Jury sentencing in noncapital cases: An idea whose time has come (again)?

Yale Law Journal

Volumn 108, Issue 7, 1999, Pages 1775-1802

  Lanni, Adriaan ^a  

^a NONE

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EID: 0346345914     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797450     Document Type: Article

References (166)

1. Skidmore v. Baltimore & O.R. Co., 167 F.2d 54, 61 (2d Cir. 1948).
2. See, e.g., Joel Cooper et al., Complex Scientific Testimony: How Do Jurors Make Decisions?, 20 LAW & HUM. BEHAV. 379, 390 (1996); Franklin Strier, The Educated Jury: A Proposal for Complex Litigation, 47 DEPAUL L. REV. 49, 51 (1997). The competence of juries in assigning damages in civil cases has been widely disputed. See, e.g., James K. Hammitt et al., Tort Standards and Jury Decisions, 14 J. LEGAL STUD. 751, 751-58 (1985); Harry Kalven, Jr., The Jury, the Law, and the Personal Injury Damage Award, 19 OHIO ST. L.J. 158, 158-64, 172-78 (1958); Neil Vidmar & Jeffrey J. Rice, Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals, 78 IOWA L. REV. 883, 897 (1993); W. Kip Viscusi, Pain and Suffering in Product Liability Cases: Systematic Compensation or Capricious Awards?, 8 INT'L REV. L. & ECON. 203, 203-08, 214-19 (1988); Edith Greene, On Juries and Damage Awards: The Process of Decisionmaking, LAW & CONTEMP. PROBS., Autumn 1989, at 225, 232-38. Criticism of civil jury awards often occurs in the context of inflated damages assessed against well-insured, deep-pocket corporate defendants. Because such decisions differ greatly from the decision to incarcerate individual criminal defendants, this Note does not examine studies of civil jury behavior.
3. See, e.g., Joel Cooper et al., Complex Scientific Testimony: How Do Jurors Make Decisions?, 20 LAW & HUM. BEHAV. 379, 390 (1996); Franklin Strier, The Educated Jury: A Proposal for Complex Litigation, 47 DEPAUL L. REV. 49, 51 (1997). The competence of juries in assigning damages in civil cases has been widely disputed. See, e.g., James K. Hammitt et al., Tort Standards and Jury Decisions, 14 J. LEGAL STUD. 751, 751-58 (1985); Harry Kalven, Jr., The Jury, the Law, and the Personal Injury Damage Award, 19 OHIO ST. L.J. 158, 158-64, 172-78 (1958); Neil Vidmar & Jeffrey J. Rice, Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals, 78 IOWA L. REV. 883, 897 (1993); W. Kip Viscusi, Pain and Suffering in Product Liability Cases: Systematic Compensation or Capricious Awards?, 8 INT'L REV. L. & ECON. 203, 203-08, 214-19 (1988); Edith Greene, On Juries and Damage Awards: The Process of Decisionmaking, LAW & CONTEMP. PROBS., Autumn 1989, at 225, 232-38. Criticism of civil jury awards often occurs in the context of inflated damages assessed against well-insured, deep-pocket corporate defendants. Because such decisions differ greatly from the decision to incarcerate individual criminal defendants, this Note does not examine studies of civil jury behavior.
4. See, e.g., Joel Cooper et al., Complex Scientific Testimony: How Do Jurors Make Decisions?, 20 LAW & HUM. BEHAV. 379, 390 (1996); Franklin Strier, The Educated Jury: A Proposal for Complex Litigation, 47 DEPAUL L. REV. 49, 51 (1997). The competence of juries in assigning damages in civil cases has been widely disputed. See, e.g., James K. Hammitt et al., Tort Standards and Jury Decisions, 14 J. LEGAL STUD. 751, 751-58 (1985); Harry Kalven, Jr., The Jury, the Law, and the Personal Injury Damage Award, 19 OHIO ST. L.J. 158, 158-64, 172-78 (1958); Neil Vidmar & Jeffrey J. Rice, Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals, 78 IOWA L. REV. 883, 897 (1993); W. Kip Viscusi, Pain and Suffering in Product Liability Cases: Systematic Compensation or Capricious Awards?, 8 INT'L REV. L. & ECON. 203, 203-08, 214-19 (1988); Edith Greene, On Juries and Damage Awards: The Process of Decisionmaking, LAW & CONTEMP. PROBS., Autumn 1989, at 225, 232-38. Criticism of civil jury awards often occurs in the context of inflated damages assessed against well-insured, deep-pocket corporate defendants. Because such decisions differ greatly from the decision to incarcerate individual criminal defendants, this Note does not examine studies of civil jury behavior.
5. See, e.g., Joel Cooper et al., Complex Scientific Testimony: How Do Jurors Make Decisions?, 20 LAW & HUM. BEHAV. 379, 390 (1996); Franklin Strier, The Educated Jury: A Proposal for Complex Litigation, 47 DEPAUL L. REV. 49, 51 (1997). The competence of juries in assigning damages in civil cases has been widely disputed. See, e.g., James K. Hammitt et al., Tort Standards and Jury Decisions, 14 J. LEGAL STUD. 751, 751-58 (1985); Harry Kalven, Jr., The Jury, the Law, and the Personal Injury Damage Award, 19 OHIO ST. L.J. 158, 158-64, 172-78 (1958); Neil Vidmar & Jeffrey J. Rice, Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals, 78 IOWA L. REV. 883, 897 (1993); W. Kip Viscusi, Pain and Suffering in Product Liability Cases: Systematic Compensation or Capricious Awards?, 8 INT'L REV. L. & ECON. 203, 203-08, 214-19 (1988); Edith Greene, On Juries and Damage Awards: The Process of Decisionmaking, LAW & CONTEMP. PROBS., Autumn 1989, at 225, 232-38. Criticism of civil jury awards often occurs in the context of inflated damages assessed against well-insured, deep-pocket corporate defendants. Because such decisions differ greatly from the decision to incarcerate individual criminal defendants, this Note does not examine studies of civil jury behavior.
6. See, e.g., Joel Cooper et al., Complex Scientific Testimony: How Do Jurors Make Decisions?, 20 LAW & HUM. BEHAV. 379, 390 (1996); Franklin Strier, The Educated Jury: A Proposal for Complex Litigation, 47 DEPAUL L. REV. 49, 51 (1997). The competence of juries in assigning damages in civil cases has been widely disputed. See, e.g., James K. Hammitt et al., Tort Standards and Jury Decisions, 14 J. LEGAL STUD. 751, 751-58 (1985); Harry Kalven, Jr., The Jury, the Law, and the Personal Injury Damage Award, 19 OHIO ST. L.J. 158, 158-64, 172-78 (1958); Neil Vidmar & Jeffrey J. Rice, Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals, 78 IOWA L. REV. 883, 897 (1993); W. Kip Viscusi, Pain and Suffering in Product Liability Cases: Systematic Compensation or Capricious Awards?, 8 INT'L REV. L. & ECON. 203, 203-08, 214-19 (1988); Edith Greene, On Juries and Damage Awards: The Process of Decisionmaking, LAW & CONTEMP. PROBS., Autumn 1989, at 225, 232-38. Criticism of civil jury awards often occurs in the context of inflated damages assessed against well-insured, deep-pocket corporate defendants. Because such decisions differ greatly from the decision to incarcerate individual criminal defendants, this Note does not examine studies of civil jury behavior.
7. See, e.g., Joel Cooper et al., Complex Scientific Testimony: How Do Jurors Make Decisions?, 20 LAW & HUM. BEHAV. 379, 390 (1996); Franklin Strier, The Educated Jury: A Proposal for Complex Litigation, 47 DEPAUL L. REV. 49, 51 (1997). The competence of juries in assigning damages in civil cases has been widely disputed. See, e.g., James K. Hammitt et al., Tort Standards and Jury Decisions, 14 J. LEGAL STUD. 751, 751-58 (1985); Harry Kalven, Jr., The Jury, the Law, and the Personal Injury Damage Award, 19 OHIO ST. L.J. 158, 158-64, 172-78 (1958); Neil Vidmar & Jeffrey J. Rice, Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals, 78 IOWA L. REV. 883, 897 (1993); W. Kip Viscusi, Pain and Suffering in Product Liability Cases: Systematic Compensation or Capricious Awards?, 8 INT'L REV. L. & ECON. 203, 203-08, 214-19 (1988); Edith Greene, On Juries and Damage Awards: The Process of Decisionmaking, LAW & CONTEMP. PROBS., Autumn 1989, at 225, 232-38. Criticism of civil jury awards often occurs in the context of inflated damages assessed against well-insured, deep-pocket corporate defendants. Because such decisions differ greatly from the decision to incarcerate individual criminal defendants, this Note does not examine studies of civil jury behavior.
8. See, e.g., Joel Cooper et al., Complex Scientific Testimony: How Do Jurors Make Decisions?, 20 LAW & HUM. BEHAV. 379, 390 (1996); Franklin Strier, The Educated Jury: A Proposal for Complex Litigation, 47 DEPAUL L. REV. 49, 51 (1997). The competence of juries in assigning damages in civil cases has been widely disputed. See, e.g., James K. Hammitt et al., Tort Standards and Jury Decisions, 14 J. LEGAL STUD. 751, 751-58 (1985); Harry Kalven, Jr., The Jury, the Law, and the Personal Injury Damage Award, 19 OHIO ST. L.J. 158, 158-64, 172-78 (1958); Neil Vidmar & Jeffrey J. Rice, Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals, 78 IOWA L. REV. 883, 897 (1993); W. Kip Viscusi, Pain and Suffering in Product Liability Cases: Systematic Compensation or Capricious Awards?, 8 INT'L REV. L. & ECON. 203, 203-08, 214-19 (1988); Edith Greene, On Juries and Damage Awards: The Process of Decisionmaking, LAW & CONTEMP. PROBS., Autumn 1989, at 225, 232-38. Criticism of civil jury awards often occurs in the context of inflated damages assessed against well-insured, deep-pocket corporate defendants. Because such decisions differ greatly from the decision to incarcerate individual criminal defendants, this Note does not examine studies of civil jury behavior.
9. See, e.g., H. Richard Uviller, Credence, Character, and the Rules of Evidence: Seeing Through the Liar's Tale, 42 DUKE L.J. 776, 778,827 (1993).
10. See, e.g., Reid Hastie & W. Kip Viscusi, What Juries Can't Do Well: The Jury's Performance as a Risk Manager, 40 ARIZ. L. REV. 901, 901 (1998) (stating that one of the jury's traditional functions is to represent the "conscience of the community"). On the civil side, this notion underpins the doctrine of punitive damages. See, e.g., Hall v. Ochs, 817 F.2d 920, 927 (1st Cir. 1987).
11. See infra note 64 and accompanying text. There is no constitutional right to jury sentencing. See, e.g., McMillan v. Pennsylvania, 477 U.S. 79, 93 (1986) ("[T]here is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact."); Cabana v. Bullock, 474 U.S. 376, 385 (1986) ("The decision whether a particular punishment . . . is appropriate in any given case is not one that we have ever required to be made by a jury."); Spaziano v. Florida, 468 U.S. 447, 457-65 (1984) (upholding the constitutionality of the jury override in death penalty cases).
12. Sanford H. Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75 HARV. L. REV. 904, 926 (1962).
13. Sheldon Glueck, Principles of a Rational Penal Code, 41 HARV. L. REV. 453, 469 (1928).
14. For discussions of sentencing reform in the progressive era, see DAVID J. ROTHMAN, CONSCIENCE AND CONVENIENCE 43-66 (1980); and Thomas A. Green, Freedom and Criminal Responsibility in the Age of Pound: An Essay on Criminal Justice, 93 MICH. L. REV. 1915, 1949-2007 (1995).
15. For discussions of sentencing reform in the progressive era, see DAVID J. ROTHMAN, CONSCIENCE AND CONVENIENCE 43-66 (1980); and Thomas A. Green, Freedom and Criminal Responsibility in the Age of Pound: An Essay on Criminal Justice, 93 MICH. L. REV. 1915, 1949-2007 (1995).
