Jury Sentencing as Democratic Practice

Abstract

After a century of reform and experimentation, sentencing remains a highly contested area of the criminal justice system. Scholars as well as the public at large disagree about the proper purposes and functions of punishment, and dissatisfaction with the sentencing status quo is high. Most recent critiques of the sentencing process have focused on the amount of discretion tolerated by the system. This Article goes further in arguing that the source of sentencing discretion is also very important to the legitimacy and integrity of the sentencing process. In the absence of wide consensus on sentencing goals, it is best to leave the sentencing decision with a deliberative democratic institution - the jury.

This Article makes the case for jury sentencing from three perspectives: the historical, the theoretical, and the practical. Part I of this Article surveys the history of jury sentencing from colonial times to the present. This history reveals that jury sentencing - a uniquely American innovation - was a valued democratic institution in the early republic, but was gradually abandoned in the twentieth century as scientific approaches to punishment came into favor. The most recent developments from the Supreme Court suggest, however, that jury sentencing may be on the rise again. Part II enlists the insights of modern political theory, and particularly, the ideas of deliberative democratic theory, to show that the movement away from jury sentencing has not been entirely healthy for either the sentencing process or our democracy as a whole. Part III addresses the practical objections that have been leveled against jury sentencing, and suggests that the vast majority of these are either exaggerated or equally present in alternative sentencing regimes. The jury, therefore, emerges as an equally competent, yet more legitimate sentencing institution. Finally, Part IV outlines the actual contours of a possible jury sentencing regime that balances the democratic virtues of jury involvement with efficiency, uniformity, and other values important to the sentencing process.

Keywords: juries, sentencing, jury sentencing, deliberative democracy, Apprendi, criminal law, criminal procedure

JEL Classification: K1, K4