Sunday, July 16, 2006


A jury in Florida recently acquitted a defendant after the judge refused to tell them what punishment he would face if convicted.

But why does a jury need to know what punishment the convicted will receive? After all, that fact is irrelevant to the question of whether the defendant actually committed the crime.

One answer is that juries should pass judgment not only on matters of fact, but also on matters of justice. Since the punishment could be out of proportion to the crime, jurors need to know the magnitude of the punishment to fulfill their duty. This is the jury nullification position – one that I generally agree with, but that is sadly out of fashion in our legal system. Jurors who confess an unwillingness to apply the law as stated by the judge are routinely dismissed during voir dire.

Setting aside jury nullification, I’ll suggest another reason that juries ought to know the likely punishment: From an efficiency standpoint, the standard of proof ought to be a function of the size of punishment.

In the current system, we have two main standards of proof: reasonable doubt in criminal cases, preponderance of the evidence in civil. (Yes, I realize there are others, such as "clear and convincing evidence," but they are much rarer.) What justifies the difference? David Friedman, in his book Law’s Order, argues that it’s related to the nature of the penalties. In civil cases, the penalty is usually a transfer of money, with no net loss to society other than the expense of enforcing the transfer. In criminal cases, the penalty is often jail time or worse, which imposes a cost on both the convicted person and the taxpaying public. As Friedman puts it, “Punishment [in criminal cases] is mostly net cost rather than transfer, so it makes sense to be a good deal more careful about imposing it.”

But in that case, why have only two commonly-used standards of proof? In general, the greater is the penalty, the greater is the cost to society of imposing it, which means we should be more careful about imposing larger criminal sanctions. It’s therefore economically sensible for jurors to regard reasonable doubt as a flexible standard – weaker when the punishment is small, stronger when the punishment is large. But they cannot accomplish the appropriate adjustment to the standard of proof when they lack the relevant information about the punishment.


Anonymous said...

[insert canned slippery slope argument here]

David Friedman said...

"In general, the greater is the penalty, the greater is the cost to society of imposing it, which means we should be more careful about imposing larger criminal sanctions."

That's not clear. In theory, at least, the higher penalties are imposed for more serious offenses (ignoring various complications). So although the cost of convicting an innocent person is higher, so is the cost of the reduced deterrence due to acquitting a guilty person.

So it isn't obvious that the standard of proof should increase with the size of the penalty.

Glen Whitman said...

"In theory, at least, the higher penalties are imposed for more serious offenses." True. I was making an implicit ceteris paribus assumption. I should have said that for a given level of severity, we should be more careful about imposing larger sanctions.

However, we should also note: (a) The jury already knows the severity of the offense; to make the appropriate calculation, they need to know the punishment as well. (b) Theory might say higher punishments are reserved for more severe crimes, but in practice high punishments are imposed rather often for less serious offenses, largely as a result of mandatory minimum sentencing.

The Professor said...

Perhaps this is why, quite often, there is a trial, and then a sentencing. We have seen in several high profile crimes where both are conducted with the same jury.

It would seem to me that to evaluate the costs of the punishment as the sole economic measure is somewhat narrow. One would assume that society as a whole has determined that there are benefits to society that are accrued by punishing said convicted criminals in such a way. In addition, there are costs to society when faced with the "release" of the criminal.

I have come to believe, over time, that we should not let just "any" group of 5, or 9, sit in judgement of the law itself. That is the role of a specific panel of 9 (the Supreme Court). To allow a jury to no longer objectively determine the guilt or innocence of the accused, but rather allow them to subjectively evaluate the criminal, and the penal code simultaneously, undermines the integrity of not only the legal system, but the process for creating and sustaining the laws.

If individuals have issues with the severity of certain punishments, then work to bring that law before the authority responsible for the law (Fed/State/Local government) and work to get the law changed. If society, speaking through their representatives, then continue to hold that the punishment is fitting for the crime, then society has spoken.

Anonymous said...

I saw on TV a minority defendant offered a plea bargain for selling drugs. He refused to take the deal saying that he didn't do it. So he went to trial and was convicted; the lady judge threw the book at him. Something struck me as less than fair about this. I thought it was the American Way to get one's day in court. I say let the jury decide the guilt and whether the punishment really fits the crime. No judge is going to tell me not to consider the severity of punishment in my deliberations.

Glen Whitman said...

"Under the efficiency logic what do you do with crimes where the punishment is minimal or crimes where the punishment actually increases the benefit to the state?"

For crimes whose punishment is minimal -- or, to be more accurate, whose punishment can be imposed with minimal cost -- the logic indeed indicates that the burden of proof should be smaller. And in fact, that's pretty much what we do. Consider, for instance, the burden of proof in traffic court. The punishment is usually a fine (a relatively easily enforced transfer), and most defendants' claims are dismissed out of hand on the testimony of a single officer.

However, for efficiency purposes, "the benefit to the state" is not the issue. The issue is the net burden to society as a whole of imposing the punishment. Society includes the accused as well as the taxpayers. A very large fine is still just a transfer; the taxpayers' gain equals the convicted person's loss. The net burden on society is the cost of forcing the convicted person to cough up the money.