16. SHELDON GLUECK & ELANOR GLUECK, 500 CRIMINAL CAREERS 296 (1939).
17. See MICHAEL H. TONRY, SENTENCING REFORM IMPACTS 6-9 (1987).
18. For a discussion, see SAMUEL WALKER, POPULAR JUSTICE 217-18 (2ded. 1998).
19. See 28 U.S.C. § 994(k) (1994) ("The Commission shall insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant . . . ."). Compare Mistretta v. United States, 488 U.S. 361, 363-66 (1989) (stating that retribution is the primary penological goal underlying the guidelines), with Williams v. New York, 337 U.S. 241, 248 (1949) (discussing rehabilitation as the predominant theory of punishment at that time). For a discussion of the legislative history of the Guidelines, see generally Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 WAKE FOREST L. REV. 223 (1993).
20. CAL. PENAL CODE § 1170(a)(1) (West 1998).
21. At the state level, the movement toward determinate sentencing has brought fixed penalties, mandatory minimums, and a proliferation of repeat offender statutes. By 1983, 49 states had adopted mandatory sentencing laws, primarily for drug and violent offenses. See TONRY, supra note 10, at 25. At the federal level, Congress has passed more than 100 mandatory minimum penalty provisions since 1984. See, e.g., 21 U.S.C. § 841(b)(1)(A) (establishing minimum penalties for the possession of various quantities of narcotics); Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, § 1005(a), 98 Stat. 2138 (1984) (codified as amended at 18 U.S.C. § 924(c)(1)) (providing for mandatory enhancement of the sentence for use of a firearm in the commission of a violent felony). See generally Orrin G. Hatch, The Role of Congress in Sentencing, 28 WAKE FOREST L. REV. 185, 192-93 (1993) (discussing the congressional enactment of mandatory minimum sentencing and its effectiveness in deterring crime).
22. See Susan E. Martin, The Politics of Sentencing Reform: Sentencing Guidelines in Pennsylvania and Minnesota, in 2 PANEL ON SENTENCING RESEARCH, RESEARCH ON SENTENCING: THE SEARCH FOR REFORM 265, 297 (Alfred Blumstein et al. eds., 1983) [hereinafter RESEARCH ON SENTENCING].
23. Id.
24. See, e.g., 1 id. at 134-35; Andrew von Hirsch, The Sentencing Commission's Functions, in THE SENTENCING COMMISSION AND ITS GUIDELINES 3, 6 (Andrew von Hirsch et al. eds., 1987).
25. See, e.g., MICHAEL TONRY, SENTENCING MATTERS 54-55 (1996) (mentioning the Minnesota Commission's success in reducing racial and gender discrimination in sentencing); Andrew von Hirsch & Judith Greene, When Should Reformers Support Creation of Sentencing Guidelines?, 28 WAKE FOREST L. REV. 329, 331-34 (1993) (discussing the early successes of the Minnesota guidelines).
26. See, e.g., MICHAEL TONRY, SENTENCING MATTERS 54-55 (1996) (mentioning the Minnesota Commission's success in reducing racial and gender discrimination in sentencing); Andrew von Hirsch & Judith Greene, When Should Reformers Support Creation of Sentencing Guidelines?, 28 WAKE FOREST L. REV. 329, 331-34 (1993) (discussing the early successes of the Minnesota guidelines).
27. See von Hirsch & Greene, supra note 18, at 337 (arguing that the "oddities" of the Minnesota guidelines reflect the fact that the Commission yielded to legislative pressures).
28. Richard S. Frase, The Role of the Legislature, the Sentencing Commission, and Other Officials Under the Minnesota Sentencing Guidelines, 28 WAKE FOREST L. REV. 345, 359-61 (1993). For discussions of the effect of political pressures on Sentencing Commissions in other states, see, for example, David Boerner, The Role of the Legislature in Guidelines Sentencing in "the Other Washington," 28 WAKE FOREST L. REV. 381, 382 (1993), which notes that the Washington State Sentencing Commission "has functioned as an agent of the Washington Legislature, not as an independent actor"; and Martin, supra note 15, at 295, which describes the influence of "law-and-order" politics on the Pennsylvania Commission. See generally von Hirsch & Greene, supra note 18, at 337 (noting the limited independence of all Sentencing Commissions).
29. Richard S. Frase, The Role of the Legislature, the Sentencing Commission, and Other Officials Under the Minnesota Sentencing Guidelines, 28 WAKE FOREST L. REV. 345, 359-61 (1993). For discussions of the effect of political pressures on Sentencing Commissions in other states, see, for example, David Boerner, The Role of the Legislature in Guidelines Sentencing in "the Other Washington," 28 WAKE FOREST L. REV. 381, 382 (1993), which notes that the Washington State Sentencing Commission "has functioned as an agent of the Washington Legislature, not as an independent actor"; and Martin, supra note 15, at 295, which describes the influence of "law-and-order" politics on the Pennsylvania Commission. See generally von Hirsch & Greene, supra note 18, at 337 (noting the limited independence of all Sentencing Commissions).
30. JULIAN V. ROBERTS & LORETTA J. STALANS, PUBLIC OPINION, CRIME, AND CRIMINAL JUSTICE 197 (1997) (quoting U.S. DEP'T OF JUSTICE, FEDERAL SENTENCING GUIDELINES: ANSWERS TO SOME QUESTIONS, NIJ REP. No. 205 (1987)).
31. Douglas R. Thomson & Anthony J. Ragona, Popular Moderation Versus Governmental Authoritarianism: An Interactionist View of Public Sentiments Toward Criminal Sanctions, 33 CRIME & DELINQ. 337, 354 (1987).
32. For example, a 1994 poll found that 81% of respondents in the United States believe that sentences are not severe enough. See ROBERTS & STALANS, supra note 21, at 207; see also Loretta J. Stalans & Arthur J. Lurigio, Lay and Professionals' Beliefs About Crime and Criminal Sentencing: A Need for Theory, Perhaps Schema Theory, 17 CRIM. JUST. & BEHAV. 333, 344 (1990) (reporting that 72% of the lay subjects in the study said that judges are too lenient in sentencing burglary); cf. Thomson & Ragona, supra note 22, at 337, 350-51 (finding a sample of Illinois citizens to be less "vengeful" than they often appear in public opinion polls).
33. See Thomson & Ragona, supra note 22, at 348-49.
34. See, e.g., Howard A. Parker, Juvenile Court Actions and Public Response, in BECOMING DELINQUENT 252, 257-65 (Peter G. Garabedian & Don C. Gibbons eds., 1970) (identifying a similar phenomenon in Washington State); Loretta J. Stalans & Shari Seidman Diamond, Formation and Change in Lay Evaluations of Criminal Sentencing, 14 LAW & HUM. BEHAV. 199, 211-13 (1990) (finding that while the majority of lay respondents said that judges are "too lenient" in their sentencing of burglary offenders, the respondents' own sentencing preferences were more lenient than the required minimum sentences for residential burglary). See generally ROBERTS & STALANS, supra note 21, at 219-20 (discussing a lenient sentence handed down by a Canadian jury that considered mitigating factors in a manslaughter defendant's background).
35. See, e.g., Howard A. Parker, Juvenile Court Actions and Public Response, in BECOMING DELINQUENT 252, 257-65 (Peter G. Garabedian & Don C. Gibbons eds., 1970) (identifying a similar phenomenon in Washington State); Loretta J. Stalans & Shari Seidman Diamond, Formation and Change in Lay Evaluations of Criminal Sentencing, 14 LAW & HUM. BEHAV. 199, 211-13 (1990) (finding that while the majority of lay respondents said that judges are "too lenient" in their sentencing of burglary offenders, the respondents' own sentencing preferences were more lenient than the required minimum sentences for residential burglary). See generally ROBERTS & STALANS, supra note 21, at 219-20 (discussing a lenient sentence handed down by a Canadian jury that considered mitigating factors in a manslaughter defendant's background).
36. Anthony N. Doob & Julian V. Roberts, Social Psychology, Social Attitudes, and Attitudes Toward Sentencing, 16 CANADIAN J. BEHAV. SCI. 269, 273 (1984).
37. See Stalans & Lurigio, supra note 23, at 342 (comparing laypersons' beliefs with expert probation officers' beliefs about burglary characteristics and sentencing decisions).
38. See Loretta J. Stalans, Citizens' Crime Stereotypes, Biased Recall, and Punishment Preferences in Abstract Cases: The Educative Role of Interpersonal Sources, 17 LAW & HUM. BEHAV. 451, 453, 468 (1993).
39. Thomson & Ragona, supra note 22, at 351.
40. Perceived "softness" on crime and the death penalty often plays a major role in campaigns challenging the retention of state judges. These campaigns often do not describe the legal basis for the judges' reversal of conviction or penalty. See Stephen B. Bright, Political Attacks on the Judiciary: Can Justice Be Done amid Efforts To Intimidate and Remove Judges from Office for Unpopular Decisions?, 72 N.Y.U. L. REV. 308, 313-316 (1997) (discussing the examples of Justice Penny White and Judge Rosemary Barkett). Legislators voting to confirm federal judges are exposed to similar political attacks. See Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759, 789-90 (1995) (discussing political attacks on senators who voted to confirm Judge Barkett to the Eleventh Circuit).
41. Perceived "softness" on crime and the death penalty often plays a major role in campaigns challenging the retention of state judges. These campaigns often do not describe the legal basis for the judges' reversal of conviction or penalty. See Stephen B. Bright, Political Attacks on the Judiciary: Can Justice Be Done amid Efforts To Intimidate and Remove Judges from Office for Unpopular Decisions?, 72 N.Y.U. L. REV. 308, 313-316 (1997) (discussing the examples of Justice Penny White and Judge Rosemary Barkett). Legislators voting to confirm federal judges are exposed to similar political attacks. See Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759, 789-90 (1995) (discussing political attacks on senators who voted to confirm Judge Barkett to the Eleventh Circuit).
42. See supra note 4 and accompanying text.
43. Milton Heumann & Lance Cassack, Not-So-Blissful Ignorance: Informing Jurors About Punishment in Mandatory Sentencing Cases, 20 AM. CRIM. L. REV. 343, 367 (1983).
44. For a discussion of relevant conduct under the Guidelines, see Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 YALE L.J. 1681, 1712-15 (1992); Marc Miller & Ronald Weich, The Relevant Conduct Controversy, 2 FED. SENTENCING REP. 150 (1989); and William W. Wilkins, Jr. & John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C. L. REV. 495 (1990). See also Symposium, The Issue of Relevant Conduct, 2 FED. SENTENCING REP. 129-60 (1989). Some state sentencing guidelines schemes, most notably Minnesota's, use a conviction offense rather than a real-offense system and therefore further limit the judge's role in sentencing. See Freed, supra, at 1713.
45. For a discussion of relevant conduct under the Guidelines, see Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 YALE L.J. 1681, 1712-15 (1992); Marc Miller & Ronald Weich, The Relevant Conduct Controversy, 2 FED. SENTENCING REP. 150 (1989); and William W. Wilkins, Jr. & John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C. L. REV. 495 (1990). See also Symposium, The Issue of Relevant Conduct, 2 FED. SENTENCING REP. 129-60 (1989). Some state sentencing guidelines schemes, most notably Minnesota's, use a conviction offense rather than a real-offense system and therefore further limit the judge's role in sentencing. See Freed, supra, at 1713.
46. For a discussion of relevant conduct under the Guidelines, see Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 YALE L.J. 1681, 1712-15 (1992); Marc Miller & Ronald Weich, The Relevant Conduct Controversy, 2 FED. SENTENCING REP. 150 (1989); and William W. Wilkins, Jr. & John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C. L. REV. 495 (1990). See also Symposium, The Issue of Relevant Conduct, 2 FED. SENTENCING REP. 129-60 (1989). Some state sentencing guidelines schemes, most notably Minnesota's, use a conviction offense rather than a real-offense system and therefore further limit the judge's role in sentencing. See Freed, supra, at 1713.
