Why don’t we have jury sentencing in non-capital criminal cases?
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Prof. Berman asks this question (using better language) here. My initial reaction is that there are a few reasons for this. Jury trials in non-capital cases do not usually involve mitigation evidence (neither do they in capital cases, but there are distinct phases of that trial), which would normally be presented during the sentencing hearing. In order to have a jury qualified to sentence, there would need to be another hearing (or maybe even trial) at which jurors are selected, seated and presented with whatever mitigation evidence the defendant wishes to introduce and the state wishes to rebut.
The jury would also need to be informed of the law, the mandatory-minimum sentences and the “going rate” of similar crimes in that jurisdiction. More often than not (and I am assuming a jurisdiction that does not have strict sentencing guidelines) the judge takes only the facts of the case into account, but also personal history, the wishes of the victim and the severity of the offense into account. These are not factual determinations, which are properly left to the jury.
By comparison, in the penalty phase of a capital case (as with any guilt phase), the jury is charged with the task of evaluating the evidence and applying it to the elements of a statute to find aggravating factors. The same with the guilty phase – evaluate the evidence and determine whether the elements of an offense have been proved. Their role, while paramount, is also limited.
Personal opinions and biases have no role in guilt deliberations, but are often strong factors in sentencing a defendant.
I haven’t thought about this much, so I may be way off in my perception. Thoughts?
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Some places do have jury sentencing for non-capital crimes, it seems to me (correct me if I am wrong about that). I actually think almost every sentencing proceeding should have some sort of mitigation going on. That is part of why we have presentence investigation reports (in some jurisdictions); why some jurisdictions have started mandating substance abuse evals; and, perhaps most importantly, why us, the pds, should be spending time listening to our clients and learning how to tell their stories. Is is impractical to have juries consider all that info in terms of the logistics? Perhaps. Juries are equipped to understand mitigation evidence, but they like to hear it from very specific sources, close to the client (for examples, read some of the capital jury project stuff; good reading for everyone, not just death penalty defense people). It might make people (us) put a lot more work into sentencing proceedings if they were in front of a jury.
A pet peeve of mine is life without parole sentencing in first degree murder cases. Obviously an enhancement, yet our statute allows it to be imposed by a judge.
The one obvious thing I didn’t mention – which you touch upon – is cost. If there were jury sentencings, the cost of the CJ system would skyrocket.
I think I disagree that juries hear mitigation evidence. They don’t, really. Unless we are talking about capital penalty trials (and that’s the dichotomy). In normal trials, they are the arbiters of fact and nothing else.
In capital penalty phase trials, they are still finding facts and whether the facts support “aggravating” or “mitigating” factors. If a certain number of factors are met, then you get death (or life). To have them sentence defendants would be to change the very function of the jury system.
I’m not sure I follow your complaint about LWOP sentences in first degree murder cases. Here, there is only one offense – murder and there is no parole for defendants convicted of murder.
How is it an “enhancement” in your jurisdiction?
Here, there is no parole from a life sentence; a regular life sentence, that is. The only way you could get out of prison was if the gov. commuted your sentence to a term of years. A few years back, many people (including our then-leader) advocated for a LWOP provision in our statute, thinking of it as an alternative to the death penalty (at the time, we had what was, for us, a tidal wave of capital cases). Instead, every first degree murder case has now become an LWOP. Now, our statute is written as as three alternatives; and when one alternative (not range) is greater in severity than another, it is an enhancement. So a jury oughta decide it. And that is in fact how some states do it. I have written a very lengthy brief on this topic, but that is the synopsis.
Also, penalty phase in dp cases is not all about “facts.” What you are describing is perhaps a true weighing statute, but in actuality, a juror can vote for life having found no mitigation whatsoever (and I know of at least one case where one of our lawyers got an instruction to that effect).
Gross-oversimplifications. Sorry.
Can you get life sentences for crimes other than murder (in your state)?
I agree that that penalty phases aren’t all about facts, but they are primarily. Jurors are given two choices: life or death. You assume life, unless the state proves either a) or b) or c) (or some variation thereof), in which case, you return a verdict of death.
A normal sentencing is quite different. For one, there are ranges of sentences and “fact-finding” in those sentencings goes only so far. That, I think, is the inherent difference between a non-dp sentencing and a dp sentencing and why I think judges are better equipped to handle non-dp sentencings than juries.
Gideon,
Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia do. I know this looks like a list of juridical backwaters, but I would much rather have a jury set punishment than a judge.
A bit about Texas Jury Sentencing.
There’s much more room for good lawyering in the punishment phase of a jury trial than in a punishment hearing before a judge.
Mark.
In our state, you can get life for repeat sex. assault; starting July 1, you can get LWOP for same, and under more circumstances.
Under our habitual criminal statute, there is a “sentencing” trial, to the same jury, right after the conviction for the violent felony. So in that instance, we have jury sentencing, as well as capital cases. As punishments become more punitive, I begin to think that a system where you could choose jury sentencing, or opt out for judge sentencing, would be ideal. Would give us a lot more to work with. But I don’t think we are ever going that way.
I also think juries ought to know the consequences of their verdicts, but that’s not happening here either.
The last point that you mention is something I was thinking about. I’d certainly like juries to be informed of the consequences of the verdict.
This occurred to me while I was watching a special on Heidi Fleiss, whose state trial jury returned a guilty verdict on pandering and not guilty on cocaine charges because they thought the pandering charges were less serious, but in fact called for a 3 year min-man. Then there was the whole saga of a new trial because of vote trading and what-not.
I think it would help the defense’s case if juries were informed of the minimum and maximum sentences allowable by statute for the offenses charged.