Jury Sentencing as Democratic Practice

After a century of reform and experimentation, sentencing remains a highly contested area of the criminal justice system. Scholars as well as the public at large disagree about the proper purposes and functions of punishment, and dissatisfaction with the sentencing status quo is high. Most recent critiques of the sentencing process have focused on the amount of discretion tolerated by the system. This Article goes further in arguing that the source of sentencing discretion is also very important to the legitimacy and integrity of the sentencing process. In the absence of wide consensus on sentencing goals, it is best to leave the sentencing decision with a deliberative democratic institution - the jury. This Article makes the case for jury sentencing from three perspectives: the historical, the theoretical, and the practical. Part I of this Article surveys the history of jury sentencing from colonial times to the present. This history reveals that jury sentencing - a uniquely American innovation - was a valued democratic institution in the early republic, but was gradually abandoned in the twentieth century as scientific approaches to punishment came into favor. The most recent developments from the Supreme Court suggest, however, that jury sentencing may be on the rise again. Part II enlists the insights of modern political theory, and particularly, the ideas of deliberative democratic theory, to show that the movement away from jury sentencing has not been entirely healthy for either the sentencing process or our democracy as a whole. Part III addresses the practical objections that have been leveled against jury sentencing, and suggests that the vast majority of these are either exaggerated or equally present in alternative sentencing regimes. The jury, therefore, emerges as an equally competent, yet more legitimate sentencing institution. Finally, Part IV outlines the actual contours of a possible jury sentencing regime that balances the democratic virtues of jury involvement with efficiency, uniformity, and other values important to the sentencing process

Implementing \u3cem\u3eBlakely\u3c/em\u3e

By declaring that sentence-enhancing facts must be proven to a jury beyond a reasonable doubt, the Supreme Court in Blakely v. Washington has raised a number of questions about the future of guided sentencing. One of these questions - only beginning to be explored - is what procedures would be needed in a system that both implements Blakely and preserves sentencing guidelines. What factors would be submitted to the jury and what instructions would be given? Would sentencing issues be presented to the jury in a separate hearing, distinct from trial? If so, what evidentiary rules would apply? This paper offers some initial answers to these practical questions and then comments briefly on the model of the jury advanced by Blakely. Blakely points to an understanding of the jury principally as a factfinder and a procedural safeguard of defendants\u27 rights. A more complete endorsement of the jury would provide an even broader place for the jury\u27s distinctive democratic and deliberative features. The most interesting consequence of Blakely could come about if it prompted more states or the federal system to move toward the systems of the six states where full jury sentencing exists, while at the same time preserving a place for simplified or advisory guidelines

Regulating Interrogations and Excluding Confessions in the United States: Balancing Individual Rights and the Search for Truth

Like other criminal justice systems, the U.S. system must balance, on the one hand, enforcing the criminal law and, on the other, protecting individual rights in the process. Reliable fact-finding is a prerequisite to the effective enforcement of criminal law and to just outcomes. Protection of individual rights often promotes reliable fact-finding, as when a ban on involuntary confessions prevents the introduction of unreliable testimony at trial. On occasion, however, the commitment to accurate fact-finding may conflict with individual rights in a particular case. One of the clearest examples of such a conflict occurs when a court must decide whether to admit reliable and probative evidence obtained in violation of constitutional rights. In the United States, rights that are expressly protected by the Constitution—such as the right to remain silent, the right to be free from unreasonable search or seizure, and the right to counsel—are given more weight in the balance than the state’s need to explore fully the facts in a criminal case. The values of fairness, dignity, privacy, and liberty embodied in these rights frequently outweigh the concern for reliable factfinding. But in deciding how to enforce these constitutional rights, U.S. courts have recognized the relevance of competing interests in the criminal justice system, such as the interest in truthseeking. In deciding whether to exclude evidence, for example, courts have considered whether exclusion is expressly required by the Constitution and whether the benefits of exclusion, such as deterring police misconduct, outweigh its costs to truthseeking. This report, written for an international research project comparing exclusionary rules for confessions in several countries, examines U.S. constitutional law on admissibility of confessions and discusses the contexts in which the law demands exclusion and contexts in which a cost-benefit analysis has led courts to reject exclusion. The report further explains the justifications and practical effects of exclusionary rules and the public debates surrounding their use

