2. Juries and sentencing: the current position

Updates and background for this project (Digest)

• Introduction
• Recommendations for leniency
• Asking juries to determine specific facts relevant to sentencing
• Jury sentencing in the United States

INTRODUCTION

2.1 This chapter discusses the role the jury currently plays in determining sentences in criminal trials. As noted in the previous chapter, there is no formally defined role for the jury in the sentencing process.¹ On the contrary, it is has long been considered fundamental to the fair and effective administration of justice in Australia that the jury’s role be limited to finding the facts that support their verdict, and that it is the responsibility of the judge to determine the appropriate sentence.²

2.2 However, there are currently a number of ways in which the jury might provide indirect input into sentencing in the course of their role as fact finders during the trial. This chapter discusses three of those ways in detail: namely, the jury’s ability to recommend mercy or leniency; and the situation whereby jurors return a verdict on an alternative count to that primarily charged; and where jurors are invited to return a special verdict by which they answer specific questions of fact that may also have an impact on sentencing. These types of jury involvement in sentencing occur during the course of delivering a verdict. A further possible avenue of jury involvement in the sentencing process can occur after the jury has returned a guilty verdict, and the judge asks the jury to clarify the reasons for that verdict. As this issue is inextricably linked with the Chief Justice’s proposal, it is discussed in the following chapter.

2.3 While the debate about jury involvement in the sentencing phase is restricted to academic circles in this country, it has been long-standing practice in other jurisdictions. For example, in some parts of the United States, juries not only make recommendations regarding appropriate sentencing, but are responsible for imposing the sentence. Although such a system is not being proposed here, we examine the nature of, and rationale for, jury sentencing in the United States by way of comparison and contrast with the practice in New South Wales. Also, the United States models might provide useful guidance on procedural issues, such as how and when judges can consult with the jury.

RECOMMENDATIONS FOR LENIENCY

2.4 When a jury returns a verdict of guilty, it may, if it chooses, recommend to the judge that the offender be given leniency. That recommendation does not constitute part of the verdict.³ There is no legislative recognition in NSW of the jury’s right to recommend leniency.⁴ However, a number of cases have referred to the power, either explicitly or implicitly.⁵ The definitive High Court statement can be found in Whittaker v The King,⁶ where Justice Isaacs said:

[i]t is of course the duty of a judge who has the difficult task of determining the proper sentence to be imposed upon a person convicted of a crime to take into his consideration a recommendation by the jury for mercy. But it must be emphasised that it is not part of the verdict; it does not bind the trial judge; it operates only as a recommendation, and the responsibility in the interests of society to impose an appropriate sentence commensurate with the seriousness of the crime remains with the trial judge. It in no way absolves the trial judge from the duty of considering the circumstances of the crime independently for himself, and it in no way requires him to put any remote or strained interpretation upon the facts to find some justification for the rider.⁷

Human nature being what it is, such recommendations are not always based upon reason or upon logic. They may be based upon all kinds of considerations, and such things as sentiment, a spirit of compromise, a misunderstanding of the true situation, and a host of other things, may be responsible for them. A Judge is not bound to act upon such a recommendation, if, in his opinion, the circumstances do not justify it, and if the jury in the present case had been asked upon what they based their recommendation—and I think that it is to be regretted that they were not asked— it might have appeared that it did not rest upon any substantial basis and was not entitled to be given any real weight.¹⁰

2.7 Neither the judge, nor counsel for either side, may expressly invite the jury to make a comment as to the leniency of the sentence should they choose to convict the defendant.¹⁴ Generally, a jury is not even informed, either before retiring to deliberate or upon returning to deliver their verdict, of their right to recommend that the judge impose a lenient sentence should they choose to convict. Nor are they informed of the possible sentencing options or the maximum available sentence. In Report 48, we recommended that, while the power of a jury to express an opinion as to leniency should be preserved, so too should the current practice of not informing the jury of this power, unless they ask whether they may qualify their verdict in such a manner.¹⁵ This is to mitigate against the temptation to deliver a compromise guilty verdict: that is, finding the defendant guilty on the condition that a lenient punishment be imposed.¹⁶ Similar considerations apply to the practice of not disclosing to the jury details of the sentence and the sentencing options that are available.

2.8 Presumably, the power of a jury to make a recommendation as to the leniency of sentence also extends to making a recommendation that the judge impose a sentence at the more severe end of the scale. However, we are not aware of any cases where this has occurred.

