Granting juries the power to set sentences

“The reason always given in support of this trend (to restrict the influence of juries) is that it is cheaper and more efficient to do away with juries. Even if this be so, of which I am not convinced, the reason misses the main point of juries - the spreading of power in the community. The more widely spread the exercise of power is, the healthier, it seems to me, to be.”   Retired NSW Supreme Court judge Bill Priestley^#

It is an understatement to declare that the public is often quite unhappy with sentences handed down to recently convicted criminals by judges. The impression, hard to ignore, is that judges are a segment of society that is greatly removed from the norm. The beliefs and values developed by those on much higher incomes which afford they and their families the secluded protection of neither living nor working in average crime rate areas are not necessarily the same as those who have either first hand experienced a physical assault or know someone close who has.

It is not so much that there are occasional bad sentencing decisions where the harm to the victim is exacerbated  by the insult of no tangible public condemnation of the perpetuator, who is then free to continue his criminal pursuits. What is worse is that the public in these cases will lose significant confidence in the judicial system as a whole.

A simple solution to this is to remove from the court the powers of sentencing and hand them to the people’s representatives; the jury.

Even in future cases where seemingly soft sentences were granted on occasion, the public would have more reason to believe the sentence in the circumstances was correct considering it was after deliberation by men and women representing up to twelve differing viewpoints in society. This would be far more placating than the decision by one possibly bigoted individual who was not forced to talk his thoughts over with anyone else and may well base an outcome, waited for by many, on nothing more than his or her own prejudices.

How to Apply

This idea was actually part of the policy platform of the Liberal Party at the 2007 NSW state election. It was susceptible to criticism because no detail of it’s application was given and it was assumed that if a jury failed to agree unanimously (a reasonable possibility), then a new trial would be both impractical and expensive.
What follows is a suggested procedure for a jury to set a sentence which would not only encourage deliberation but would lead to a high probability of a result.

Specifics of sentencing:

• At the sentencing phase of the trial, after victim impact statements and the opportunity for both sides to present argument has been given, the jury then retires (again) and is given one unit of time to come to a unanimous decision on what the sentence, within statuary limits, should be.
• A unit of time would be decided by the court as either: two hours, four hours, eight hours, or whatever should be appropriate depending on the severity of the crime.
• If not agreeing they must sit out the full unit before returning to court. 
• The judge then gives them another unit of time to come to an eleven / one majority¹.
• If still no agreement after expiration of time they are then given another unit to come to a ten / two majority.
• If need be, this will go all the way to a seven / five majority which in all probability would be ultimately agreed upon considering the jury unanimously thought the defendant was guilty in the first place.

Responses to Comments and Questions about Jury Sentencing

Is there any precedent of jury sentencing?

• Jury sentencing for both death penalty and non-capital crimes has been practised in various of the United States since its independence in 1776. Currently the majority of the states have a jury decide on the death penalty while a minority decide on lesser felony crimes.
• In French criminal trials for serious crimes the sentence is decided by consultation between the judge and the jury.

Would the sentence given by a jury be subject to appeal?

• Appeals to a jury sentence would be allowed on issues of law. eg.
• was the sentence within the statuary limits?
• was relevant evidence entered at the sentencing stage which was later found to be false?
• was a juror interfered with?

In such cases a jury would have to be empanelled to review the sentence. However it would be ridiculous to allow an appellate court, comprised of judges, to overrule a sentence merely because they thought it was either too lenient or too harsh, as this would nullify the very concept of taking the sentencing process out of the hands of the judiciary and returning it to the people. Legislation might be enacted to grant a court of appeal the power to empanel a new jury to review a sentence, on no other reason than the severity or leniency of the sentence given, if the court’s decision was unanimous.

Who would decide sentence when the defendant pled guilty and there was no trial?

• As in those American states that practice jury sentencing, a jury would be empanelled solely to deliberate on the appropriate sentence.

‘The president of the Law Council of Australia, John North, pointed out that sentencing often takes place 12 weeks after a verdict, when jurors may have read about the case and discussed it with their friends. "Unless the process took place almost immediately, it would be impractical."’²

• The primary reason the jury cannot take in external information about a current trial is that they may find out about previous convictions or even charges brought against the accused or otherwise evidence of bad character. This is denied the jury because it is claimed it may prejudice the jury into giving a false verdict. However in the sentencing phase of a trial, after a guilty verdict has been brought in, the decision maker (currently the judge) is presented with all such information and all arguments by the prosecution, as well as victim impact statements, as to why the felon is not a civil person and is deserving of punishment. So as all ‘out of court’ public statements will be allowed to the jury anyway in the sentencing stage, there would be no harm in the twelve weeks of media exposure. The jury could also be reminded that as anything will be allowed in, anything incriminating they may have heard but was not presented in court must obviously have been spurious rumour without foundation.

‘The head of the NSW Law Society's criminal law committee, Pauline Wright, said she feared "mob sentencing" and that jurors might be distracted from their primary role.’³

• If sentencing by the jury is “mob sentencing” then does that not imply that the original verdict by the jury is only a “mob verdict”? Perhaps the NSW Law Society believes that the very essence of our nation’s governing system, democracy, is only “mob decision making” and that the country would be better off if all government decisions were made by the more enlightened and reputable members of our society: the judges.

