Recharging the jury: the criminal jury's constitutional role in an era of mandatory sentencing.

• Author: Barkow, Rachel E.

[L]et it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread to the utter disuse of juries in questions of the utmost concern. (1)

INTRODUCTION

More than 200 years ago, William Blackstone warned that we must protect the criminal jury not from "open attacks," but from "secret machinations" that on their face seem convenient and benign. (2) He argued that the delays and "inconveniences" of the criminal jury were a fair price for free nations to "pay for their liberty." (3)

Even though the Framers of the Constitution disagreed about a great many things in Philadelphia, they concurred with Blackstone's estimation of the criminal jury. From the outset, the criminal jury was designed to be part of our elaborate system of checks and balances, placing a check on the legislature and executive to ensure that no one received criminal punishment unless a group of ordinary citizens agreed. Thus, even before the Sixth Amendment guaranteed "the right to ... an impartial jury," (4) the criminal jury was enshrined in the Constitution as a check on the government. Article III--the framework for the judiciary--provides that the "the Trial of all Crimes ... shall be by Jury." (5)

Today, however, the jury's role as a check on the government's power has become far more limited. The criminal process in the United States has become largely an administrative one, with the police, prosecutors, and judges overseeing the criminal laws with little intervention by the people. The rise of plea bargaining is, of course, part of the reason for the administrative regime we now have. But it is merely the most obvious cause; it is not the only one.

In fact, a much more subtle development--a "secret machination"--has eroded the jury's and, consequently, the judiciary's power to check the government. Over the past few decades, the federal government and many states have embraced mandatory minimum sentences and binding sentencing guidelines. There has been a barrage of criticism of mandatory minimums and sentencing guidelines for limiting the discretion of judges and increasing the power of prosecutors. (6) But what has been all but ignored is the effect of these sentencing laws on the jury's ability to check the legislature and the executive. Yet it is only by considering the effect these laws have had on the judiciary writ large--judges and juries--that it is possible to see the full impact these laws have on the constitutional order.

The focus has been on judges alone because the most obvious effect of these laws (and the intent in passing them) is to limit the discretion of judges. Moreover, it is neither intuitive nor immediately apparent why or how mandatory sentencing laws intrude on the jury's function to a greater extent than the sentencing regime that existed before such guidelines. After all, even before the advent of sentencing guidelines, judges were making critical factual determinations that were used to increase defendants' sentences. Commentators have pointed to this fact to argue that the jury's factfinding powers in criminal cases were compromised long before the age of sentencing guidelines and mandatory minimum sentences. (7) Consequently, determinate sentencing laws seem to have done little to affect the jury's existing role.

But this analysis holds only if the jury performs solely the role of factfinder in a criminal proceeding. In fact, the jury does much more than that. (8) Unlike their civil counterparts, criminal juries have the constitutional power not merely to find facts, but also to apply the law to those facts. (9) Criminal juries have the power to issue a general verdict of "guilty" or "not guilty" under the law, based on whatever facts they find. And when the verdict is "not guilty," the jury's decision is unreviewable. This power translates into the power to nullify the law. If the criminal jury believes that a law should not apply in a particular case because its application would be unjust, the jury has the power to ignore that law, regardless of the law's language. In other words, jurors have the kind of ameliorative power Aristotle deemed critical for producing equitable results. (10)

This power to mitigate or nullify the law in an individual case is no accident. It is part of the constitutional design--and has remained part of that design since the Nation's founding. In an age in which we have grown accustomed to bureaucratic rationality and the administrative state, this power seems strangely out of place. But it serves a valuable function. Roscoe Pound praised the jury's power to mitigate or temper the letter of the law in the name of justice as "the great corrective of law in its actual administration." (11) Judge Learned Hand similarly observed that:

The institution of trial by jury--especially in criminal cases--has its hold upon public favor chiefly for two reasons. The individual can forfeit his liberty--to say nothing of his life--only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came. Moreover, since if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove; and this introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions. A trial by any jury, however small, preserves both these fundamental elements and a trial by a judge preserves neither, at least to anything like the same degree. (12) This power to issue an unreviewable general verdict despite the letter of the law introduces a critical check on the government before it can impose criminal punishment and provides a mechanism for correcting overinclusive general criminal laws.

This powerful safety valve can operate, however, only if the jury retains control over laws that dictate criminal punishment. For almost 200 years, this went unquestioned--that is, until the advent of mandatory sentencing schemes like the Federal Sentencing Guidelines and mandatory minimum sentencing laws. These laws dictate criminal punishment upon the finding of particular facts, yet these general laws are being applied by judges, not by juries. As a result, prosecutors can seek review of trial judges' decisions, thereby preventing judges from individualizing punishment and tempering the law in particular cases if doing so violates the letter of the law itself. This is something prosecutors could not do if juries applied these laws.

Remarkably, this enormous intrusion on the jury's power has gone virtually unnoticed. Courts and commentators have been lulled into acceptance of this regime, insofar as it relates to the jury, because their view of the jury as a factfinder has prevented them from seeing how these sentencing laws differ from the previous discretionary sentencing regime. Legislators, too, seemed to enact these mandatory sentencing laws believing that their only effect was on judges, not juries. But to describe the effect of mandatory sentencing laws on judges tells only half the story.

This Article tells the other half. It is the effect of these laws on judges and juries in tandem--the judiciary--that makes them so troubling. The operation of these laws prevents the judiciary from ensuring in each case that a criminal law properly applies. To the extent that the correction of overinclusive laws is a key component of our constitutional order--and the jury's unreviewable power to acquit despite the letter of the law suggests that it is, at least in criminal cases--criminal proceedings come up short when these laws are applied by judges instead of the jury. Because of the mandatory nature of these laws and prosecutors' ability to seek review when judges depart from them, trial judges lack the necessary discretion and flexibility to ensure that these laws make sense in individual cases. This story has been told many times by commentators. What has been ignored, however, is the fact that the Constitution provides a ready-made safety valve for precisely this problem. Juries by design, with their unreviewable power to acquit, can act as a check on overinclusive or overrigid criminal laws. To be sure, this is an imperfect check, especially given the limited information the jury now receives at trial. (13) But even with its limitations, the jury retains the power to individualize laws to some extent and to ensure an equitable result, regardless of the legislature's language or its view ex ante about what should apply as a general matter.

This Article considers whether and when the legislature should have the power to close this safety valve by placing the authority to apply laws that trigger criminal punishments with judges instead of juries. This question is especially timely. During the past few years and culminating in a pair of cases decided at the end of the 2002 Term, the Supreme Court has addressed the question of how much freedom legislatures should have in identifying so-called sentencing factors that trigger punishment and in having those laws applied by judges instead of juries. And the Court will consider the issue again this Term in Blakely v. Washington. (14) Thus far, however, a majority of the Court has been unwilling to use these cases to reinvigorate the jury's--and thus the judiciary--structural constitutional role.

Initially, it looked as if the Court was on a path that would strengthen the jury. In 2000, the Court decided the landmark case of Apprendi v. New Jersey, (15) in which the Court held that any fact (other than recidivism) (16)...