal for jurisdictions that would not consider adding juries to sentencing; I consider it a second-best option to dividing the sentencing decision between the jury (to set the deserved max) and the judge (to determine a final sentence based on both desert and utility, limited by the jury's max).

So, from my perspective, the fact that a person is sentenced to many years in prison doesn't on its face suggest "excess" without reference to what the person did -- AND I'm willing to accept community norms on proportionality. But when prison sentences are imposed without a deliberate assessment of individual desert, a careful consideration of the severity of incarceration, and a commitment to desert as an absolute upper bound on sentencing -- as they often are today -- then it is absolutely fair to say that our system reflects many excesses. I don't dispute that there may also be many instances in which people get LESS than they deserve (when evaluated under community norms).

In the context of plea bargaining, plea deals induced by threats to impose undeserved and unjust penalties are not fairly obtained. The end result may be deserved (or less than the defendant deserves!), but the process is unjust. Prosecutors can threaten such penalties because most defendants fold and because, for those defendants who don't fold, judges may agree to impose the undeserved penalties (and sometimes judges are bound to impose the undeservedly high penalties, when mandatory minimums sweep in low-level offenders that legislators did not have in mind). This strikes me as a major injustice in the plea bargaining system. One can raise other objections to plea bargaining too--including how it often creates incomplete (and sometimes misleading or even false) portraits of what crimes were committed, the ways in which it cheapens justice by making it a matter of negotiation, the undeserved leniency it permits, etc. But allowing prosecutors to threaten undeserved penalties doesn't fix these problems. It just adds another injustice.

Thank you all again for engaging with me and my work. TarlsQtr, I find it hard to imagine you're not a lawyer! I've read many of your incisive comments on this blog in the past and have found the debates that have followed exceedingly interesting and entertaining.

Posted by: Marah Stith McLeod | Sep 5, 2023 5:09:42 PM

p.s. TarlsQtr, I urge states to consider eliminating peremtory strikes in my article (as the Arizona Supreme Court did in 2021), or at least decreasing them.

Posted by: Marah Stith McLeod | Sep 5, 2023 6:23:22 PM

Ms McLeod, you might want to note a footnote to American history! The last public hanging in America occurred in Davies County, Owensboro, Kentucky in 1936. The last public hanging in Lexington, Kentucky occurred in 1910. Interestingly, since the mid-1950s, there have been very few executions in Kentucky, only 5 since 1954 -- and 2 of the last 3 people executed in Kentucky withdrew their appeals and demanded to be put to death. In 2023, there are only 28 people on Death Row in Kentucky. Although 2/3 of Kentuckians surveyed say they favor the death penalty, in 2009, there were 106 death qualified juries seated in Ky., and not a single one imposed the death penalty

Posted by: Jim Gormley | Sep 5, 2023 10:45:31 PM

If anyone is interested in learning more about the Will Lockett case and his execution, Google "Will Lockett, Wikipedia". He was a confessed serial killer, having killed 3 women in 3 different states (Kentucky, Tennessee and Indiana) before killing Geneva Hardman, who was actually 10 years old, not five as I wrote previously. He crushed her skull with a large rock or stone. When the authorities protected Will Lockett from being lynched, it was the first time that authorities in a Southern state had protected a black man who had killed a white woman (girl) from being lynched. The 1,200 Army soldiers who came to Kentucky on trains brought with them tanks and machine guns! 400 soldiers escorted Lockett to the state penitentiary at Eddyville, for his own protection. This was all an example of the Rule of Law in action. Authorities contemplated prosecuting members of the lynch mob who had wanted to kill Lockett, but in the end, they let it all go and prosecuted no one over the crimes committed by Will Lockett.

