Jury sentencing in noncapital cases: an idea whose time has come (again)?

• Author: Lanni, Adriaan

In a celebrated decision, Jerome Frank criticized the jury system for conferring on laymen "a vast power to commit error and do mischief by loading it with technical burdens far beyond its ability to perform."(1) Since then, confidence in the ability of juries to perform their duties has only declined. Scholars frequently question the capacity of juries to understand the complex and technical issues that commonly arise in civil actions,(2) and social science research has cast doubt on the ability of criminal juries to perform their primary function of assessing credibility.(3) The one task that juries indisputably perform better than judges is to reflect the "conscience of the community" and to express public outrage at the transgression of community norms.(4) Juries are involved in the determination of capital punishment in every state that retains the death penalty, and just three decades ago over one-quarter of the states provided for jury sentencing in noncapital cases.(5)

Jury sentencing in noncapital cases is widely perceived to be an outdated remnant of the postcolonial period. This Note argues that jury sentencing may in fact provide the most effective means of implementing contemporary sentencing goals. I do not offer here a theoretical argument for assigning a greater role to juries in the determination of punishment. Rather, I offer a practical alternative to the current rudderless drift in sentencing policy. Eager to win a reputation as "tough on crime," legislators have enacted piecemeal mandatory sentencing laws guided by no coherent policy. A survey of social science research indicates that the "reform" legislation exceeds the severity favored by public opinion.

Part I discusses the, decline of the rehabilitative ideal in criminal punishment and the trend away from reliance on sentencing expertise in favor of more populist, retributive, and politically-driven decisionmaking procedures. This Part also presents evidence from the social sciences indicating that there is a disjuncture between, on the one hand, the public's call for harsher penalties to which politicians respond with increasingly severe determinate sentencing provisions and, on the other, the public's more lenient response when confronted with detailed descriptions of specific cases. These studies demonstrate that when mock jurors are asked to sentence defendants, they generally recommend penalties significantly below the statutory minimum in their jurisdiction. I argue that jury sentencing would permit a more direct and less distorted expression of public sentiment than the current system of legislatively and administratively enacted penalties and would avoid some of the unintended consequences of determinate sentencing, such as jury nullification in the face of harsh mandatory penalties. Part II addresses the traditional arguments against jury sentencing. After a historical survey of the institution, this Part examines social science research comparing punishments set by judges and juries and demonstrates that, contrary to popular perceptions, there is little evidence indicating that juries impose harsher, more disparate, or more racially biased punishments than judges. In the Conclusion, I explore some of the implications of the proposed change for other aspects of the criminal justice system.

1. THE FAILURE OF DETERMINATE SENTENCING AND THE POTENTIAL OF JURY SENTENCING

   The determinate sentencing movement was a response to national disillusionment with the rehabilitative ideal and to evidence of widespread racism among individual sentencing judges. Determinate sentencing, it was hoped, would reduce racial disparity and reflect the shift toward retributive theories of punishment by transferring sentencing decisions from expert judges and criminologists to legislative and administrative bodies representing community sentiment.

   This Part argues that the determinate sentencing movement has failed to achieve its own sentencing goals. Social science has revealed a serious flaw in the current system of legislatively-enacted penalties: Politicians eager to appear "tough on crime" pass increasingly harsh mandatory sentencing laws that far exceed the sentences the public would choose if presented with specific cases affected by the law. This pathology of the determinate sentencing system results in sentences that do not accurately reflect society's desire for retribution and may encourage jurors to nullify in order to avoid the harsh mandatory penalties. Determinate sentencing has also failed to reduce racial disparity in sentencing, arguably the most compelling goal of the uniform sentencing movement. Jury sentencing would overcome the deficiencies of the current sentencing process while still providing substantial community input. Further, jury sentencing would offer the possibility of individualized penalty determinations favored by academics and judges who criticize determinate sentencing.

