Making the important (but insufficient) claim that jurors should “know what the penalties for a guilty verdict will be”

A couple of month ago, I flagged here the notable new article by Daniel Epps and William Ortman titled “The Informed Jury.”  I was pleased to see that this week Epps and Ortman brought their work to the pages of the Washington Post via this notable commentary under the headline “Jurors don’t know what the penalties for a guilty verdict will be. They should.”  Here are some extended excerpts (with a bit of commentary to follow):

The American criminal justice system asks jurors to do something extraordinary: They make decisions that have enormous consequences for their fellow citizens’ lives — depriving them of freedom for decades, for example — without knowing those consequences in advance.  That’s because most American jurisdictions follow a rule of jury ignorance, meaning that neither judges nor lawyers may tell jurors what punishment a defendant could receive if convicted….

Keeping juries ignorant, however, exacerbates one of the U.S. criminal justice system’s worst tendencies — its inclination to grow more punitive.  Evidence from both history and social scientific experiments suggest that jurors are less likely to convict if they know a defendant’s punishment could be extremely harsh.  The rule of jury ignorance eliminates an important check on the system.  If politicians thought juries would be less likely to convict when a sentence was severe, for instance, they would be less likely to pass draconian laws.

Replacing ignorant juries with informed ones therefore could be an important criminal justice reform.  As a general rule, then, we propose that judges should tell jurors the range of sentences, including the statutory maximum and any mandatory minimums, that a defendant would face upon conviction. (We make the case in a forthcoming article in the Vanderbilt Law Review.)…

The argument that juries should be informed about sentences should appeal to both liberal and conservative justices of an “originalist” bent — with liberals focusing on how such a reform would democratize the criminal justice system, and originalists focusing on the fact that the ignorant jury lacks a solid historical foundation.

Indeed, juries informed about punishment were quite familiar to the founding generation.  In the 18th century, both in Britain and its American colonies, jurors understood that by finding a defendant guilty of a less serious crime (“libidinous actions,” say) instead of a more serious one (adultery), they could spare them from a death sentence.  Often they did exactly that, even when it was obvious to all that the defendant was guilty of the more serious offense.  It was only in the 19th century — when prisons and incarceration replaced the death penalty as the leading form of criminal punishment — that judges undermined jurors’ opportunity to shape punishment by shielding them from any knowledge of it….

Under our proposal, jurors would know about the punishments that await defendants on the other side of a guilty verdict: Judges would spell out the minimum and maximum sentences as part of their instructions to the jury…. In rare cases, juries would acquit even clearly guilty defendants where they saw the punishment as unjust.

But the transformative potential of informed juries goes beyond what they’d do in individual cases. Informing juries about punishment would alter the incentives for three key actors in criminal justice: Defendants might be more willing to roll the dice at trial (counting on juries to see the unfairness of sentences); prosecutors might think twice before “overcharging” (to avoid losing more cases); and lawmakers might hesitate before enacting severe penalties (after seeing the preceding developments). Informed juries could not single-handedly end mass incarceration or racial disparities, but they could be a step in the right direction….

Informed juries would also be more democratic juries; we’d effectively be asking a group of citizens to authorize a punishment before a judge could impose it. While most criminal laws are enacted at the state or national level, criminal juries are typically drawn more locally, from cities or counties.  Even when members of the communities impacted the most by punitive criminal justice are shut out of decision-making by lawmakers, they can still have a powerful impact in the jury room — if they have the relevant information on which to act.  Such juries would also better honor the spirit of the Constitution’s guarantee of a jury trial than the juries we have today.  Criminal juries were intended by the founders to be powerful checks on state power over criminal punishment; they weren’t supposed to just be narrow fact-finders.

How to bring this reform about?  Legislatures could direct courts to inform jurors about sentencing. Or courts could, on their own accord, reverse the wrong turn they made on juries more than a century ago. (Several federal court judges have expressed frustration over jury ignorance in recent years.)  By giving jurors the important power to determine the fate of those accused of crime, our system places a tremendous amount of trust in the judgment of ordinary people. We should trust juries with information that is critical to their making the soundest, most just decisions possible.

Long-time readers will not be surprised that I support this proposal.  Ever since being deeply moved by Justice Stevens’ opinion in Apprendi and Justice Scalia’s opinion in Blakely, I have been a avid supporter of having juries play a greater role in our criminal justice systems. (I even wrote an article some years ago making an originalist (and modern) argument that juries should be involved in federal habeas decision-making.) 

But I do not think it is enough to just have juries informed about sentencing possibilities, I think they should also have a direct role in sentencing decision-making.  Specifically, in order to better advance many of the sound goals that Epps and Ortman champion, I think citizen jurors, at least in the federal system, should be authorized and encouraged to provide sentencing advice to federal judges somewhat akin to how the federal sentencing guidelines now provide sentencing advice to federal judges.  That is, I would like to see citizen jurors provide a suggested sentencing range to federal judges, but that range would be advisory and serve as just one factor for the sentencing judge’s consideration along with the other 3553(a) factors. 

Problematically, because roughly 95% of all criminal cases are resolved by pleas, informing jurors at a traditional trial only impacts a handful of cases.  I think Epps and Ortman are right that all other other actors in our criminal justice system will be impacted by informed jurors, but I am not sure the impact will always be significant (or positive).  But my vision of advisory federal sentencing juries includes the possibility of making them available in all cases even if the defendant chooses to accept guilt and plead guilty.  Of course, the parties could still bargain around these juries (just as now parties can sometimes bargain around the federal sentencing guidelines), but I suspect in a lot of challenging and important cases some or all of the parties would see the benefit of citizen juror involvement in making a suggested sentencing recommendation.