Jury Sentencing in Texas

Gideon, following Doug Berman’s train of thought here, asks, Why don’t we have jury sentencing in non-capital criminal cases?

In Texas, we do have jury sentencing in non-capital cases. The accused can elect before trial to have the jury set punishment in the event of a conviction (and we get jury trials for everything). If the accused doesn’t elect jury punishment the judge sets punishment. In almost all felony cases the accused chooses jury punishment.

(Here is a law review article on felony jury sentencing. According to the article, Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia allow juries to set punishment in felony cases.)

In Texas, ranges of punishment can be huge. For example, a person with no criminal history convicted of murder can be sentenced to between five years and life in prison. If the jury sentences him to ten years or less, they can recommend to the judge that the sentence be probated; this recommendation is binding on the court. The judge can’t otherwise probate the sentence of someone convicted of an aggravated offense.

Gideon writes:

In order to have a jury qualified to sentence, there would need to be another hearing (or maybe even trial) at which jurors are selected, seated and presented with whatever mitigation evidence the defendant wishes to introduce and the state wishes to rebut.

The jury would also need to be informed of the law, the mandatory-minimum sentences and the “going rate” of similar crimes in that jurisdiction.

The same jury that determines culpability decides punishment. Jury selection obviously presents problems and opportunities. For example, on the one hand, potential jurors have to be questioned on their ability to follow the law and consider both the minimum and the maximum punishments; in a habitual case (in which the range is 25-life) the state gets to question the panel about their ability to give the 25-year minimum in a habitual case. On the other hand, if the defendant is probation-eligible he gets a probation-qualified jury — one composed of jurors who will consider probation after convicting a person of that charge.

A punishment hearing ordinarily follows immediately after a conviction. In most cases, absent other bad acts that were not admitted in the culpability phase, the State reoffers its culpability evidence and rests. The accused can then testify and offer other evidence. Mitigation evidence can be presented in non-capital sentencing. There are a few of us experimenting with the use of mitigation experts in non-capital cases.

In Texas our judges are elected in partisan elections, often on implicit (or even explicit) “tough on crime” platforms. Texas defenders know that it’s almost always better to have 12 unelected jurors try to agree on punishment than to rely on one such judge to do the right thing.

(In Texas we can also have the jury decide contested fact issues related to the suppression of evidence; that’s a tale for another day.)

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
This entry was posted in criminal defense, jury selection, jury trial, sentencing, Texas, Uncategorized and tagged , . Bookmark the permalink.

6 Responses to Jury Sentencing in Texas

  1. Gideon says:

    Two questions:

    What do you mean by “A punishment hearing ordinarily follows immediately after a conviction.”

    How immediate is immediate?

    Also, no such thing as “tale for another day”! You drop that bombshell on those of us who are uninitiated and leave it hanging? No sir. I want to hear about the jury deciding contested fact issues. (If you don’t mind, thanks!)

  2. Mark Bennett says:

    If the jury comes back with a guilty verdict at 2 p.m. the punishment hearing might start at 2:01.

  3. David says:

    One of the saddest moments of the great PBS doc “Snitch” (from frontline) is the look on the juror’s face when they ask him to guess how much time the person he convicted received. It’s been awhile since I’ve seen it, but teh juror- who was unable to have any say in sentencing the young man he voted to convict- was visibly shocked when he heard the length of the sentence the young man received.

    I remember him saying something like, “but he was only a kid” and I think the kid’s sentence was over ten years.

    It made me wonder whether the juror would have nullified had he known what the government would do with the kid once they secured his conviction. But of course, under the federal system (which a lot of states are emulating) the attorneys couldn’t comment on the possible punishment so the jurors, at least the one interviewed, assumed the defendant would serve months or perhaps years, rather than decades.

  4. Anonymous says:

    If a person is convicted and sentenced by a jury, is he remanded to jail immediately or does the judge allow him to stay out during appeal?

  5. Mark Bennett says:

    It depends. A defendant is entitled to reasonable bail if (a) his sentence is not 10 years or more; and (b) he was not convicted of a “3g” offense – murder, capital murder, indecency with a chile, aggravated kidnapping, aggravated sexual assault, sexual assault, aggravated robbery, or some drug offenses involving children or drug-free zones.

  6. Anonymous says:

    How about misuse of fiduciary duty, and selling fraudulent securities? Sentence is 25 yrs and 32 yrs to run concurrent.

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