47. For a discussion of relevant conduct under the Guidelines, see Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 YALE L.J. 1681, 1712-15 (1992); Marc Miller & Ronald Weich, The Relevant Conduct Controversy, 2 FED. SENTENCING REP. 150 (1989); and William W. Wilkins, Jr. & John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C. L. REV. 495 (1990). See also Symposium, The Issue of Relevant Conduct, 2 FED. SENTENCING REP. 129-60 (1989). Some state sentencing guidelines schemes, most notably Minnesota's, use a conviction offense rather than a real-offense system and therefore further limit the judge's role in sentencing. See Freed, supra, at 1713.
48. U.S. SENTENCING GUIDELINES MANUAL, §§ 5H1.1, 3, 5, 6, 10, 12 (1998); see also 28 U.S.C. § 994(e) (1993) (requiring the Sentencing Commission to assure that its guidelines reflect "the general inappropriateness" of considering the defendant's employment record and family ties and responsibilities). 35. See, e.g., Heumann & Cassack, supra note 32, at 389-92; Kristen K. Sauer, Note, Informed Conviction: Instructing the Jury About Mandatory Sentencing Consequences, 95 COLUM. L. REV. 1232, 1246-47 (1995).
49. U.S. SENTENCING GUIDELINES MANUAL, §§ 5H1.1, 3, 5, 6, 10, 12 (1998); see also 28 U.S.C. § 994(e) (1993) (requiring the Sentencing Commission to assure that its guidelines reflect "the general inappropriateness" of considering the defendant's employment record and family ties and responsibilities). 35. See, e.g., Heumann & Cassack, supra note 32, at 389-92; Kristen K. Sauer, Note, Informed Conviction: Instructing the Jury About Mandatory Sentencing Consequences, 95 COLUM. L. REV. 1232, 1246-47 (1995).
50. Proceedings of the Fifty-Third Judicial Conference of the District of Columbia Circuit, Panel Discussion-Jury Nullification, 145 F.R.D. 149, 191 (1992); see also HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 306-12 (1966) (discussing jury nullification motivated by severe sentences).
51. Proceedings of the Fifty-Third Judicial Conference of the District of Columbia Circuit, Panel Discussion-Jury Nullification, 145 F.R.D. 149, 191 (1992); see also HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 306-12 (1966) (discussing jury nullification motivated by severe sentences).
52. MICH. COMP. LAWS § 750.227(b) (1998).
53. See Heumann & Cassak, supra note 32, at 352.
54. See id. at 352 n.27.
55. The conviction rate at trial declined from 86% in 1972 to 79% in 1976. See Joint Comm. on N.Y. Drug Law Evaluation, Final Report, The Nation's Toughest Drug Law: Evaluating the New York Experience 95 (1978).
56. For an analysis of the effects of the Bartley-Fox Amendment, see DAVID ROSSMAN ET AL., THE IMPACT OF THE MANDATORY GUN LAW IN MASSACHUSETTS (1979); TONRY, supra note 18, at 154-55; and James A. Beha, II, "And Nobody Can Get You Out": The Impact of a Mandatory Prison Sentence for the Illegal Carrying of a Firearm on the Use of Firearms and on the Administration of Criminal Justice in Boston (pts. 1 & 2), 57 B.U. L. REV. 96, 289 (1977).
57. For an analysis of the effects of the Bartley-Fox Amendment, see DAVID ROSSMAN ET AL., THE IMPACT OF THE MANDATORY GUN LAW IN MASSACHUSETTS (1979); TONRY, supra note 18, at 154-55; and James A. Beha, II, "And Nobody Can Get You Out": The Impact of a Mandatory Prison Sentence for the Illegal Carrying of a Firearm on the Use of Firearms and on the Administration of Criminal Justice in Boston (pts. 1 & 2), 57 B.U. L. REV. 96, 289 (1977).
58. See TONRY, supra note 18, at 155; Beha, supra note 41, at 126.
59. KENNETH CARLSON, U.S. DEP'T OF JUSTICE, MANDATORY SENTENCING: THE EXPERIENCE OF Two STATES 8-10 (1982).
60. See S. REP. No. 98-225, at 71-76 (1983); Stith & Koh, supra note 12, at 227-30; see also MICHAEL H. TONRY, supra note 10, at 6-7 (discussing criticism of sentencing policy in the 1970s).
61. See, e.g., Placido G. Gomez, The Dilemma of Difference: Race as a Sentencing Factor, 24 GOLDEN GATE U. L. REV. 357, 358-59 & nn.12-14 (1994).
62. See, e.g., TONRY, supra note 18, at 54 ("Every sentencing commission has included reduction or elimination of racial and gender discrimination in sentencing among its goals.").
63. For example, 82% of federal sentences are within the range prescribed by the guidelines. See Gerald W. Heaney, The Reality of Guidelines Sentencing: No End to Disparity, 28 AM. CRIM. L. REV. 161, 189 (1991).
64. See, e.g., STEPHEN P. KLEIN ET AL., RACIAL EQUITY IN SENTENCING 11 (1988) (arguing that while California courts are making equitable sentencing decisions, race may influence other steps in the punishment process); Margaret Farnworth et al., Ethnic, Racial, and Minority Disparity in Felony Court Processing, in RACE AND CRIMINAL JUSTICE 54, 61 (Michael J. Lynch & E. Britt Patterson eds., 1991) (reporting racial disparity in the choice between incarceration and probation and the decision to reduce the charges among males charged with possession of marijuana with intent to sell in California in 1988); Heaney, supra note 47, at 164 (arguing that there is "little ėvidence" that the federal guidelines have reduced racial disparity); Gerald W. Heaney, Revisiting Disparity: Debating Guidelines Sentencing, 29 AM. CRIM. L. REV. 771, 779 (1992) (reporting a racial disparity among sentences under the federal guidelines).
65. See, e.g., STEPHEN P. KLEIN ET AL., RACIAL EQUITY IN SENTENCING 11 (1988) (arguing that while California courts are making equitable sentencing decisions, race may influence other steps in the punishment process); Margaret Farnworth et al., Ethnic, Racial, and Minority Disparity in Felony Court Processing, in RACE AND CRIMINAL JUSTICE 54, 61 (Michael J. Lynch & E. Britt Patterson eds., 1991) (reporting racial disparity in the choice between incarceration and probation and the decision to reduce the charges among males charged with possession of marijuana with intent to sell in California in 1988); Heaney, supra note 47, at 164 (arguing that there is "little ėvidence" that the federal guidelines have reduced racial disparity); Gerald W. Heaney, Revisiting Disparity: Debating Guidelines Sentencing, 29 AM. CRIM. L. REV. 771, 779 (1992) (reporting a racial disparity among sentences under the federal guidelines).
66. See, e.g., STEPHEN P. KLEIN ET AL., RACIAL EQUITY IN SENTENCING 11 (1988) (arguing that while California courts are making equitable sentencing decisions, race may influence other steps in the punishment process); Margaret Farnworth et al., Ethnic, Racial, and Minority Disparity in Felony Court Processing, in RACE AND CRIMINAL JUSTICE 54, 61 (Michael J. Lynch & E. Britt Patterson eds., 1991) (reporting racial disparity in the choice between incarceration and probation and the decision to reduce the charges among males charged with possession of marijuana with intent to sell in California in 1988); Heaney, supra note 47, at 164 (arguing that there is "little ėvidence" that the federal guidelines have reduced racial disparity); Gerald W. Heaney, Revisiting Disparity: Debating Guidelines Sentencing, 29 AM. CRIM. L. REV. 771, 779 (1992) (reporting a racial disparity among sentences under the federal guidelines).
67. See Heaney, supra note 47, at 202-03 (stating that Sentencing Commission data reveals significant disparities in arrest and prosecution rates among blacks and whites); Cassia Spohn et al., The Impact of the Ethnicity and Gender of Defendants on the Decision To Reject or Dismiss Felony Charges, 25 CRIMINOLOGY 175, 181-86 (1987) (finding that race was a factor in charging decisions in Los Angeles County).
68. See Heaney, supra note 47, at 204.
69. See, e.g., Farnworth et al., supra note 48, at 61 (finding racial disparities in the reduction of charges and granting of probation); Robert J. Sampson & Janet L. Lauritsen, Racial and Ethnic Disparities in Crime and Criminal Justice in the United States, in ETHNICITY, CRIME, AND IMMIGRATION: COMPARATIVE AND CROSS-NATIONAL PERSPECTIVES 311, 350 (Michael Tonry ed., 1997) (discussing a Department of Justice survey that found that once convicted, blacks are more likely to be sentenced to prison than whites convicted of similar crimes by a margin of 51% to 38%).
70. See Heaney, supra note 47, at 205.
71. See Heaney, supra note 48, at 779-80.
72. See infra Section II.E.
73. See, e.g., KATE STITH & JOSÉ A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 11-14, 82-85 (1998); Freed, supra note 33, at 1739; Stephen J. Schulhofer, Assessing the Federal Sentencing Process: The Problem Is Uniformity, Not Disparity, 29 AM. CRIM. L. REV. 833, 858-61 (1992).
74. See, e.g., KATE STITH & JOSÉ A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 11-14, 82-85 (1998); Freed, supra note 33, at 1739; Stephen J. Schulhofer, Assessing the Federal Sentencing Process: The Problem Is Uniformity, Not Disparity, 29 AM. CRIM. L. REV. 833, 858-61 (1992).
75. Ronald F. Wright, Rules for Sentencing Revolutions, 108 YALE L.J. 1355, 1376 (1999) (footnote omitted) (reviewing STITH & CABRANES, supra note 55).
76. See Lewis McQuown, Reformation of the Jury System, 6 KY. L.J. 182 (1918). See generally ABA ADVISORY COMM. ON SENTENCING AND REVIEW, STANDARDS RELATING TO SENTENCING ALTERNATIVES AND PROCEDURES 44 (1967) [hereinafter ABA STANDARDS] ("[R]ecent opinion has been nearly unanimous that jury sentencing in noncapital cases is an anachronism and that it should be abolished."). For a recent treatment taking an agnostic view, see Robert A. Weninger, Jury Sentencing in Noncapital Cases: A Case Study of El Paso County, Texas, 45 WASH. U. J. URB. & CONTEMP. L. 3, 37-40 (1994).
77. See Lewis McQuown, Reformation of the Jury System, 6 KY. L.J. 182 (1918). See generally ABA ADVISORY COMM. ON SENTENCING AND REVIEW, STANDARDS RELATING TO SENTENCING ALTERNATIVES AND PROCEDURES 44 (1967) [hereinafter ABA STANDARDS] ("[R]ecent opinion has been nearly unanimous that jury sentencing in noncapital cases is an anachronism and that it should be abolished."). For a recent treatment taking an agnostic view, see Robert A. Weninger, Jury Sentencing in Noncapital Cases: A Case Study of El Paso County, Texas, 45 WASH. U. J. URB. & CONTEMP. L. 3, 37-40 (1994).
78. See Lewis McQuown, Reformation of the Jury System, 6 KY. L.J. 182 (1918). See generally ABA ADVISORY COMM. ON SENTENCING AND REVIEW, STANDARDS RELATING TO SENTENCING ALTERNATIVES AND PROCEDURES 44 (1967) [hereinafter ABA STANDARDS] ("[R]ecent opinion has been nearly unanimous that jury sentencing in noncapital cases is an anachronism and that it should be abolished."). For a recent treatment taking an agnostic view, see Robert A. Weninger, Jury Sentencing in Noncapital Cases: A Case Study of El Paso County, Texas, 45 WASH. U. J. URB. & CONTEMP. L. 3, 37-40 (1994).
79. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 356-57 (1968) (criticizing jurors' lack of expertise and recommending that jury sentencing in noncapital cases be abolished); Charles O. Betts, Jury Sentencing, 2 NAT'L PAROLE & PROBATION ASS'N J. 369, 372-73 (1956) (emphasizing the disparity of jury verdicts); James P. Jouras, On Modernizing Missouri's Criminal Punishment Procedure, 20 U. KAN. CITY L. REV. 299, 300-01 (1952) (noting that the jury lacks the expertise to determine individualized sentences aimed at rehabilitating the offender); Charles Kerr, A Needed Reform in Criminal Procedure, 6 KY. L.J. 107, 108 (1918) (arguing that judges' superior experience and accountability insure fairer sentences); H.M. LaFont, Assessment of Punishment-A Judge or Jury Function?, 38 TEX. L. REV. 835, 837 (1960) (arguing for the abolition of jury sentencing in Texas); Charles S. Potts, Suggested Changes in Our Criminal Procedure, 4 SW. L.J. 437, 447-49 (1950) (supporting judge sentencing); Charles W. Webster, Jury Sentencing: Grab-Bag Justice, 14 Sw. L.J. 221, 230 (1960) (advocating the abolition of jury sentencing); Comment, Consideration of Punishment by Juries, 17 U. CHI. L. REV. 400, 408 (1950) (arguing for judge sentencing); Note, Jury Sentencing in Virginia, 53 VA. L. REV. 968, 1001 (1967) [hereinafter Note, Jury Sentencing] ("[T]he jury possesses neither the information nor the training necessary for drawing the inferences upon which a rational sentence must be based."); Craig Reese, Note, Jury Sentencing in Texas: Time for a Change?, 31 S. TEX. L. REV. 323, 324 (1990) (supporting judge sentencing); Note, Statutory Structures for Sentencing Felons to Prison, 60 COLUM. L. REV. 1134, 1154-57 (1960) [hereinafter Note, Statutory Structures] (advocating the abolition of jury sentencing). Critics of assessment of punishment by juries cite and dismiss the following traditional arguments supporting the institution without bothering to refute them: Jurors are less subject to corruption or public pressure than elected judges; jurors are less likely to become calloused to a defendant's plight; jury sentencing would obviate the need for jurors to nullify to avoid severe penalties; jury sentences are more temperate and fair because a jury tends to level individual opinions and provides a reconciliation of varied temperaments; and jury sentencing diminishes popular distrust of official justice. See, e.g., Betts, supra, at 371.
80. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 356-57 (1968) (criticizing jurors' lack of expertise and recommending that jury sentencing in noncapital cases be abolished); Charles O. Betts, Jury Sentencing, 2 NAT'L PAROLE & PROBATION ASS'N J. 369, 372-73 (1956) (emphasizing the disparity of jury verdicts); James P. Jouras, On Modernizing Missouri's Criminal Punishment Procedure, 20 U. KAN. CITY L. REV. 299, 300-01 (1952) (noting that the jury lacks the expertise to determine individualized sentences aimed at rehabilitating the offender); Charles Kerr, A Needed Reform in Criminal Procedure, 6 KY. L.J. 107, 108 (1918) (arguing that judges' superior experience and accountability insure fairer sentences); H.M. LaFont, Assessment of Punishment-A Judge or Jury Function?, 38 TEX. L. REV. 835, 837 (1960) (arguing for the abolition of jury sentencing in Texas); Charles S. Potts, Suggested Changes in Our Criminal Procedure, 4 SW. L.J. 437, 447-49 (1950) (supporting judge sentencing); Charles W. Webster, Jury Sentencing: Grab-Bag Justice, 14 Sw. L.J. 221, 230 (1960) (advocating the abolition of jury sentencing); Comment, Consideration of Punishment by Juries, 17 U. CHI. L. REV. 400, 408 (1950) (arguing for judge sentencing); Note, Jury Sentencing in Virginia, 53 VA. L. REV. 968, 1001 (1967) [hereinafter Note, Jury Sentencing] ("[T]he jury possesses neither the information nor the training necessary for drawing the inferences upon which a rational sentence must be based."); Craig Reese, Note, Jury Sentencing in Texas: Time for a Change?, 31 S. TEX. L. REV. 323, 324 (1990) (supporting judge sentencing); Note, Statutory Structures for Sentencing Felons to Prison, 60 COLUM. L. REV. 1134, 1154-57 (1960) [hereinafter Note, Statutory Structures] (advocating the abolition of jury sentencing). Critics of assessment of punishment by juries cite and dismiss the following traditional arguments supporting the institution without bothering to refute them: Jurors are less subject to corruption or public pressure than elected judges; jurors are less likely to become calloused to a defendant's plight; jury sentencing would obviate the need for jurors to nullify to avoid severe penalties; jury sentences are more temperate and fair because a jury tends to level individual opinions and provides a reconciliation of varied temperaments; and jury sentencing diminishes popular distrust of official justice. See, e.g., Betts, supra, at 371.
81. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 356-57 (1968) (criticizing jurors' lack of expertise and recommending that jury sentencing in noncapital cases be abolished); Charles O. Betts, Jury Sentencing, 2 NAT'L PAROLE & PROBATION ASS'N J. 369, 372-73 (1956) (emphasizing the disparity of jury verdicts); James P. Jouras, On Modernizing Missouri's Criminal Punishment Procedure, 20 U. KAN. CITY L. REV. 299, 300-01 (1952) (noting that the jury lacks the expertise to determine individualized sentences aimed at rehabilitating the offender); Charles Kerr, A Needed Reform in Criminal Procedure, 6 KY. L.J. 107, 108 (1918) (arguing that judges' superior experience and accountability insure fairer sentences); H.M. LaFont, Assessment of Punishment-A Judge or Jury Function?, 38 TEX. L. REV. 835, 837 (1960) (arguing for the abolition of jury sentencing in Texas); Charles S. Potts, Suggested Changes in Our Criminal Procedure, 4 SW. L.J. 437, 447-49 (1950) (supporting judge sentencing); Charles W. Webster, Jury Sentencing: Grab-Bag Justice, 14 Sw. L.J. 221, 230 (1960) (advocating the abolition of jury sentencing); Comment, Consideration of Punishment by Juries, 17 U. CHI. L. REV. 400, 408 (1950) (arguing for judge sentencing); Note, Jury Sentencing in Virginia, 53 VA. L. REV. 968, 1001 (1967) [hereinafter Note, Jury Sentencing] ("[T]he jury possesses neither the information nor the training necessary for drawing the inferences upon which a rational sentence must be based."); Craig Reese, Note, Jury Sentencing in Texas: Time for a Change?, 31 S. TEX. L. REV. 323, 324 (1990) (supporting judge sentencing); Note, Statutory Structures for Sentencing Felons to Prison, 60 COLUM. L. REV. 1134, 1154-57 (1960) [hereinafter Note, Statutory Structures] (advocating the abolition of jury sentencing). Critics of assessment of punishment by juries cite and dismiss the following traditional arguments supporting the institution without bothering to refute them: Jurors are less subject to corruption or public pressure than elected judges; jurors are less likely to become calloused to a defendant's plight; jury sentencing would obviate the need for jurors to nullify to avoid severe penalties; jury sentences are more temperate and fair because a jury tends to level individual opinions and provides a reconciliation of varied temperaments; and jury sentencing diminishes popular distrust of official justice. See, e.g., Betts, supra, at 371.
82. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 356-57 (1968) (criticizing jurors' lack of expertise and recommending that jury sentencing in noncapital cases be abolished); Charles O. Betts, Jury Sentencing, 2 NAT'L PAROLE & PROBATION ASS'N J. 369, 372-73 (1956) (emphasizing the disparity of jury verdicts); James P. Jouras, On Modernizing Missouri's Criminal Punishment Procedure, 20 U. KAN. CITY L. REV. 299, 300-01 (1952) (noting that the jury lacks the expertise to determine individualized sentences aimed at rehabilitating the offender); Charles Kerr, A Needed Reform in Criminal Procedure, 6 KY. L.J. 107, 108 (1918) (arguing that judges' superior experience and accountability insure fairer sentences); H.M. LaFont, Assessment of Punishment-A Judge or Jury Function?, 38 TEX. L. REV. 835, 837 (1960) (arguing for the abolition of jury sentencing in Texas); Charles S. Potts, Suggested Changes in Our Criminal Procedure, 4 SW. L.J. 437, 447-49 (1950) (supporting judge sentencing); Charles W. Webster, Jury Sentencing: Grab-Bag Justice, 14 Sw. L.J. 221, 230 (1960) (advocating the abolition of jury sentencing); Comment, Consideration of Punishment by Juries, 17 U. CHI. L. REV. 400, 408 (1950) (arguing for judge sentencing); Note, Jury Sentencing in Virginia, 53 VA. L. REV. 968, 1001 (1967) [hereinafter Note, Jury Sentencing] ("[T]he jury possesses neither the information nor the training necessary for drawing the inferences upon which a rational sentence must be based."); Craig Reese, Note, Jury Sentencing in Texas: Time for a Change?, 31 S. TEX. L. REV. 323, 324 (1990) (supporting judge sentencing); Note, Statutory Structures for Sentencing Felons to Prison, 60 COLUM. L. REV. 1134, 1154-57 (1960) [hereinafter Note, Statutory Structures] (advocating the abolition of jury sentencing). Critics of assessment of punishment by juries cite and dismiss the following traditional arguments supporting the institution without bothering to refute them: Jurors are less subject to corruption or public pressure than elected judges; jurors are less likely to become calloused to a defendant's plight; jury sentencing would obviate the need for jurors to nullify to avoid severe penalties; jury sentences are more temperate and fair because a jury tends to level individual opinions and provides a reconciliation of varied temperaments; and jury sentencing diminishes popular distrust of official justice. See, e.g., Betts, supra, at 371.
83. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 356-57 (1968) (criticizing jurors' lack of expertise and recommending that jury sentencing in noncapital cases be abolished); Charles O. Betts, Jury Sentencing, 2 NAT'L PAROLE & PROBATION ASS'N J. 369, 372-73 (1956) (emphasizing the disparity of jury verdicts); James P. Jouras, On Modernizing Missouri's Criminal Punishment Procedure, 20 U. KAN. CITY L. REV. 299, 300-01 (1952) (noting that the jury lacks the expertise to determine individualized sentences aimed at rehabilitating the offender); Charles Kerr, A Needed Reform in Criminal Procedure, 6 KY. L.J. 107, 108 (1918) (arguing that judges' superior experience and accountability insure fairer sentences); H.M. LaFont, Assessment of Punishment-A Judge or Jury Function?, 38 TEX. L. REV. 835, 837 (1960) (arguing for the abolition of jury sentencing in Texas); Charles S. Potts, Suggested Changes in Our Criminal Procedure, 4 SW. L.J. 437, 447-49 (1950) (supporting judge sentencing); Charles W. Webster, Jury Sentencing: Grab-Bag Justice, 14 Sw. L.J. 221, 230 (1960) (advocating the abolition of jury sentencing); Comment, Consideration of Punishment by Juries, 17 U. CHI. L. REV. 400, 408 (1950) (arguing for judge sentencing); Note, Jury Sentencing in Virginia, 53 VA. L. REV. 968, 1001 (1967) [hereinafter Note, Jury Sentencing] ("[T]he jury possesses neither the information nor the training necessary for drawing the inferences upon which a rational sentence must be based."); Craig Reese, Note, Jury Sentencing in Texas: Time for a Change?, 31 S. TEX. L. REV. 323, 324 (1990) (supporting judge sentencing); Note, Statutory Structures for Sentencing Felons to Prison, 60 COLUM. L. REV. 1134, 1154-57 (1960) [hereinafter Note, Statutory Structures] (advocating the abolition of jury sentencing). Critics of assessment of punishment by juries cite and dismiss the following traditional arguments supporting the institution without bothering to refute them: Jurors are less subject to corruption or public pressure than elected judges; jurors are less likely to become calloused to a defendant's plight; jury sentencing would obviate the need for jurors to nullify to avoid severe penalties; jury sentences are more temperate and fair because a jury tends to level individual opinions and provides a reconciliation of varied temperaments; and jury sentencing diminishes popular distrust of official justice. See, e.g., Betts, supra, at 371.
84. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 356-57 (1968) (criticizing jurors' lack of expertise and recommending that jury sentencing in noncapital cases be abolished); Charles O. Betts, Jury Sentencing, 2 NAT'L PAROLE & PROBATION ASS'N J. 369, 372-73 (1956) (emphasizing the disparity of jury verdicts); James P. Jouras, On Modernizing Missouri's Criminal Punishment Procedure, 20 U. KAN. CITY L. REV. 299, 300-01 (1952) (noting that the jury lacks the expertise to determine individualized sentences aimed at rehabilitating the offender); Charles Kerr, A Needed Reform in Criminal Procedure, 6 KY. L.J. 107, 108 (1918) (arguing that judges' superior experience and accountability insure fairer sentences); H.M. LaFont, Assessment of Punishment-A Judge or Jury Function?, 38 TEX. L. REV. 835, 837 (1960) (arguing for the abolition of jury sentencing in Texas); Charles S. Potts, Suggested Changes in Our Criminal Procedure, 4 SW. L.J. 437, 447-49 (1950) (supporting judge sentencing); Charles W. Webster, Jury Sentencing: Grab-Bag Justice, 14 Sw. L.J. 221, 230 (1960) (advocating the abolition of jury sentencing); Comment, Consideration of Punishment by Juries, 17 U. CHI. L. REV. 400, 408 (1950) (arguing for judge sentencing); Note, Jury Sentencing in Virginia, 53 VA. L. REV. 968, 1001 (1967) [hereinafter Note, Jury Sentencing] ("[T]he jury possesses neither the information nor the training necessary for drawing the inferences upon which a rational sentence must be based."); Craig Reese, Note, Jury Sentencing in Texas: Time for a Change?, 31 S. TEX. L. REV. 323, 324 (1990) (supporting judge sentencing); Note, Statutory Structures for Sentencing Felons to Prison, 60 COLUM. L. REV. 1134, 1154-57 (1960) [hereinafter Note, Statutory Structures] (advocating the abolition of jury sentencing). Critics of assessment of punishment by juries cite and dismiss the following traditional arguments supporting the institution without bothering to refute them: Jurors are less subject to corruption or public pressure than elected judges; jurors are less likely to become calloused to a defendant's plight; jury sentencing would obviate the need for jurors to nullify to avoid severe penalties; jury sentences are more temperate and fair because a jury tends to level individual opinions and provides a reconciliation of varied temperaments; and jury sentencing diminishes popular distrust of official justice. See, e.g., Betts, supra, at 371.
85. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 356-57 (1968) (criticizing jurors' lack of expertise and recommending that jury sentencing in noncapital cases be abolished); Charles O. Betts, Jury Sentencing, 2 NAT'L PAROLE & PROBATION ASS'N J. 369, 372-73 (1956) (emphasizing the disparity of jury verdicts); James P. Jouras, On Modernizing Missouri's Criminal Punishment Procedure, 20 U. KAN. CITY L. REV. 299, 300-01 (1952) (noting that the jury lacks the expertise to determine individualized sentences aimed at rehabilitating the offender); Charles Kerr, A Needed Reform in Criminal Procedure, 6 KY. L.J. 107, 108 (1918) (arguing that judges' superior experience and accountability insure fairer sentences); H.M. LaFont, Assessment of Punishment-A Judge or Jury Function?, 38 TEX. L. REV. 835, 837 (1960) (arguing for the abolition of jury sentencing in Texas); Charles S. Potts, Suggested Changes in Our Criminal Procedure, 4 SW. L.J. 437, 447-49 (1950) (supporting judge sentencing); Charles W. Webster, Jury Sentencing: Grab-Bag Justice, 14 Sw. L.J. 221, 230 (1960) (advocating the abolition of jury sentencing); Comment, Consideration of Punishment by Juries, 17 U. CHI. L. REV. 400, 408 (1950) (arguing for judge sentencing); Note, Jury Sentencing in Virginia, 53 VA. L. REV. 968, 1001 (1967) [hereinafter Note, Jury Sentencing] ("[T]he jury possesses neither the information nor the training necessary for drawing the inferences upon which a rational sentence must be based."); Craig Reese, Note, Jury Sentencing in Texas: Time for a Change?, 31 S. TEX. L. REV. 323, 324 (1990) (supporting judge sentencing); Note, Statutory Structures for Sentencing Felons to Prison, 60 COLUM. L. REV. 1134, 1154-57 (1960) [hereinafter Note, Statutory Structures] (advocating the abolition of jury sentencing). Critics of assessment of punishment by juries cite and dismiss the following traditional arguments supporting the institution without bothering to refute them: Jurors are less subject to corruption or public pressure than elected judges; jurors are less likely to become calloused to a defendant's plight; jury sentencing would obviate the need for jurors to nullify to avoid severe penalties; jury sentences are more temperate and fair because a jury tends to level individual opinions and provides a reconciliation of varied temperaments; and jury sentencing diminishes popular distrust of official justice. See, e.g., Betts, supra, at 371.
86. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 356-57 (1968) (criticizing jurors' lack of expertise and recommending that jury sentencing in noncapital cases be abolished); Charles O. Betts, Jury Sentencing, 2 NAT'L PAROLE & PROBATION ASS'N J. 369, 372-73 (1956) (emphasizing the disparity of jury verdicts); James P. Jouras, On Modernizing Missouri's Criminal Punishment Procedure, 20 U. KAN. CITY L. REV. 299, 300-01 (1952) (noting that the jury lacks the expertise to determine individualized sentences aimed at rehabilitating the offender); Charles Kerr, A Needed Reform in Criminal Procedure, 6 KY. L.J. 107, 108 (1918) (arguing that judges' superior experience and accountability insure fairer sentences); H.M. LaFont, Assessment of Punishment-A Judge or Jury Function?, 38 TEX. L. REV. 835, 837 (1960) (arguing for the abolition of jury sentencing in Texas); Charles S. Potts, Suggested Changes in Our Criminal Procedure, 4 SW. L.J. 437, 447-49 (1950) (supporting judge sentencing); Charles W. Webster, Jury Sentencing: Grab-Bag Justice, 14 Sw. L.J. 221, 230 (1960) (advocating the abolition of jury sentencing); Comment, Consideration of Punishment by Juries, 17 U. CHI. L. REV. 400, 408 (1950) (arguing for judge sentencing); Note, Jury Sentencing in Virginia, 53 VA. L. REV. 968, 1001 (1967) [hereinafter Note, Jury Sentencing] ("[T]he jury possesses neither the information nor the training necessary for drawing the inferences upon which a rational sentence must be based."); Craig Reese, Note, Jury Sentencing in Texas: Time for a Change?, 31 S. TEX. L. REV. 323, 324 (1990) (supporting judge sentencing); Note, Statutory Structures for Sentencing Felons to Prison, 60 COLUM. L. REV. 1134, 1154-57 (1960) [hereinafter Note, Statutory Structures] (advocating the abolition of jury sentencing). Critics of assessment of punishment by juries cite and dismiss the following traditional arguments supporting the institution without bothering to refute them: Jurors are less subject to corruption or public pressure than elected judges; jurors are less likely to become calloused to a defendant's plight; jury sentencing would obviate the need for jurors to nullify to avoid severe penalties; jury sentences are more temperate and fair because a jury tends to level individual opinions and provides a reconciliation of varied temperaments; and jury sentencing diminishes popular distrust of official justice. See, e.g., Betts, supra, at 371.
87. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 356-57 (1968) (criticizing jurors' lack of expertise and recommending that jury sentencing in noncapital cases be abolished); Charles O. Betts, Jury Sentencing, 2 NAT'L PAROLE & PROBATION ASS'N J. 369, 372-73 (1956) (emphasizing the disparity of jury verdicts); James P. Jouras, On Modernizing Missouri's Criminal Punishment Procedure, 20 U. KAN. CITY L. REV. 299, 300-01 (1952) (noting that the jury lacks the expertise to determine individualized sentences aimed at rehabilitating the offender); Charles Kerr, A Needed Reform in Criminal Procedure, 6 KY. L.J. 107, 108 (1918) (arguing that judges' superior experience and accountability insure fairer sentences); H.M. LaFont, Assessment of Punishment-A Judge or Jury Function?, 38 TEX. L. REV. 835, 837 (1960) (arguing for the abolition of jury sentencing in Texas); Charles S. Potts, Suggested Changes in Our Criminal Procedure, 4 SW. L.J. 437, 447-49 (1950) (supporting judge sentencing); Charles W. Webster, Jury Sentencing: Grab-Bag Justice, 14 Sw. L.J. 221, 230 (1960) (advocating the abolition of jury sentencing); Comment, Consideration of Punishment by Juries, 17 U. CHI. L. REV. 400, 408 (1950)
88. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 356-57 (1968) (criticizing jurors' lack of expertise and recommending that jury sentencing in noncapital cases be abolished); Charles O. Betts, Jury Sentencing, 2 NAT'L PAROLE & PROBATION ASS'N J. 369, 372-73 (1956) (emphasizing the disparity of jury verdicts); James P. Jouras, On Modernizing Missouri's Criminal Punishment Procedure, 20 U. KAN. CITY L. REV. 299, 300-01 (1952) (noting that the jury lacks the expertise to determine individualized sentences aimed at rehabilitating the offender); Charles Kerr, A Needed Reform in Criminal Procedure, 6 KY. L.J. 107, 108 (1918) (arguing that judges' superior experience and accountability insure fairer sentences); H.M. LaFont, Assessment of Punishment-A Judge or Jury Function?, 38 TEX. L. REV. 835, 837 (1960) (arguing for the abolition of jury sentencing in Texas); Charles S. Potts, Suggested Changes in Our Criminal Procedure, 4 SW. L.J. 437, 447-49 (1950) (supporting judge sentencing); Charles W. Webster, Jury Sentencing: Grab-Bag Justice, 14 Sw. L.J. 221, 230 (1960) (advocating the abolition of jury sentencing); Comment, Consideration of Punishment by Juries, 17 U. CHI. L. REV. 400, 408 (1950) (arguing for judge sentencing); Note, Jury Sentencing in Virginia, 53 VA. L. REV. 968, 1001 (1967) [hereinafter Note, Jury Sentencing] ("[T]he jury possesses neither the information nor the training necessary for drawing the inferences upon which a rational sentence must be based."); Craig Reese, Note, Jury Sentencing in Texas: Time for a Change?, 31 S. TEX. L. REV. 323, 324 (1990) (supporting judge sentencing); Note, Statutory Structures for Sentencing Felons to Prison, 60 COLUM. L. REV. 1134, 1154-57 (1960) [hereinafter Note, Statutory Structures] (advocating the abolition of jury sentencing). Critics of assessment of punishment by juries cite and dismiss the following traditional arguments supporting the institution without bothering to refute them: Jurors are less subject to corruption or public pressure than elected judges; jurors are less likely to become calloused to a defendant's plight; jury sentencing would obviate the need for jurors to nullify to avoid severe penalties; jury sentences are more temperate and fair because a jury tends to level individual opinions and provides a reconciliation of varied temperaments; and jury sentencing diminishes popular distrust of official justice. See, e.g., Betts, supra, at 371.
89. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 356-57 (1968) (criticizing jurors' lack of expertise and recommending that jury sentencing in noncapital cases be abolished); Charles O. Betts, Jury Sentencing, 2 NAT'L PAROLE & PROBATION ASS'N J. 369, 372-73 (1956) (emphasizing the disparity of jury verdicts); James P. Jouras, On Modernizing Missouri's Criminal Punishment Procedure, 20 U. KAN. CITY L. REV. 299, 300-01 (1952) (noting that the jury lacks the expertise to determine individualized sentences aimed at rehabilitating the offender); Charles Kerr, A Needed Reform in Criminal Procedure, 6 KY. L.J. 107, 108 (1918) (arguing that judges' superior experience and accountability insure fairer sentences); H.M. LaFont, Assessment of Punishment-A Judge or Jury Function?, 38 TEX. L. REV. 835, 837 (1960) (arguing for the abolition of jury sentencing in Texas); Charles S. Potts, Suggested Changes in Our Criminal Procedure, 4 SW. L.J. 437, 447-49 (1950) (supporting judge sentencing); Charles W. Webster, Jury Sentencing: Grab-Bag Justice, 14 Sw. L.J. 221, 230 (1960) (advocating the abolition of jury sentencing); Comment, Consideration of Punishment by Juries, 17 U. CHI. L. REV. 400, 408 (1950) (arguing for judge sentencing); Note, Jury Sentencing in Virginia, 53 VA. L. REV. 968, 1001 (1967) [hereinafter Note, Jury Sentencing] ("[T]he jury possesses neither the information nor the training necessary for drawing the inferences upon which a rational sentence must be based."); Craig Reese, Note, Jury Sentencing in Texas: Time for a Change?, 31 S. TEX. L. REV. 323, 324 (1990) (supporting judge sentencing); Note, Statutory Structures for Sentencing Felons to Prison, 60 COLUM. L. REV. 1134, 1154-57 (1960) [hereinafter Note, Statutory Structures] (advocating the abolition of jury sentencing). Critics of assessment of punishment by juries cite and dismiss the following traditional arguments supporting the institution without bothering to refute them: Jurors are less subject to corruption or public pressure than elected judges; jurors are less likely to become calloused to a defendant's plight; jury sentencing would obviate the need for jurors to nullify to avoid severe penalties; jury sentences are more temperate and fair because a jury tends to level individual opinions and provides a reconciliation of varied temperaments; and jury sentencing diminishes popular distrust of official justice. See, e.g., Betts, supra, at 371.
