Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction

43 Pages Posted: 6 Feb 2010 Last revised: 20 Dec 2010

Date Written: February 5, 2010


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 overwhelming majority of cases are resolved short of trial and, even when trials occur, jurors are instructed to find only the facts necessary for legal guilt. Apart from this narrow task, jurors need not, in the eyes of the law, concern themselves with whether a conviction and subsequent punishment is fair or just. Coupled with the proliferation of harsh, mandatory sentencing regimes, this diminution 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 argued, without success, that this recipe for inequity should be altered by new statutory or constitutional rights that would guarantee that jurors are informed whenever an unusually severe punishment would follow upon a guilty verdict. The jurors, applying community norms of fairness and justice, could then vote to acquit despite proof of guilt, or at least steadfastly hold the prosecution to its burden of proof.

Central to the reformers arguments has been the widely-shared assumption (borne out by the overwhelming weight of the case law) that the current legal framework does not permit defendants to inform juries of pertinent sentencing provisions. This Article challenges that assumption, suggesting a novel theory of relevance that could permit a significant number of defendants to present applicable sentencing provisions at trial, without any change to existing statutory or constitutional law. The admission of such evidence would have implications beyond the trials directly affected. Widespread introduction of punishment evidence, in concert with juries’ likely adverse reaction to that evidence, could alter the terms of the smoldering debate concerning this nation’s harsh sentencing laws and the appropriate role of juries in enabling their application.

Keywords: Punishment, Nullification, Sentencing, Shannon, Jury, Relevance, Motive, Three-Strikes, Mandatory Minimum, Pabon-Cruz, Datcher, Polizzi

Suggested Citation

Bellin, Jeffrey, Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction (February 5, 2010). Boston University Law Review, Vol. 90, p. 2223, 2010, SMU Dedman School of Law Legal Studies Research Paper No. 55, Available at SSRN:

Jeffrey Bellin (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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