Daniel Epps of Washington University of St. Louis Law School and William Ortman of Wayne State University Law School write about informing juries of potential penalties before deliberations. The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.
One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea of what is in store for the defendant. This principle of jury ignorance is a profound mistake. It is unmoored from history and the core function of the jury to authorize punishment. Worse, it exacerbates the criminal legal system’s predilection for excessive severity.
The article, The Informed Jury, offers and defends a proposal to replace ignorant juries with informed ones, by requiring juries to be told of the statutory minimum and maximum punishment in every case before being asked to return a conviction. Informed juries would change the dynamics of criminal justice for the better. In individual cases, punishment information would make juries more careful before convicting and would sometimes lead juries to refuse to convict where punishment would be excessive and unjust. But more importantly, informed juries would provide systemic benefits. Requiring informed juries would set in motion a political feedback loop that would counteract existing incentives for legislators and prosecutors to prefer severity. In addition to being good policy, there are powerful arguments that informed juries deserve to be recognized as part of the constitutional jury-trial right.
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