Is punishment relevant after all? A prescription for informing juries of the consequences of conviction

Boston University Law Review

Volumn 90, Issue 6, 2010, Pages 2223-2265

  Bellin, Jeffrey ^a  

^a Southern Methodist University   (United States)

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EID: 78651266530     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (202)

1. These facts are paraphrased from the opinion of the California Court of Appeal affirming Taylor's conviction. People v. Taylor, 83 Cal. Rptr. 2d 919, 920-21 (Cal. Ct. App. 1999). Taylor did not raise, and the majority did not address, any challenge to the twenty-five year to life sentence he received under California's Three Strikes Law. Id. at 920-23. As this fact suggests, the sentence is not particularly anomalous. See Ewing v. California, 538 U.S. 11, 28-31 (2003) (rejecting constitutional challenge to twenty-five year to life sentence for defendant, with lengthy record, convicted of stealing three golf clubs from a pro shop); Lockyer v. Andrade, 538 U.S. 63, 66, 77 (2003) (rejecting challenge to consecutive twenty-five year to life sentences imposed on recidivist defendant who shoplifted videotapes from two Kmart stores);
2. see also PAUL BUTLER, LET'S GET FREE: A HIP-HOP THEORY OF JUSTICE 179-80 (2009) (summarizing cases involving severe sentences for relatively innocuous conduct);
3. Lance Cassak & Milton Heumann, Old Wine in New Bottles: A Reconsideration of Informing Jurors About Punishment in Determinate- and Mandatory-Sentencing Cases, 4 RUTGERS J.L. & PUB. POL'Y 411, 433-34 (2007) (highlighting Taylor and a litany of other cases where relatively minor offenses resulted in severe sentences).
4. According to the testimony, Taylor stuck a wooden tool into the doorjamb, which was legally sufficient to establish "entry." Taylor, 83 Cal. Rptr. 2d at 920; see also People v. Garcia, 16 Cal. Rptr. 3d 833, 840 (Cal. Ct. App. 2004) (explaining that "[a]ny entry, partial or complete will suffice" to establish burglary, and thus "even the insertion of [a] tool into the doorjamb itself constitute[s] entry").
5. See infra Part II for an analysis of current law and the unsuccessful attempts to inform juries of potential punishment.
6. See, e.g.. United States v. Polouizzi, 564 F.3d 142, 160 (2d Cir. 2009) (refusing to consider, on precedential grounds, defendant's argument that he had a Sixth Amendment right to a jury informed of sentencing consequences); United States v. Parrish, 925 F.2d 1293,1299 (10th Cir. 1991) (dismissing in one paragraph defendant's argument that he had a right to a jury informed of the mandatory minimum sentence); United States v. Broxton, 926F.2d 1180, 1183 (D.C. Cir. 1991).
7. See United States v. Polizzi, 549 F. Supp. 2d 308, 398 (E.D.N. Y. 2008) (remarking that "[t]oday, federal statutory mandatory minimums are common for drug crimes, firearm possession, and sex offenses" and citing statutory examples), vacated sub nom. Polouizzi, 564 F.3d 142; Rachel E. Barkow, Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. PA. L. REV. 33, 34 (2003) ("Over the past few decades, the federal government and many states have embraced mandatory minimum sentences and binding sentencing guidelines!, resulting in] a barrage of criticism ⋯. ");
8. Nathan Greenblatt, How Mandatory Are Mandatory Minimums? How Judges Can Avoid Imposing Mandatory Minimum Sentences, 36 AM. J. CRIM. L. 1,21 (2008) (referencing "171 federal laws imposing mandatory minimum sentences");
9. Gary T. Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform, 81 CALIF. L. REV. 61, 61-62 (1993) ('Two developments in the last twenty years have transformed felony sentencing in the United States. First, most jurisdictions have adopted determinate sentencing schemes that narrow the range of sanctions available to trial courts and reduce or eliminate [parole board] discretion ⋯. [Second,] legislatures have enacted mandatory sentencing laws that require significantly enhanced punishment in a large number of felony prosecutions ⋯." (footnote omitted)).
10. See Polizzi, 549 F. Supp. 2d at 320 ("Told of the [mandatory] minimum [sentence] after the verdict was received, a number of jurors expressed distress, indicating they would not have voted to convict had they known of the required prison term.");
11. Michael T. Cahill, Punishment Decisions at Conviction: Recognizing the Jury as Fault-Finder, 2005 U. Cm. LEGAL F. 91, 123 (emphasizing that jurors' "outrage" at their unknowing participation in seemingly unjust results poses a danger of delegitimizing the jury system);
12. Jenia Iontcheva, Jury Sentencing as Democratic Practice, 89 VA. L. REV. 311, 314 n.15 (2003) (noting that jurors who convicted a thirteen-year-old of murder were '"horrified"' to learn that their verdict necessitated a mandatory sentence of life in prison without parole (quoting Dana Canedy, As Florida Boy Serves Life Term, Even Prosecutor Wonders Why, N.Y. TIMES, Jan. 5, 2003, at A1));
13. Richard E. Myers II, Requiring a Jury Vote of Censure to Convict, 88 N.C. L. REV. 137, 149-50 (2009) ("Jurors sometimes complain that they are forced to render verdicts that are inconsistent with their moral intuitions, or that they never would have voted to convict had they been aware of the punishment that the defendant faced."). King and Noble recount a scenario where a Virginia jury with sentencing responsibilities refused to impose the severe mandatory minimum sentence required by law on an offender they had convicted of giving a seventeen-year-old a "puff of marijuana;" the judge declared a mistrial and selected a new jury for sentencing.
14. Nancy J. King & Rosevelt L. Noble, Felony Jury Sentencing in Practice: A Three-State Study, 57 VAND. L. REV. 885, 912-13 (2004).
15. Taylor, 83 Cal. Rptr. 2d at 925 n.5 (Johnson, J., dissenting). In an unusual postscript, Stanford Law School's "Three Strikes Project" recently revived the case, and a California judge ordered Taylor freed after thirteen years in prison.
16. See Daniel B. Wood, Case of Soup-Kitchen Thief Fuels Critics of Three-Strikes Laws, CHRISTIAN SCI. MONITOR, Aug. 19, 2010, http://www.csmonitor. com/USA/Justice/2010/0819/Case-of-soup-kitchen-thief-fuels-critics-of-three- strikes-laws. The judge noted that Taylor's "was one of many third-conviction cases that brought 'disproportionate' sentences and 'resulted in, if not unintended, then at least unanticipated, consequences.'" Id. The Los Angeles District Attorney (who was not in office at the time of the conviction) did not oppose the court's ruling and, in fact, criticized Taylor's sentence in his 2000 election campaign.
17. Rebecca Cathcart, Judge Orders Man Freed in a Three-Strikes Case, N.Y. TIMES, Aug. 16, 2010, at A18.
18. See Barkow, supra note 5, at 34 (stating that "the jury's role as a check on the government's power has become far more limited" as the "criminal process in the United States has become largely an administrative one"); Valerie P. Hans, Judges, Juries, and Scientific Evidence, 16 J.L. & POL'Y 19, 20 (2007) ("[M]ost jurors ⋯ adopt a predominantly passive role as fact-finders within the adversary system."); Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 FORDHAM L. REV. 2117, 2118 (1998) (focusing on a plea bargaining regime to characterize the American justice system as neither inquisitive nor adversarial, but rather as an "administrative system of justice"); Myers, supra note 6, at 155-56 ("[T]he modern jury, bound as it is by jury instructions that limit its scope, has significantly less power than it once did." (footnote omitted)); Dan Simon, A Third View of the Black Box: Cognitive Coherence in Legal Decision Making, 71 U. CHI. L. REV. 511, 567 n.194 (2004) ("[T]he role of the juror is highly regulated and restricted ⋯. Jurors are regularly deprived of large and crucial segments of evidence: they are forbidden to ask the witnesses questions and to explore the scene of the crime, they are often deprived of the testimony of the criminal defendant[, and] they are not allowed to take into account anticipated sentences ⋯."); cf. Iontcheva, supra note 6, at 339 ("[A]s the role of the jury has receded, ⋯ the criminal justice system has become ever more opaque to the average citizen.").
19. See GEORGE FISHER, PLEA BARGAINING'S TRIUMPH: A HISTORY OF PLEA BARGAINING IN AMERICA 223 (2003) (chronicling the rise of plea bargaining to a preeminent position in American criminal justice). Jurors also play no direct role in the countless cases disposed of through more informal arrangements, either through dismissal or through the prosecutor's agreement to forego prosecution on various conditions (e.g., the defendant engages in community service, drug treatment, provides information, or avoids future arrests).
20. See, e.g., United States v. Goodface, 835 F.2d 1233, 1237 (8th Cir. 1987) ("[T]he jury's duty is to determine the guilt or innocence of the accused solely on the basis of the evidence adduced at trial.").
