Jury Sentencing Research Articles

Military Jury Sentencing Theory and Practice

Military Jury Sentencing Theory and Practice

More than Just a Factfinder: The Right to Unanimous Jury Sentencing in Capital Cases

For some defendants, sentencing may be even more harrowing than a determination of guilt or innocence. Those facing capital punishment have the most to lose at the sentencing phase. The Supreme Court is not ignorant to this reality, finding in Ring v. Arizona that “the Sixth Amendment would be senselessly diminished” if it had no application to death penalty proceedings. Yet under its permissive jurisprudence, the Court has suggested that the Sixth Amendment is satisfied in the death penalty context even if its protections vanish postconviction. This Note argues instead that the Sixth Amendment—specifically the jury right—should protect defendants more during the capital sentencing phase, not less. Ultimately, it contends that defendants have a constitutional right to jury sentencing by a unanimous verdict before facing the death penalty.

Reducing Mass Incarceration Through Cost Salience: Why Juries Should Be Told the Cost of Incarceration

The practice in Missouri of informing judges of incarceration costs resulted in reductions to both mass incarceration and recidivism. States that allow jury sentencing are ideal for allowing jurors to also consider incarceration costs. The need for such common-sense reform is timely. COVID-19 has drastically reduced state budgets and there is widespread agreement that the criminal justice system over-punishes. This results in rare, bipartisan support for criminal justice reform. Jury incarceration-cost salience is also a more palatable method for reform among politicians who fear being labeled “soft on crime.”This Article presents the findings of a first-of-its-kind study, the results of which strongly support juror incarceration-cost salience. This Article also includes analysis of the arguments for and against the practice. Such consideration results in a clear preference for juror incarceration-cost salience. It would save valuable state resources that could then be invested into more productive programs, lead to a reduction in crime rates due to the criminogenic effect of incarceration, and would benefit not only incarcerated individuals but also their families and communities. These benefits, combined with the promising results of this study and the near-perfect converging of political interests in favor of prison reform, all point to a climate that is ripe for such social change.

The psychopathic "label" and effects on punishment outcomes: A meta-analysis.

The current study, using a meta-analytic approach and moderation analysis, examines 22 studies reporting how psychopathic "labeling" influences perceptions on 3 punishment outcomes (dangerousness, treatment amenability, and legal sentence/sanction) for 2 types of experimental studies utilizing vignettes: (a) studies in which a defendant with a psychopathic "label" is compared to a defendant with no mental health diagnosis (psychopathic label vs. no label) and (b) studies in which a defendant with a psychopathic "label" is compared to a defendant with a different psychiatric diagnosis (psychopathic label vs. other psychiatric label). Results show statistically significant or marginally significant (p < .10) summary effect sizes, albeit of different strengths, for the three punishment outcomes studied (legal sentence/sanction: d = 0.17; dangerousness: d = 0.58; and treatment amenability: d = -0.30) for studies comparing a psychopathic label versus no label. Conversely, all summary effects sizes for the three punishment outcomes in studies comparing a psychopathic label versus other psychiatric label were both weak and nonsignificant (legal sentence/sanction: d = 0.09; dangerousness: d = 0.14; and treatment amenability: d = 0.02). This suggests a significant general labeling effect, but not a specific labeling effect, for psychopathy in these studies. Further, these results suggest that the lay public, but not those in the criminal justice system, may subscribe to both general and specific labeling effects for psychopathy when it comes to punishment. This has potential implications for jury sentencing in both capital and, in select states, noncapital cases. (PsycINFO Database Record (c) 2019 APA, all rights reserved).

Mandatory sentencing? Use [with] discretion

When asked about sentencing discretion and mandatory sentences, jurors participating in the Victorian Jury Sentencing Study expressed strong support for sentencing discretion and weak support for mandatory sentences despite a belief by jurors that, in general, sentences are too lenient. This strengthens the argument that polls that pose a general question about mandatory sentences or sentencing severity divorced from the context of a specific case are an inadequate and misleading measure of public opinion.