90. Each of the three approaches taken in archival studies of jury sentencing involve some methodological difficulties. An absolute comparison of mean sentences in judge-sentencing and jury-sentencing states is perhaps the most problematic because studies of criminal courts have repeatedly shown that jurisdictions vary substantially both in norms of appropriate sentencing (i.e., harshness) and practices (e.g., the use of probation). See Alfred Blumstein, Summary, in 1 RESEARCH ON SENTENCING, supra note 15, at 78. These differences, rather than the method of sentencing, may account for variation in mean sentence between states employing judge sentencing and those using jury sentencing. Comparing sentences meted out for similar crimes by judges and juries at the same time in the same jurisdiction involves the danger of sample bias: Where a defendant can choose the sentencing forum, every jury case in a study sample represents one in which the defendant believed that the jury would be more lenient, and every judge case represents one in which the defendant predicted that the judge would be more lenient. Finally, the variation of sentences within one jurisdiction before and after the abandonment of jury sentencing may result from changes in attitudes toward crime over time as well as the change in sentencing authority. However, these pre-post studies may minimize this difficulty by examining a number of crime categories in a relatively short period of time before and after the policy change and by using data from other jurisdictions to detect general sentencing trends over time.
91. Researchers have repeatedly warned of the methodological difficulty of extrapolating from mock jury simulations to reality. Some of the pitfalls include the difficulty of recreating the psychological effects of making a decision that will seriously impact on another's life; the tendency of studies to use shortened summaries of cases rather than full reenactments of testimony and argument; the tendency to analyze individual rather than group decisionmaking; and the prevalence of college students in study samples. See, e.g., Robert M. Bray & Norbert L. Kerr, Methodological Considerations in the Study of the Psychology of the Courtroom, in THE PSYCHOLOGY OF THE COURTROOM 287 (Norbert L. Kerr & Robert M. Bray eds., 1982).
92. For a discussion of the historical roots of North-South variation in criminal justice, see EDWARD L. AYERS, VENGEANCE AND JUSTICE: CRIME AND PUNISHMENT IN THE 19TH-CENTURY AMERICAN SOUTH 270-76 (1984).
93. See supra note 59.
94. For references to articles preferring judge to jury sentencing, see supra note 58.
95. See Note, Statutory Structures, supra note 58, at 1154 & nn.136-37 (citing jury sentencing statutes in 13 states).
96. See ARK. CODE. ANN. § 16-90-107(b)(1) (Michie 1997); KY. REV. STAT. ANN. § 532.055(2) (Banks-Baldwin 1997); Mo. ANN. STAT. § 557.036 (West 1997); TEX. CODE CRIM. P. ANN. art. 37.07 § 2(b) (West 1997); VA. CODE ANN. § 19.2-295 (Michie 1997).
97. See Note, Jury Sentencing, supra note 58, at 971 n.14; see also, e.g., Betts, supra note 58, at 370-71 (explaining the introduction of jury sentencing in Texas); Note, supra, at 970-72 (providing a brief history of jury sentencing in Virginia).
98. See, e.g., Betts, supra note 58, at 370; LaFont, supra note 58, at 836-37; Reese, supra note 58, at 325; Note, Jury Sentencing, supra note 58, at 970-71; Note, Statutory Structures, supra note 58, at 1155. Resentment of both Spanish colonial judges and Mexican judges led Texas to introduce jury sentencing in the first meeting of its legislature in 1846. See Betts, supra note 58, at 370.
99. OKLA. STAT. ANN. tit. 22 § 926 (West 1998) (citing 1907-1908 Okla. Sess. Laws 462); 1829 Tenn. Pub. Acts, ch. 23, § 76.
100. See, e.g., State v. Mackey, 553 S.W.2d 337, 342 (Tenn. 1977) ("In many jurisdictions, distrust of a powerful judiciary motivated a statutory transfer of the power of sentencing from the court to the jury.").
101. See, e.g., KY. REV. STAT. ANN. § 532.060 cmt. (Banks-Baldwin 1998) (stating that additions to the code in 1974 permitted judges for the first time to modify jury sentences and to substitute probation or conditional discharge for imprisonment); DIX & DAWSON, TEXAS CRIMINAL PRACTICE AND PROCEDURE § 38.12 (1995 & Supp. 1998) (stating that in 1966 Texas moved from a unitary to a bifurcated trial format for all cases but some misdemeanors and expanded the amount of evidence provided to the sentencing jury); DAVID LOUIS RAYBIN, TENNESSEE CRIMINAL PRACTICE AND PROCEDURE § 32.2 (1985) (describing changes in jury sentencing in Tennessee over time); Note, Jury Sentencing, supra note 58, at 971-72 (noting that, in Virginia, the original pattern of jury sentencing only for misdemeanors was temporarily reversed in the middle of the 19th century before jury sentencing for both felonies and misdemeanors was restored in 1882).
102. Arkansas and Virginia adopted bifurcated systems that became effective in 1994. See 1993 Ark. Acts 535, 551 § 7 (codified at ARK. CODE ANN. § 16-97-101); 1994 Va. Acts. ch. 828, 860, 862, 881 (codified at VA. CODE ANN. § 19.2-295.1 (Michie 1997)); Shifflett v. Virginia, 494 S.E.2d 163, 168 (Va. Ct. App. 1997) (Annunziata, J., dissenting) (discussing the change to a bifurcated system). Missouri severely limited the role of the jury in sentencing by permitting the defendant to waive jury sentencing and prohibiting jury sentencing for prior, persistent, and dangerous offenders. See Mo. ANN. STAT. § 557.036 (West 1997).
103. See, e.g., PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMIN. OF JUSTICE, supra note 58, at 356; Jouras, supra note 58, at 300-01; Kerr, supra note 58, at 108; LaFont, supra note 58, at 848.
104. MO. ANN. STAT. § 557.036-5 (West 1997).
105. See VA. CODE ANN. § 19.2-295.1 (Michie 1994) (allowing only copies of the record of conviction); Rush v. State, 919 S.W.2d 933, 934-35 (Ark. 1996) (interpreting the admissibility of evidence relating to the "nature of the previous convictions" to mean the general character of the pertinent crime) (quoting ARK. CODE ANN. § 16-97-103(2) (Michie 1997)); Robinson v. Commonwealth, 926 S.W.2d 853, 855 (Ky. 1996) (holding testimony by a victim of a prior crime inadmissible because the statute only contemplates general information of prior offenses).
106. See ARK. CODE ANN. § 16-90-107(c)-(d) (Michie 1997); KY. REV. STAT. ANN. § 532.055(2) (Banks-Baldwin 1997); MO. R. CRIM. P. 29.04, 29.06; OKLA. STAT. ANN. tit. 22, §§ 926, 928 (West 1997); VA. CODE ANN. § 19.2-295 (Michie 1994).
107. See VA. CODE ANN. § 17-235.9 (Michie 1994).
108. See, e.g., ARK. CODE ANN. § 16-90-107(e) (Michie 1997) (giving the court the power to reduce the sentence "if, in the opinion of the court, . . . the punishment assessed is greater than, under the circumstances of the case, ought to be inflicted"); KY. REV. STAT. ANN. § 532.070 (Banks-Baldwin 1997) (describing the judge's power to modify an excessively harsh jury punishment); OKLA. STAT. ANN. tit. 22, § 955 (West 1997) (permitting judges to suspend jury sentences).
109. Duncan v. Commonwealth, 343 S.E.2d 392, 394 (Va. Ct. App. 1986) (quoting Vines v. Muncy, 553 F.2d 342,349 (4th Cir. 1997)).
110. ABA STANDARDS, supra note 57, § 1.1 cmt.b. ("Recent opinion has been nearly unanimous that jury sentencing in noncapital cases is an anachronism and that it should be abolished.").
111. REPORT OF THE SUBCOMM. TO STUDY SENTENCING FOR VA. STATE CRIME COMM'N 2 (1977) [hereinafter VA. COMM'N REP.]
112. See BRIAN J. OSTRAM & NEAL B. KANDER, COURT STATISTICS PROJECT, EXAMINING THE WORK OF STATE COURTS 65 (1994).
113. Brent L. Smith & Edward H. Stevens, Sentence Disparity and the Judge-Jury Sentencing Debate: An Analysis of Robbery Sentences in Six Southern States, 9 CRIM. JUST. REV. 1 (1984).
114. The analysis in Smith and Stevens's study does not discuss absolute comparisons between mean sentences in judge states and jury states because of the methodological difficulties of such an approach. Cf. supra note 59. Indeed, the extent of regional variation in severity regardless of sentencing authority is highlighted by the fact that the mean robbery sentence in Texas was more than 10 years higher than both the mean sentence in Tennessee (the other jurysentencing state studied) and the mean sentence during the period of jury sentencing in Alabama. Excluding Texas, the average jury punishments in Alabama and Tennessee were at times lower, at times the same, and at times higher than the average sentences in the three judge-sentencing states. See Smith & Stevens, supra note 82, at 4 tbl.1.
115. See Smith & Stevens, supra note 82, at 4.
116. See id. at 3.
117. See id. at 3 & 4 tbl.1.
118. William A. Eckert & Lauri E. Ekstrand, The Impact of Sentencing Reform: A Comparison of Judge and Jury Sentencing Systems (1975) (unpublished manuscript, on file with The Yale Law Journal).
119. See id. at 7.
120. See id. at 8-12. This result remained the same for first offenders in all crime categories and for defendants with prior convictions in all crime categories except murder. See id. at 10.
121. See Weninger, supra note 57, at 31. It is important to note that Weninger's results may be tainted by sample bias. See supra note 59.
122. See Weninger, supra note 57, at 35 tbl.2, 36 (showing that for cases that went to trial, judges granted probation to first offenders 59% of the time while juries granted probation 69% of the time, and that 18% and 25% of repeat offenders were given probation by judges and juries, respectively).
123. See id. at 36. For discussions of the trial tariff in nonjury-sentencing jurisdictions, see David Brereton & Jonathan D. Caspar, Does It Pay To Plead Guilty? Differential Sentencing and the Functioning of Criminal Courts, 16 L. & SOC'Y REV. 45 (1981-1982); and Thomas M. Uhlman & N. Darlene Walker, "He Takes Some of My Time, I Take Some of His": An Analysis of Judicial Sentencing Patterns in Jury Cases, 14 L. & SOC'Y REV. 323 (1980).
124. See id. at 36. For discussions of the trial tariff in nonjury-sentencing jurisdictions, see David Brereton & Jonathan D. Caspar, Does It Pay To Plead Guilty? Differential Sentencing and the Functioning of Criminal Courts, 16 L. & SOC'Y REV. 45 (1981-1982); and Thomas M. Uhlman & N. Darlene Walker, "He Takes Some of My Time, I Take Some of His": An Analysis of Judicial Sentencing Patterns in Jury Cases, 14 L. & SOC'Y REV. 323 (1980).
125. See supra note 60.
126. See VA. COMM'N REP., supra note 80, at 6-11.
127. See id. at 9-11.
128. See id. at 11-12.
129. See Shari Seidman Diamond & Loretta J. Stalans, The Myth of Judicial Leniency in Sentencing, 7 BEHAV. SCI. & L. 73, 74-81 (1989).