21. See infra Part II.
22. See United States v. Polizzi, 549 F. Supp. 2d 308, 440, 446 (E.D.N.Y. 2008) (holding that defendant had Sixth Amendment right to jury informed of mandatory minimum sentence), vacated sub nom. United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009); United States v. Datcher, 830 F. Supp. 411,416-17 (M.D. Tenn. 1993) (same), abrogated by United States v. Chesney, 86 F.3d 564 (6th Cir. 1996); see also United States v. Pabon-Cruz, 391 F.3d 86, 90 (2d Cir. 2004) (reporting and reversing district court ruling, to same effect); Cahill, supra note 6, at 146 ("[T]he jury's role ⋯ should include being a normative evaluator whose 'authorization' of the maximum punishment is knowing, not accidental."); Cassak & Heumann, supra note 1, at 417-20 (arguing that the Due Process Clauses of the Fifth and Fourteenth Amendments, which mandate a fundamentally fair trial, require that criminal defendants be able to inform the jurors of mandatory minimum sentences); Milton Heumann & Lance Cassak, Not-So-Blissful Ignorance: Informing Jurors About Punishment in Mandatory Sentencing Cases, 20 AM. CRIM. L. REV. 343, 344-45 (1983) (raising constitutional arguments that would require informing the jury of mandatory sentences); Myers, supra note 6, at 141 (advocating the enactment of statutes that would require juries to be "explicitly instructed that they had to find moral blameworthiness in order to convict the defendant"); Kristen K. Sauer, Note, Informed Conviction: Instructing the Jury About Mandatory Sentencing Consequences, 95 COLUM. L. REV. 1232, 1253 (1995) ("[T]he jury nullification power may be considered a constitutionally protected power meant to give teeth to the defendant's Sixth Amendment right to a jury trial."); Jeffrey Zahler, Note, Allowing Defendants to Present Evidence of Prison Conditions to Convince Juries to Nullify: Can Only the Prosecutor Present "Moral" Evidence?, 34 NEW ENG. J. ON CRIM. & Civ. CONFINEMENT 485, 488 (2008) (arguing that the defense must be permitted to present evidence of prison conditions at trial); Jenny E. Carroll, Of Rebels, Rogues and Roustabouts: The Jury's Second Coming 5-6 (Seton Hall Law Sch., Pub. Law & Legal Theory Research Paper Series, Paper No. 1486188, Aug. 22, 2010), available at http://ssrn.com/abstract=1486188 (recognizing an opening recently provided by the Supreme Court "for the historical vision of jurors as judges of both law and fact" and therefore "as (potential) nullifiers").
23. Polizzi, 549 F. Supp. 2d at 404-48 (devoting forty-four pages of the opinion to analysis of whether the jury should have been informed of mandatory punishment).
24. The phrases "punishment evidence" and "punishment information" are used interchangeably throughout this article to cover the various possible forms in which information regarding the punishment facing a defendant upon conviction could be communicated to the jury (e.g., testimony, stipulation, statements of counsel, or jury instructions).
25. Polouizzi, 564 F.3d at 160-63, vacating Polizzi, 549 F. Supp. 2d 308.
26. See, e.g., Barkow, supra note 5, at 79 (explaining that juries are generally "unaware of what the actual sentence will be" upon conviction); Cahill, supra note 6, at 92 (characterizing the current system as one where "the jury makes a set of factual findings and votes for a conviction ⋯ without knowing the ⋯ punishment range attaching to [the offense]"); Cassak & Heumann, supra note 1, at 496 (acknowledging that their proposal to inform jurors of certain punishments "would certainly break new ground"); Sherman J. Clark, The Courage of Our Convictions, 97 MICH. L. REV. 2381, 2443 (1999) (advocating for jurors informed of potential punishments even though "[t]his argument⋯ runs counter to current doctrine"); Greenblatt, supra note 5, at 15 ("Courts deny defendants even a chance to mention mandatory minimums to the jury."); Chris Kemmitt, Function Over Form: Reviving the Criminal Jury's Historical Role As a Sentencing Body, 40 U. MICH. J.L. REFORM 93, 97 (2006) ("[J]udges deny juries access to information necessary to perform their sentence-mitigation function ⋯. "); Miximo Langer, Rethinking Plea Bargaining: The Practice and Reform of Prosecutorial Adjudication in American Criminal Procedure, 33 AM. J. CRIM. L. 223, 285 (2006) (arguing that judges should give juries an idea of the potential sentence the defendant would face to further juries' use of their nullification power if the sentence is too harsh); Sauer, supra note 12, at 1242 ("The general rule in federal and most state judicial systems is that neither the judge nor advocates should inform the jury of the sentencing consequences of a guilty verdict.").
27. See Cahill, supra note 6, at 94 n.12, 136 (advocating that juries be informed of potential punishments, but recognizing that the proposed reform is not "of constitutional dimension");
28. Morris B. Hoffman, The Case for Jury Sentencing, 52 DUKE L.J. 951, 956 (2003); Iontcheva, supra note 6, at 365-66; Kemmitt, supra note 16, at 97 (arguing for restoration of juries' historical role through procedure that would "inform[] juries of the sentencing consequences of their decisions prior to jury deliberations"); Langer, supra note 16, at 285-86;
29. Erik Luna & Paul G. Cassell, Mandatory Minimalism, 32 CARDOZO L. REV. 1, 78-80 (2010) (proposing a legislatively-authorized sentencing procedure where a judge, contemplating imposition of a mandatory minimum sentence, could seek input from the jury and, if the jury disapproved of the mandatory minimum, impose a lesser sentence); Myers, supra note 6, at 141 (advocating enactment of statutes that would require juries to be "explicitly instructed that they had to find moral blameworthiness in order to convict the defendant").
30. See David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 91, 93 (1995) (advocating instructing juries of their power to nullify, but recognizing that "[t]he Constitution does not require that the jury be informed of its unreviewable power to acquit in a criminal trial");
31. Irwin A. Horowitz, The Effect of Jury Nullification Instruction on Verdicts and Jury Functioning in Criminal Trials, 9 LAW & HUM. BEHAV. 25, 26-30, 34-36 (1985) (summarizing arguments regarding nullification instructions and discussing results of mock juror study). Paul Butler advocates an informal approach, arguing that "it would be useful⋯ to educate the public about nullification's important role in our constitutional history," and encourages jurors to engage in a pattern of "strategic nullification" as part of a larger strategy to effect social change. BUTLER, supra note 1, at 71, 74-75; see also Greenblatt, supra note 5, at 25 ("[A] combination of informal attorney argument, judicial comments, and curative instructions appears to be an avenue for informing a jury of a mandatory minimum sentence and avoiding the sentence through acquittal.");
32. Andrew D. Leipold, Rethinking Jury Nullification, 82 VA. L. REV. 253, 255-56 (1996) (citing cases where "nullification advocates have contacted potential jurors to tell them of their power to acquit against the evidence, usually to the distress of the trial judges").
33. "Jury nullification" refers to "a jury's ability to acquit a criminal defendant despite finding facts that leave no reasonable doubt about violation of a criminal statute."
34. Darryl K. Brown, Jury Nullification Within the Rule of Law, 81 MINN. L. REV. 1149, 1150 (1997); see also Leipold, supra note 18, at 253-54 ("Nullification occurs when the defendant's guilt is clear beyond a reasonable doubt, but the jury, based on its own sense of justice or fairness, decides to acquit.").
35. 530 U.S. 466 (2000). Apprendi held that juries must find all facts, other than the fact of a prior conviction, that increase the defendant's punishment beyond the statutory minimum. Id. at 490.
36. Cahill, supra note 6, at 145; Cassak & Heumann, supra note 1, at 459-60; Carroll, supra note 12, at 5-6, 43; see also United States v. Polizzi, 549 F. Supp. 2d 308, 426 (E.D.N.Y. 2008) (contending that the Apprendi line of "decisions bear on the question of whether juries should be informed of the sentences that would result from guilty verdicts"), vacated sub nom. United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009).
37. See infra Part III.
38. See, e.g., Thomas v. State, 349 A.2d 384, 388-89 (Md. Ct. Spec. App. 1975) (stating that defendant seeking to inform the jury of the five-year mandatory sentence for a firearm offense "candidly acknowledge[d] that his purpose is 'jury nullification' of a statute the jury doesn't like"); State ex rel. Schiff v. Madrid, 679 P.2d 821, 824 (N.M. 1984) (rejecting defendant's argument that the jury must be permitted to "refus[e] to convict despite the evidence if they feel the penalty is inappropriate").
39. See infra Part IV.D for a discussion of the applicability of Rule 403 to punishment evidence.
40. See, e.g., Ewing v. California, 538 U.S. 11, 26 (2003) ("[California's] interest in deterring crime also lends some support to the three strikes law."); People v. Reed, 40 Cal. Rptr. 2d 47, 48 (Cal. Ct. App. 1995) (identifying "the deterrence of recidivism" as the "basic purpose" of three strikes legislation); Douglas A. Berman, The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions, 61 FLA. L. REV. 709, 718 (2009) ("[I]n nearly all jurisdictions throughout the United States, legislatures and sentencing commissions came to embrace and enact mandatory imprisonment terms for certain offenses and more severe and rigid sentencing rules based on enhanced concerns about consistently imposing 'just punishment' and deterring the most harmful crimes.").