ASKING JURIES TO DETERMINE SPECIFIC FACTS RELEVANT TO SENTENCING

2.9 It is the primary role of the jury to determine whether or not the evidence presented during the trial leaves them satisfied beyond reasonable doubt that the defendant committed a specific offence, or offences, listed on the indictment. Sometimes, the jury is presented with alternative offences, which may be expressly charged, or available as statutory alternatives. In such a case, the jury must decide whether the facts support a finding of guilt in relation to offence A or offence B, or neither offence. Since offence A and offence B are likely to have different maximum penalties prescribed by statute, the jury’s finding of guilt regarding one offence but not the other, indirectly affects the sentence the offender may receive. In this way, jurors can have de facto involvement in sentencing as a by-product of their role as determiners of guilt.

2.10 The jury’s general guilty verdict will not always reveal the facts found to have been proven. While this does not affect the verdict, the answers to these facts may be significant in determining the appropriate sentence. A classic example is the difference between murder and manslaughter. Where a jury decides an offender is guilty of manslaughter but not of murder, it is not always clear whether that verdict was returned because the jury had a doubt as to whether the offender had the requisite intention or state of mind required for murder, or whether some other factor, such as provocation, excessive self defence, intoxication or substantial impairment by abnormality of mind, was involved. Since the penalty for manslaughter can vary considerably depending on the presence or absence of these (and other) factors, it may be useful for a judge to know the basis for the jury’s findings.¹⁷

2.11 In certain circumstances, a judge may invite the jury to deliver a special verdict by answering specific questions concerning issues of fact which arise in the trial.¹⁸ The courts have held that, while it is open to juries to deliver special verdicts, they may only answer specific questions of fact that relate to the elements of the offence identified on the indictment, and not those matters that relate to sentence only.¹⁹ In Kingswell v The Queen,²⁰ the defendant was charged with conspiring to import narcotics into Australia under s 233B of the Customs Act 1901 (Cth). That section stated that a person found guilty of that offence was punishable as provided by s 235 of the Customs Act 1901 (Cth). The appropriate penalty provided for under s 235 depended on the Court being satisfied of a number of factual matters, including the quantity of the narcotics involved. One of the questions raised in Kingswell was whether the matters of fact to be determined under s 235 were elements of the offence (due to the combined operation with s 233B), or were matters that related only to sentencing.

2.12 The High Court ruled that the jury was not empowered to give a special verdict relating to the facts identified in s 235 as circumstances of aggravation relevant to sentencing, as they were not issues pertaining to the elements of the offence in s 233B as specified on the indictment. In his judgment, Justice Brennan stated:

A jury which is charged to try the issues on an indictment is not at liberty to find facts which are not pertinent to those issues. It has long been established that, if a jury returns a special verdict, its verdict must be confined to the issues which it is sworn to try, else a finding on any other issue is… void.²¹

2.14 The High Court discussed the respective roles of the judge and jury as finders of facts relevant to sentencing. In the course of this discussion, the High Court confirmed that the role of the jury is to determine the matters of fact on which issue is joined by a plea of not guilty. The issue of whether a special verdict should have been obtained from the jury to clarify its view of the facts was raised in oral argument, but was not argued at trial or on appeal, and so was not considered in detail by the High Court. However, Justice Kirby expressed cautious approval of asking jurors specific questions of fact to ensure, as closely as possible, that the sentence is in line with the basis for the jury’s verdict:

... at least where the potential difference for sentencing is as substantial as it was in this case, it is desirable, and certainly permissible, to seek from the jury answers to questions (or a special verdict) concerning the basis upon which they have convicted the prisoner.²⁴

2.16 However, all arguments advocating a greater role for the jury in sentencing failed in Cheung’s case. The High Court held that the nature of the accused’s motive for becoming involved in the crime, and the extent of his involvement, while relevant to sentencing, was not an element of the particular offence charged and not, therefore, a matter to be resolved by the jury.²⁷ In rejecting the Constitutional argument, the Court stated that the:

procedure involved the trial judge, following a jury verdict of guilty, reviewing the evidence for himself for the purpose of making findings on matters of fact which were necessary for sentencing, and which were not resolved by the jury’s verdict. Such a procedure does not involve any infringement of a right to trial by jury. It involves the application of well-established principles as to the division of functions which are, and were in 1900, an aspect of trial by jury.²⁸

JURY SENTENCING IN THE UNITED STATES

Overview

2.18 American juries have had a role in sentencing ever since the War of Independence in 1776, which ended English rule over the American colonies. In the early days of the colony, people were suspicious of the arbitrary power exercised by Crown appointed judges, and were eager to cast off the vestiges of English colonial rule.³⁰ The early colonists saw juries as being far better suited than judges to determine the extent to which the defendant’s behaviour deviated from the socially accepted norms. In many colonies, decisions as to guilt and punishment were a joint effort, with county justices of the peace, grand juries and judges all having a say in the defendant’s fate. Up until the last few years of the eighteenth century, punishment for felony offences was usually by way of death, rather than discretionary terms of imprisonment, with the primary motive being retribution. Consequently, a jury’s guilty verdict would often be delivered along with the command that the defendant be hanged “by the neck until dead”.³¹

