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A small drama played out late last year at the trial of John Muhammad, the older of the two Washington, D.C.-area snipers. The Virginia jurors, after unanimously finding Muhammad guilty of murder, had a question for the judge: What would happen if they couldn’t agree on whether or not to recommend execution? Judge LeRoy Millette Jr. didn’t answer. Instead, he encouraged the jurors to reach a unanimous decision. They did — and voted for death. Afterward, one juror said she thought that a deadlocked jury would lead to a mistrial; that’s at least part of the reason why she voted for death and worked to persuade other jurors to vote with her. She was wrong. If Judge Millette had answered the question, he would have said that without a unanimous recommendation for death, Virginia law mandated that Muhammad would spend the rest of his life in prison with no chance for release. It’s hard to feel sorry for Muhammad. But the exchange between his judge and jurors raises a critical question that the American criminal justice system may finally be on its way to confronting: Why don’t we let juries know what they’re doing? IN THE DARK In general, we keep our juries stupid by design. Look at the rules of evidence. They’re meticulously geared toward screening facts from the jury’s eyes and ears: This is hearsay. That’s prejudicial. And the guy over there in the white lab coat — he talks trash science. There’s good reason for working so hard to keep jurors in the dark: We want them to stay focused on solid evidence of whether the defendant is guilty of this crime. Tell jurors that the guy on trial for blowing through a stop sign did the same thing six times last year, and they’re prone to jump to the conclusion that he did it this time, too, no matter what the rest of the evidence says. If you put people in the pressure cooker of a trial and then feed them thoughts that are too prejudicial or not reliable enough, you’ll have 12 jurors who are worse than angry — they’ll be distracted. Should the principle be any different for disclosing facts that relate not to the actions of the defendant, but to the actions of the jury? Maybe. There’s a view — the founding fathers held it — that juries are centers of democracy in action; they should judge not just the facts but the law. Then again, maybe not. Whatever the Founders thought, today it’s a bedrock rule that juries consider the facts, and not the law. If jurors know the sentence mandated by law and think it’s too harsh, they might simply ignore the facts, and that is far from the ideal of justice. But we don’t live in an ideal world. THE TRUTH OF THE JURY ROOM In fact, juries take sentencing into account all the time. Jurors are smart enough to guess what’s going on generally, but they don’t know the details. So what we get are jurors whose wrong-headed views of the law are warping their judgment of the facts. Not the most defensible system. After 35-plus years on the federal trial bench, Senior U.S. District Judge Jack Weinstein of the Eastern District of New York agrees that jurors do consider sentencing. “There are instances where the jury understands, for example in a drug case, the sentences are draconian. So they will sometimes consider that in deciding guilt or innocence,” he says. Judge Weinstein makes this observation as one who holds jurors in high regard. “Our jurors are exceptionally bright,” he says. Weinstein harnesses that intelligence by using an uncommonly direct technique: He allows jurors to send him notes with questions. He’ll then take the questions to the attorneys so they might consider responding to the jurors’ concerns, if appropriate. But even Weinstein has his limits. Would he agree to inform jurors of a defendant’s potential sentence before they determine guilt? “Absolutely not.” At least one other federal trial judge, Gerard Lynch, tried to do exactly that in a 2002 case. The defendant, an 18-year-old, was on trial for distributing child pornography on the Internet and faced a mandatory 10-year sentence. Judge Lynch, who sits in the Southern District of New York, wanted to inform the jury of the harsh consequences of a guilty verdict. The U.S. Court of Appeals for the 2nd Circuit refused to go for it, reasoning that informing jurors of sentences would encourage them to ignore the law. Lynch’s reaction to the circuit court is instructive: “Unless one believed that the jurors, or substantial numbers of them, would find the penalties morally repugnant, it is difficult to understand how this simple information could be perceived as an ‘invitation’ to the jury not to do its duty,” he wrote in an opinion last February, denying the defendant’s motion for acquittal or a new trial following conviction. Indeed, the judge argued, if courts provided sentencing information to jurors, those leaning to acquit would be discouraged from “compromising in an improper fashion” on a guilty vote, and instead would “hold out conscientiously for acquittal” because they would have no “expectation that the judge could soften any injustice by the exercise of sentencing discretion.” (Last July, Judge Lynch sentenced the defendant to the mandatory 10 years.) JUSTICE THAT WON’T BEND Maybe it wouldn’t be so important for jurors to know about sentencing if courts could, in Judge Lynch’s words, “soften any injustice by the exercise of sentencing discretion.” But for the last couple of decades, the trend in both the state and federal systems has swung away from letting judges be flexible in sentencing and toward imposing strict, mandatory sentencing guidelines. In the past, judges could consider a broad range of information in adjusting the sentence to fit the specific circumstances of any defendant. Sentencing guidelines make that more difficult. Worse, both federal and state guidelines mandate increasingly harsh punishment for a given offense. And last year, federal criminal law ratcheted up the pressure another notch. Congress passed a statute, the Protect Act, that largely eliminates the discretion that did exist in the U.S. Sentencing Guidelines (it also calls for the Justice Department to keep tabs on those judges who show too much lenience). In implementing the law, Attorney General John Ashcroft is going further still: He’s taking away flexibility that prosecutors used to exercise in charging defendants, and so essentially is predetermining the sentences by mandating the charges. According to a memo Ashcroft sent to U.S. attorneys, “Department attorneys must ensure that the Sentencing Guidelines are applied as Congress . . . intended them to be applied, regardless of whether an individual prosecutor agrees with that policy decision.” That means two of the main actors in the criminal justice system — the judge and the prosecutor — who traditionally could provide for flexibility in sentencing now have their hands tied. And juries, we know, have no role in sentencing. Or do they? Starting a few years ago, the Supreme Court began stressing the importance of juries in some sentencing issues. In a 2000 case, Apprendi v. New Jersey, the Court held that only the jury can make the factual findings to establish factors that increase the maximum term of a sentence. It followed up in 2002 with Ring v. Arizona, holding that, in capital cases, juries rather than judges must make the decision to recommend death for a defendant. And this term, the Court has agreed to review two more cases about the role of juries in sentencing — Schriro v. Summerlin, which asks whether Ring is retroactive, and Blakely v. Washington, which considers whether Apprendi applies to sentencing increases within a state’s maximum. ENDING SENTENCING SECRETS The Supreme Court needs to go further still. It should explicitly require judges to tell jurors what will become of the people they convict. There’s at least one obstacle to doing this in the Court’s own precedents. In Jones v. United States (1999), the Court faced essentially the same question that Judge Millette considered in John Muhammad’s trial: whether to tell jurors the effect of deadlocking on the question of death in a capital case. Justice Clarence Thomas wrote for the Court that the Constitution “does not require that the jury be instructed as to the consequences of their failure to agree.” Even the dissent agreed on that point. But there is also hope. The Court held in Simmons v. South Carolina (1994) that attorneys can’t affirmatively mislead juries in capital cases about the sentence a defendant will serve. Now that Congress and the attorney general have put their squeeze on the discretion of judges and prosecutors, the justices need to expand on Simmons to require full disclosure to jurors about sentencing. If we want to ensure that fairness in our criminal system doesn’t suffocate from a lack of discretion, we have to make certain that even if justice is blind, juries can see what they’re doing. Evan P. Schultz, associate opinion editor at Legal Times, can be reached at [email protected]. His column, “Controversies & Cases,” appears regularly in Legal Times. A shorter version of this column appears in the February issue of The American Lawyer magazine, an affiliate of Legal Times.

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