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.
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.)