CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, February 11, 2010

Bellin on Informing Juries of Consequences of Conviction

Bellin jeffrey Jeffrey Bellin (Southern Methodist University - Dedman School of Law) has posted Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction on SSRN. Here is the abstract:

The American jury, once heralded as “the great corrective of law in its actual administration,” has suffered numerous setbacks in the modern era. As a result, jurors have largely become bystanders in a criminal justice system that relies on increasingly severe punishments to incarcerate tens of thousands of offenders each year. The American criminal justice system disposes of most cases short of trial and increasingly casts the jurors’ trial task as one of almost menial fact-finding. The jury is instructed to find the facts necessary for legal guilt, and suppress any concerns about whether a conviction and subsequent punishment is unjust.

Coupled with the proliferation of harsh, mandatory sentencing regimes, this gradual erosion of the jury’s role has led to a system that not only tolerates, but arguably encourages, injustice. A defendant charged with a relatively minor offense may be convicted and sentenced to a lengthy prison term without any neutral figure (either judge or jury) determining that the punishment is proportionate to the crime.

For years, reformers have suggested that this recipe for inequity could be altered if jurors were informed in certain cases that a particularly severe punishment will follow upon a guilty verdict. The jurors, armed with that information, could then vote to acquit in the face of proof of guilt, or at least steadfastly hold the prosecution to its burden of proof. Specifically, reformers attack the status quo on two separate fronts, advocating that: (i) legislatures enact statutes designed to inform juries of severe sentencing provisions, and their right to nullify; and (ii) courts recognize constitutional rights that would have a similar effect. There are few signs of movement on either of these fronts.

Central to the reformers arguments has been the assumption that the current legal regime does not permit criminal juries to be informed of pertinent sentencing provisions. This Article challenges that assumption, suggesting a theory of relevance that could permit a significant number of defendants to present evidence of applicable sentencing provisions at trial.

The implications of admitting punishment information under the proposed theory extend beyond the cases that would be directly affected. If juries act to block imposition of harsh sentences despite proof of guilt, these actions could focus public attention on the current sentencing regime in a way that a steady stream of academic criticism cannot. Further, prosecutors, fearful that juries informed of punishment will acquit even guilty defendants, may invoke the harshest sentencing laws more sparingly. Legislators will similarly be tempted to moderate the sentencing laws to ensure that these laws do not work against the goal of punishing criminals. At a minimum, the prospect of widespread introduction of punishment evidence suggested by this Article has the potential to alter the terms of the smoldering debate concerning this nation’s sentencing laws and the appropriate role of juries in enabling their application.

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If Jones v. U.S. and Apprendi were taken to the full conclusion the jury would sentence. If a fact imposes a sentence and the fact is not charged to the jury and proven beyond a reasonable doubt then the Due Process Clause of the 5th amdt (federal cases) or 14th Amdt (state cases) taken together with the notice and jury trial provisions of the 6th Amdt is violated.
These sentencing schemes which permit a judge to determine a sentence based on facts (and hearsay) instead of the jury determining facts presented fairly before them with all rights of confrontation are unconstitutional, and (better said) un-American.
Good topic. I do not think sentencing or jury trial reform will ever come from the legislative branch in any state or the federal level. We need a strong heart from Scalia and four other votes to extend Apprendi and also Crawford to their full destiny.

Posted by: mpb | Feb 12, 2010 7:17:51 AM

Mr.Bellin ..Thank You ,Thank You , Due to these laws ,I have a son who was sentenced to life at 25 years of age . The people that are aware of this happening in the courts system ,are not chosen to be on a jury panel.For
they tell the truth if asked and god forbid the truth get out. For the people
are unaware of any thing to do with being a jurist,do not think or even know of the questions to ask.I want to picket the court houses ,wanting people to be armed and ready with knowledge before they do there just duty and hurry home.

Thanks so much, Joy Campa

Posted by: Joy Campa | Feb 12, 2010 3:05:22 PM

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