The State of the Death Penalty Decline

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected to impact death sentences. First, life without parole (LWOP) statutes, now enacted in nearly every state, might have been expected to reduce death sentences because they give jurors a non-capital option at trial. Second, legislatures have moved, albeit at varying paces, to comply with the Supreme Court’s holding in Ring v. Arizona, which requires that the final decision in capital sentencing be made not by a judge, but by a jury. Third, states at different times have created state-wide public defender offices to represent capital defendants at trial. In addition, the decline in homicides and homicide rates could be expected to contribute to the decline in state-level death sentencing. We find that contrary to the expectations of many observers, changes in the law such as adoption of LWOP and jury sentencing, did not consistently or significantly impact death sentencing. The decline in homicides and homicide rates is correlated with changes in death sentencing at the state level. However, this Article finds that state provision of capital trial representation is far more strongly and robustly correlated with reduced death sentencing than these other factors. The findings bolster the argument that adequacy of counsel has greater implications for the administration of the death penalty than other legal factors. These findings also have implications beyond the death penalty and they underscore the importance of a structural understanding of the Sixth Amendment right to counsel in our system of criminal justice.

Why sentence? Comparing the views of jurors, judges and the legislature on the purposes of sentencing in Victoria, Australia

In recent times, parliaments have introduced legislation directing judges to take defined purposes into account when sentencing. At the same time, judges and politicians also acknowledge that sentencing should vindicate the values of the community. This article compares the views on the purposes of sentencing of three major participants in the criminal justice system: legislators who pass sentencing statutes, judges who impose and justify sentences and jurors who represent the community. A total of 987 Australian jurors in the Victorian Jury Sentencing Study (2013–2015) were asked to sentence the offender in their trial and to choose the purpose that best justified the sentence. The judges’ sentencing remarks were coded and the results were compared with the jurors’ surveys. The research shows that, in this jurisdiction, the views of the judges, the jurors and the legislators are not always well aligned. Judges relied on general deterrence much more than jurors and jurors selected incapacitation as the primary purpose in only about a fifth of ‘serious offender’ cases where parliament has provided that community protection must be the principal purpose.

Investigating the Impact of Jury Sentencing Recommendations Using Procedural Justice Theory

Public confidence in the criminal justice system is critical for the system to function effectively. Two studies investigated the impact of jury sentencing recommendations on public confidence using procedural justice theory. The first study (N = 80) manipulated the presence of jury involvement in sentencing (voice present versus voice absent) and the punitiveness of the minimum non-parole period (more punitive versus less punitive) to examine whether giving juries a “voice”—a key element of procedural justice—would increase public confidence in the courts, as well as perceptions of fairness and legitimacy. Contrary to predictions, results revealed that a more punitive sentence led to increased perceptions of legitimacy, which was associated with higher confidence. The second study (N = 60) examined whether manipulating the Judge’s agreement with the jury’s recommendation—as well as the Judge’s reason for disagreement—would elicit the “frustration effect,” leading to a decrease in confidence and perceptions of fairness and legitimacy. There was no evidence to suggest that the frustration effect was present. Results of both studies could suggest that jury sentencing recommendations may not effectively increase public confidence and perceptions of fairness and legitimacy in the courts, however alternate explanations are discussed.

Measuring jurors’ views on sentencing: Results from the second Australian jury sentencing study

This paper presents the results of the Victorian Jury Sentencing Study which aimed to measure jurors’ views on sentencing. The study asked jurors who had returned a guilty verdict to propose a sentence for the offender, to comment on the sentence given by the judge in their case and to give their opinions on general sentencing levels for different offence types. A total of 987 jurors from 124 criminal trials in the County Court of Victoria participated in this mixed-method and multi-phased study in 2013–2015. The results are based on juror responses to the Stage One and Stage Two surveys and show that the views of judges and jurors are much more closely aligned than mass public opinion surveys would suggest.

