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When Juries Help Judge

Giving jurors a say in sentencing.

Update 12:17 p.m. 3.13.2015

Prosecutors in Cleveland filed an appeal on Thursday challenging the sentence of Ryan Collins, a Dalton, Ohio man convicted of downloading over 15,000 files of child pornography. Federal prosecutors rarely appeal sentences, because federal sentencing guidelines – especially in cases involving child pornography or drug trafficking – are already very punitive.

But this was an exceptional case. Immediately after Collins’s trial ended, U.S. District Judge James S. Gwin surveyed the jury to see what sentence they believed was appropriate for the crime, and he ultimately decided on a sentence of only five years when prosecutors had advocated for the statutory maximum of 20. In the appeal, filed with the 6th U.S. Court of Appeals in Cincinnati, the U.S. Attorney’s office will argue that such a survey was impermissible.

Original Story

When government agents used cutting-edge software to hack into the hard drive of Ryan Collins’s computer, they found more than 1,500 sexually-explicit images of children, some of whom were younger than twelve. The agents also discovered file-sharing programs, indicating that Collins may have been distributing the pornography online.

Collins was unrepentant, even after a jury in Cleveland, Ohio convicted him of possessing, receiving, and distributing child pornography. 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.

Then the judge did something even more unusual. Taking the jury’s input as a marker of what the community considered “just punishment,” he sentenced Collins to the statutory minimum of five years in federal prison.

“I have never heard of a trial judge polling jurors on a sentence, either in state or federal court.”

Gwin’s approach represents a significant departure of both the legal principle and practice. With the exception of capital cases (in which jurors in both the federal and state courts must recommend the death penalty), sentencing at the federal level is handled exclusively by judges, usually a few months after a conviction.

In a handful of mostly southern states, in the few criminal cases that go to jury trial, the jury stays on afterward to recommend a sentence. However, the judges in those cases still have the final say.

"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.”

There are several legal reasons why what Judge Gwin did is so uncommon. The primary one is that, by design, the jury is not supposed to think about punishment.

“The jury is only supposed to consider whether or not the defendant did the crime,” said Nancy King, a professor at Vanderbilt University and an expert on jury sentencing. “In fact, during trial, a common jury instruction is to not even think about sentencing, because thinking about punishment tends to create empathy for the defendant.”

“If the jurors knew they would have to decide on a sentence, they would be thinking about punishment.”

A second reason is that jurors are not apprised of much or even most of the information that goes into a sentencing calculation.

“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.”

The third reason, finally, is that the judge, an experienced jurist, is considered better able to manage all the various calculations that are made during sentencing.

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.”

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The list of factors involved in a sentencing calculation is long. Often, in a given federal case, there are “mandatory minimum” sentencing guidelines, set forth by Congress. Then there are additional guidelines – which often contradict the mandatory minimum – recommended by the U.S. Sentencing Commission, an independent agency of the judicial branch that provides judges with criteria for sentencing.

And most federal judges depart from the guidelines only cautiously. According to Sentencing Commission data, among more than 11,000 federal child pornography defendants who were sentenced under the same guidelines as Ryan Collins since 2006, he was one of only five who went to trial and received a minimum sentence when the guidelines called for the maximum.

Judges also consider the aggravating and mitigating factors of each defendant’s case in their sentencing. If the defendant has an extensive criminal history, he will often get more prison time; if he has expressed remorse, he may get less.

But Judge Gwin and a handful of other judges say jurors are up to the task, and should not be on the sideline during sentencing.

In 2010, he authored a study about the practice of surveying the jury. In it, he argued that jurors are a cross-section of the community, and that asking them about sentencing is a way to ascertain what the community believes is “just punishment.”

Especially in federal child pornography cases and drug trafficking cases, he wrote, querying the jury helps to demonstrate that War on Crime-era sentencing guidelines are draconian when measured against the normative beliefs of the community, represented by the jury.

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."

Judge Cassell also surveyed a jury about sentencing, once, for a similar reason.

It was 2004, in the now-famous case of Weldon Angelos, a small-time marijuana dealer who – because he was in possession of a gun, which triggered a harsh mandatory minimum – was facing a sentence of 55 years in federal prison. Judge Cassell wanted to ask jurors whether they believed, as he did, that such a sentence would be too extreme.

They did agree, and, though Judge Cassell was obligated to hand down the mandatory minimum sentence, he used the jurors' feedback to make a statement about how out-of-whack the sentencing guidelines had become.

Douglas A. Berman, a professor at Ohio State University and an expert on criminal sentencing, says that asking the jury for input during sentencing may be rare – but it has a precedent.

"In capital cases,” he says, “getting the jury's sanction for a death sentence is a crucial part of making that sentence legitimate, because the jury represents the society. I don't see why, in other criminal cases, the same logic shouldn't hold."

Berman, like Judge Gwin, does not recommend that jurors take over the sentencing process, but rather that they should have input in it.

"Sure,” he says, “the judge may have better knowledge of the case law and the statute and guidelines, as well as the defendant's criminal history, motive, etc. But the jury, as a cross-section of the community, can provide valuable input as to what the community feels is a proper punishment for the crime itself.”

"Why not consider both?"