Northern District of Ohio Judge James S. Gwin did something few federal judges do: he looked to the jury.
The prosecutors sought the statutory maximum sentence of 20 years’ imprisonment, and the federal sentencing guidelines would have allowed a term of as long as 27 years.
But the federal district judge in the case, James S. Gwin, thought that such a sentence might be out of touch with the community’s sense of justice, and so he did something that judges almost never do. Before dismissing the jury, he asked each member what they thought would be an appropriate sentence for someone who had downloaded child pornography. According to Gwin, the average of the sentences they recommended was only 14 months.
The disparity is shocking. This is one of the reasons judges are precluded from informing juries about the sentences the law requires when they are deciding guilt. If they realized how absurdly draconian the penalties for a guilty verdict would be, it might well push them to acquit the guilty rather than have to live with the outcome of their verdict.
Judge Gwin sentenced the defendant to the mandatory minimum of five years, because that was the lowest sentence the law allowed. It’s far easier to demagogue the rhetoric of tough on crime when you don’t know the details of the case, or have to look into the eyes of a defendant. Legislators are experts at it, and their voters appreciate it.
It’s also somewhat unfair for Judge Gwin’s experiment to suffice as a substitute for considering the advisory Sentencing Guidelines or § 3553(a). There are considerations that go into a sentence that were left off the table, most notably prior criminal history. A gut reaction sentence, based on feelings rather than thoughtful application of law, is a false equivalency.
But what it does serve to show is that the ridiculously lengthy and harsh sentences that outsiders seem to believe are warranted don’t necessarily bear out in real life. Of course, it could also go the other way, with a jury being far more outraged and harsh than a judge who has seen it all before.
The reaction of other judges, well-regarded for their concern over sentencing extremes, make the point clear:
“I have never heard of a trial judge polling jurors on a sentence, either in state or federal court,” said John E. Jones, a federal district judge in Pennsylvania. “While I commend [Judge Gwin] for his creativity, I would not utilize this method of seeking assistance.”
Another U.S district court judge, Mark W. Bennett of Iowa, added, “Only about 20% of us even talk to the jury after the guilt stage of trial.”
On the whole, one might surmise that the crowdsourcing value of the jury really doesn’t have much of an effect on the federal judiciary.
Said John L. Kane, U.S. District Judge for Colorado, “I can’t think of any responsibility a judge has greater than sentencing. It is a complex matter requiring a depth of experience and knowledge that no jury could have… This may sound somewhat elitist or snobbish, but I don’t think sentencing can be done by a straw poll.”
And yet former judge, turned victim advocate and expert against the defense, Paul Cassell, took a different view:
“Because the jurors are only supposed to consider whether or not the defendant is guilty of the crime itself, and nothing else,” explained Paul G. Cassell, formerly a U.S. District Judge in Utah, “they are kicked out of the courtroom every time other types of information come up, such as the defendant’s criminal history, employment, drug use, etc.”
“But these are exactly the types of information we use during sentencing.”
It’s unclear whether this suggests Cassell might favor juror involvement in sentencing decisions, or just wants jurors to know every bad thing about a defendant possible to taint their deliberations with irrelevant bias.
While it’s highly unlikely that other judges would be inclined to follow Judge Gwin’s lead in seeking the “advice” of the jury in sentencing, Judge Bennett’s practice of talking to the jurors after their verdict provides great insight into just how absurdly harsh federal sentencing can be in light of the sensibilities of the venire.
Judge Bennett agrees. “Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence,” he says, “every time – even here, in one of the most conservative parts of Iowa, where we haven’t had a ‘not guilty’ verdict in seven or eight years – they would recommend a sentence way below the guidelines sentence.”
“That goes to show,” he says, “that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment – that’s baloney.”
The one distinction that jurors who heard a trial have when compared with the opinions of people who know nothing more about a case than the charge or a headline is that their view of an appropriate sentence is based in reality, not hyperbole.
All those people being sentenced to decades in prison under the pretense that it’s what society wants and needs is revealed, as Judge Bennett says, as baloney. While the Sentencing Commission won’t heed the defense lawyer perspective, perhaps a few federal judges making this point clear might carry sufficient weight to end the needless destruction of a life or two under the draconian guidelines. For the rest, maybe they will start taking the admonition of § 3553(a), “sufficient, but not greater than necessary.” seriously.