Transplanting Jury Trials in South Korean Legal Soils: Comparative Analysis with Jury Trials in the United States

Jury trials, known as common-law institution centering on the UK and the USA, for the first time in Korean adjudicatory history, have been transplanted into Korean legal soils under cultural and political climate with legal roots of the “Civil Participation in Criminal Trial Act (CPCTA) of 2007” since 2008. This research examines legal and operational issues of jury trials through comparative analysis between the United States and South Korea. Several legal characteristics of 2013 revision bill of CPCTA, proposed by the Committee of Civil Participation in the Judiciary (CCPJ), are to be pointed out: so-called “civil participation” approach, de facto binding power of jury verdict and sentencing, and a stricter standard for a jury verdict or decision (3/4 majority). Statistical results from planting jury trials in both American and Korean legal system proved to be very similar. Meanwhile, a 2013 revision bill has to overcome several practical and legal obstacles, such as low usage of jury trials, the high rate of judicial dismissal of defendants’ petitions, and violation of Article 27 of the Korean Constitution. Under the current legislative scheme, judges in Korean courts need to operate jury trials in such a careful and respectful way that the revision may neglect neither a defendant’s right to jury trial nor jury’s verdict. Legal scholars, experts, and legislators with interests in implementing jury trials in Korea should research on ways to expand the system to other judicial procedures such as juvenile, civil, family, and administrative cases.

Sentencing discretion and burdens of proof

In the US, judges typically retain sentencing discretion in criminal cases, but in some states this discretion is given to juries. One criticism of jury sentencing is that jurors will be tempted to issue “compromise verdicts,” where they return a guilty verdict but a light sentence when they are uncertain about the facts of a case. A simple expected utility model shows that any fact finder with sentencing discretion should engage in behavior that is observationally equivalent to a compromise verdict. Intuitively, the fact finder chooses a more lenient sentence than the punishment that fits the crime because he wants to mitigate the potential cost of a wrongful conviction; in turn, a lower cost of a wrongful conviction leads him to reduce his standard of proof. Although critics of jury sentencing intuit the risk of compromise, a bench trial poses the same risk for a judge. Alternatively, the jury trial format (jury verdict, judge sentence) can lessen the risk of compromise if juries are denied punishment information.

Sentencing Discretion and Burdens of Proof

Typically, judges retain sentencing discretion in criminal cases, but in some states this discretion is given to juries. One criticism of jury sentencing is that jurors will be tempted to issue verdicts, where they return a guilty verdict but a light sentence when they are uncertain about the facts of a case. A simple expected utility model shows that, under reasonable assumptions, any fact finder with sentencing discretion (juror or judge) should engage in behavior that is observationally equivalent to a compromise verdict. Intuitively, the fact finder chooses a more lenient sentence than the punishment that fits the crime because he wants to mitigate the potential cost of a wrongful conviction; in turn, a lower cost of a wrongful conviction leads him to reduce his standard of proof. Whether compromise verdicts occur in practice remains an open empirical question.

Military Jury Sentencing Theory and Practice

Military Jury Sentencing Theory and Practice

Punishment, Participatory Democracy, and the Jury. By Albert W. Dzur. New York: Oxford University Press, 2012. 221 pp. $55.00 cloth.

