Schmidtke, Jack --- "Jury Sentencing in the US" [2005] ALRCRefJl 15; (2005) 86 Australian Law Reform Commission Reform Journal 58

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Reform Issue 86 Winter 2005

This article appeared on page 58 of the original journal.

Jury sentencing in the US

By Jack Schmidtke*

While the notion of using jurors at the sentencing stage of trial remains within the realm of intellectual discourse in Australia, jury sentencing has had a long and varied history within many state jurisdictions in the United States.

Jury sentencing is still used in the US in the determination of death penalty cases in every state that retains capital punishment, but only in Arkansas, Kentucky, Missouri, Oklahoma, Texas and Virginia is jury sentencing still employed in non-capital cases.

Just three decades ago more than a quarter of all US states used jury sentencing for non-capital cases. While many American legal commentators argue that jury sentencing in non-capital cases is an archaic remnant of the post-colonial era, Arkansas, Virginia and Missouri revamped the institution in the 1990s.

Virginia was the first state to formally implement jury sentencing when it introduced the procedure into all criminal cases in 1796. By the middle of the 19th century, 10 more states had followed suit. The decision to introduce jury sentencing was a product of the political climate of the time. Memories of arbitrary Crown-appointed judges, fear of unelected judges, enthusiasm for self-government, and a growing perception that juries were more adept in assessing proper punishment than judges were some of the factors that motivated state legislators to introduce the institution.

However, confidence in jury sentencing gradually declined throughout the 20th century. Criticism by the legal fraternity, including the American Bar Association, led many states to abolish jury sentencing in the 1960s and 70s. Legislators in the six states that have retained jury sentencing for non-capital cases have also greatly restricted the autonomy afforded to sentencing juries.

While there has been extensive legislative reform of jury sentencing over the years, differences still exist between those states that have retained the institution, including: whether the trial is separated into guilt and punishment stages; whether a prosecutor can veto a defendant’s decision to be sentenced by a judge or jury; the types of offences that may be sentenced by juries; and the extent of information given to juries regarding sentencing options, the offence involved, and the offender.

For instance, in the late 1980s and mid-1990s, Kentucky, Virginia and Arkansas introduced separate guilt and sentencing proceedings for all felonies. This allows prosecutors to introduce information about the defendant’s criminal history at the sentencing stage, following the jury’s determination of guilt. In contrast, Missouri still retains a more unitary trial format, with no real division between the determination of guilt and the sentencing stage. However, Missouri avoids the prejudicial elements of a truly unitary format by having the court sentence offenders with prior convictions.

Many states have also introduced the requirement that jury sanctions fall within certain statutory limits. For instance, Virginia established a sentencing commission in 1994 with the purpose of creating a sentencing framework to narrow the range of sentences available to jurors. Trial judges in Kentucky, Virginia and Arkansas also have the power to reduce a jury’s sentence, and raise it when it fails to comply with mandatory minimum sentencing statutes.

However, while the number of states that employ jury sentencing in non-capital cases in the United States has diminished dramatically, and the autonomy given to juries at the sentencing stage has been greatly restricted, jury sentencing still plays a decisive role in the trials of many defendants throughout the United States.

Indeed, it is estimated that the total number of felons sentenced by juries in Texas alone surpasses the number of federal defendants convicted by juries each year, for misdemeanours or felonies, in all US districts combined.¹ Thus the United States still remains a rich resource for anyone wanting to observe and critique the realities of jury sentencing.

*Jack Schmidtke was an intern with the Australian Law Reform Commission in Jan-Feb 2005, attached to the ALRC’s sentencing inquiry.

Endnotes

1. N King & R Noble, ‘Felony Jury Sentencing in Practice: A three state study’ (2004) 57 (3) Vanderbilt Law Review 885.