Posted by: Jim Gormley | Sep 5, 2023 11:20:35 PM

In the country where I live (FR), most cases are tried by a panel of 3 judges, but defendants charged with serious felonies are tried by a court with is made up of judges and popular jurors

Some years ago, the government proposed to bring popular jurors to the lower criminal courts. The reform was grounded on the assumption that citizens who suffer the consequences of crimes would be tougher than "lenient" judges (traditionaly, French governments don't like judges, maybe because judges tend to think the law also applies to elected officials).

The proposition wasn't implemented because of its cost. But the government also realized popular jurors could indeed be more lenient than judges, and wouldn't agree to impose jail time on low level offenders, (some correctional courts are known to always side with the prosecutors, especially in "public order" cases, and very often judges don't bother to listen to the defendant's attorney because they already decided the fate of the defendant). That's why defense lawyers were quite happy about the reform: they thought popular jurors could support them against judges and prosecutors.

The influence of popular jurors on the sentencing in criminal cases (jurors not only decide whether the defendant is guilty, but also fix the penalty) is difficult to assess. In most cases, the verdict is a little less severe than what the prosecutor asks for. In some cases, the court decided to hand a stiffer penalty, but I think it's somewhat rare. The court of assize is composed of 6 citizens and 3 judges, so it's reasonnable to think popular jurors tend to follow the advice of professional magistrates. Anyway, jurors who talked about their own trial experience always explained it was the hardest decision of their lives: jurors visit prisons (though it's not mandatory, it's highly recommended), so they understand very well the consequences of their votes, jurors became acquainted with the defendant (during a trial, a lot of time is devoted to the defendant's personnality, his or her history and background, and the court actually hears the defendant), and of course jurors also hear the victims (the victims are the third party to a trial, and they are represented by an attorney). In the end, it's quite understandable why jurors have a difficult job. I would say that the harshest penalties such as life sentence are not that common, and even in a homicide case, the courts won't hand a life sentence absent egregious circumstances, so it's a fair to say that jurors tend to have a little bit of a rehabilitation mindset and are weary of imposing a penalty that "insults the future", as defense attorneys usually say (but a murder conviction usually carries a serious sentence, unless the defendant can prove some mitigating circumstances, such as domestic abuse etc)

Posted by: Raxatou | Sep 7, 2023 9:14:51 AM

Jim and Raxatou, thank you both for these incredible stories and insights!

I will definitely want to cite your historical example from capital sentencing, Jim (death-qualified juries declining to recommend death in all those cases). That's an excellent data point against the frequent claim/assumption that juries will instinctively demand the harshest sanctions, even when confronted with the facts of the case, the defendant, and the penalty.

Raxatou, what a fascinating window into French sentencing procedure. I'm particularly intrigued by the encouragement given to jurors to visit prisons. One point I make in my article is that any careful assessment of how much incarceration (if any) is deserved requires attention not only to the extent of culpability and the gravity of a crime, but to the severity of the punishment. Prison isn't just a term of years: it's a range of deprivations, many of which are knowable ex ante (and cannot justifiably be ignored at sentencing). I think it's really important for purposes of reasoned sentencing and lay understanding of our penal system, that jurors see what prisons are like. Do you have a statute in France, or any other source, that requires jurors to be offered the opportunity to visit prisons? I'd be extremely interested to read it (hopefully in translation....).

Thanks so much, both of you!


Posted by: Marah Stith McLeod | Sep 8, 2023 1:55:06 PM


The President of the court has a general duty do provide jurors with basic information about the justice system, and especially how the sentencing laws work (implementation of sentencing is here a very complex matter - and there are lots of popular myths about it). However, as far as I know, no statute fixes the exact content of the juror's training. The justice minister website only informs that prison visits are usually proposed to potential jurors. These visits are organized by the courts - but courts are known to be understaffed and underfunded, so I don't thing it happens in all the cases. Still, jurors who talked about their experience always said it was a good thing, and it led them to a reckoning about the dismal sitution of the French criminal justice system

Posted by: Raxatou | Sep 11, 2023 6:39:17 AM

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