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The right to a jury trial is a constitutional treasure. It is often held up as a cornerstone of American democracy—a person charged with a crime can trust fellow citizens to operate as a bulwark between him and government overreach. But, just how effective can a jury be when it is deprived of critical information about the case before it? No, we are not talking today about the all-too-common and disturbing prosecutorial practice of suppressing exculpatory evidence. The critical information we highlight here is the sentencing outcome of a trial if the jury finds the defendant guilty of a crime. In the vast majority of jurisdictions, jurors are not permitted to know what sentence a criminal defendant will face if convicted.

Blindfolding jurors with respect to a defendant’s sentence is a long tradition, but the practice has not been uniformly accepted. The last substantial discussion about informing jurors of the sentencing outcome took place nearly ten years ago when a famous federal judge in New York, Judge Jack Weinstein, wrote a lengthy opinion on the subject. In United States v. Polizzi, he wrote:

Defendant’s request that the jury be informed of the five-year mandatory minimum should have been granted. A brief historical review demonstrates the right of the jury in this case under the Sixth Amendment of the Constitution to know the sentencing impact of its decision — a right shared by the defendant.

His “brief” historical review—not actually so brief—concluded that jurors had, at the time of this country’s founding, the right to know the punishment and nullify. “When a jury refuses to convict on the basis of what it thinks is an unjust law as applied, a misconceived prosecution, or an excessive penalty, it is performing exactly its role imposed by the Sixth Amendment.” (This sort of refusal to convict despite evidence of guilt is commonly referred to as nullification.) In concluding his analysis, Judge Weinstein granted the defendant’s motion for a new trial.

Judge Weinstein’s opinion generated a wave of controversy and sparked some scholarly activity around this topic. The Second Circuit reversed his grant of a new trial, finding that “[a]lthough jurors have the capacity to nullify, it is not the proper role of courts to encourage nullification.” The court held open the possibility that a trial court may have good reason for informing the jury of the potential sentence in some instances, but found that Weinstein’s decision to grant a motion for new trial after he decided during trial not to share that information was flawed.  

In the past few years, there has been a massive societal awakening to the problem of prosecutorial overreach and its role in fueling mass incarceration. While the recent elections of progressive and reform-oriented District Attorneys seem to be moving some localities in the right direction, the real solution should not be lost in the excitement: “Prosecutors should have less power.”  Given the current momentum, has the time come to revisit the idea of informing jurors about what sentence a defendant will receive if he is convicted?  

It strikes us an idea for this time. We are not talking about a piecemeal, case-by-case fix. After all, “[d]efendants continue to seek to inform jurors about the punishment they face, yet those efforts are nearly always rebuffed.” Even local changes by progressive prosecutors to agree to inform the jurors about sentences in every case—though they would be welcome—would not be sufficient. This is a significant opportunity for lawmakers and voters (who can push ballot initiatives in some states) to increase transparency and promote proportionality at a crucial stage of juror decision-making. One scholar reminds us, “legislatures are free to experiment with the amount and type of constraints on jury authority.”

Jurors are citizens who can actively check the power of the prosecutor. Elections matter, but so too does jury service. Unfortunately, as one law professor has observed, “jurors have become bystanders.” Another scholar recently wrote, “It’s always seemed crazy to me that punishments for crimes are public info[rmation], but in the jury box no one can know what will happen to the defendant, even when there’s a mandatory minimum. Juries should have this info[rmation] to check prosecutorial overreach.” Indeed, it is crazy. Why not pursue this change?

One can certainly expect massive prosecutorial resistance to legislative proposals providing that jurors be notified about the sentencing consequences attached to various available verdicts. It is widely known that District Attorneys like to throw their weight around at state capitols. But, that should not be enough to stop a righteous movement toward fairness and accountability. Let’s put more information in the hands of everyday citizens who are being asked to make decisions on our behalf that will have momentous consequences.

Judge Wiseman in Tennessee put it best:

[I]f community oversight of a criminal prosecution is the primary purpose of a jury trial, then to deny a jury information necessary to such oversight is to deny a defendant the full protection to be afforded by jury trial. Indeed, to deny a defendant the possibility of jury nullification would be to defeat the central purpose of the jury system. Argument against allowing the jury to hear information [about the sentence] that might lead to nullification evinces a fear that the jury might actually serve its primary purpose, that is, it evinces a fear that the community might in fact think a law unjust. The government, whose duty it is to seek justice and not merely conviction . . . should not shy away from having a jury know the full facts and law of a case.

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