41. Others have forcefully criticized the harsh, mandatory sentencing regimes now in place in many American jurisdictions. See, e.g., Steven L. Chanenson, The Next Era of Sentencing Reform, 54 EMORY L.J. 377, 400 (2005) (discussing criticisms of a federal sentencing regime that strives for "uniformity to the substantial exclusion of reasonable individualization and at the cost of relative proportionality"); Clark, supra note 16, at 2445 (criticizing three-strikes statute on the grounds that it operates "through the medium of blinkered juries" that allows for "assigning responsibility without anyone ever having to take responsibility for that assignment"); Luna & Cassell, supra note 17, at 7 (proposing "to modify the federal mandatory minimum scheme so as to ameliorate its most draconian and unfair expressions"); Michael Tonry, The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings, 38 CRIME & JUST. 65, 100 (2009) (arguing against mandatory penalties because "[t]hey often result in injustice" and are unsupported by empirical evidence that they "have significant deterrent effects"). This Article does not specifically contest the wisdom of modem sentencing laws. Instead, it takes as a fairly uncontroversial starting point that these laws lead to unjust results in a certain subset of cases - roughly approximated as those cases where otherwise unbiased, qualified jurors would so recoil from allowing imposition of the applicable sentence that they would acquit a defendant despite proof of guilt beyond a reasonable doubt. See Cahill, supra note 6, at 122-23 ("[T]he offenses and situations conducive to jury nullification would be those where the legislature most likely got it wrong in determining the offense grade - wrong in terms of tracking the shared moral judgment of the community."); Tonry, supra, at 100 (arguing that under harsh mandatory sentencing regimes, some offenders "receive[] a mandated penalty that everyone immediately involved considers too severe"); cf Myers, supra note 6, at 144 (asserting that '"at any given time, significant portions of the criminal code are out of touch with majority sentiment'" (quoting Richard E. Myers II, Responding to the Time-Based Failures of the Criminal Law Through a Criminal Sunset Amendment, 49 B.C. L. REV. 1327, 1330 (2008))).
42. Cf. HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 310-11 (The Univ. of Chi. Press 1971) (1966) (explaining Indiana's relaxation of mandatory penalty for drunk driving as being motivated by juries' refusal to convict in drunk driving cases, and reporting that in 1819 English bankers petitioned Parliament to remove the death penalty for the crime of forgery because, in light of the penalty, "it had become almost impossible to obtain a conviction for that crime").
43. See McCormick v. United States, 500 U.S. 257, 272 (1991) ("Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator."); Kemmitt, supra note 16, at 136 ("Criminal laws are, at least in theory, likely to be reflective of the general will ").
44. CAL. PENAL CODE § 667(b)-(i) (West 2010); id. § 1170.12 (West 2004).
45. California's Three Strikes Law is actually two essentially identical sentencing provisions enacted separately (but close in time) by the legislature and through a voter initiative. People v. Superior Court (Romero), 917 P.2d 628, 630 (Cal. 1996). Similar voter-enacted laws exist in Washington and Georgia.
46. See Markus Dirk Dubber, Recidivist Statutes as Arational Punishment, 43 BUFF. L. REV. 689,701 (1995).
47. Barkow, supra note 5, at 62 (footnote omitted); see also United States v. Polizzi, 549 F. Supp. 2d 308, 441-42 (E.D.N.Y. 2008), vacated sub nom. United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009); Cahill, supra note 6, at 110;
48. James S. Gwin, Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values?, 4 HARV. L. & POL'Y REV. 173, 175 (2010) (reporting results of survey of federal jurors: the median juror recommended a sentence that was only 36% of the bottom of the Federal Sentencing Guidelines range);
49. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 587 (2001). In addition, as Barkow explains, "[legislatures cannot predict ex ante all the situations that will be covered by a general law; therefore, the law inevitably will be overbroad and cover some situations that legislators (and those voting for them) would not want covered." Barkow, supra note 5, at 61; see also Stuntz, supra, at 549 (describing an "imbalance of legislative incentives" that causes criminal legislation to be "more tilted" in the government's favor "than the public would demand"). Legislators may, however, expect prosecutors - not juries - to narrow the law in application. Stuntz, supra, at 548.
50. KALVEN & ZEISEL, supra note 27, at 306-12.
51. Id.
52. Id. at 310-11; see also Woodson v. North Carolina, 428 U.S. 280, 289-90 (1976) (plurality opinion) (describing how such behavior resulted in changes in sentencing law that "limitfed] the classes of capital offenses"); John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. Cm. L. REV. 1, 52-55 (1983).
53. See Clark, supra note 16, at 2444-45 (identifying the "circumstances under which defendants might most want juries to have sentencing information" as those where "the punishment a defendant will receive if convicted is substantially more harsh than the jury might reasonably expect" such as cases that "arise under 'three strikes' statutes"). Judge Weinstein sketched roughly these same contours in Polizzi. 549 F. Supp. 2d at 323 (clarifying that the right to inform the jury of a particular sentence "is limited to that small group of cases where the jury would not be expected to know of the applicable harsh mandatory minimum" and thus "would not, for example, appear to be applicable to robbery, terrorism or personal assaults with weapons where juries expect long prison terms").
54. Fong Foo v. United States, 369 U.S. 141, 143 (1962); see also United States v. DiFrancesco, 449 U.S. 117, 129 (1980) ('"The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal,' for the 'public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though the acquittal was based upon an egregiously erroneous foundation."' (quoting Arizona v. Washington, 434 U.S. 497, 503 (1978)) (internal quotation marks ommitted));
55. Anne Bowen Poulin, The Jury: The Criminal Justice System's Different Voice, 62 U. ON. L. REV. 1377,1399-1400 (1994). It is important to recognize that jury nullification is an imperfect mechanism for dispensing justice. In fact, nullification in the face of severe prison sentences can create a windfall for undeserving defendants. For example, two offenders arrested for an identical burglary may face vastly divergent punishments based on their criminal records. It is a clumsy system that, upon allowing a jury to find out that an unrepentant recidivist is facing life in prison, releases the recidivist (through jury nullification), but punishes the first-time offender. Thus, in many ways, statutory reforms of sentencing provisions are a more desirable mechanism for tempering injustice occasioned by those laws. Unfortunately, statutory reforms do not appear viable in the current political climate. See infra Part III.B.
56. Cassak and Heumann highlight "the courts' practically universal and unwavering commitment" to this rule. Cassak & Heumann, supra note 1, at 420-21; see also United States v. Parrish, 925 F.2d 1293, 1299 (10th Cir. 1991) ("Unless a statute specifically requires jury participation in determining punishment, the jury shall not be informed of the possible penalties."); United States v. Broxton, 926 F.2d 1180, 1183 (D.C. Cir. 1991); United States v. Goodface, 835 F.2d 1233, 1237 (8th Cir. 1987); Lyles v. United States, 254 F.2d 725,728 (D.C. Cir. 1957), overruled in part by United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972) (en banc), superseded by statute, Insanity Defense Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 2057 (codified as amended at 18 U.S.C. §§ 17, 4241-4247 (2006)), as recognized in Shannon v. United States, 512 U.S. 573 (1994); State v. Koch, 673 P.2d 297, 303-04 (Ariz. 1983) ("[A] trial court's jury instructions generally should not touch on the subject of punishment except to advise the jury not to consider it."); People v. Kelly, 822 P.2d 385, 408 (Cal. 1992) (en banc); State v. Guthrie, 461 S.E.2d 163, 184 (W. Va. 1995;
57. JACOB A. STEIN, CLOSING ARGUMENTS § 1:87 (2d ed. 2005) (citing cases); Myers, supra note 6, at 159.
58. See People v. Nichols, 62 Cal. Rptr. 2d 433, 435 (Cal. Ct. App. 1997) (rejecting challenge to trial judge's refusal to inform the jury that defendant was facing a three strikes sentence even though the jury had specifically requested that information and stating that "informing the jury appellant was subject to three strikes would in effect be 'inviting' the jury to exercise its power of jury nullification"); see also People v. Cline, 71 Cal. Rptr. 2d 41,45-46 (Cal. Ct. App. 1998).
59. Shannon, 512 U.S. at 586-87 ("[A]s a general matter, jurors are not informed of mandatory minimum or maximum sentences, nor are they instructed regarding probation, parole, or the sentencing range accompanying a lesser included offense."); United States v. Johnson, 62 F.3d 849, 850-51 (6th Cir. 1995); Parrish, 925 F.2d at 1299; Broxton, 926 F.2d at 1183; Goodface, 835 F.2d at 1237; Chapman v. United States, 443 F.2d 917, 918, 920 (10th Cir. 1971); People v. Royse, 437 N.E.2d 679, 686 (111. App. Ct. 1982); Thomas v. State, 349 A.2d 384, 388-89 (Md. Ct. Spec. App. 1975); State v. Courtney, 425 S.W.2d 121, 122-23 (Mo. 1968); People v. Cipollone, 482 N.Y.S.2d 552, 553 (N.Y. App. Div. 1984).