Punishment, Participatory Democracy, and the Jury. By Albert W. Dzur. New York: Oxford University Press, 2012. 221 pp. $55.00 cloth.I am not a political theorist. In reading of Albert Dzur's won- derful book, Punishment, Participatory Democracy, and the Jury,my perspective is beneficial. As I deliver my verdict on this book, which offers up jury sentencing and some lay restorative justice procedures as solutions to our current dysfunctional criminal justice system, I am perhaps less encumbered by some negative characteristics, as catalogued by Dzur, of experts: insularity and ignorance of how finely honed theories and long-standing practices are perceived or experienced by those affected; a sense of over- confidence about their infallibility (p. 155); and, at least in the criminal justice sphere (if maybe not among political theorists?), a certain harshness. Thus, although I cannot ultimately provide a reliable report on Dzur's handling of the building blocks of his arguments-the assertions of Tocqueville, Mill, Montesquieu, Anthony Duff, and Nils Christie, to name a few-perhaps I still bring a useful outsider's perspective.If faith in the contributions of non-experts seems odd to you, Professor Dzur will very ably explain why, counterintuitively, the United States' much-vilified jury system, site of the truly empow- ered layperson, is answer to the problem that ails us. And we are indeed ill. As Dzur writes, the United States is the world champion of incarceration; one out of a hundred American adults is in prison or jail, 100,000 are in the juvenile justice system, and many more are economically dependent on the state (p. 21). An important contribution of this book is a clear-eyed engagement with those in criminological circles who blame this on America's democratic impulses and so-called penal populism, with California's rule, voted on through the state's proposition system, as Exhibit A. Such critics call for greater use of expert panels to set and implement sentencing and prison prac- tices, a sort of Federal Reserve Board for penology (p. 27), or, looking to other cultures, an increased professionalism among elites who influence sentencing, be they in criminal justice admin- istration, law, or the media. Dzur aptly notes how out of step such proposals are with a core feature of American political life: a deep suspicion of elites, a suspicion, he argues, that fueled efforts as voters struggled to find ways to rein in repeat offenders, nonetheless imposing costs voters did not appreciate.To bring some legitimacy, and, he hopes, sanity, to sentencing, Dzur looks to participatory and non-elite democratic institutions we already have. Juries-together with community-based sentencing groups, such as Vermont's Reparative Probation program-foster what Dzur calls thick populism, groups that, among other things, see themselves as working in collaboration with experts ( judges), who promote heterogeneity of participation, and who value and generate a community-minded spirit of working together, thereby learning the skills of democracy-all of this is in contrast to the thin populism he sees in narrow political mobilization efforts, like the Three Strikes efforts. This collaborative model is central to his view of the jury, and he devotes a full chapter to critiquing theorists such as Tocqueville and Mill who saw the jury as usefully symbolic for legitimacy purposes and who emphasized its benefits to jurors, a la the schoolhouse of service. For Dzur- and empirical accounts such as Kalven and Zeisel's (1966) would support him-legitimacy and civic skills may accrue, but juries also contribute something unique and important to outcomes. In Dzur's view, juries give representation, and voice, to community members who are better able than judges to grasp the individu- ating factors, and community sense, of each case. …

Citizenship and punishment: Situating death penalty jury sentencing

Although capital punishment in the United States is subject to much social scientific scrutiny, there has been little ethnographic study of death penalty trials. This is not only an empirical lacuna, but also a theoretically and politically important one: by failing to take capital trials as primary objects of inquiry, the practices of lawyers, witnesses, judges, and others are viewed as products of, rather than implicated in, the institution of criminal justice. Based on an ethnography of fifteen death penalty sentencing trials across the United States during 2007, 2008, and 2009, this article seeks to understand the role of juries in capital trials. While judges customarily make sentencing decisions in American criminal cases, capital cases require jury sentencing. Key to understanding this unusual requirement is the recruitment of potential jurors into a role I term punitive citizenship. Through the process of choosing ‘death qualified’ jurors for trial, capital jurors are asked to call upon their own moral positions in conjunction with their responsibility to the collective to decide on appropriate punishments for defendants who are singled out for capital prosecution by the state. This ensures that capital jurors take personal responsibility for the punishment decision. The article argues that this process blurs the lines between state and citizen action, solidifies the types of homicides that are designated worthy of capital punishment, and allows the state to neutralize some of the historic problems with state-sponsored death sentences.

