Wood engraving done in 1879 titled “Our intelligent jury system.” Library of Congress

The American criminal justice system asks jurors to do something extraordinary: They make decisions that have enormous consequences for their fellow citizens’ lives — depriving them of freedom for decades, for example — without knowing those consequences in advance.

That’s because most American jurisdictions follow a rule of jury ignorance, meaning that neither judges nor lawyers may tell jurors what punishment a defendant could receive if convicted. There are rare exceptions — state courts in Louisiana and North Carolina, for example — but in most American courtrooms, judges go to great lengths to make sure that jurors don’t know what will happen after a “guilty” verdict.

Keeping juries ignorant, however, exacerbates one of the U.S. criminal justice system’s worst tendencies — its inclination to grow more punitive. Evidence from both history and social scientific experiments suggest that jurors are less likely to convict if they know a defendant’s punishment could be extremely harsh. The rule of jury ignorance eliminates an important check on the system. If politicians thought juries would be less likely to convict when a sentence was severe, for instance, they would be less likely to pass draconian laws.

Replacing ignorant juries with informed ones therefore could be an important criminal justice reform. As a general rule, then, we propose that judges should tell jurors the range of sentences, including the statutory maximum and any mandatory minimums, that a defendant would face upon conviction. (We make the case in a forthcoming article in the Vanderbilt Law Review.)

There are obstacles to this reform — notably a 1994 Supreme Court decision that described jury ignorance as a “well established” principle. Justice Clarence Thomas, who wrote the opinion, said there was “a basic division of labor in our legal system between judge and jury”: Juries find guilt, judges sentence. (In that case, Shannon v. the United States, the defendant, who had pleaded not guilty by reason of insanity, wanted the jury to be told that he would be confined involuntarily even if the jury concluded he was insane. The jury wasn’t told, and he was found guilty.)

But that opinion was weakly argued, and not well grounded in judicial history. The argument that juries should be informed about sentences should appeal to both liberal and conservative justices of an “originalist” bent — with liberals focusing on how such a reform would democratize the criminal justice system, and originalists focusing on the fact that the ignorant jury lacks a solid historical foundation.

Indeed, juries informed about punishment were quite familiar to the founding generation. In the 18th century, both in Britain and its American colonies, jurors understood that by finding a defendant guilty of a less serious crime (“libidinous actions,” say) instead of a more serious one (adultery), they could spare them from a death sentence. Often they did exactly that, even when it was obvious to all that the defendant was guilty of the more serious offense. It was only in the 19th century — when prisons and incarceration replaced the death penalty as the leading form of criminal punishment — that judges undermined jurors’ opportunity to shape punishment by shielding them from any knowledge of it.

Fast forward to today. The United States has become the most punitive country in the world — and the costs of mass incarceration are disproportionately borne by members of disadvantaged racial and ethnic groups. Part of the blame lies with criminal statutes that are far more severe than ordinary citizens might assume. For instance, a person caught selling 40 grams of fentanyl (about the weight of a slice of bread) faces up to 40 years in federal prison for a first offense and life without parole for a second offense. Prosecutors like harsh statutes in part because they help them strike deals: Threats of extremely harsh punishments make defendants more willing to plead guilty and give up their right to a jury, in exchange for a somewhat reduced penalty. (The vast majority of criminal convictions today come from guilty pleas, not from trials.)

In the relatively rare cases that do go to trial, jurors routinely express surprise at the punishment a defendant received as a result of a guilty verdict. Consider the 2014 trial of an Occupy Wall Street protester for assaulting a police officer. Upon learning — too late — that a guilty verdict exposed the defendant to a possible seven-year prison term, one juror expressed sadness and disbelief: “Most [on the jury] just wanted her to do probation, maybe some community service.  . . . Even a year in jail is ridiculous.” Similar examples are easy to find.

Under our proposal, jurors would know about the punishments that await defendants on the other side of a guilty verdict: Judges would spell out the minimum and maximum sentences as part of their instructions to the jury. Such a system would introduce some challenges: For fairness regarding the charge at issue, jurors should not know about a defendant’s prior convictions. So in cases where recidivism might play a role in sentencing, a trial might have two stages: The jury would rule on the basic crime, and then on the enhanced sentence.

Notwithstanding such procedural complexities, the advantages of informed juries are compelling. As a general matter, higher stakes lead to greater caution in decision-making. (Contemplate how much more thought you put into buying a several-hundred-thousand-dollar home than a $10 meal). In rare cases, juries would acquit even clearly guilty defendants where they saw the punishment as unjust.

Jury section in the courtroom in Franklin. Heard County, Georgia, in 1941. Library of Congress

But the transformative potential of informed juries goes beyond what they’d do in individual cases. Informing juries about punishment would alter the incentives for three key actors in criminal justice: Defendants might be more willing to roll the dice at trial (counting on juries to see the unfairness of sentences); prosecutors might think twice before “overcharging” (to avoid losing more cases); and lawmakers might hesitate before enacting severe penalties (after seeing the preceding developments). Informed juries could not single-handedly end mass incarceration or racial disparities, but they could be a step in the right direction.

Some criminal justice reformers have proposed an unchecked right for juries to refuse to enforce laws they view as unjust for any reason. But jury nullification is contentious, and in most jurisdictions lawyers are prohibited from arguing for it. Informing juries about punishment is a more narrowly tailored reform that would also curb onerous laws.

Informed juries would also be more democratic juries; we’d effectively be asking a group of citizens to authorize a punishment before a judge could impose it. While most criminal laws are enacted at the state or national level, criminal juries are typically drawn more locally, from cities or counties. Even when members of the communities impacted the most by punitive criminal justice are shut out of decision-making by lawmakers, they can still have a powerful impact in the jury room — if they have the relevant information on which to act. Such juries would also better honor the spirit of the Constitution’s guarantee of a jury trial than the juries we have today. Criminal juries were intended by the founders to be powerful checks on state power over criminal punishment; they weren’t supposed to just be narrow fact-finders.

How to bring this reform about? Legislatures could direct courts to inform jurors about sentencing. Or courts could, on their own accord, reverse the wrong turn they made on juries more than a century ago. (Several federal court judges have expressed frustration over jury ignorance in recent years.)

By giving jurors the important power to determine the fate of those accused of crime, our system places a tremendous amount of trust in the judgment of ordinary people. We should trust juries with information that is critical to their making the soundest, most just decisions possible.

Daniel Epps is the Treiman professor of law at Washington University in St. Louis. He has served as a law clerk to Justice Anthony Kennedy and as a special counsel for Sen. Sheldon Whitehouse (D-R.I.). William Ortman is an associate professor of law at Wayne State University.


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