60. State v. Waggoner, 697 P.2d 345, 347 (Ariz. Ct. App. 1984) (rejecting defendant's argument to allow him to inform the jury of punishment enhancements because "[t]he question to be decided by the jury is whether the allegations are true" and "[t]he fact that they enhance the punishment is not material"); State v. Main, 52 A. 257, 260 (Conn. 1902) (affirming trial court's ruling prohibiting defense counsel from "read[ing] to the jury that part of the statute which merely prescribes the punishment for the offense charged"); Inman v. State, 393 N.E.2d 767, 769-70 (Ind. 1979) (rejecting defense challenge to trial court ruling "preventing the appellant or prosecutor from making any statements, references, arguments, asking any questions either on voir dire or of witnesses or in final argument pertaining to penalties or to seek or elicit any evidence with regard to penalty"); State v. Johnson, 586 S.W.2d 808, 809 (Mo. Ct. App. 1979) (affirming trial court's admonishment of defense counsel's argument to the jury that punishing defendant would '"take a man away from his job ⋯ and slap him in the penitentiary for five years'"); State v. Tetrault, 95 A. 669, 670 (N.H. 1915) (rejecting argument that defense counsel should have been permitted "to state to the jury the penalty prescribed for the offense" and remarking that "[t]he exclusion of this matter from [the jury's] consideration was in accord with the uniform practice in this state").
61. See Cahill, supra note 6, at 109 (arguing that the rule requiring the jury to find facts without knowledge of the consequences "seems rooted more in history than in any principled basis" and is "based mainly in a traditional notion that imposing punishment is the judge's and not the jury's bailiwick").
62. Shannon, 512 U.S. at 579 ("Information regarding the consequences of a verdict is ⋯ irrelevant to the jury's task."); see, e.g., Johnson, 62 F.3d at 850 (citing Shannon in upholding district court's refusal to inform the jury of the fifteen-year mandatory minimum sentence facing defendant charged with unlawful possession of ammunition); see also Jones v. United States, 527 U.S. 373, 384 (1999) (citing Shannon in rejecting contention that a trial court must instruct the jury, in a capital case, regarding the consequences if the jury cannot unanimously agree on a sentence);
63. James Joseph Duane, "Screw Your Courage to the Sticking-Place": The Roles of Evidence, Stipulations, and Jury Instructions in Criminal Verdicts, 49 HASTINGS L.J. 463, 473 (1998) ("Shannon has exercised a powerful influence in the lower courts. It is widely cited as the primary basis for rejecting any defense request to advise a jury about mandatory minimum sentences faced by the accused upon conviction, even if the charge carries a stiff penalty that might come as a great surprise to the jury.").
64. Shannon, 512 U.S. at 579.
65. Id. at 579 (footnote omitted) (quoting Rogers v. United States, 422 U.S. 35, 40 (1975)).
66. Id. at 587.
67. See Duane, supra note 46, at 473-74; cases discussed infra Part II.B and supra note 46. While Shannon considered the propriety of a jury instruction regarding punishment, its emphasis on relevance suggests that the instruction in this context was indistinguishable from the trial court's taking judicial notice of, and thereby submitting as evidence to the jury, the content of the applicable sentencing statute. See Berea Coll. v. Kentucky, 211 U.S. 45, 56 (1908) (recognizing that state and federal courts take judicial notice of pertinent statutes).
68. Shannon, 512 U.S. at 579. The separation between facts, which are said to be the jury's province, and law, which is the province of the court, derives from earlier authority. See United States v. Gaudin, 515 U.S. 506, 513 (1995) (explaining that "[t]he question [in Sparf, infra] was whether the jury [had] the power to determine, not only historical facts, not only mixed questions of fact and law, but pure questions of law in a criminal case" and "[w]e decided that it did not"); Horning v. District of Columbia, 254 U.S. 135, 138 (1920); Sparf v. United States, 156 U.S. 51, 106 (1895) (holding that trial court did not err in instructing the jury that they were "the exclusive judges of the facts" and must render a verdict in accordance with the law as set forth by the court).
69. Shannon, 512 U.S. at 579.
70. Id.
71. FED. R. EVID. 402 ("Evidence which is not relevant is not admissible.").
72. FED. R. EVID. 403.
73. Shannon, 512 U.S. at 579 (citing Rogers v. United States, 422 U.S. 35, 40 (1975)). The Shannon majority also cited Pope v. United States, 298 F.2d 507, 508 (5th Cir. 1962). Shannon, 512 U.S. at 579. Pope, like Shannon, rejected a challenge to a trial court's refusal to instruct the jury that a defendant found not guilty by reason of insanity would nevertheless be compelled to receive treatment at a mental hospital until "cured." Pope, 298 F.2d at 508. Providing the jury with any information regarding punishment, the Pope court ruled, would "draw the attention of the jury away from their chief function as sole judges of the facts, open the door to compromise verdicts and to confuse the issue[s]." Id. Pope thus focused on Rule 403's jury confusion aspect of admissibility. The Pope court also, like Rogers, relied on case law that protects a defendant from a jury's acquiescing in a guilty verdict based upon the suggestion of lenient treatment. Id. (citing Dicks v. United States, 253 F.2d 713 (5th Cir. 1958), for the proposition "that this court could not commend a statement by the trial court that the sentence would be mild").
74. Rogers, All U.S. at 36. Rogers was charged with making threats against President Nixon. Id. at 42. There was little likelihood that the threats, voiced to the customers and staff at a Holiday Inn coffee shop in Louisiana, would be carried out. See id. at 41-42.
75. Id. at 39.
76. Id. at 40.
77. Id. (citing United States v. Patrick, 494 F.2d 1150 (D.C. Cir. 1974); United States v. Glick, 463 F.2d 491,494 (2d Cir. 1972); United States v. Louie Gim Hall, 245 F.2d 338 (2d Cir. 1957)).
78. Glick, 463 F.2d at 494 (emphasis added); see also Patrick, 494 F.2d at 1153-54 (finding error in trial judge's suggestion to the jury that it could recommend psychiatric treatment along with a verdict of guilty); Louie Gim Hall, 245 F.2d at 341 (emphasizing that reversal was required because, the court "cannot say that, under these circumstances, no juror holding out for acquittal was led to abandon his position by the judge's assurance that a recommendation for leniency would be acted upon"); Demetree v. United States, 207 F.2d 892, 895-96 (5th Cir. 1953) (finding it "unnecessary to cite authorities" to establish error from trial judge's statement to deadlocked jurors that defendant could receive probation or a fine and that he "would be lenient").
79. See Shannon v. United States, 512 U.S. 573,591 (1994) (Stevens, J., dissenting).
80. Louie Gim Hall, 245 F.2d at 341; see also United States v. McCracken, 488 F.2d 406, 424 (5th Cir. 1974); Glick, 463 F.2d at 494; Lovely v. United States, 169 F.2d 386, 391 (4th Cir. 1948).
81. A defendant has a due process right to a determination of guilt "beyond a reasonable doubt." In re Winship, 397 U.S. 358, 364 (1970). A constitutional and statutory right to a unanimous verdict exists in federal, but not necessarily in state, criminal trials.
82. See Jeffrey Bellin, An Inestimable Safeguard Gives Way to Practicality: Eliminating the Juror Who "Refuses to Deliberate" Under Federal Rule of Criminal Procedure 23(b)(3), 36 U. MEMPHIS L. REV. 631, 635 (2006); see also U.S. CONST, amend VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury⋯.").
83. United States v. Datcher, 830 F. Supp. 411,417 n.16 (M.D. Tenn. 1993) ("There is no requirement of symmetry in criminal cases. That is, because the prosecution may not bring up possible light punishment is not a reason for barring the defendant from bringing up possible heavy punishment."), abrogated by United States v. Chesney, 86 F.3d 564, 574 (6th Cir. 1996); see also United States v. Gaudin, 515 U.S. 506, 511 (1995); In re Winship, 397 U.S. at 364. Courts have recognized that it does not violate any constitutional right to provide the jury with sentencing information. See, e.g.. State v. King, 973 S.W.2d 586, 591 (Tenn. 1998) (rejecting challenge that trial court's provision of information regarding penalty in accordance with now-repealed Tennessee statute violated defendant's constitutional rights). The federal courts are severely restricted in their ability to exclude relevant evidence absent some statutory, rule-based, or constitutional authority to do so. See FED. R. EVID. 402 ("All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by
84. Edward J. Imwinkelried, The Meaning of Probative Value and Prejudice in Federal Rule of Evidence 403: Can Rule 403 Be Used to Resurrect the Common Law of Evidence?, 41 VAND. L. REV. 879, 882 (1988).
85. See FED. R. EVID. 402; cf. United States v. Thomas, 116 F.3d 606, 616 (2d Cir. 1997) (holding that a district court can remove from the jury a juror who intends to nullify because "trial courts have the duty to forestall or prevent [nullification]"); United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983) ("A jury has no more 'right' to find a 'guilty' defendant 'not guilty' than it has to find a 'not guilty' defendant 'guilty.'"); Poulin, supra note 40, at 1402 ("[T]he rules of evidence are employed to control the jury. Rules of relevance, for example, exclude evidence unless it pertains to legally recognized theories. When strictly enforced, these rules become a mechanism for controlling the jury by controlling the flow of information to the jury and eliminating evidence that might lead the jury to nullify." (footnote omitted)).
86. See FED. R. EVID. 403.
87. 830 F. Supp. 411 (M.D. Tenn. 1993), abrogated by United States v. Chesney, 86 F.3d 564 (6th Cir. 1996).
88. Id. at 412.
89. Id. at 415-16.
90. Chesney, 86 F.3d at 574 (rejecting claim that trial court violated defendant's right to inform the jury of punishment he would receive upon conviction).