   1. Shifting Sentencing Goals and Institutions

      Since the mid-1970s, public attitudes toward punishment and the proper nature of institutions responsible for assigning penalties have changed dramatically. Frustration with the failure of penal science to rehabilitate offenders and to predict future criminal behavior, combined with a gradual shift from rehabilitation to retribution as the dominant theory of punishment, led to the dismantling of indeterminate sentencing regimes. The determinate schemes that currently dominate both state and federal criminal justice systems have shifted sentencing power from judges and expert criminologists to untrained and politically-driven legislatures and administrative agencies. With the abandonment of reliance on expertise in the determination of punishment, jury sentencing becomes a viable alternative. Jury sentencing may in fact be a more direct and more effective mechanism for expressing the recent populist and retributive trends in criminal punishment. As I will show, social science research indicates that determinate sentencing fails to enforce accurately community norms of proper punishment.

      In the era of rehabilitative punishment, sentencing called for "professional and diagnostic"(6) judgments focusing on the individual offender's capacity for rehabilitation and treatment, rather than on "the gravity of the particular act for which an offender happens to be tried."(7) Parole boards and adult authorities were given wide discretion to adjust the length of time served based on the prisoner's progress in treatment. Originally a product of the progressive era,(8) the indeterminate sentencing movement was fueled by an optimistic belief in the potential of the then-young science of criminology. For example, two researchers constructed prognostic tables to predict future dangerousness of offenders on the theory that it is "possible to introduce scientific method into the work of criminal courts and parole boards."(9) The expert determinations required by this treatment model of punishment are beyond the capacities of lay jurors. In the mid-1970s, research indicating the failure of treatment programs to reduce recidivism led to the abandonment of the rehabilitative ideal.(10) Martinson's 1975 survey titled The Effectiveness of Correctional Treatment, which documented the disappointing results of 231 prison programs, seemed to confirm the failure of the treatment model.

      The 1970s witnessed, besides the debunking of "scientific" penology, a theoretical shift from rehabilitative to retributive punishment. A key moment in this development was the 1976 publication of Doing Justice, a report of the Committee for the Study of Incarceration led by Andrew von Hirsch. Doing Justice argued for a "just deserts" approach to punishment that would focus on the nature of the crime rather than the offender.(11) Today, no single theory of criminal punishment commands the level of support formerly enjoyed by rehabilitation, but there is some indication that retribution is becoming increasingly predominant. The Federal Sentencing Guidelines, for example, make retribution rather than rehabilitation the primary penological goal.(12) Under California's sentencing statute, "the purpose of imprisonment for crime is punishment."(13) As retribution is an expression of the community's moral outrage at the transgression of social norms, a lay jury, which is drawn from the community, is better equipped than expert judges or legislators to impose retributive sanctions on offenders.

      Around 1975, indeterminate sentencing began to give way to a variety of more "determinate" schemes, including mandatory minimum penalties.(14) The dismantling of the indeterminate sentencing movement shifted the punishment decision from judges to legislatures and sentencing commissions. Both of these institutions are largely politically driven; contemporary sentencing decisions are hardly expert determinations that flow from a coherent, scientific system of assigning penalties. As Martin has pointed out, determinate systems are inherently unstable and vulnerable to popular pressures,(15) Unlike determinate systems, indeterminate schemes permit legislators to "crack down on crime" symbolically by raising maximum sentences in response to public pressure without altering the sentences actually imposed.(16) Many scholars have remarked that a lack of expertise and vulnerability to public opinion make legislators particularly ill-equipped to establish coherent sentencing policies,(17) Although one might assume that Sentencing Commissions provide professional, coherent guidelines because they are more insulated from political pressure and more experienced than legislators, research indicates that the decisions made by Sentencing Commissions are also politically driven. For example, although the Minnesota Sentencing Commission is widely considered one of the more successful experiments in determinate sentencing,(18) the guidelines produced by the Minnesota...