‘It's a particularly difficult art, the art of sentencing; probably the most difficult thing that a judge can possibly do. I don't see how the juries will have time or energy or the training necessary in order to substitute their views.’ Justice Marcus Einfeld, former Australian Federal Court Judge, former President of the Human Rights and Equal Opportunity Commission and convicted, incarcerated felon.⁴ 

• Judges are trained to know the common law and legislative statutes of the land, but because of its subjective nature, they receive no training in sentencing. One wonders why they would have the time and energy to perform the sentencing part of a trial but somehow juries wouldn’t?

‘It is very important that sentences reflect the beliefs and values of the community, and as much as in theory jury sentencing might be the answer, one wonders how it might work in practice.  Victorian  law mandates that sentences for similar crimes must conform to similar punishments. It would be extremely impractical to go through the lengthy process of educating each jury about the contemporary history of sentencing for the particular crime the jury would be specifically involved with, for it then to be qualified to give the appropriate sentence by law.’ Robert Clark, Victorian Shadow Attorney-General  4/3/2010 

• This is in fact true. Section 5(2)(b) of Victoria’s Sentencing Act 1991 declares that a sentence “must have regard to …current sentencing practices”. However before therefore dispensing with the possibility of a more democratic form of sentencing, one might wonder why this section was made law in the first place.  
  For many years whenever people dissatisfied with the seemingly lenient sentencing practices of the judiciary have suggested alternative procedures such as mandatory sentencing, one common response has been that the particular circumstances of every crime and its perpetrator are singular. We have been told that parliament cannot just declare a set, finite sentence for any particular crime because so many factors must be taken into account. Factors such as the nature and gravity of the offence; the offender's culpability and degree of responsibility; the impact of the offence on any victim;  the personal circumstances of any victim; any injury, loss or damage resulting directly from the offence; whether the offender pleaded guilty to the offence and, if so, when; the offender's previous character; the presence of any aggravating or mitigating factor concerning the offender; or of any other relevant circumstances.  This is quite true, yet incredibly, the law states that sentences must conform when the totality of the particular situations are the same. But just how could any two crimes ever be declared the same? 
  It is truly hard to see any justification for Section 5(2)(b). Dispensing with it would not make sentences arbitrary as the law declares that the above factors should indicate in what part of the legislated range the given sentence should sit.
  Sentences handed down by juries would in all probability be very reasonable for two reasons. They would still be within the parameters and could not exceed the maximum of what Parliament dictates, and they would ultimately be the compromise result of twelve individuals who have debated their reasons, rather than the discretionary declaration of one, not compelled to justify it to anyone.

‘Sentencing must reflect the intentions of the public as much as possible and everything that can practically be done to manifest that should be done. A problem however that may develop with jury sentencing is that if there were a run of maximum limit sentences handed down by juries, then these may well be overturned on defence application by an Appeals Court. In such a situation discredit may be brought on the whole sentencing process due to the judicial process seemingly not being able to get it right.’  
                                 Senator George Brandis, Australian Shadow Attorney-General and co-author of Australian Liberalism: the continuing vision,  4/3/2010

• If jury sentencing is to be introduced it would not be just to give the jury something to do while the judge is completing all the paperwork at the end of a trial. The reasoning for jury sentencing is that aspect of democracy whereby decisions that affect the lives of individuals brought before the court should as much as practically possible reflect the beliefs and values of the citizenry. This is the very reason why totalitarian regimes do not have jury trials while most liberal democracies do. We are a nation ruled by laws and not by men, and the powers of those granted authority over us must always be limited as much as practically possible.
  Thus if we are to have jury sentencing the reason would be to take the power away from judges and give it to entities more in touch with the people. In such a situation it would be defeating the purpose to then allow appellate judges to retain the right to overrule any sentencing decisions they happened to disagree with.
  Obviously appeals should still be allowed on tangible reasons such as the mandatory limits were broken or relevant evidence presented at the sentencing stage was subsequently found to be false or incomplete. However that the judges’ subjective estimation of what should be an appropriate sentence should happen to be different to the jury’s is hardly a reason to declare an error of law.
  Any accused who thought he or she was unfairly done by would still have the right to appeal for executive clemency.

#  Newson L and Aldous J, The Legal Maze, Macmillan Education Australia, Melbourne, 2004, p 55.

[1] Allowing majority decisions rather than unanimous ones is not such an extreme position because of two reasons.

#1 Majority decisions (of 10 or 11) are already allowed for deciding guilt in criminal trials in some jurisdictions even for serious crimes such as murder.

#2 The important principle that the finding of guilt must be more than just the balance of probabilities relates to the adage that it is better for guilty men to be walking the street than the innocent to be burdened with the false shame of conviction. However the important decision of guilt or innocence has already been made and thus no inherent fundamental wrong can be done at sentencing stage. (Especially considering that the juries will still be limited to legislation as to the maximum ‘minimum’ they can set.)

[2] ‘Lawyers uneasy over plan for jury sentencing role’.  Michael Pelly  Sydney Morning Herald, Feb 2, 2005

[3]‘Lawyers uneasy over plan for jury sentencing role’.  Michael Pelly  Sydney Morning Herald, Feb 2, 2005

[4] ‘The 7.30 Report’, ABC TV, July 2006

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