2.19 In practice, however, very few executions were carried out. In Virginia, for example, the judge and the governor commuted many death sentences imposed by the jury.³² Dissatisfaction with this somewhat haphazard form of sentencing, led to calls for the introduction of other penalties, besides death, that judges, juries and governors could consistently enforce.³³

2.20 In 1786, Pennsylvania was the first state to introduce discretionary terms of hard labour for certain offences, in addition to having the death penalty for others. At the same time, Pennsylvania also became the first state to give judges the power to decide terms of imprisonment for non-capital offences.³⁴ In 1796, Virginia also adopted discretionary terms of imprisonment, but chose to keep the jury as the sentencing authority for all capital and non-capital criminal offences.³⁵ Other states chose between the jury sentencing and judge sentencing models almost immediately upon attaining statehood and entering the Union.³⁶

2.21 Jury sentencing reaching its zenith in the mid to late nineteenth century. This period coincided with the growing fear of an unrepresentative judiciary and gathering momentum for judicial elections. Juries were viewed as offering “a better safeguard against unfair sentences than a single judge”, and represented the embodiment of the ideal of a decentralised democracy”.³⁷ By 1919, fourteen of the forty-eight American states allowed juries to deliver sentences in relation to non-capital criminal offences.³⁸

2.22 However, the popularity of jury sentencing began to decline. This was due to a combination of factors. First, the increasing complexity of litigation signalled a need for judicial interpretation and decision-making “bound by precedent and expounded in written opinions”.³⁹ Secondly, the codification of many laws and the move towards federalisation rendered the local input of juries less significant. Further, the growth of the law schools in the nineteenth century resulted in a legally trained professional elite, creating a knowledge gulf between the role of lawyers and lay people.

2.23 The early twentieth century also saw a change in attitudes towards crime and punishment. Defendants were given the power to waive their right to trial by jury, and the growing practice of plea bargaining resulted in a greater number of guilty pleas, removing the need for a jury trial. The establishment of parole and probation systems further eroded the popularity of jury sentencing, with the length of prison terms being based on professional opinions as to the rehabilitation prospects of the offender.⁴⁰ However, non-capital jury sentencing fell to its lowest ebb following the rise of determinate sentencing in the 1970s and 1980s. Public desire to be tougher on crime and promote consistency in punishments for similar crimes led some states to introduce mandatory sentencing, and mathematical formulas and grids for prescribing sentences, that allow for only limited discretion, even by judges.⁴¹ As a result, an increasing number of states abandoned the practice of jury sentencing for non-capital offences, leaving the current number of jury sentencing states at six.⁴²

Current position

Jury sentencing in capital offences

2.24 The historical role of the jury in determining the appropriateness of the death penalty has been preserved in many United States jurisdictions. In relation to federal offences, the United States Code provides that, where an offender has pleaded, or been found to be, guilty of an offence punishable by death,⁴³ a separate hearing will be held to determine if the death penalty is appropriate.⁴⁴ That hearing is to be conducted before the same jury that determined the offender’s guilt, or, if the offender pleaded guilty or was convicted by a judge sitting alone, a jury may be empanelled specifically for the purpose of determining the appropriateness of the death penalty.⁴⁵ The accused may request that the sentencing hearing not take place before a jury, in which case the sentence will be determined by a judge sitting alone.

2.25 The sentencing hearing is like a mini-trial, during which the prosecution and defence counsel present to the jury aggravating and mitigating factors, respectively. Aggravating factors include whether the offence was committed in a cruel, heinous or depraved manner; or was the result of substantial planning and premeditation; or committed for pecuniary gain. Further aggravating factors would exist where the offender has prior convictions for similar, or other serious offences; where the death of the victim occurred while the offender was committing another crime; or where the victim was particularly vulnerable due to age, youth or infirmity, or was a high public official.⁴⁶ In mitigation, the defence may argue that the offender was acting under duress, a severe mental or emotional disturbance, or an impaired capacity to appreciate the wrongfulness of his or her actions. Additional mitigating factors may include the lack of any prior convictions; that the offender played only a minor role in committing the offence, or that there are equally culpable offenders; that the victim consented in the conduct that lead to his or death; or any other factors concerning the offender’s background and character that would justify a sentence other than death.⁴⁷