Victims as a Check on Prosecutors: A Comparative Assessment

In Against Prosecutors, Bennett Capers presents thought-provoking arguments for empowering victims in criminal cases. He proposes that victims should be given greater authority to initiate and direct prosecutions of criminal cases, and should have the options to veto prosecutions or to serve as private prosecutors themselves. Such a shift of authority from public prosecutors to victims, Capers argues, could help check prosecutorial abuses and steer enforcement of criminal law to those areas where it is most needed. Capers urges us to ponder this possibility as a way of transforming the criminal justice system into one that is fairer and more just.The boldness of the proposal is appealing but also raises some questions, both theoretical and practical. Could victims truly represent not just their own private interests, but also the public interest in prosecuting crime? Might greater reliance on victim enforcement potentially undermine principles of consistency and equality? Might it also conflict with defense rights and fairness in the process? And could the proposal be implemented effectively in practice?Capers analyzes U.S. history to make the case that prosecutorial monopoly over criminal law enforcement is not inevitable and that greater victim involvement is feasible. He also notes that the experience of other countries could help provide relevant insights.This response Essay takes up Capers’s suggestion to seek out comparative lessons on victim participation. I focus on just a few jurisdictions and only one aspect of victim involvement that is central to Capers’s argument—whether and how victims could provide a check on prosecutors’ broad powers. After reviewing the way several European states have approached this question, the Essay concludes that giving victims a central role in criminal case decision-making is not likely to be the most promising way to ensure fair and just prosecutions in the U.S. context. Yet the European experience also suggests one way in which the U.S. criminal justice system can expand victims’ rights in a way that benefits society without undermining defendants’ constitutional rights—by giving victims the right to challenge prosecutorial declination decisions. Victims’ interest in challenging declination decisions coincides broadly with the public interest in ensuring equal treatment in prosecutions. At the same time, unlike some of the other participatory rights that might be accorded to victims, the right to review declination decisions does not generally conflict with defendants’ rights to due process. Declination review by victims can thus be implemented as one element of broader reforms of our criminal justice institutions to bolster prosecutorial accountability and promote fairness and consistency in the criminal process

Legal Ethics in International Criminal Defense

This paper examines the new and complex dilemmas facing defense attorneys who represent clients before international criminal courts. It argues that the unique features and goals of international criminal trials demand a distinct approach to resolving some of these ethical dilemmas. In particular, the goals of international trials are broader and often more political than those of ordinary domestic trials, and the applicable procedures are a unique hybrid of the inquisitorial and adversarial traditions. Moreover, some of the justifications for aggressive defense at the domestic level - such as discouraging disengaged advocacy and protesting overly harsh punishments - are less applicable internationally. Professional regulation of defense advocacy at the international courts should take account of these special features and goals of the international criminal justice system. The paper addresses how such a purposive approach to legal ethics would apply to four key decisions that international criminal defense attorneys may face: 1) whether to impeach victim-witnesses whom they know to be telling the truth; 2) how to respond to clients who want to testify falsely; 3) whether to allow clients whom the lawyer believes to be innocent to plead guilty; and 4) how to respond to a client’s request to boycott or disrupt the proceedings. In some cases, the purposive interpretation may result in less aggressive advocacy than might be warranted in an ordinary domestic criminal case. In others, it may demand a more independent approach to making decisions about the client’s representation. To implement the approach set out in this paper, I propose including a commentary to international courts’ Codes of Conduct (particularly the ICC Code), which would define more precisely the boundaries on aggressive practices, working within existing rules. The commentary would not create new categories of sanctionable conduct. Instead, it would identify situations in which attorneys are not required to engage in certain aggressive tactics or follow certain client instructions. In some cases, it would also recommend a particular course of action as most consistent with the attorneys’ ethical obligations, while leaving some flexibility to attorneys in how they interpret their duties before the ICC

Virtual Guilty Pleas

The coronavirus pandemic led criminal courts across the country to switch to virtual hearings to protect public health. As the pandemic subsides, many policymakers have called for the continued use of the remote format for a range of criminal proceedings. To guide decisions whether to use remote criminal justice on a regular basis, it is important to review the advantages and disadvantages of the practice.Remote criminal proceedings have been praised for their convenience and efficiency, but have also raised concerns. Many have worried that videoconferencing inhibits effective communication between defendants and their counsel, hinders defendants’ understanding of the process, impedes effective confrontation of witnesses, and prejudices the court’s perceptions of the defendant and witnesses.Previous scholarly work has attempted to evaluate remote criminal proceedings through legal and policy analysis, surveys of practitioners, and a comparison of outcomes of in-person and remote proceedings. This Article adds insights based on direct observations of over three hundred remote criminal proceedings in misdemeanor and felony courts across Michigan and Texas.Our observations reveal that judicial review of guilty pleas in the virtual setting is as brief and superficial as it is in person and may fail to detect inaccurate, coercive, or uninformed guilty pleas. But the virtual format presents additional risks to the fairness and integrity of the plea process, including the disengagement from the process by defendants, the difficulty of counsel and defendant to communicate privately, and the potentially prejudicial effects of inadequate technology and informal settings.The Article concludes by arguing that states should not use remote plea hearings on a regular basis after the pandemic is over. To the extent they do continue conducting remote plea hearings, they must bolster procedural safeguards in the proceedings. Judges must review virtual pleas and plea agreements more closely, verify that defendants are making an informed and voluntary choice to proceed remotely, take measures to ensure that defendants are represented adequately, and address the potentially prejudicial effects of the remote setting. These measures can help protect fairness in the plea process and ensure that virtual guilty pleas remain constitutionally valid