91. 391 F.3d 86 (2d Cir. 2004). Please note that citations for the discussion of this case are to the Second Circuit's review of Pabon-Cruz's conviction in United States v. Pabon-Cruz, 255 F. Supp. 200 (S.D.N.Y. 2003). This appellate opinion describes the trial court's rulings and the Second Circuit's order granting the Government's petition for a writ of mandamus, both of which are unpublished.
92. Pabon-Cruz 391 F.3d at 89, 91.
93. Id. at 91. In an opinion reviewing the subsequent conviction, the Second Circuit rejected a challenge to the trial court's failure to inform the jury of the mandatory sentence. Id. at 95. The Court, however, avoided taking on the issue directly. Rather than rule that the trial court had no discretion to allow the jury to hear about punishment, the Second Circuit ruled only that Pabon-Cruz had no constitutional right to such an instruction and thus could not claim error in the trial court's instructions. Id. at 95 & n.1l; United States v. Polizzi, 549 F. Supp. 2d 308, 438 (E.D.N.Y. 2008) (emphasizing procedural nuance in distinguishing the case), vacated sub notn. United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009).
94. Polizzi, 549 F. Supp. 2d at 438. The district court's extensive opinion in the case includes a colloquy with the jurors, four of whom stated that they would not have voted for conviction had they known of the mandatory five-year minimum sentence that applied. Id. at 339-41.
95. Id. at 405.
96. Polouizzi, 564 F.3d at 160-61, vacating Polizzi, 549 F. Supp. 2d 308.
97. Id. at 161. Judge Weinstein's decision came in the context of a defense motion for a new trial. See id. at 151-52. As in Pabon-Cruz, the Second Circuit relied on the unique procedural posture of the case to avoid confronting the question directly, stating that "it is not necessary to decide whether it would have been within the district court's discretion to inform the jury of the applicable mandatory minimum sentence." Id. at 162.
98. See United States v. Pabon-Cruz, 391 F.3d 86, 94 (2d Cir. 2004). The rule is, of course, limited to the vast majority of cases where the "jury has no sentencing function." Shannon v. United States, 512 U.S. 573, 579 (1994).
99. Apprendi v. New Jersey, 530 U.S. 466 (2000); see also Cunningham v. California, 549 U.S. 270 (2007); United States v. Booker, 543 U.S. 220 (2005); Blakely v. Washington, 542 U.S. 296 (2004); Ring v. Arizona, 536 U.S. 584 (2002).
100. See Polizzi, 549 F. Supp. 2d at 426 (contending that the Apprendi line of "decisions bear on the question of whether juries should be informed of the sentences that would result from guilty verdicts"); Cahill, supra note 6, at 146; Cassak & Heumann, supra note 1, at 459-60; Carroll, supra note 12, at 5-6, 43; see also Laura I. Appleman, The Lost Meaning of the Jury Trial Right, 84 IND. L.J. 397, 404 (2009) (arguing that the "Court's sentencing jurisprudence" (i.e., Apprendi et al.), in concert with the author's historical arguments, "further strengthens the call for a strong jury role" in criminal trials); Hoffman, supra note 17, at 983 ("[T]here are principles in [the Apprendi line of] cases that seem ineluctably to lead to the conclusion that jury sentencing is constitutionally compelled."); Iontcheva, supra note 6, at 333, 338 ("[T]he Apprendi-line of cases fail to address the question of why juries should be allowed to determine facts directly bearing on sentencing, but be kept in the dark about the actual consequences of their findings."); Myers, supra note 6, at 155 ("[In the Apprendi line of cases] the Supreme Court has been restoring the jury to a central role in American jurisprudence, at least insofar as it is the sole arbiter of all facts necessary to support the verdict in the case.").
101. Apprendi, 530 U.S. at 468. Justice Stevens authored the majority opinion, in which Justices Scalia, Souter, Thomas, and Ginsburg joined. Id. Justice Thomas authored the majority opinion in Shannon, in which Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, Souter, and Ginsburg joined. Shannon, 512 U.S. at 574.
102. None of the opinions in Apprendi reference Shannon. Apprendi, 530 U.S. 466 (2000).
103. Id. at 490; see also Oregon v. Ice, 129 S. Ct. 711, 714 (2009); Cunningham, 549 U.S. at 274-75.
104. See Davis v. Washington, 547 U.S. 813, 824 (2006) (relying on the core-perimeter dichotomy to define Sixth Amendment confrontation right); Kemmitt, supra note 16, at 96 ("[T]he Apprendi line of cases actually functions to reinforce the jury's role as fact-finder and prevent its possession of more expansive powers.").
105. "The text of the Constitution provides little guidance as to what a trial by jury entails - save to point out that the jury is responsible for the trial of all '[c]rimes' and 'criminal prosecutions.'" Barkow, supra note 5, at 46 (footnotes omitted) (quoting U.S. CONST, art. Ill, § 2, cl. 3; id. amend. VI); see also Leipold, supra note 18, at 285.
106. E.g., Crawford v. Washington, 541 U.S. 36, 50-56,68 (2004).
107. See Apprendi, 530 U.S. at 497 (characterizing the New Jersey statute it struck down as "an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system"); Appleman, supra note 81, at 400 ("In the Apprendi-Blakely line of cases, the Court relied heavily on the historical role of the criminal jury to support its contention that only a jury may find the facts that increase an offender's punishment above the maximum.").
108. See Sparf v. United States, 156 U.S. 51, 169-70 (1895) (Gray, J., dissenting) (setting forth an exhaustive historical analysis of jury trial right in response to majority's equally comprehensive analysis because "[t]his question, like all questions of constitutional construction, is largely an historical question").
109. United States v. Polizzi, 549 F. Supp. 2d 308, 405 (E.D.N.Y. 2008), vacated sub nom. United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009); see also Barkow, supra note 5, at 66 ("For some years after the Revolution and America's founding, many judges refused to tell jurors that they were obliged to accept the judge's view of the law. Furthermore, lawyers argued questions of law before the jury in some cases." (footnote omitted)); Brown, supra note 19, at 1150; Myers, supra note 6, at 155-56.
110. 156 U.S. 51 (1895).
111. Id. at 169-70 (Gray, J., dissenting).
112. The Sparf trial court instructed the jury that Sparf, who was charged with murder, would be sentenced to death if convicted. Id. at 61 n.1. Prior to reaching a verdict, the jurors engaged in various colloquies with the trial court that appear to seek legal authority to convict of the lesser offense of manslaughter. Id. The trial court repeatedly informed the jurors that the law, as applied to the facts of the case, could not support such a conviction. Id.
113. 129 S.Ct. 711(2009).
114. Id. at 714-15.
115. See Harris v. United States, 536 U.S. 545, 558 (2002) (plurality opinion) ("Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments."); Barkow, supra note 5, at 38 ("Thus far, however, a majority of the Court has been unwilling to use [the Apprendi line of] cases to reinvigorate the jury's - and thus the judiciary's - structural constitutional role."); see also Spaziano v. Florida, 468 U.S. 447, 465 (1984) (holding, in a decision preceding Apprendi, that the Constitution does not preclude placing the discretion to impose the death penalty with the judge rather than a jury).
116. See Ice, 129 S. Ct. at 720 (Scalia, J., dissenting) ("Oregon's sentencing scheme allows judges rather than juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held eight years ago and have reaffirmed several times since.").
117. *3 (N.C. Ct. App. Nov. 21, 2006) (unpublished table decision) (quoting N.C. GEN. STAT. § 7A-97 (2005)); see also State v. McMorris, 225 S.E.2d 553, 554 (N.C. 1976) ("It is ⋯ permissible for a criminal defendant in argument to inform the jury of the statutory punishment provided for the crime for which he is being tried."). Other states have similar provisions in their state constitutions, see BUTLER, supra note 1, at 68, 194 n.4 (stating that Indiana, Maryland, Georgia, and Oregon have constitutional provisions allowing juries to judge law), but do not interpret them as North Carolina does, see McCoy v. State, 645 S.E.2d 728, 731 (Ga. Ct. App. 2007) (explaining that a juror who stated that he would vote to acquit if he believed the "defendant was going to receive an excessive sentence," and who was then "informed that he would not be told the punishment for the crimes alleged at trial" and responded, "'[i]n a matter this serious I probably would be interested to find out what the penalties were,'" was properly dismissed for cause); Inman v. State, 393 N.E.2d 767, 769-70 (Ind. 1979) (prohibiting informing jury of punishment); Thomas v. State, 349 A.2d 384, 388-89 (Md. Ct. Spec. App. 1975) (forbidding defense from arguing about sentence); cf. State v. Hoffman, 677 P.2d 72, 73 (Or. Ct. App. 1984) (rejecting suggestion that state constitutional provision permitted counsel to argue for nullification).
118. McMorris, 225 S.E.2d at 554. The North Carolina courts caution that the state's rule "does not mean that a defendant should be permitted to argue that because of the severity of the statutory punishment the jury ought to acquit; to question the wisdom or appropriateness of the punishment; or to state the punishment provisions incorrectly." Id. at 555. Counsel is also not permitted "to speculate upon the outcome of possible appeals, paroles, executive commutations or pardons." Id.
119. TENN. CODE ANN. § 40-35-201 (2006) (prohibiting informing the jury of punishment under the current statute).
120. See State v. King, 973 S.W.2d 586, 587 & n.1 (Tenn. 1998) (describing statutory provision requiring instruction on sentencing when requested and its deletion by amendment in 1998).
