Let Jurors ‘Veto’ Unfair Sentences: Paper

Giving a jury the power to reject sentences it considers too severe could “reinject a democratic voice” into the American system of justice and counter the overuse of plea bargaining, argues a University of Oklahoma law professor.

Proposing what he called a ”novel structure to restore balance” in trial proceedings, Stephen Henderson said it would allow both defendants and prosecutors the right to invoke a “veto jury” empowered to reject unfair or disproportionate judicial sentences―and force opposing attorneys and the judge to negotiate an alternative.

“Every prosecution—and therefore every defendant—is meant to encounter a potential ‘circuit breaker’: the jury,” Henderson,  the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma, wrote in an essay posted online by the Oklahoma law school’s Law Review.

“I propose that we re-inject this democratic voice into our criminal adjudications, but through an entirely novel structure: the defendant (and perhaps the prosecutor) would have the choice of invoking a jury empowered to ‘veto’ any judicial sentence.”

Most Americans are familiar with the way courtroom dramas traditionally end.

If a jury finds the defendant guilty, it is up to the judge to determine sentencing, usually at a separate hearing, after telling the jurors to go home. That has sometimes left jurors who have been immersed in a case for days or weeks frustrated by the results of their deliberations.

Occasionally, though unofficially, the uncertainty over punishment can affect the decision to convict itself.

Implementing jury veto would allow the jury to step in “like a parent might do for a wayward child” in case the system made a mistake ―whether in the length or severity of punishment after conviction, wrote Henderson.

He said a system to avoid “over-invocation” of the veto power would be necessary, but giving jurors the power of oversight over sentencing following a trial would discourage the practice of settling cases by plea bargaining, now a common practice across the judicial system.

“The dearth of trial juries means that citizens often have no role—and even more often, have no meaningful role—in the prosecution of even the most serious of crimes,” he continued.

Henderson believes that a jury veto system is a way of returning more accountability to the system, and could even return jury trials to the critical position they held in U.S. jurisprudence.

“When some 95 percent of criminal convictions result from [a] guilty plea, we’ve relegated the criminal jury out of the criminal justice business.”

Henderson gave seven detailed hypothetical situations in which a jury veto could be invoked by a defendant.

The general consensus across the seven is that if a defendant invoked a jury veto in the case of unjust sentencing, there would be a variety of sentence ranges for consideration, including those proposed by the prosecutor and the defendant’s attorneys.

For example, a defendant who faces a threat of life in prison due to a habitual offender sentence could invoke a jury veto and propose a sentence of anything less than life―even to the possibility of no punishment― in an attempt to serve justice for a crime like forgery, which doesn’t warrant life in prison.

“Our system is so flawed that good prosecutors routinely lie in order to achieve some measure of better justice,” said Henderson.

“A prosecutor can threaten life but then accept a five-year plea-induced sentence and call it ‘justice.’”

Henderson acknowledged that implementing his proposal would be an uphill battle, and would have to encompass a method of dealing with parole or probation.

Other concerns include high anticipated costs and maintaining fairness and consistency across decisions.

If government officials implemented jury vetoes without careful planning, “much could go wrong,” he wrote.

Nevertheless, “before the State can sentence a person to living the rest of her life incarcerated because she forged a check, under my system of veto jury, a representative body of ‘the people’ must—if the defendant desires it—give some assent,” said Henderson.

“That hardly seems too much to ask, and, for me, the particular crime of conviction (forgery) makes the case even more obvious but not fundamentally changed.”

Additional reading: Truth, Lies and Plea Bargaining, The Crime Report, July 23, 2021

Prof. Henderson’s paper can be downloaded here.

Emily Riley, a TCR Justice Reporting intern, contributed to this summary.