2.26 The prosecution must prove the presence of any aggravating factors beyond reasonable doubt, while the defence need only establish mitigating factors on the preponderance of information.⁴⁸ The jury (or the judge if there is no jury) must decide unanimously whether the aggravating factors found to have been proved sufficiently outweigh all of the established mitigating factors. In the absence of any mitigating factors, the jury must decide whether the aggravating factor or factors alone are sufficient to justify a sentence of death. If the jury are unable to reach a unanimous decision, the judge shall determine whether the offender should be sentenced to death, to life imprisonment without the possibility of parole, or to some lesser sentence.⁴⁹ The difficulty that juries can face reaching a unanimous decision on the death penalty was highlighted in the recent sentencing of Zacarias Moussaoui for offences concerned with his involvement in the attacks of September 11, 2001.⁵⁰

2.27 In addition to the federal provisions, thirty-eight state jurisdictions have the death penalty as a sentencing option for certain types of murder offences, and other specified, serious offences, such as treason.⁵¹ In all of those jurisdictions, where a jury trial was conducted resulting in a guilty verdict, the jury will have some form of involvement in the sentencing process. This was made certain in Ring v Arizona,⁵² where the United States Supreme Court determined that only juries, and not judges, could find the existence of aggravating factors necessary to invoke the death penalty. The degree of jury involvement varies from state to state. For example, juries in Alabama, Delaware, Florida and Indiana have more of an advisory role than juries in other states, with judges making the ultimate sentence determination.⁵³ In all capital sentencing jurisdictions, including federal proceedings, judges may impose a lesser sentence than that recommended by the jury, but may not increase the sentence beyond the jury’s finding.⁵⁴

2.28 Capital punishment has been found to have a Constitutional basis. The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. While the Courts have determined that capital punishment as a penalty for deliberate murder per se is not considered to be “cruel and unusual punishment”, its application may be outlawed by the Eighth Amendment in some circumstances. In Furman v Georgia,⁵⁵ the Supreme Court struck down the capital punishment statutes of Georgia and Texas on the grounds that they facilitated discriminatory and arbitrary life and death decisions, and were therefore unconstitutional. The Court declared that, in order to avoid being caught by the “cruel and unusual punishment” clause, sentencing procedures for capital punishment must be structured so as to avoid arbitrariness and capriciousness. To that end, sentencing juries should be provided with sufficient direction and guidance to structure their discretion, so that the full circumstances of each case, and each offender, can be thoroughly considered.

2.29 As a result of the Furman decision, courts and legislatures have been vigilant in ensuring that sentencing juries receive appropriate guidelines to guard against the arbitrary and disproportionate imposition of the death penalty.⁵⁶ In general terms, this meant revising state criminal statutes to specify aggravating and mitigating factors (similar to the federal provisions discussed above) to which sentencing authorities may have regard when considering the appropriateness of the death penalty. It also meant separating the verdict and sentencing stages into two distinct hearings, so that jurors do not hear prejudicial evidence concerning the defendant’s character and prior convictions until after the verdict has been delivered.

Jury sentencing in non-capital offences

2.30 In contrast to the widespread practice of jury sentencing in capital cases, juries in non-capital cases have direct involvement at the sentencing stage in only six states. In Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia, juries decide on appropriate sentences for offenders convicted of offences for which discretionary terms of imprisonment, fines, or both, are available. In reality, jury sentencing occurs in only a very small number of non-capital cases,⁵⁷ since over ninety percent of matters are plea bargained.⁵⁸

2.31 In all of these states, the same jury that delivered the guilty verdict determines the sentence the offender will receive.⁵⁹ However, there is significant variation between the states in terms of jury sentencing practice. For example, there are differences between the states as to whether or not a defendant may elect to be sentenced by a judge rather than a jury,⁶⁰ and also in relation to the types of offences that may be sentenced by juries. Further, the sentencing options that jurors may select from differ from state to state,⁶¹ as does the issue of whether or not the sentences are subject to parole. ⁶²

2.32 The most significant variation between jury sentencing states is whether or not the trial is separated into two distinct stages for determining guilt and punishment. Five of the six jury sentencing states have a bifurcated format: meaning that the sentencing takes place in a separate proceeding after the trial has concluded.⁶³ Consequently, juries only hear evidence specifically relevant to sentencing after they have convicted the defendant.⁶⁴ At the sentencing hearing, juries will hear evidence of any aggravating or mitigating factor, and details of the offender’s prior criminal record.⁶⁵ In Missouri, jury sentencing only operates in relation to trials for first offenders.⁶⁶ Judges in Missouri impose sentences on offenders with prior convictions.⁶⁷

