Jury Sentencing: a range of possibilities

I finally had a chance to read closely EDNY District Judge Weinstein’s two jury sentencing opinions (background and downloads here). Both are must reads for those who want to think deeply about what Blakely might represent and about how we might construct a new sentencing world with significant jury participation. Here I want briefly to note various ways juries might be seriously involved in sentencing decision-making:

Juries as comprehensive fact-finders: We might require juries to be the finders of all (or at least all significant) sentencing facts. Notably, Blakely only requires juries to be finders of aggravating facts, allowing judges still to find mitigating facts. But though the Constitution apparently permits this distinction, we might still think a sounder system would have juries decide all these facts.

Juries as fact-finders and sentence advisors: We might want juries not only to find facts, but also to advise judges about appropriate punishments. Notably, Justice Scalia’s concurring opinion in Ring suggests that the Apprendi/Ring/Blakely line only requires jury fact finding and that judges can still be given authority to make ultimate sentencing decisions. But though the Constitution may not require juries to do anything more than find (aggravating) sentencing facts, we might still think a sounder system would have juries also recommend sentences based on these facts.

Juries as fact-finders and sentencers: We might want juries not only to find facts, but also to impose specific punishments. Again, though the Constitution may not require juries to do anything more than find (aggravating) sentencing facts, we might still think a sounder system would have juries impose specific sentences based on these facts.

Judge Weinstein’s opinion in US v. Khan considers these issues through the lens of the interests of the Founders, and he asserts that the “authors known to the founders had a high respect for the wide powers of the jury over law, fact and punishment.” However, Judge Weinstein also adroitly notes that consideration of these issues “must begin with the humble acknowledgment that the founders, if they could at all understand our current bloated federal criminal law and the labyrinthian structure of the Guidelines, would be appalled or bemused.”

Finally, Judge Weinstein astutely notes that jury participation in sentencing “is the mode in capital cases” and that “six states … currently allow jury sentencing in noncapital cases.” He also cites the robust and growing academic literature exploring jury sentencing (to which should be added this terrific forthcoming article by Professors Nancy King and Rosevelt Noble examining how felony jury sentencing actually operates in Kentucky, Virginia, and Arkansas).

In short, Judge Weinstein, as always, gives us lots to think about.