Abstract

There are powerful historical, constitutional, empirical, and policy justifications for a return to the practice of having juries, not judges, impose sentences in criminal cases. The fact that Americans inherited from the English a mild preference for judge sentencing was more a historical accident than a case of thoughtful policy. Jury sentencing became quite widespread in the colonial and postcolonial eras as a reflection of deep-seated mistrust of the judiciary. The gradual drift away from jury sentencing was driven not by a new-found faith in the judiciary, but rather by the now discredited paradigm of rehabilitationism. Now that that paradigm has shifted to neoretribution, and that the essential moral character of the criminal law has been rediscovered, jurors should likewise be rediscovered as the best arbiters of that moral inquiry. A return to jury sentencing would also mesh nicely with the Court's struggle in its Apprendi line of cases to find a sensible way to distinguish between elements and sentence-enhancers under the Sixth Amendment. A Sixth Amendment interpreted to include the right to jury sentencing would also restore the textual symmetry between the Sixth and Seventh Amendments. There are no constitutional, empirical, or policy reasons why a defendant accused of committing negligence has the right to have both his guilt and damages assessed by a jury, but a criminal defendant has only half that right.

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