Accountability of International Prosecutors

The dilemma of holding prosecutors accountable while ensuring their independence was at the center of the debates surrounding the establishment of the International Criminal Court (ICC). The drafters of the Rome Statute for the ICC understood that the Court would be handling cases with significant political implications and yet working with limited resources and no independent enforcement capacity. To enhance prosecutors’ ability to operate successfully in this environment, the drafters enshrined prosecutorial independence into the Statute and gave prosecutors significant discretion over charging and investigation decisions. At the same time, drafters worried that ICC prosecutors were not sufficiently accountable to anyone. This led to the decision to give judges and the Assembly of States Parties limited authority to oversee prosecutorial actions. This chapter reviews how the ICC has addressed prosecutorial mistakes and misconduct in the first ten years of its existence. It evaluates how existing sanctions and remedies for prosecutorial wrongdoing respond to the challenge of preserving the independence of international prosecutors while ensuring their accountability. Finally, the chapter examines whether stricter internal oversight, discipline by external professional bodies, or informal sanctions can usefully supplement existing judicial and administrative sanctions for prosecutorial misconduct at the ICC

The Expressive Dimension of EU Criminal Law

Over the last decade, the European Union has begun actively legislating in the area of criminal justice. The 2009 Treaty of Lisbon expressly acknowledged the EU’s authority to pass criminal laws with respect to certain serious offenses with a cross-border dimension. This explicit grant of powers is the culmination of a remarkable evolution in the European Union’s identity — from an organization devoted primarily to economic integration to a political union that increasingly resembles a federal state. This Article argues that the EU has used its powers to criminalize not only to address practical needs, but also to reaffirm its core values and strengthen its political identity. An example of this phenomenon is the decision to harmonize definitions of racist and xenophobic crime across the Union. A review of the text and the drafting history of EU measures against racist and xenophobic crime suggests that they are best understood as a tool to express the Union’s commitment to human rights and equal treatment, rather than as a response to pressing practical needs. The Union’s use of the criminal law for such purposes, while symbolically powerful, raises some questions about the limits to EU intervention in criminal justice. The Article discusses the difficulties with establishing a legal basis for EU intervention in criminal justice when no demonstrable transnational dimension is present. Policy considerations — respect for state sovereignty, deference to democratic decision-making, and a concern for the effective implementation of EU laws — also recommend a cautious approach to legislating in this field. Above all, the EU should actively engage national parliaments in decisions to expand its reach over criminal law. While this approach might reduce the frequency with of EU legislation, it could strengthen the legitimacy and effectiveness of EU criminal law and better serve the political goals to which Europe and its peoples aspire

Nationalizing International Criminal Law

International law scholars often assume that the best way to enforce human rights is by establishing strong international institutions that develop the law progressively and enforce it independently. Political realists counter that such institutions are only as useful as powerful states permit them to be, and discourage expansive visions of their mandate. Partisans of the recently created International Criminal Court (ICC) must come to terms with the realist challenge. They must work to adapt the institution accordingly, without abandoning hope for the project altogether. Although the ICC will be constrained by the state support it commands, it can make a difference in the enforcement of human rights law by encouraging and assisting national authorities in upholding and enforcing international law. The ICC and its supporters must decide how the institution will use the powers it has. This Article argues that if the Court pursues a path of centralization and insularity, it will encounter resistance from member states and from the United States and bring about few of the benefits of reconciliation and institution-building that its founders envisioned. If the Court engages in joint investigations and trials with national authorities, along the model of mixed courts already in use in Sierra Leone and East Timor, enforcement of international criminal law will become more agreeable to the participating states, who will feel a sense of ownership and control over the process. In this new, less dominant role, the Court might even become acceptable to the United States whose support is critical for the Court\u27s effectiveness. The mixed-court model for the ICC holds out the promise of strengthening local capacities and contributes to the rebuilding of the rule of law in nations around the globe. It would move international human rights law in directions that its true friends must admit are ultimately wise and necessary - toward a system of law that is better informed, more widely accepted, and better enforced