121. There does not appear to be any other American jurisdiction that permits, by law, the defense counsel to present punishment information to a non-sentencing jury. There is a decision in the military courts that leaves the door open for such a practice, in the trial court's discretion, but "only where ⋯ it is shown as necessary to assure that members carry out their duties properly," a circumstance that "should be rare." United States v. Smith, 24 MJ. 859, 863 & n.2 (A.C.M.R. 1987). The federal courts have recognized a minor exception, apparently based on estoppel principles, where one party improperly injects the issue of punishment into trial and, in doing so, misstates the actual punishment. Shannon v. United States, 512 U.S. 573, 587 (1994) (recognizing that "[i]f⋯ a witness or prosecutor" misstates the applicable punishment in the presence of the jury, "it may be necessary for the district court to intervene with an instruction to counter such a misstatement"); see also United States v. Diekhoff, 535 F.3d 611, 621 (7th Cir. 2008) (describing this process as "[rjighting the course for a misled jury"). The line of case law rejected (for federal courts) in Shannon holds that a jury "should be instructed about consequences of a 'not guilty by reason of insanity' verdict because such consequences are not commonly known." State v. Blair, 732 A.2d 448,451 (N.H. 1999).
122. Cf. Tonry, supra note 26, at 67 ("Objections to mandatory penalties are well documented and of long standing.").
123. See MARK A. R. KLEIMAN, WHEN BRUTE FORCE FAILS: HOW TO HAVE LESS CRIME AND LESS PUNISHMENT 117 (2009) ("[An] epic political defeat [has been] suffered over the past generation by the advocates of 'soft' rather than 'tough' approaches to crime control.⋯"); Barkow, supra note 5, at 103-05 ("[I]t should go without saying that the political process fails to provide a check given politicians' perceptions that voters demand a tough stance on crime⋯ . The political process writ large, then, seems unlikely to stop inflated statutory maxima and the growing importance of sentencing guidelines and mandatory minimums." (footnotes omitted)). Those who seek to influence policymakers in this area might take a lesson from the Supreme Court's jurisprudence in a different context - jury selection - and focus on the rights of jurors rather than criminal defendants. See Powers v. Ohio, 499 U.S. 400,409,415 (1991) (explaining that a race-based peremptory challenge violates the right of "[a]n individual juror ⋯ not to be excluded ⋯ on account of race" and concluding that "a defendant in a criminal case can raise the third-party equal protection claims of jurors excluded by the prosecution because of their race"); Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 WASH. U. L.Q. 713, 784 (1999) Powers broadened the scope of the equal protection right by shifting the focus from harm to the defendant to harm to potential jurors removed from the jury for an impermissible reason."); cf. AM. BAR ASS'N, PERCEPTIONS OF THE U.S. JUSTICE SYSTEM 59 (1999), available at http://www.abanet.org/media/perception/ perceptions.pdf (reporting survey results: 69% of respondents agree or strongly agree that "[j]uries are the most important part of our judicial system"; 78% of respondents agree or strongly agree that "[t]he jury system is the most fair way to determine the guilt or innocence of a person accused of a crime"); Appleman, supra note 81, at 398-99 (arguing that the jury trial was historically understood as a collective right of the people and has been erroneously construed in modern jurisprudence as the right of the accused).
124. See Tonry, supra note 26, at 101 (explaining that "for many legislators, their primary purpose has been achieved when their vote is cast" and "[t]hey have been seen to be tough on crime" and consequently, "[i]nstrumental arguments about effectiveness or normative arguments about injustice to offenders fall on deaf ears").
125. Legislatures do occasionally temper harsh sentencing regimes, although these changes tend to fall short of the sweeping changes sought by critics and are often counteracted by reforms in the opposite direction. See Luna & Cassell, supra note 17, at 17-18 (emphasizing persistence of federal mandatory minimum sentencing laws despite "growing opposition"); Tonry, supra note 26, at 69-70 (commenting that recent changes to sentencing provisions, including narrowing of the crack/powder cocaine sentencing disparity and amendments to New York's Rockefeller drug laws, "only nibble at the edges" as "[n]o major laws have been repealed, no major laws have been enacted retroactively to shorten the sentences of the hundreds of thousands of prisoners serving time under mandatory minimum laws, and most new laws narrowing their scope have been restrictively drafted to cover only minor offenses and offenders").
126. See supra Part II.A.
127. FED. R. EVID. 402.
128. See supra notes 16-18.
129. See Schmidt v. United States, 133 F. 257, 263 (9th Cir. 1904) ("While the prosecution is never required to prove a motive for the crime, it is always permitted to do so.").
130. See, e.g., Spencer v. State, 203 S.E.2d 856, 858 (Ga. 1974) (holding that evidence of decedent's life insurance policy naming defendant was relevant in murder prosecution); see also Windham v. Merkle, 163 F.3d 1092, 1103-04 (9th Cir. 1998) (discussing relevance of rival gang memberships in murder prosecution); EDWARD IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE § 3:17, at 3-114 to -117 (2008).
131. See FED. R. EVID. 401 (defining relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence");
132. George F. James, Relevancy, Probability and the Law, 29 CALIF. L. REV. 689, 699 (1941) (stating that evidence of a murder suspect's motive becomes relevant when it "place[s] [the suspect] in a class of persons in which the incidence of murder is greater than among the general public").
133. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 7.2, at 219 (7th ed. 2007). This argument does not depend on an acceptance of "the obviously false assumption that criminal behavior is always the result of expected utility maximization." KLEIMAN, supra note 104, at 81 (emphasis added). The only assumption necessary for the relevance analysis posited here is that "crimes, like other actions, are determined in part by their anticipated consequences." Id. ("Other things being equal, we should expect the probability that someone will commit a crime is lower where the likely consequences are worse, compared to the alternative noncriminal pattern of actions. Thus, the threat of harsher, swifter, or more certain punishment will, in some instances, tip the balance away from crime."). It should also be noted that the possibility of detection plays a large role in any deterrence calculation, id. at 50, but so long as the possibility is not zero, punishment remains relevant.
134. CAL. PENAL CODE § 489 (West 2010).
135. Id. § 667(e)(2)(A). In theory, the offender could be sentenced less harshly if the prosecutor fails to charge the prior strikes or the trial court exercises its authority to dismiss one of the defendant's prior strikes. See People v. Superior Court (Romero), 917 P.2d 628, 648 (Cal. 1996). In addition, the offender may assume he will not be caught or convicted. All of these possibilities decrease, somewhat, the strength of the deterrent effect, but ultimately go to the weight of the evidence, not its admissibility. Similarly, the fact that a life insurance company might balk at paying out on a decedent's life insurance policy or go bankrupt, does not make the existence of the policy irrelevant as motive evidence.
136. One might object that, at least in the recidivism context, the defendant's recidivism-based eligibility for a higher penalty increases through a propensity analysis (rather than decreases through an anti-motive analysis) the likelihood that he committed the charged crime.Propensity reasoning, however, is generally prohibited in American jurisdictions. See FED. R. EVID. 404; Michelson v. United States, 335 U.S. 469,475-76 (1948).
137. See Vaughn C. Ball, The Myth of Conditional Relevancy, 14 GA. L. REV. 435, 446 (1980) ('To decide whether the evidence is relevant⋯ the judge must in effect estimate how probable each of the different versions of [a disputed] event is without the offered evidence and how probable with the evidence. ⋯ If these probabilities are different, the evidence is relevant.").
138. United States v. Polizzi, 549 F. Supp. 2d 308, 323, 327-29 (E.D.N.Y. 2008), vacated sub nom. United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009).
139. In fact, Polizzi admitted at the time of the arrest that he downloaded the images knowing they constituted child pornography. Polizzi, 549 F. Supp. 2d at 328-30. His claim at trial was temporary insanity - that he did so in response to a pop-up internet solicitation that triggered an irrational reaction based on his obsessive-compulsive disorder and severe sexual abuse he suffered as a child. Id. Despite the hurdles presented by this unorthodox defense, Polizzi could still plausibly claim that the stiff mandatory prison sentence for downloading child "pornography supported his claim that, if sane, he would not have downloaded the images.
140. See United States v. Cosentino, 844 F.2d 30, 33 & n.1 (2d Cir. 1988) (explaining that while "the prosecutor may inquire into impeaching aspects of cooperation agreements on direct, bolstering aspects such as promises to testify truthfully or penalties for failure to do so may only be developed to rehabilitate the witness after a defense attack on credibility" and noting that other circuits allow cooperation agreements to be used to bolster cooperating witnesses without imposing these formal requirements); United States v. Townsend, 796 F.2d 158, 163 (6th Cir. 1986) (recognizing common practice of "elicitation during direct examination of a plea agreement containing a promise to testify truthfully" and remarking that "[w]hile the existence of a plea agreement may support the witness' credibility by showing his or her interest in testifying truthfully, the plea agreement may also impeach the witness' credibility by showing his or her interest in testifying as the government wishes"); United States v. Oxman, 740 F.2d 1298, 1302-03 (3d Cir. 1984) (rejecting challenge to government's introduction of cooperation agreement at trial and recognizing that "reference to the condition requiring truthful testimony would be proper rehabilitation"), vacated sub nom. United States v. Pflaumer, 473 U.S. 922 (1985) (ordering reconsideration of jury instruction and government's failure to disclose certain impeaching evidence).