2.33 In Oklahoma, a combination of the bifurcated and the unitary schemes exists. Under a unitary scheme, the jury decides issues of guilt and sentence at the same time. The unitary scheme has been criticised due to its potential prejudicial effect. If information relevant to sentencing but not to guilt (such as evidence of prior convictions) is given to the jury before they deliver their verdict, there is a significant danger that the two issues could become confused in the minds of the jurors and the verdict could be prejudiced. However, if sentencing information is not given, then jurors must make a decision as to sentencing without full knowledge of all of the evidence.⁶⁸ In an attempt to avoid some of these pitfalls, Oklahoma only uses unitary proceedings for first offenders, and bifurcates proceedings for defendants with a criminal history.⁶⁹ Criticism of unitary jury sentencing proceedings caused the Missouri legislature to abandon the practice in 2003.⁷⁰

2.34 Sentencing juries deliberate in secret, and must decide unanimously on the appropriate sentence.⁷¹ In doing so, they generally select a specific term of imprisonment from within a broad statutory range, with very little assistance provided.⁷² However, the power of the jury to determine a sentence is not without limits. Sentencing juries do not have access to the full range of penalties that may be imposed by judges. For example, in some jury sentencing states, jurors are limited to imposing sentences of imprisonment. They have no authority to suspend sentences, recommend probation, or refer offenders to any non-custodial alternatives such as referral to drug treatment or other rehabilitation programs.⁷³ Consequently, the unavailability of these sentencing options means that jury sentences for some offences tend to be higher than judicially imposed penalties, even though the jury may wish to be more lenient.⁷⁴

2.35 Nor is the jury’s say necessarily final. Judges may alter or suspend a jury’s sentence in most states.⁷⁵ For example, in Kentucky, Virginia, Arkansas and Missourri, a judge may reduce a jury’s sentence if it is considered unduly harsh, but may not increase it unless it fails to comply with relevant sentencing statutes.⁷⁶ However, research in some states, particularly Kentucky and Arkansas, has revealed a general reluctance by judges to modify jury sentences.⁷⁷ The researchers attribute this reluctance to a combination of factors, namely: genuine judicial confidence in the jury as a “superior assessor of the appropriate punishment”;⁷⁸ a willingness to allow the jury to take responsibility for sentencing decisions;⁷⁹ and the view that jury sentencing helps to divert more cases away from the courts.⁸⁰ Attitudes appear to be more ambivalent in Virginia, with one court having described jury sentencing as little more than offering an “advisory opinion or first-step decision”.⁸¹

2.36 Sentencing juries do not have access to all of the information available to the judge. For example, as a general rule, juries do not receive access to sentencing guidelines.⁸² Nor are they provided with other relevant statistics concerning parole or sentencing trends for similar offences.⁸³ In some states, juries are only informed about an offender’s eligibility for parole, and not given any other information about the likelihood of actual release. Juries may impose sentences at the harsher end of the scale based on the erroneous assumption that an offender who is eligible for parole will only serve a fraction of that time before automatically being released.⁸⁴ In many jury sentencing states, jurors also lack information about more lenient alternatives to incarceration.⁸⁵

2.37 Accordingly, juries are hampered in their ability to recommend sentences that are consistent and in context with the criminal justice system as a whole. This is particularly problematic since jurors, unlike judges, lack broad sentencing experience. They must recommend penalties based on the experience of a single isolated case, possibly drawing on their somewhat uncertain recollection of what may have occurred in other cases that have attracted the public attention, or even personal prejudice. The disparity in the information received by judges and jurors can, in some jurisdictions, result in juries imposing higher sentences than judges who are more informed.⁸⁶ The lack of information given to sentencing juries is considered, even by advocates of jury sentencing, to be one of the greatest drawbacks of the current system in the United States.⁸⁷

Recent Supreme Court rulings

2.38 Until recently, the issue of jury sentencing in the United States had lain dormant. However, a series of decisions by the United States Supreme Court have re-energised the debate concerning jury sentencing for non-capital offences. In the case of Apprendi v New Jersey⁸⁸ , the defendant was convicted before a jury of a firearms offence carrying a maximum penalty of ten years imprisonment. The trial judge was of the view that the offence also involved elements of racial hatred, which he felt justified imposing a penalty greater than the statutory maximum. On appeal, the Supreme Court overruled the trial judge’s decision, stating that only the jury could determine whether facts existed that warranted enhancing the sentence above the statutory maximum.

