by Aimée Sutton
Juries are often told that they are allowed to consider possible punishment only as far as it tends to make them careful in finding a defendant guilty. They are generally not allowed even to know the range of possible sentences for the defendant whose case they decide.
But U.S. District Judge James Gwin of Ohio decided to solicit sentencing input from the jurors who found Ryan Collins guilty of receiving and possessing child pornography. After the jurors rendered their verdict, the judge asked each juror to fill out a form that asked what they thought would be an appropriate sentence for Collins.
Federal law set Collins’s guideline range sentence at 262 to 327 months. The federal sentencing guidelines set a sentence range for each defendant based on both the crimes for which he is being sentenced and any criminal history he has. The law permits judges to “depart” from the guideline range, either upward or downward, but only for legally-acceptable reasons.
Before Judge Gwin sentenced Collins, he compared the guideline range to the opinions of his jurors on an appropriate sentence for him. He discovered that the jurors’ sense of a fair sentence differed wildly from the guideline range. On average, jurors’ responses recommended a 14.5-month sentence.
Judge Gwin imposed a 60-month sentence—the shortest sentence federal law allows under anyone convicted of receiving child pornography. In justifying his downward departure from the guideline range, the judge said the jury’s input was a factor he considered.
The U.S. Attorney appealed to the U.S. Court of Appeals for the Sixth Circuit, asking it to overturn the sentence as too short.
Courts often look askance at jury involvement in sentencing because, as the court of appeals put it in the Collins case, the “jury lacks the tools necessary for the sentencing decision.” Here, though, the court of appeals found nothing improper in the judge taking the views of the community into account when crafting a sentence to fit the crime. The court upheld the sentence on that basis. The court pointed out that federal law provides “nearly unfettered scope as to the sources from which a district judge may draw in determining a sentence.”
The question that persists is this: should a jury be involved in sentencing? Judge Alex Kozinski, who sits on the U.S. Court of Appeals for the Ninth Circuit, wonders why not. In his influential article, Criminal Law 2.0, he laments that the courts generally ignore the sentencing views of the very people who heard the evidence and who bore responsibility to determine guilt or innocence in keeping with the values of the community. Why not let the community members who have learned the facts of a case in depth weigh in after they have found guilt? That way a particular community’s sense of fairness could be expressed in the punishment.
Judge Gwin has written on the subject of jury input before. He conducted a study of about 22 juries in his district. After each one of those juries reached a guilty verdict, they were asked about length of sentence. Almost universally, they recommended sentences far below the guideline range. If more judges sought this type of input to help them craft criminal sentences, it would increase the fairness of individual sentences while at the same time enhancing respect for the system as a whole.