141. 29 F.3d 1223 (7th Cir. 1994).
142. Id. at 1233-34.
143. 536 F.3d 306 (4th Cir. 2008).
144. Id. at 308.
145. Id. at 317-18.
146. 860 F.2d 260 (7th Cir. 1988).
147. Id. at 265.
148. See IMWINKELRIED, supra note 111, at 3-119.
149. FED. R. EVID. 104(b).
150. See infra Part IV.C (discussing tactical concerns regarding admission of subjective evidence of punishment). For a discussion of ethical implications, see infra note 158.
151. See GEORGE FISHER, EVIDENCE 37 (2d ed. 2008) (commenting that the theoretical failings of conditional relevance doctrine "seem[] to prompt little concern or confusion" in practice because "lawyers simply do not make many conditional relevance objections"); CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE § 1.13, at 49 (4th ed. 2009) ("Outside the area of authentication, few cases actually consider conditional relevancy issues."). But cf. Cox v. State, 696 N.E.2d 853, 861 (Ind. 1998) (stating that a question of admissibility litigated at trial and on appeal centered around Rule 104(b), and chiding the advocates for not citing the rule).
152. See, e.g., MUELLER & KIRKPATRICK, supra note 131, at 47 ("[T]he notion of conditional relevancy is deeply problematic."); Ball, supra note 117, at 437-38 (explaining that the concept of conditional relevance is inconsistent with the Federal Rules' definition of relevance as a matter of probability); Ronald J. Allen, The Myth of Conditional Relevancy, 25 LOY. L.A. L. REV. 871, 871-72 (1992) (echoing and supplementing Ball's criticisms);
153. Craig R. Callen, Rationality and Relevancy: Conditional Relevancy and Constrained Resources, 2003 MICH. ST. L. REV. 1243, 1244, 1248 (criticizing the doctrine of conditional relevance on several grounds, including that it is indistinct from general relevance);
154. Dale A. Nance, Conditional Relevance Reinterpreted, 70 B.U. L. REV. 447, 506 (1990) (recognizing validity of criticisms of conditional relevance and suggesting an alternative "best evidence principle" to replace the doctrine).
155. See FISHER, supra note 131, at 34-36 ("Most experts agree ⋯ that there is no separate problem of conditional relevance."); Allen, supra note 132, at 884; Ball, supra note 117, at 467-69 (arguing that Rule 104(b)'s conditional relevance requirement is an unwarranted "obstacle course forjudge and jury alike" that is "confusing," "founded on an incorrect analysis," and should be "dismantled at the earliest opportunity").
156. FED. R. EVID. 401.
157. Ball, supra note 117, at 461-62.
158. Allen, supra note 132, at 878-79; see also United States v. Beechum, 582 F.2d 898, 913 (5th Cir. 1978) (en banc) (stating that a trial court can exclude evidence due to the absence of proof of a conditional fact, '"only where the jury could not reasonably find the preliminary fact to exist'" (quoting 21 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE: FEDERAL RULES OF EVIDENCE § 5054, at 269 (1977))).
159. Huddleston v. United States, 485 U.S. 681, 690-91 (1988).
160. See, e.g., Spencer v. State, 203 S.E.2d 856, 858 (Ga. 1974) (permitting evidence of two insurance policies even though defendant admitted knowledge of the smaller policy alone and only circumstantial evidence of his knowledge of the larger policy existed).
161. For a case in which an appellate court required prosecution evidence of the defendant's knowledge of a particularly convoluted motive, see Cox v. State, 696 N.E.2d 853, 860-62 (Ind. 1998) (ruling on admissibility of evidence supporting prosecution theory that the defendant shot into the home of the victim because, four days earlier, the defendant's friend was denied bond based, in part, on the addition of charges, to a pending charge, of molesting the victim's daughter). Supporting the larger point made in the text, however, the Indiana Supreme Court emphasized the minimal relevance standard in affirming the district court's admission of the motive evidence. Id. at 861 ('"[T]he preliminary fact can be decided by the judge against the proponent only where the jury could not reasonably find the preliminary fact to exist.'" (quoting Beechum, 582 F.2d at 913)).
162. See FED. R. EVTD. 401; Ball, supra note 117, at 446 (explaining that evidence is only relevant if it changes the probability of a material fact); James, supra note 112, at 699 (asserting that evidence of a murder suspect's motive becomes relevant when it "placefs] [the suspect] in a class of persons in which the incidence of murder is greater than among the general public"). There is a counter-argument to this concession. Defense counsel could argue that their clients' circumstances lend themselves to an inference mat a particular punishment would cause greater than average deterrence. Cf. Adam J. Kolber, The Comparative Nature of Punishment, 89 B.U. L. REV. 1565, 1569 (2009) (positing that because "the currency of punishment is largely experiential and the boundaries of punishment are comparative," policymakers must "consider offenders' baseline experiential conditions as well as their experiential conditions in prison" in setting appropriate punishments).
163. See infra note 159, for discussion of the tactical issues raised by the presentation of punishment information that may imply (or open the door to rebuttal evidence regarding) the existence of the defendant's criminal record.
164. See Nance, supra note 132, at 450 (evaluating hypothetical where evidence of a spoken statement is offered to establish notice to X and there is no evidence that X heard the statement: "even if, from all the evidence presented, there is only a small probability that X heard the spoken statement, it is still some evidence of notice that, together with the other evidence, may warrant a finding of notice").
165. See Beechum, 582 F.2d at 913 ("Evidence is relevant once it appears 'to alter the probabilities of a consequential fact.'" (quoting JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S EVIDENCE f 401[06], at 401-18 (1976))); Allen, supra note 132, at 884 (summarizing the sole criteria for relevance, conditional or otherwise as: "[i]f there is any probability that a reasonable person could be rationally influenced by evidence, the evidence is relevant and should be admitted"). For a parallel argument in a distinct context, see Gregg D. Polsky & Dan Markel, Taxing Punitive Damages, 96 VA. L. REV. 1295 (2010) (arguing that, despite courts' apparent reluctance to admit such information, evidence regarding tax consequences of punitive damage awards should be admitted in civil jury trials).
166. Cf. United States v. James, 169 F.3d 1210, 1214-15 (9th Cir. 1999) (concluding that evidence of victim's violent acts was relevant to corroborate testimony of defendant that victim boasted of the acts).
167. Cf. People v. O'Shell, 92 Cal. Rptr. 3d 57, 65 (Cal. Ct. App. 2009) (recognizing that, in a proceeding to determine whether a sex offender was likely to reoffend upon release, offender's "testimony as to the consequences of reoffense under the Three Strikes law was not properly excluded as irrelevant"). There is still a potential factual bar. If the defendant was not, in fact, aware of the punishment, then he cannot testify to the contrary without committing perjury. Grey areas may abound, however; the defendant will be well aware of the applicable punishment at the time of trial and may have difficulty recalling the state of his awareness prior to the crime.
168. See John H. Blume, The Dilemma of the Criminal Defendant with a Prior Record - Lessons from the Wrongfully Convicted, 5 J. EMPIRICAL LEGAL STUD. 477, 489 & n.47 (2008) (observing that "available evidence indicates that approximately one half of all criminal defendants testify at their trials" and citing supporting studies);
169. Stephen J. Schulhofer, Some Kind Words for the Privilege Against Self-incrimination, 26 VAL. U. L. REV. 311, 329-30 (1991) (describing study of trials in Philadelphia in the 1980s revealing that 49% of felony defendants and 57% of misdemeanor defendants chose not to testify);
170. Gordon Van Kessel, Quieting the Guilty and Acquitting the Innocent: A Close Look at a New Twist on the Right to Silence, 35 IND. L. REV. 925, 950-51 (2002) (summarizing studies dating back to 1920s and concluding that "with increasing frequency defendants are not taking the stand at trial as they once did" and "the extent of refusals to testify varies from one-third to well over one-half [of defendants] in some jurisdictions").
171. See FED. R. EVID. 609; United States v. Wade, 388 U.S. 218, 231 (1967); Jeffrey Bellin, Improving the Reliability of Criminal Trials Through Legal Rules that Encourage Defendants to Testify, 76 U. CIN. L. REV. 851, 863-80 (2008) (summarizing legal advantages of declining to testify).
172. Huddleston v. United States, 485 U.S. 681, 690 (1988).
173. Id.
174. See id. at 691.
175. *1(Cal. Ct. App. Dec. 9, 2005) (unpublished decision).
176. The evidence would not be hearsay if admitted not to establish the truth of the defendant's statements, but rather his awareness of the fact. See FED. R. EVID. 801(c). The sentencing provision itself could then be introduced to corroborate the witness's testimony. Cf. United States v. James, 169 F.3d 1210, 1214-15 (9th Cir. 1999) (concluding that evidence of victim's violent acts was relevant to corroborate testimony of defendant that victim boasted of the acts).
177. See, e.g., Heumann & Cassak, supra note 12, at 346-47 (recounting Michigan's campaign to publicize mandatory sentences for gun crimes complete with a catchy slogan: '"One With Gun Gets You Two'").
