Holtzman, Kurt A. | April 17, 2021

Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, jury endorsement of criminal sentencing is critical to the legitimacy of criminal law. It is also necessary if criminal law is to remain responsive to evolving social mores. Unfortunately, today, studies suggest that actual criminal sentences are largely detached, if not divergent, from community preference. The criminal advisory jury is a mechanism to solve these issues by allowing juries to express community sentiment on punishment while preserving the values inherent in autonomous judicial sentencing. The jury is one of the most democratic institutions within the United States and sits readily assembled for most criminal trials. Failing to solicit its views of just desert for the criminal it has convicted is an opportunity wasted; an opportunity the criminal advisory jury construct will seize.