The Trial Penalty and Jury Sentencing: A Study of Air Force Courts-Martial

The sentencing empirical literature generally supports the notion that most defendants plead guilty because judges impose more severe sentences for those who assert their Sixth Amendment right to a jury trial. Whether this trial penalty effect is present in jury sentencing jurisdictions has been rarely investigated. King and Noble (2004, 2005) presented evidence suggesting that in practice, jury sentencing assists prosecutors and judges in maintaining a trial penalty or plea discount system. The present study investigates whether a trial penalty exists in the military—a jury sentencing jurisdiction that offers jury sentencing after a guilty plea as well as a trial. Using Air Force court-martial data from 2005–2006, the study finds no trial penalty effect and that juries are less likely to impose severe types of punishment compared to judges. The study discusses implications for public policy, theory, and future research.

Stabilizing violence

Narratives matter. They shape the social world in which they circulate, reflecting and refracting the cultural limits of what narratives can be told, in what setting, to whom. From this perspective, they structure how we make sense of ourselves, as members of a community, but they also structure how we understand right and wrong, good and evil. Nowhere is this more apparent than in capital murder trials in which the narratives that are constructed are literally life and death matters. The research on narrative processes in capital trials documents how the courtroom is a place for “story-battles” where each narrative works to disqualify the other and legitimize itself, in an effort to structure jurors’ decisions. This is accentuated in the penalty phase of the capital trial where both mitigating and aggravating narratives “thicken” the narratives told in the guilt phase; in the penalty phase jurors make the decision to sentence the defendant to either life without the possibility of parole, or to death. While some research of juror decision-making shows that jurors favor the prosecution narrative and make up their minds to give the death sentence independent of the penalty phase narratives, other research on mitigation narratives shows that contextualizing the defendant, via mitigating narratives, can overturn the power of the prosecution narrative and lead to a life, rather than a death, sentence. This research seeks to avoid efforts to associate juror cognitive processes to narrative processes and instead seeks to examine the connection between jury sentencing decisions, for life or death, as a function of narrative closure which is, in turn, defined in terms of two narrative dimensions: structural complexity and moral transparency. Using this framework, the penalty phase narratives in two capital trials are compared along these dimensions; the findings suggest that moral transparency and structural complexity provide the foundations for narrative closure in the penalty phase, as both structural simplicity and moral obtuseness are characteristic of narratives that are not adopted by the jury. While the sample size is small, the narrative data is rich, and the study, overall, is intended not to suggest a causal relation between dimensions of narrative closure and jury sentencing, but rather aims to illustrate a method for assessing narratives in relation to jury sentencing in the penalty phase of capital trials. However, at the broadest level, the paper offers a framework for examining the way that narrative works to contain violence.

Jury Sentencing in the United States

Jury Sentencing in the United States

The Introduction of Jury Sentencing in the Commonwealth of Virginia

The paper describes the introduction of jury sentencing in Virginia, from its first use in Revolutionary times until it became the norm for serious crimes about two decades later.

Jury Sentencing in Noncapital Cases: Comparing Severity and Variance with Judicial Sentences in Two States

Recently, commentators have championed sentencing by jury as more democratic and better suited to current theories of punishment than sentencing by judge alone. Yet discussions of noncapital jury sentencing either fail to address empirical questions or rely on outdated and incomplete studies. This study is the first to present basic information on the comparative severity and variance of jury and judge sentencing as practiced in the 21st century. We use archival sentencing data from two of the six states that authorize jury sentencing—Arkansas and Virginia. In both states, voluntary sentencing guidelines govern judicial sentencing after bench trial or guilty plea, but juries select sentences after jury trial. Regression analyses evaluated sentences of incarceration for individual offenses, and included as independent variables available offense, offender, and case characteristics associated with sentence severity. For most of the offenses examined, jury sentences after jury trial were both more varied and more severe than sentences selected by judges after bench trial. The findings also suggest that these disparities may be deliberately maintained by judges and prosecutors, and facilitated by state law that restricts the sentencing options and information provided to juries as compared to judges.