2.39 The Court reaffirmed this principle in Blakely v. Washington⁸⁹ , holding that the constitutional right to trial by jury in a criminal trial, enshrined in the Sixth Amendment, included not only the right to have a jury decide guilt or innocence, but also the facts upon which any sentence enhancement is based.⁹⁰

Ongoing debate

2.40 Prior to the Apprendi and related decisions, jury sentencing in non-capital matters was regarded by most commentators in the United States as an anachronistic hang-over from post colonial times.⁹¹ However, these cases have reignited the debate in America over the role the jury should play in sentencing in relation to non-capital offences.⁹² While Apprendi is authority for the proposition that sentencing decisions following jury trials may only be based on facts that have been determined by the jury, it does not expressly determine whether or not sentencing decisions must be made by a judge or a jury. However, some commentators have argued that Apprendi and Blakely could reverse the historical drift away from jury sentencing and open the way for the reintroduction of non-capital jury sentencing across the board.⁹³

2.41 Jury sentencing in non-capital cases has been described by some as one of the “least understood procedures in American criminal justice”.⁹⁴ Critics in the United States claim it to be costly, time-consuming, unnecessary and antiquated; that jurors lack the expertise of judges, which can lead to disproportionate or inconsistent sentences that are based on prejudice rather than solid evidence.⁹⁵ Others note that the criminal justice systems in jury sentencing states do not provide non-capital sentencing juries with sufficient power and information to enable their effective functioning.⁹⁶

2.42 Jury sentencing advocates are of the view that the arguments voiced against jury sentencing, such as jurors’ lack of expertise and inability to handle complex issues, amount to a mistrust of the jury system as a whole.⁹⁷ Some claim that the perceived problems with non-capital jury sentencing could be addressed by importing many of the procedures already in place for capital cases: such as giving jurors clear instructions as to aggravating and mitigating factors, access to relevant sentencing guidelines, and more rigorous appellate review.⁹⁸ In response to piecemeal mandatory sentencing laws derived from political pressure and public opinion polls, supporters argue that jury sentencing may be the “most direct and least distorting mechanism to conform criminal sanctions to community sentiment”.⁹⁹

2.43 Others researchers have reached a more pragmatic conclusion, noting that non-capital jury sentencing is not an “obscure and curious appendage of an earlier age”.¹⁰⁰ However, studies in three jury sentencing states have revealed that its practice bears little relation to the democratic ideals on which it is was traditionally based.¹⁰¹ Rather than setting a benchmark reflecting community expectations, researchers found that jury sentencing is favoured by prosecutors as a means of encouraging

guilty pleas.¹⁰² The study also found that jury sentencing can operate as a convenient tool to place accountability for any unpopular sentencing policy on jurors rather than criminal justice officials.¹⁰³ This is especially the case in jurisdictions with an elected judiciary.¹⁰⁴ The researchers believe that this discrepancy between theory and practice has implications for reformers in the United States, regardless of whether they seek to replace jury sentencing with judicial sentencing, or to strengthen the current powers of sentencing juries.¹⁰⁵

1. In Cheung v The Queen (2001) 209 CLR 1, Gleeson CJ, Gummow and Hayne JJ noted that trial by jury in this country does not include sentencing by a jury: at [6]. It was held that there was no requirement under the Commonwealth Constitution for the jury to be asked to state the basis on which a guilty verdict was reached, or for it to decide contested facts relevant to sentencing.

2. Cheung v The Queen (2001) 209 CLR 1.

3. R v Tappy [1960] VR 137.

4. The Australian Capital Territory is the only Australian jurisdiction to have legislated the jury’s power to recommend leniency: see Crimes Act 1900 (ACT) s 342.

5. See, eg, Myerson v The King (1908) 5 CLR 596; R v Dickson (1865) 4 SCR (NSW) 298; R v Tappy [1960] VR 137; Whittaker v The King (1928) 41 CLR 230; R v West [1979] Tas R 1; R v Harris [1961] VR 236; R v Wingrove (1936) 53 WN (NSW) 118.

6. (1928) 41 CLR 230.

7. (1928) 41 CLR 230 at 240.

8. Some courts are more dismissive of jury recommendations on the grounds that punishment is the province of the judge not the jury: see R v Tappy [1960] VR 137.

9. The other factors a judge must consider are discussed at para 1.9-1.23.

10. R v Whittaker (1928) 28 SR (NSW) 411 at 420 (Street CJ). See also R v Millward (1931) 23 Cr App R 119.

11. (1936) 53 WN (NSW) 118.

12. R v Wingrove (1936) 53 WN (NSW) 118 -119.

13. See para 3.38-3.45.

14. R v Black [1963] 1 WLR 1311.

15. NSWLRC, Criminal Procedure: The Jury in a Criminal Trial (Report 48, 1986), (“NSWLRC Report 48”) Recommendation 73.

16. NSWLRC Report 48 at para 8.15. See para 3.36 for a discussion of the danger of jury sentencing leading to compromise verdicts.

17. The issue of whether the judge may consult with the jury after their verdict is the essence of the Chief Justice’s proposal, and as such, is discussed in the following chapter. Here, we look at the jury’s ability to influence sentencing as part of their verdict.