130. See id. at 80-81.
131. Webster compared the mean prison sentence meted out by judges and jurors in Dallas County, Texas, during 1958 and 1959 and found that the average juror sentence was significantly higher in cases of narcotics, murder, and "assault-attempt murder." Webster, supra note 58, at 226 & chart III. There are several difficulties with this study, however. First, the data includes sentences imposed by judges following guilty pleas, and it is therefore possible that the sentencing difference reflects a trial tariff. Further, the data does not include probation or suspended sentence rates. Finally, since Texas used a unitary trial scheme in this period, the sentencing jury was not presented with evidence of the characteristics of individual offenders, including prior criminal history. It is possible that jurors in many cases, particularly those involving narcotics, falsely assumed that the defendant had a criminal record. This hypothesis is consistent with Webster's finding that the differential between judge sentences and jury sentences was greater in narcotics cases than in rape and assault-attempted murder cases. See id. at 226 chart III. In any case, Webster's findings are largely irrelevant since current jury-sentencing schemes are bifurcated.
132. See Eckert & Ekstrand, supra note 87, at 8-10 (comparing sentences before and after Georgia introduced judge sentencing and finding no evidence of systematic jury-sentencing disparity in any of the crime categories studied except aggravated assault); Smith & Stevens, supra note 82, at 4 (finding a larger deviation from the mean in Alabama in the period of judge sentencing than in the jury sentencing years, although the standard deviation in all three jury states was higher than in the three judge-sentencing states studied). But see Weninger, supra note 57, at 31-32 (comparing judge sentences and jury sentences in El Paso County and finding greater variability between the jury sentences than between the judge sentences for six of the seven crimes studied). For a discussion of the methodological difficulties of these studies, see supra note 59.
133. See, e.g., Betts, supra note 58, at 372 ("Consideration of a light sentence, suspended sentence, or a quick parole may exert just the degree of influence necessary to persuade the doubtful juror to agree to a verdict of guilty.").
134. See Martin F. Kaplan & Sharon Krupa, Severe Penalties Under the Control of Others Can Reduce Guilt Verdicts, 10 L. & PSYCHOL. REV. 1, 8 (1986) (reporting that college student mock jurors were more likely to convict when they controlled the punishment decision).
135. See Alfred Blumstein & Jacqueline Cohen, Sentencing of Convicted Offenders: An Analysis of the Public's View, 14 L. & Soc'Y REV. 223, 249 (1980).
136. See id. at 243-48 (identifying five demographic subgroups: blacks, white males with and without secondary education, and white females with and without secondary education).
137. For example, only 3.8% of all state court judges are African-American. In Georgia, only 6% of state judges are African-American, while 27% of the population is African-American. See Sherrilyn A. Ifill, Judging the Judges: Racial Diversity, Impartiality and Representation on State Trial Courts, 39 B.C. L. REV. 95, 95 & nn.2, 3, 5 (1997).
138. The study found that in Alabama's jury-sentencing period (1957-1977), sentencing severity varied substantially by race (both in favor of and against whites) at various times, but that the aggregate difference over the whole period between the percentage of blacks and whites receiving above average sentences (30.9% and 22.8%, respectively) was not significant. When judges began to sentence, the fluctuation in the percentages of blacks and whites receiving high sentences stabilized somewhat (52.2% for blacks, 57.1% for whites). See Smith and Stevens, supra note 82, at 6. This study did not include data on the percentage of blacks and whites receiving above-average sentences for any state studied except Alabama. Studies examining the relationship between race and sentencing in judge-sentencing schemes are similarly inconclusive; while some studies have found that racial bias influences judge sentencing, others have suggested that the influence of race on sentencing can be attributed to other case-related attributes. See Richard C. Boldt, The Construction of Responsibility in the Criminal Law, 140 U. PA. L. REV. 2245, 2319 & n.295 (1992) (summarizing studies).
139. See Sheri Lynn Johnson, Black Innocence and the White Jury, 83 MICH. L. REV. 1611, 1625-36 (1985) (providing an overview of studies indicating the prevalence of racism in jury verdicts); Nancy J. King, Postconviction Review of Jury Discrimination: Measuring the Effects of Juror Race on Jury Decisions, 92 MICH. L. REV. 63, 75-99 (1993) (same).
140. See Sheri Lynn Johnson, Black Innocence and the White Jury, 83 MICH. L. REV. 1611, 1625-36 (1985) (providing an overview of studies indicating the prevalence of racism in jury verdicts); Nancy J. King, Postconviction Review of Jury Discrimination: Measuring the Effects of Juror Race on Jury Decisions, 92 MICH. L. REV. 63, 75-99 (1993) (same).
141. See Hubert S. Feild & Nona J. Barnett, Simulated Jury Trials: Students vs. "Real" People as Jurors, 104 J. SOC. PSYCHOL. 287, 290-91 (1978) (finding no racial disparity in sentencing black and white offenders by mock jurors); Charlan Nemeth & Ruth Hyland Sosis, A Simulated Jury Study: Characteristics of the Defendant and the Jurors, 90 J. SOC. PSYCHOL. 221, 226 (1973) (finding that some, but not all, student mock jurors sentenced white defendants more severely); Cheryl J. Oros & Donald Elman, Impact of Judges' Instructions upon Jurors' Decisions: The 'Cautionary Charge' in Rape Trials, 10 REPRESENTATIVE RES. IN SOC. PSYCHOL. 28, 34 (1979) (finding no significant difference in sentences given to black and white rape defendants by white student subjects); Yvonne Hardaway Osborne & Neil B. Rappaport, Sentencing Severity with Mock Juries: Predictive Validity of Three Variable Categories, 3 BEHAV. SCI. & L., 467, 470 (1985) (finding that defendants of lower socioeconomic status were given longer sentences but that black defendants were not given harsher sentences than whites). But see Andrea DeSantis & Wesley A. Kayson, Defendant's Characteristics of Attractiveness, Race, and Sex in Sentencing Decisions, 81 PSYCHOL. REP. 679 (1997) (finding that subjects asked to sentence burglary defendants sentence African Americans more harshly than whites); Hubert S. Feild, Rape Trials and Jurors' Decisions: A Psycholegal Analysis of the Effects of Victim, Defendant, and Case Characteristics, 3 LAW & HUM. BEHAV. 261, 271 (1979) (finding that mock jurors' sentences varied greatly depending on an interaction among the defendant's race, victim's race, type of rape, victim attractiveness, and other factors); Kitty Klein & Blanche Creech, Race, Rape, and Bias: Distortion of Prior Odds and Meaning Changes, 3 BASIC & APPLIED SOC. PSYCHOL. 21, 28-29 (1982) (finding that white subjects sentence black rape defendants more harshly than white defendants).
142. See Hubert S. Feild & Nona J. Barnett, Simulated Jury Trials: Students vs. "Real" People as Jurors, 104 J. SOC. PSYCHOL. 287, 290-91 (1978) (finding no racial disparity in sentencing black and white offenders by mock jurors); Charlan Nemeth & Ruth Hyland Sosis, A Simulated Jury Study: Characteristics of the Defendant and the Jurors, 90 J. SOC. PSYCHOL. 221, 226 (1973) (finding that some, but not all, student mock jurors sentenced white defendants more severely); Cheryl J. Oros & Donald Elman, Impact of Judges' Instructions upon Jurors' Decisions: The 'Cautionary Charge' in Rape Trials, 10 REPRESENTATIVE RES. IN SOC. PSYCHOL. 28, 34 (1979) (finding no significant difference in sentences given to black and white rape defendants by white student subjects); Yvonne Hardaway Osborne & Neil B. Rappaport, Sentencing Severity with Mock Juries: Predictive Validity of Three Variable Categories, 3 BEHAV. SCI. & L., 467, 470 (1985) (finding that defendants of lower socioeconomic status were given longer sentences but that black defendants were not given harsher sentences than whites). But see Andrea DeSantis & Wesley A. Kayson, Defendant's Characteristics of Attractiveness, Race, and Sex in Sentencing Decisions, 81 PSYCHOL. REP. 679 (1997) (finding that subjects asked to sentence burglary defendants sentence African Americans more harshly than whites); Hubert S. Feild, Rape Trials and Jurors' Decisions: A Psycholegal Analysis of the Effects of Victim, Defendant, and Case Characteristics, 3 LAW & HUM. BEHAV. 261, 271 (1979) (finding that mock jurors' sentences varied greatly depending on an interaction among the defendant's race, victim's race, type of rape, victim attractiveness, and other factors); Kitty Klein & Blanche Creech, Race, Rape, and Bias: Distortion of Prior Odds and Meaning Changes, 3 BASIC & APPLIED SOC. PSYCHOL. 21, 28-29 (1982) (finding that white subjects sentence black rape defendants more harshly than white defendants).
143. See Hubert S. Feild & Nona J. Barnett, Simulated Jury Trials: Students vs. "Real" People as Jurors, 104 J. SOC. PSYCHOL. 287, 290-91 (1978) (finding no racial disparity in sentencing black and white offenders by mock jurors); Charlan Nemeth & Ruth Hyland Sosis, A Simulated Jury Study: Characteristics of the Defendant and the Jurors, 90 J. SOC. PSYCHOL. 221, 226 (1973) (finding that some, but not all, student mock jurors sentenced white defendants more severely); Cheryl J. Oros & Donald Elman, Impact of Judges' Instructions upon Jurors' Decisions: The 'Cautionary Charge' in Rape Trials, 10 REPRESENTATIVE RES. IN SOC. PSYCHOL. 28, 34 (1979) (finding no significant difference in sentences given to black and white rape defendants by white student subjects); Yvonne Hardaway Osborne & Neil B. Rappaport, Sentencing Severity with Mock Juries: Predictive Validity of Three Variable Categories, 3 BEHAV. SCI. & L., 467, 470 (1985) (finding that defendants of lower socioeconomic status were given longer sentences but that black defendants were not given harsher sentences than whites). But see Andrea DeSantis & Wesley A. Kayson, Defendant's Characteristics of Attractiveness, Race, and Sex in Sentencing Decisions, 81 PSYCHOL. REP. 679 (1997) (finding that subjects asked to sentence burglary defendants sentence African Americans more harshly than whites); Hubert S. Feild, Rape Trials and Jurors' Decisions: A Psycholegal Analysis of the Effects of Victim, Defendant, and Case Characteristics, 3 LAW & HUM. BEHAV. 261, 271 (1979) (finding that mock jurors' sentences varied greatly depending on an interaction among the defendant's race, victim's race, type of rape, victim attractiveness, and other factors); Kitty Klein & Blanche Creech, Race, Rape, and Bias: Distortion of Prior Odds and Meaning Changes, 3 BASIC & APPLIED SOC. PSYCHOL. 21, 28-29 (1982) (finding that white subjects sentence black rape defendants more harshly than white defendants).
144. See Hubert S. Feild & Nona J. Barnett, Simulated Jury Trials: Students vs. "Real" People as Jurors, 104 J. SOC. PSYCHOL. 287, 290-91 (1978) (finding no racial disparity in sentencing black and white offenders by mock jurors); Charlan Nemeth & Ruth Hyland Sosis, A Simulated Jury Study: Characteristics of the Defendant and the Jurors, 90 J. SOC. PSYCHOL. 221, 226 (1973) (finding that some, but not all, student mock jurors sentenced white defendants more severely); Cheryl J. Oros & Donald Elman, Impact of Judges' Instructions upon Jurors' Decisions: The 'Cautionary Charge' in Rape Trials, 10 REPRESENTATIVE RES. IN SOC. PSYCHOL. 28, 34 (1979) (finding no significant difference in sentences given to black and white rape defendants by white student subjects); Yvonne Hardaway Osborne & Neil B. Rappaport, Sentencing Severity with Mock Juries: Predictive Validity of Three Variable Categories, 3 BEHAV. SCI. & L., 467, 470 (1985) (finding that defendants of lower socioeconomic status were given longer sentences but that black defendants were not given harsher sentences than whites). But see Andrea DeSantis & Wesley A. Kayson, Defendant's Characteristics of Attractiveness, Race, and Sex in Sentencing Decisions, 81 PSYCHOL. REP. 679 (1997) (finding that subjects asked to sentence burglary defendants sentence African Americans more harshly than whites); Hubert S. Feild, Rape Trials and Jurors' Decisions: A Psycholegal Analysis of the Effects of Victim, Defendant, and Case Characteristics, 3 LAW & HUM. BEHAV. 261, 271 (1979) (finding that mock jurors' sentences varied greatly depending on an interaction among the defendant's race, victim's race, type of rape, victim attractiveness, and other factors); Kitty Klein & Blanche Creech, Race, Rape, and Bias: Distortion of Prior Odds and Meaning Changes, 3 BASIC & APPLIED SOC. PSYCHOL. 21, 28-29 (1982) (finding that white subjects sentence black rape defendants more harshly than white defendants).