178. In New York, it is a Class C felony to possess a loaded firearm outside the home. N.Y. PENAL LAW § 265.03 (McKinney 2008). A defendant convicted of this offense must be sentenced to at least three and a half years in prison. Id. § 70.02(3)(b) (McKinney Supp. 2010). New York's law came into the national spotlight when Burress was charged under that law. See Michael S. Schmidt, Main Threat to Burress Is a Sentencing Law, N.Y. TIMES, Dec. 3, 2008, at B12.
179. In addition or in lieu of the evidence described above, the defense may be able to lay sufficient foundation for subjective awareness through expert witness testimony that certain punishment schemes (e.g., the three strikes law) are sufficiently well known among recidivist offenders, or that certain enhancements are well known by certain persons (e.g., people who are acquainted with, or are themselves members of, criminal street gangs may have broad awareness of gang sentencing enhancements).
180. Atkins v. Parker, 472 U.S. 115,130 (1985).
181. See, e.g., Cheek v. United States, 498 U.S. 192, 199 (1991) ("Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law. This common-law rule has been applied by the Court in numerous cases construing criminal statutes.").
182. Ethical issues abound as well, but none that are not already familiar to criminal defense counsel. Just as an attorney can defend a guilty client, counsel can, under current ethical guidelines, offer truthful evidence to support a false inference of innocence. See David Luban, The Inevitability of Conscience: A Response to My Critics, 93 CORNELL L. REV. 1437, 1459 (2008) (remarking that it would be "a radical change in prevailing ethics rules" to "forbid[] defenders from arguing theories that they know are false"); Harry I. Subin, The Criminal Lawyer's "Different Mission": Reflections on the "Right" to Present a False Case, 1 GEO. J. LEGAL ETHICS 125,126-27 (1987) (recognizing that ethical guidelines permit criminal defense attorneys to engage in "direct presentation of testimony, not itself false, but used to discredit the truthful evidence ⋯, or to accredit a false theory; and ⋯ argument to the jury based on [that evidence]"); cf. United States v. Wade, 388 U.S. 218, 257-58 (1967) (White, J., dissenting in part and concurring in part) ("Our interest in not convicting the innocent permits [defense] counsel ⋯ to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth."). Thus, even if defense counsel believes her client had no idea, prior to the offense, of the punishment for the crime, current ethical rules do not prohibit her from introducing otherwise truthful evidence to the contrary. Indeed, even those who would alter these rules, appear amenable to an exception in this context. William H. Simon, The Ethics of Criminal Defense, 91 MICH. L. REV. 1703, 1725 (1993) (accepting "aggressive defense" tactics if the tactic "subverts punishment that, although formally prescribed, is unjustly harsh and discriminatory in terms of the more general norms of the legal culture"). Similarly, there is no recognized ethical bar that would prohibit defense counsel's introducing punishment evidence under a narrow anti-motive theory while also hoping that the evidence will resonate, on a broader level, with the jury's extra-legal sense of fairness and justice. Cf. id. at 1706 ("When the surrounding role players have all the information available to the defense lawyer and there are no other procedural deficiencies, it is plausible for the lawyer to defer concern with nonclient interests to the other role players.").
183. FED. R. EVTD. 402. When a severe punishment applies due to the defendant's status as a repeat offender, probationer, or parolee, tactical issues will also arise as to the substance of the punishment evidence presented. The defendant will likely attempt to introduce evidence of a severe statutory punishment without revealing the reason (e.g., parole status, two prior strikes) that the punishment applies. This may, however, be impractical because, inter alia, the defendant's awareness of the punishment may hinge, in part, on his being a repeat offender or parolee. Prosecutors will also likely argue, with rhetorical force, that they must be permitted to rebut defense evidence of severe punishments for a seemingly trivial offense by eliciting evidence of the recidivism that triggered the punishment. For the most part, I leave these tactical considerations to future litigants, but it is worth ndting that there is a logical flaw in "rebuttal" along the lines suggested. Under an anti-motive theory, the defense is offering the evidence to show the defendant's pre-crime mental calculus as to whether the crime is "worth" committing. The prosecution's proposed rebuttal - an explanation as to why the defendant is in this particular predicament - does not speak to this calculus. If, however, the defendant misrepresents the punishment he faces, the prosecutor would likely be permitted to introduce evidence of the actual punishment under Shannon. See Shannon v. United States, 512 U.S. 573, 587 (1994) (suggesting that punishment evidence may be admissible, apparently under an estoppel theory, to correct "a misstatement" improperly introduced into evidence as to the actual consequences of conviction).
184. FED. R. EVID. 402 (emphasis added).
185. Shannon, 512 U.S. at 579 ("Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion.").
186. FED. R. EVID. 403.
187. See id. ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice [or] confusion of the issues ⋯ ."); United States v. James, 169 F.3d 1210, 1215-17 (9th Cir. 1999) (Kleinfeld, J., dissenting) (defending district court judge's decision to exclude evidence that risked unfair prejudice to the prosecution).
188. See FED. R. EVID. 403 (requiring a balancing between relevant evidence's probative value and factors that may necessitate the evidence's exclusion).
189. See Nance, supra note 132, at 473-74, 506 (arguing that where evidence is
190. FED. R. EVID. 403.
191. See FED. R. EVID. 105 (providing for use of limiting instructions where evidence is admissible for one purpose, but not admissible for some other purpose). A proper limiting instruction would not confine the jury's use of the punishment evidence solely to the defendant's pre-crime calculus. As under North Carolina law, there is no reason that the evidence could not also be used to induce the jury "to give the matter its close attention and to decide [to convict] only after due and careful consideration." State v. McMorris, 225 S.E.2d 553, 554 (N.C. 1976).
192. See Jeffrey Bellin, Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. DAVIS L. REV. 289, 299-303 (2008).
193. See id. at 300-03 (describing process by which prior conviction impeachment evidence is admitted subject to limiting instruction); cf. FED. R. EVID. 703 advisory committee's note on 2000 amendment (recognizing that when the jury hears hearsay evidence considered by an expert, "the trial judge must give a limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes"); United States v. Monteleone, 77 F.3d 1086, 1091 (8th Cir. 1996) (discussing cautionary instruction required when a character witness is cross-examined about specific acts under Rule 405).
194. See supra note 167, for discussion of contours of proper limiting instruction.
195. See supra notes 57-64 and accompanying text.
196. McMorris, 225 S.E.2d at 554-55 (explaining that under North Carolina law, "[i]t is proper for [a] defendant to urge upon the jury the possible consequence of imprisonment following conviction to encourage the jury to give the matter its close attention and to decide it only after due and careful consideration" and contrasting this justification with an improper argument "that because of the severity of the statutory punishment the jury ought to acquit"). North Carolina's justification resonates with Justice Souter's majority opinion in Old Chief v. United States. 519 U.S. 172 (1997). That opinion explains that the prosecution must generally be permitted to introduce evidence, even on an undisputed point, that impresses the jury with the solemnity of its task; the opinion also notes, in this context, the difficulty faced by a defense juror "to hold out conscientiously for acquittal." Id. at 187-88. One way to strengthen the resolve of such a juror would be to introduce evidence of an unusually severe punishment that will follow upon conviction. See Duane, supra note 46, at 473-75 (arguing that "Shannon simply cannot be reconciled with Old Chief and that "[t]his inconsistency borders on madness"); Zahler, supra note 12, at 497 ("Allowing defendants to present evidence on the conditions of prisons where they could be sent if convicted is similar in nature to the evidence deemed acceptable by the Old Chief Court."). It is important to recognize, however, that Old Chief only supports admission of punishment evidence after that evidence has cleared the relevance hurdle. See Todd E. Pettys, Evidentiary Relevance, Morally Reasonable Verdicts, and Jury Nullification, 86 IOWA L. REV. 467, 485 (2001) ("Although ambiguous, Old CAie/implies that evidence must first fall within the traditional notion of relevance, and only then does it become eligible for heightened probative value due to its moral weight or its capacity to satisfy jurors' expectations.").
197. 83 Cal. Rptr. 2d 919 (Cal. Ct App. 1999). After convicting Taylor, jurors learned of the possible sentence and several of them offered to testify at Taylor's sentencing hearing in opposition to life imprisonment. Id. at 925 n.5 (Johnson, J., dissenting).
198. 549 F. Supp. 2d 308 (E.D.N. Y. 2008), vacated sub nom. United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009). Several jurors said that they would not have convicted the defendant if they had known of the mandatory sentence before returning the verdict. Id. at 320, 339-41.
199. Cf. Kemmitt, supra note 16, at 143 (arguing that jurors will interpret the phrase "reasonable doubt" more strictly "when they are made aware of the twenty-year penalty that will result from their decision to convict"). There is empirical support for the intuition that jurors alter their perception of "reasonable doubt" based on factors such as the perceived severity of the offense.
200. See Erik Lillquist, Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, 36 U.C. DAVIS L. REV. 85, 116-17 (2002).
201. See McMorris, 225 S.E.2d at 554 (explaining that under North Carolina law, "[i]t is proper for [a] defendant to urge upon the jury the possible consequence of imprisonment following conviction to encourage the jury to give the matter its close attention").
202. Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 12, 18 (1910). In a similar vein, Judge Learned Hand explained that trial by jury "introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions." United States ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir. 1942).