If Juries Could Impose the Sentence

In Georgia, juries generally don’t get to decide the sentence. Only where the State is seeking death does the jury get a hand in sentencing. Not only do Georgia juries not get a say in sentencing decisions, our law is designed not to let them know a great deal about what might happen at sentencing. The idea is that jurors might be swayed by sympathy in the guilt-innocence phase of the trial if they knew what was in store for the defendant after a guilty verdict. For instance, an armed robbery conviction in Georgia carries with it a minimum mandatory ten years to serve without the possibility of parole. For certain repeat offenders, a guilty verdict means life without the possibility of parole. Jurors are not told about minimum mandatory sentences unless they stay to watch the sentencing hearing.

Scott Greenfield posted at Simple Justice about a Federal Judge who consulted with the jury on what a fair sentence ought to be in a case. Turns out that most jurors would sentence well below the sentencing guidelines. And I imagine, on the State side, that jurors would often sentence below the minimum mandatory.

A few months ago, I tried a case in Federal Court where the jury reached a guilty verdict. I noticed that many of the jurors were crying as they walked into the courtroom (never a good sign). After it was all over, they asked me to come back to the jury room to talk to me about their decision. They then asked the prosecutor to be lenient.

In between the verdict day and the ultimate sentencing date, I consulted with many colleagues who regularly practice in Federal Court about whether it would be a good idea (or even ethical) to invite jurors back to testify in mitigation. Opinions varied, but the consensus was that I should not do it. There was no way to know how a judge might respond to this kind of testimony or whether such a move might appear to be a stunt. I ultimately decided against doing it, thinking that the potential downside outweighed the potential good. After all, the judge saw the same trial they did. And he hopefully saw things the way they did.

When it was all over, my client received a sentence significantly below the guidelines.

Scott Greenfield’s blog post raises an interesting question. Should jurors have a role in the sentencing process in more cases? And could jurors be consistently be counted on to recommend or impose a sentence below guidelines or below a mandatory minimum?

Philosophically, I don’t think I’m into the idea of jurors imposing sentence. There’s a reason that we give jurors their job and judges theirs. However, it’s appealing to me to wonder if legislatures would be as prone to enact mandatory minimums if they were taking the sentencing power away from jurors rather than judges? I’m not sure what the answer is. I suppose they would do in the sentencing world what they’ve done to damage caps in the civil world. However, the minimum mandatory universe makes me a little less certain about whether juries should have a hand in the sentencing process. Perhaps outraged jurors would put pressure on their legislature to eliminate some mandatory minimums.

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