145. See Hubert S. Feild & Nona J. Barnett, Simulated Jury Trials: Students vs. "Real" People as Jurors, 104 J. SOC. PSYCHOL. 287, 290-91 (1978) (finding no racial disparity in sentencing black and white offenders by mock jurors); Charlan Nemeth & Ruth Hyland Sosis, A Simulated Jury Study: Characteristics of the Defendant and the Jurors, 90 J. SOC. PSYCHOL. 221, 226 (1973) (finding that some, but not all, student mock jurors sentenced white defendants more severely); Cheryl J. Oros & Donald Elman, Impact of Judges' Instructions upon Jurors' Decisions: The 'Cautionary Charge' in Rape Trials, 10 REPRESENTATIVE RES. IN SOC. PSYCHOL. 28, 34 (1979) (finding no significant difference in sentences given to black and white rape defendants by white student subjects); Yvonne Hardaway Osborne & Neil B. Rappaport, Sentencing Severity with Mock Juries: Predictive Validity of Three Variable Categories, 3 BEHAV. SCI. & L., 467, 470 (1985) (finding that defendants of lower socioeconomic status were given longer sentences but that black defendants were not given harsher sentences than whites). But see Andrea DeSantis & Wesley A. Kayson, Defendant's Characteristics of Attractiveness, Race, and Sex in Sentencing Decisions, 81 PSYCHOL. REP. 679 (1997) (finding that subjects asked to sentence burglary defendants sentence African Americans more harshly than whites); Hubert S. Feild, Rape Trials and Jurors' Decisions: A Psycholegal Analysis of the Effects of Victim, Defendant, and Case Characteristics, 3 LAW & HUM. BEHAV. 261, 271 (1979) (finding that mock jurors' sentences varied greatly depending on an interaction among the defendant's race, victim's race, type of rape, victim attractiveness, and other factors); Kitty Klein & Blanche Creech, Race, Rape, and Bias: Distortion of Prior Odds and Meaning Changes, 3 BASIC & APPLIED SOC. PSYCHOL. 21, 28-29 (1982) (finding that white subjects sentence black rape defendants more harshly than white defendants).
146. See Hubert S. Feild & Nona J. Barnett, Simulated Jury Trials: Students vs. "Real" People as Jurors, 104 J. SOC. PSYCHOL. 287, 290-91 (1978) (finding no racial disparity in sentencing black and white offenders by mock jurors); Charlan Nemeth & Ruth Hyland Sosis, A Simulated Jury Study: Characteristics of the Defendant and the Jurors, 90 J. SOC. PSYCHOL. 221, 226 (1973) (finding that some, but not all, student mock jurors sentenced white defendants more severely); Cheryl J. Oros & Donald Elman, Impact of Judges' Instructions upon Jurors' Decisions: The 'Cautionary Charge' in Rape Trials, 10 REPRESENTATIVE RES. IN SOC. PSYCHOL. 28, 34 (1979) (finding no significant difference in sentences given to black and white rape defendants by white student subjects); Yvonne Hardaway Osborne & Neil B. Rappaport, Sentencing Severity with Mock Juries: Predictive Validity of Three Variable Categories, 3 BEHAV. SCI. & L., 467, 470 (1985) (finding that defendants of lower socioeconomic status were given longer sentences but that black defendants were not given harsher sentences than whites). But see Andrea DeSantis & Wesley A. Kayson, Defendant's Characteristics of Attractiveness, Race, and Sex in Sentencing Decisions, 81 PSYCHOL. REP. 679 (1997) (finding that subjects asked to sentence burglary defendants sentence African Americans more harshly than whites); Hubert S. Feild, Rape Trials and Jurors' Decisions: A Psycholegal Analysis of the Effects of Victim, Defendant, and Case Characteristics, 3 LAW & HUM. BEHAV. 261, 271 (1979) (finding that mock jurors' sentences varied greatly depending on an interaction among the defendant's race, victim's race, type of rape, victim attractiveness, and other factors); Kitty Klein & Blanche Creech, Race, Rape, and Bias: Distortion of Prior Odds and Meaning Changes, 3 BASIC & APPLIED SOC. PSYCHOL. 21, 28-29 (1982) (finding that white subjects sentence black rape defendants more harshly than white defendants).
147. See Hubert S. Feild & Nona J. Barnett, Simulated Jury Trials: Students vs. "Real" People as Jurors, 104 J. SOC. PSYCHOL. 287, 290-91 (1978) (finding no racial disparity in sentencing black and white offenders by mock jurors); Charlan Nemeth & Ruth Hyland Sosis, A Simulated Jury Study: Characteristics of the Defendant and the Jurors, 90 J. SOC. PSYCHOL. 221, 226 (1973) (finding that some, but not all, student mock jurors sentenced white defendants more severely); Cheryl J. Oros & Donald Elman, Impact of Judges' Instructions upon Jurors' Decisions: The 'Cautionary Charge' in Rape Trials, 10 REPRESENTATIVE RES. IN SOC. PSYCHOL. 28, 34 (1979) (finding no significant difference in sentences given to black and white rape defendants by white student subjects); Yvonne Hardaway Osborne & Neil B. Rappaport, Sentencing Severity with Mock Juries: Predictive Validity of Three Variable Categories, 3 BEHAV. SCI. & L., 467, 470 (1985) (finding that defendants of lower socioeconomic status were given longer sentences but that black defendants were not given harsher sentences than whites). But see Andrea DeSantis & Wesley A. Kayson, Defendant's Characteristics of Attractiveness, Race, and Sex in Sentencing Decisions, 81 PSYCHOL. REP. 679 (1997) (finding that subjects asked to sentence burglary defendants sentence African Americans more harshly than whites); Hubert S. Feild, Rape Trials and Jurors' Decisions: A Psycholegal Analysis of the Effects of Victim, Defendant, and Case Characteristics, 3 LAW & HUM. BEHAV. 261, 271 (1979) (finding that mock jurors' sentences varied greatly depending on an interaction among the defendant's race, victim's race, type of rape, victim attractiveness, and other factors); Kitty Klein & Blanche Creech, Race, Rape, and Bias: Distortion of Prior Odds and Meaning Changes, 3 BASIC & APPLIED SOC. PSYCHOL. 21, 28-29 (1982) (finding that white subjects sentence black rape defendants more harshly than white defendants).
148. Johnson, supra note 107, at 1637. Some scholars argue, however, that subconscious racism would in fact have a greater effect on the sentencing decision than the determination of guilt. See, e.g., Laura T. Sweeney & Craig Haney, The Influence of Race on Sentencing: A Meta-Analytic Review of Experimental Studies, 10 BEHAV. SCI. & L. 179, 191 (1992) (arguing that the "ambiguous norms" of sentencing permits subconscious racism to play a greater role in sentencing than in the verdict).
149. See Johnson, supra note 107, at 1637.
150. Id.
151. See Turner v. Murray, 476 U.S. 28, 35-37 (1986) (holding that a capital defendant has the right to pose questions about racial bias to jurors who will sentence him, but not to jurors who will determine guilt); Williams v. Chrans, 945 F.2d 926, 944 (7th Cir. 1991) ("Because of the great discretion entrusted to a jury in a capital sentencing hearing, a unique opportunity exists for racial prejudice to operate but remain undetected.").
152. 481 U.S. 279 (1987).
153. While the evidence for the influence of victim race on capital sentencing is fairly well established, the data on the impact of the defendant's race is equivocal. See, e.g., GAO, DEATH PENALTY SENTENCING: RESEARCH INDICATES PATTERN OF RACIAL DISPARITIES 5-6 (1990) (providing an evaluation synthesis of 53 post-Furman studies); DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS 401 (1990) (finding evidence of race-of-the-victim discrimination, discrimination against white defendants in urban areas, and discrimination against black defendants in rural areas, but no overall significant discrimination based on defendant's race in post-Furman death penalty cases in Georgia); SAMUEL R. GROSS & ROBERT MAURO, DEATH & DISCRIMINATION: RACIAL DISPARITIES IN CAPITAL SENTENCING 109 (1989) (finding discrimination based on the victim's race in a study of capital sentencing in eight states).
154. While the evidence for the influence of victim race on capital sentencing is fairly well established, the data on the impact of the defendant's race is equivocal. See, e.g., GAO, DEATH PENALTY SENTENCING: RESEARCH INDICATES PATTERN OF RACIAL DISPARITIES 5-6 (1990) (providing an evaluation synthesis of 53 post-Furman studies); DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS 401 (1990) (finding evidence of race-of-the-victim discrimination, discrimination against white defendants in urban areas, and discrimination against black defendants in rural areas, but no overall significant discrimination based on defendant's race in post-Furman death penalty cases in Georgia); SAMUEL R. GROSS & ROBERT MAURO, DEATH & DISCRIMINATION: RACIAL DISPARITIES IN CAPITAL SENTENCING 109 (1989) (finding discrimination based on the victim's race in a study of capital sentencing in eight states).
155. While the evidence for the influence of victim race on capital sentencing is fairly well established, the data on the impact of the defendant's race is equivocal. See, e.g., GAO, DEATH PENALTY SENTENCING: RESEARCH INDICATES PATTERN OF RACIAL DISPARITIES 5-6 (1990) (providing an evaluation synthesis of 53 post-Furman studies); DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS 401 (1990) (finding evidence of race-of-the-victim discrimination, discrimination against white defendants in urban areas, and discrimination against black defendants in rural areas, but no overall significant discrimination based on defendant's race in post-Furman death penalty cases in Georgia); SAMUEL R. GROSS & ROBERT MAURO, DEATH & DISCRIMINATION: RACIAL DISPARITIES IN CAPITAL SENTENCING 109 (1989) (finding discrimination based on the victim's race in a study of capital sentencing in eight states).
156. See, e.g., GROSS & MAURO, supra note 114, at 110 (noting that disparities based on victim race might be attributable to police or prosecutors); William J. Bowers & Glenn L. Pierce, Arbitrariness and Discrimination Under Post-Furman Capital Statutes, 26 CRIME & DELINQ. 563 (1980) (suggesting that the statistical racial disparities in treatment of capital defendants might be attributable to pretrial discrimination).
157. See, e.g., GAO, supra note 114, at 271; GROSS & MAURO, supra note 114, at 22 (discussing studies indicating racism by prosecutors).
158. BALDUS, supra note 114, at 167.
159. For a review of the studies, see King, supra note 107, at 95-98.
160. See Robert Fitzgerald & Phoebe C. Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 LAW & HUM. BEHAV. 31, 34-39, 46-48 (1984).
161. See King, supra note 107, at 96 (discussing research indicating that "as the proportion of white jurors on the jury increases, the probability that the jury will impose the death penalty also increases").
162. See id. at 96-97 ("[S]tudies have found that in-group bias disappears when jurors choose a term of years or probation . . . .").
163. Sweeney & Haney, supra note 109, at 192; see also GROSS & MAURO, supra note 114, at 112 ("Something about capital cases makes them particularly susceptible to racial prejudice . . . .").
164. On the incompatibility of parole and jury-sentencing schemes, see Wright, supra note 56, at 120-21.
165. See supra notes 75-78 and accompanying text.
166. For an analysis of this effect in the determinate sentencing context, see supra Section I.C.