If Juries Had A Say

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.

20 thoughts on “If Juries Had A Say

  1. Peter H

    “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.”

    I’m not sure I understand this sentence. Did the sentencing commission make a mistake? How do the guidelines include a sentencing range that exceeds the statutory limits? Or did the Marshall Project make a mistake writing it up?

    1. SHG Post author

      Without having the specifics, it’s impossible for me to do my own guidelines calculations. But it’s hardly unusual for the guidelines to produce a sentence in excess of the statutory max. You would have to have some experience with the guidelines to understand how they are calculated and why this can happen.

  2. John Barleycorn

    Just what did you put on your bagel this morning esteemed one?

    All this hopeful and optimistic rhetoric springing forth from your well must mean you have either been listening to the Star Trek theme played on the french horn or you are having hallucinations of this springs upcoming thaw magically correlating with federal sentencing.

    What the heck, a few (more) judges and more french horn certainly couldn’t hurt.


  3. REvers

    We have jury sentencing in my neck of the woods. While it generally works pretty well, you do have to keep one thing in mind:

    They can be vicious. Really, really vicious.

    1. SHG Post author

      We tend to discount that possibility, both in terms of jury nullification and sentencing, forgetting that as much as they may be the conscience of the community, they can just as well be the hanging judge when the dynamic goes bad.

      1. RKTlaw

        As I deal with mostly blue-collar, murder &mayhem crime, I don’t know how jury sentencing would work. Judges who work our Superior Courts get “immunized” after a time to fact patterns that might outrage a jury.

        1. SHG Post author

          Reconfirming what’s already been said really isn’t necessary, especially when it’s clear and fairly obvious (and, sigh, friggin’ Texas).

  4. Mike Paar

    I think his survey showed how few jurors read the newspaper and know the possible sentencing range, or how few of these jurors do. One can go online and read any number of the dozens of child porn cases in the news each day and view the comments posted by readers (potential jurors?) which overwhelmingly call for extremely long sentences or even death. The fact is, the very article referenced in and linked to in The Marshall Project’s story has almost 150 comments with the vast majority calling for the judge to step down.

    A famous non-practicing attorney recently spoke out against these “draconian” sentences when a law school pal of his was caught possessing child porn images and locked away for decades. Indeed, famed author John Grisham had to backtrack his words and apologize on his Facebook page when it was deluged with thousands of comments many of which accused him of being a child pornographer for suggesting sentences were too harsh.

    Perhaps the difference is jurors felt sympathy for this particular defendant that they wouldn’t have felt for others?

    1. SHG Post author

      Some people spend their free time reading about knitting. Others are deeply concerned with Kim Karsashian’s lifestyle. Still others don’t care to read. This seems obvious, and yet, this surprises people.

  5. Robert L. Abell

    This jury’s view is in line with the sentencing commission’s 2012 report on these offenses as well as that of many other authorities. There are legitimate concerns about involving juries in sentencing issues. In all honesty, I would be concerned that many clients would fare worse. And there are very few federal criminal trials.

    Worth reading in regard to the sentencing guidelines applicable to child pornography offenses is the Sixth Circuit’s recent decision in United States v Walters (decided Jan. 2, 2015). Judge Helene White in a concurrence suggests it may be ineffective assistance of counsel for a defense lawyer to fail to raise the issue that the guidelines applicable to these offense do not comport with the sentencing commission’s usual empirical approach etc. Judge Gilbert Merritt in dissent laments these guidelines as among the injustices that go on every day in federal courts.

    1. SHG Post author

      In line? Hardly. That the 2012 report calls for reductions is nowhere near what is reflected in the sentencing view of Judge Gwin’s jury, and to suggest it is outrageously misleading. As for Walters, the “sentencing commission’s usual empirical approach” is a fallacy. It was never empirical, but passed off as such so people who lacked the rigor to think things through on their own would and bought into press releases would think so.

  6. John

    Rules of legislating sentences in the penal code:
    Step 1: Ask yourself if this is the sort of crime you think any friend or family might commit. If yes, legislate absurdly light handed sentences unlikely to deter such behavior.

    Step 2: If no to step one, look only at the absolute worst cases this law might apply to. If anyone brings up a typical case it might apply to, or suggests prosecutors might go outside the intent of the law, accuse them of being soft on crime or being criminal lovers.

    Step 3: Year later when the expenses, absurdities and constituent complaints become too large to ignore, either (a) institute some tepid reform and pretend this was a completely unforeseen consequence or (b) deny reality and say detractors are exaggerating situation. Note: under NO circumstances is the legislature to conduct a comprehensive investigation into how such crimes are actually investigated or prosecuted. This leads to awkward questions after the results come back and your District Attorneys, sheriffs and police unions will hate you.

  7. JD

    Sullivan claims the sentence is based on an “impermissible survey,” Cleveland.com says.
    [Ed. Note: Link deleted per rules.]
    Not being an attorney, I wonder what Asst. U.S. Attorney Sullivan means by “impermissible”. Does he mean it’s inconvenient for him or does he mean Judge Gwin did something he isn’t allowed the latitude to do?

    1. SHG Post author

      Without reading the transcript of sentencing, where Judge Gwin would have provided the rationale for his sentence, it’s impossible to say. But, Sullivan may well be right. The law doesn’t provide for the sense of the jury, in itself, to play a role in the sentence. It’s not a factor under 3553(a) (except to the extent it reflects the proper amount of retribution), and it’s not part of the procedure a judge must go through to sentence. There is no place in the law of sentencing for polling the jury.

      But I would assume that Judge Gwin knows his job well enough to navigate around the rules so that the sentence was firmly based on the legal criteria.

  8. InalienableWrights

    Sad that the article did not even touch on all the other lies that judges hoist upon juries. Such as withholding evidence from the jury, and not informing them of their right to nullify.

    Nor did they touch upon the fact that you can not even get a jury trial for many things. Unimportant inconsequential things such as the state taking your children through CPS…

    1. SHG Post author

      And what about Space Aliens!!! No mention of space aliens at all. Or maybe that’s because the article dealt with a specific issue rather than the million other possible issues that were not the subject of the article.

      1. onlymom

        considering the billions of stars in the galaxy there are space aliens out there. But if they have visited here. I’m sure once they got close enough to see what we do here. They ran as fast as possible holding their noses as they hauled ass out of this system.

  9. Pingback: Mandatory Sentencing Guidelines Have Nothing To Do With ‘Justice’ | Technology

Comments are closed.