Guest post: “A plea for juries — at sentencing”

I am very pleased to have the opportunity to publish this guest post from Marah Stith McLeod, who is a Associate Professor at Notre Dame Law School and the authors of a number of great sentencing articles.  I am grateful to be able to platform here a brief account of her latest article, “A Democratic Restraint on Incarceration” (which I first flagged in this post):

Several recent postings on this blog have focused on the value of juries as organs of democratic self-governance. Americans retain an abiding trust in juries as legitimate decisionmakers — far higher than the trust they place in judges, prosecutors, and defense attorneys. Serving on a jury, moreover, tends to increase the jurors’ understanding of, and trust in, the criminal justice system, and tends to make jurors afterward more likely to participate in civic life. 

We have in recent years witnessed significant challenges to American democratic institutions and a loss of confidence in the competence and ethics of our elected leaders.  In a recent guest essay in the New York Times, Wharton organizational psychologist Adam Grant argued that if we want more effective and ethical leaders, we should choose them not by election but by sortition — by random selection from a pool of candidates.  Grant proposes a system in which laypeople who pass a civics test can join the candidate pool.

We should take Grant’s proposal seriously.  Fortunately, as Grant observes, “we already use a version of a lottery to select jurors,” and criminal juries have historically played crucial roles in promoting a just and flourishing civil society. Justice Sonia Sotomayor recently described juries as “democratic institutions called upon to represent the community as ‘a bulwark between the State and the accused.’”  When it comes to reforming our criminal justice system, juries may be exactly the kind of democratic institution we need most.

Juries’ current role as finders of fact, however, is not enough.  Juries also should have the power to limit penalties — especially the decision to strip a defendant of his liberty and suspend his civic existence.  Elected politicians may be voted out of office if they vote to reduce criminal penalties, and judges have powerful incentives to maintain a trial penalty in order to induce future defendants to plead guilty.  The jury is free of these punitive incentives.  And legislatures may find it much easier to allow juries to impose constraints on punishment, because juries enjoy unusual levels of public trust and make only case-specific decisions.

In A Democratic Restraint on Incarceration, I argue that trial juries should be empowered to set an absolute maximum amount of incarceration based on what a defendant deserves, and the trial court’s sentencing discretion should be capped at that amount.  Sentencing courts could sentence below jury-set maximum desert, but never above it. Legislatures should grant juries case-specific authority to depart even below mandatory minimums in order to avoid undeserved excesses.

A skeptic might doubt juries can make a real difference in a criminal system dominated by plea deals. But the effects of a new jury power to constrain post-trial penalties would reverberate across pleaded cases as well, for prosecutors could no longer credibly threaten defendants with post-trial prison terms that no jury would deem to be deserved. Defendants would gain a valuable bargaining chip, and prosecutors would lose an unjust tool, correcting — if only slightly — the imbalance of power in plea negotiation.

The unique trust the public places in juries makes them ideal institutions to restrain carceral excesses.  Rather than waiting for our elected officials to repeal or mitigate unjust penalties, we should let juries take the lead.