Matt Cavedon in “The Dispatch” on Restoring Jury Power

Society for the Rule of Law Member Matt Cavedon wrote an article for the CATO Institute advocating for re-centering juries in the sentencing process. Cavedon summarizes a conversation between Judges Stephanos Bibas and Richard Sullivan, “Mercy, Retribution, and the Sentencing Judge,” sponsored by The Center for the Constitution and the Catholic Tradition. The power of juries in criminal sentencing has shifted from the expression of conscience to a rigid, limited role in fact-finding and targeted evaluation. “Where juries once morally evaluated cases through public trials, sentencing is now tightly controlled and even ‘mechanistic.’ Legislatures impose mandatory minimum sentences, and many governors can grant clemency only after following specified procedures.” This limitation has become especially evident in cases where merciful application of the law may be more appropriate. Cavedon cites the tragic case in which prosecutors threatened Aaron Swartz with 35 years of prison time for illegally downloading articles, and Swartz committed suicide. Judges Bibas and Sullivan acknowledge that the shift away from sentencing discretion has some merits, including the increase of rationality and transparency across cases. Yet, that change has gone too far, inhibiting considerations of mercy, rehabilitation, and forgiveness that would otherwise shape how we treat offenders.

Tools like plea bargains, mandatory sentencing, and strict jury instructions separate jurors’ fact-finding capacity from their original societal roles. “A jury that is curated by prosecutors, buffeted by judges, and kept ignorant of consequences cannot be the doer of justice and the reservoir of mercy. It is reduced to being a mere functionary, instead of embodying government by the people.”

Read the article here.