18. See Thompson v The Queen (1989) 169 CLR 1 at 30. In Cheung v The Queen (2001) 209 CLR 1, Gleeson CJ, Gummow and Hayne JJ stated that it was not necessary to decide whether a jury could be compelled, as distinct from invited, to return a special verdict, as this had not been raised in submissions by either side: at [19].

19. See Kingswell v The Queen (1985) 159 CLR 264; Cheung v The Queen (2001) 209 CLR 1; and Director of Public Prosecutions v Nasralla [1967] 2 AC 238.

20. (1985) 159 CLR 264.

21. Kingswell v The Queen (1985) 159 CLR 264 at 287. Although Justice Brennan’s judgment in this case was a dissenting one (on other grounds), the reasoning of the majority does not imply error in the passage quoted.

22. (2001) 209 CLR 1.

23. Section 80 provides for the right to trial by jury for defendants charged on indictment with Commonwealth offences.

24. Cheung v The Queen (2001) 209 CLR 1 at [133] (Kirby J).

25. Cheung v The Queen (2001) 209 CLR 1 at [71-74] and [86] (Gaudron J).

26. Cheung v The Queen (2001) 209 CLR 1 at [132] (Kirby J) and [160] (Callinan J).

27. Cheung v The Queen (2001) 209 CLR 1 at [7] (Gleeson CJ, Gummow and Hayne JJ).

28. Cheung v The Queen (2001) 209 CLR 1 at [55] (Gleeson CJ, Gummow and Hayne JJ).

29. Cheung v The Queen (2001) 209 CLR 1 at [7] (Gleeson CJ, Gummow and Hayne JJ).

30. For an account of the history of jury sentencing in America, see J Iontcheva, “Jury Sentencing as Democratic Practice” (2003) 89 Virginia Law Review 311; A Lanni, “Jury Sentencing in Noncapital Cases: An Idea Whose Time Has Come (Again)?” (1999) 108 Yale Law Journal 1775; Nancy J King, “The Origins of Felony Jury Sentencing in the United States” (2003) 78 Chicago-Kent Law Review 937; and M Hoffman, “The Case for Jury Sentencing” (2003) 52 Duke Law Journal 951.

31. This was certainly the case in Virginia: see King (2003) at 947.

32. See King (2003) at 947-950.

33. See King (2003) at 950.

34. See King (2003) at 937.

35. See King (2003) at 937 and Iontcheva at 317.

36. Although some states adopted jury sentencing well after their entry into the Union: see Lanni at 1790-1791.

37. See Iontcheva at 318 and 323.

38. See Iontcheva at 319.

39. See Iontcheva at 324.

40. See Iontcheva at 324-327.

41. See Iontcheva at 327-330.

42. King (2003) at 937. See para 2.30-2.37 below for details.

43. As provided under 18 United States Code s 3591.

44. 18 United States Code s 3593(b).

45. 18 United States Code s 3593(b)(1) and (2).

46. See the full list of aggravating factors in 18 United States Code s 3592(b), (c) and (d).

47. 18 United States Code s 3592(a).

48. 18 United States Code s 3593(c).

49. 18 United States Code s 3593(e).

50. See M Coultan, “Americans divided over Moussaoui verdict” Sydney Morning Herald (Friday, 5 May 2006 at 7); and P Hirschkorn, “Jury spares 9/11 plotter Moussaoui” (accessed at «www.cnn.com/2006/LAW/05/03/moussaoui.verdict/»).

51. The offences that are punishable by death vary between capital punishment states.

52. 122 S Ct 2428 (2002). The Court extended the ruling in Apprendi v New Jersey 530 US 466 (2000) to capital proceedings, by deciding that denying juries the power to decide the facts on which a death sentence is based is a contravention of the Sixth Amendment to the US Constitution (guaranteeing the right to a fair trial): see para 2.38-2.40 for a discussion of the Apprendi decision.

53. Ring v Arizona 122 S Ct 2428 (2002) at 2449.

54. See Ring v Arizona 122 S Ct 2428 (2002). Judges may stipulate that a maximum term of life imprisonment should have a lifetime non-parole period: 18 United States Code s 3594. Note that while judges, appellate courts and State Governors may in fact make the final decision in capital cases, juries must not be told that the ultimate responsibility for determining the death penalty rests with an authority other than them: see Caldwell v Mississippi 472 US 320 (1995).

55. 408 US 238 (1972).

56. See Gregg v Georgia 428 US 153 (1976).

57. It is estimated that approximately 4000 United States juries hand down sentences for non-capital offences each year: see N King and R Noble, “Felony Jury Sentencing in Practice: A Three-State Study” (2004) 57 Vanderbilt Law Review 885 at 887.

58. Iontcheva at 355. Plea bargaining involves a deal between the prosecuting and defence attorneys, whereby the accused agrees to plead guilty, but to a lesser offence than the one with which he or she was initially charged. In some states, a defendant may still choose to be sentenced by a jury even after entering a guilty plea. However, this is almost never done in practice for fear of upsetting the bargain struck with the prosecution: see Iontcheva at 355 and King and Noble at 894.

59. See Iontcheva at 354.

60. For example, in Kentucky and Arkansas, the defendant cannot be sentenced by a judge following a jury trial unless the prosecution consents: King and Noble at 903-904 and 934. Virginian law prohibits judicial sentencing following a guilty verdict at a jury trial: King and Noble at 919.

61. See para 2.34 below.

62. King and Noble at 891-892.

63. Those states are Arkansas, Kentucky, Missouri, Texas and Virginia.

64. See Iontcheva at 354-355.

65. Iontcheva at 354-355.

66. N J King, “How Different is Death? Jury Sentencing in Capital and Non-Capital Cases Compared” (2004) 2 Ohio State Journal of Criminal Law 195 at 195.

67. See Lanni at 1792. See also The Hon R J Jackson, “Missouri’s Jury Sentencing Law: A Relic the Legislature Should Lay to Rest” (1999) 55(1) Journal of the Missouri Bar 14.

68. See Lanni at 1791-1792.

69. King (2004) at 195

70. King (2004) at 195. For a critique of jury sentencing in Missourri, see the Hon R J Jackson, “Missouri’s Jury Sentencing Law: A Relic the Legislature Should Lay to Rest” (1999) 55(1) Journal of the Missouri Bar 14. Note that the US Supreme Court declared unitary capital proceedings to be unconstitutional: Furman v Georgia 408 US 238 (1972).

71. Iontcheva at 355.

72. King and Noble at 892. For example, jurors in a rape trial in Virginia must select a sentence anywhere between five years and life: see King (2004) at 197.

73. King and Noble at 900 and 911.

74. King and Noble at 912.

75. See Lanni at 1792.

76. See King and Noble at 892, and Jackson at 16-17.

77. King and Noble at 901-902, 908, 918-919.

78. King and Noble at 941.

79. Note that judges in both Arkansas and Kentucky are popularly elected.

80. King and Noble at 941-946

81. See Lanni at 1793; and Iontcheva at 355.

82. Iontcheva at 355; King and Noble at 893, 913-914, 928-30. Note that this is in stark contrast to juries in capital cases, where it has been held to be constitutionally required to provide sufficient sentencing guidelines: see para 2.28-2.29 above.

83. Iontcheva at 355 and King and Noble at 893-894.

84. King and Noble at 914-916, and 928-929.

85. King and Noble at 911 and 931.

86. King and Noble at 899-900, and 910-911. This trend can be used by the prosecution to lever a guilty plea from the defendant.

87. See Iontcheva at 359 and 366-372.

88. 530 US 466 (2000).

89. 124 S Ct 2531 (2004).

90. Note the different approach taken by the High Court of Australia in Cheung v The Queen (2001) 209 CLR 1, discussed at para 2.13-2.17 above.

91. See Lanni at 1776 and Jackson at 14.

92. See, eg, MKB Darmer, “The Federal Sentencing Guidelines After Blakely and Booker: The Limits of Congressional Tolerance and a Greater Role for Juries” (2005) 56 South Carolina Law Review 533; E Lillquist, “The Puzzling Return of Jury Sentencing: Misgivings About Apprendi” (2004) 82 North Carolina Law Review 621; JJ Prescott and S Starr, “Improving Criminal Jury Decision Making After the Blakely Revolution” (2005) University of Michigan Law School, Working Paper Series No 39 (accessed at «www. /law.bepress.com/umichlwps/olin/art39»).

93. See, eg, Hoffman.

94. King and Noble at 887.

95. See Jackson and the arguments advanced in Hoffman at 985-991

96. See, generally, King (2004).

97. See Iontcheva at 315; and Lanni.

98. See Iontcheva at 359; Lanni at 1802; and Hoffman at 1000-1011.

99. See Lanni at 1802.

100. King and Noble at 889.

101. The study involved interviews with judges, prosecutors and defence attorneys from Arkansas, Kentucky and Virginia: see King and Noble at 890.

102. The concept of a “plea discount” (whereby the defendant receives a lesser penalty upon pleading guilty than would otherwise have been imposed following a trial resulting in a conviction) is a pervasive feature of American criminal justice. Consequently, many defendants prefer to plead guilty and be sentenced by a judge rather than risk the unpredictability of being tried and sentenced by a jury: see King and Noble at 895-940.

103. King and Noble at 889.

104. As one commentator put it: “Judges are elected, jurors are votes”: King and Noble at 933.

105. King and Noble at 889 and 949-962.