Asking a Sentencing Jury To Send a Message:

Doug Berman (Sentencing Law & Policy) writes:

Thanks to a listserve posting by Eugene Volokh, I learned the Kentucky Supreme Court recently issued an intriguing ruling about arguments to a sentencing jury in Brewer v. Commonwealth, No. 2004-SC-000742-MR (Ky. Nov. 22, 2006) (available here). Specifically, Brewer disapproves of prosecutorial arguments to a sentencing jury that it should "send a message" to the community by imposing a harsh sentence. Here are key passages from the Brewer opinion (with cites omitted):

It is unquestionably the rule in Kentucky that counsel has wide latitude while making opening or closing statements. And it is equally well established that a prosecutor may use his closing argument to attempt to persuade the jurors the matter should not be dealt with lightly. So the Commonwealth's exhortation to the jury to recommend that Appellant be sentenced to the maximum allowable sentence is neither surprising nor improper. But what is troubling is the "send a message" portion of the Commonwealth's argument. Although we disapprove of the comments in question, we find them to be virtually indistinguishable from those we recently found to not constitute palpable error in [prior rulings]....

Lest this opinion be misconstrued, we do find that the Commonwealth's exhortation to this jury to "send a message" to the community was improper. We strongly urge the prosecutors throughout the Commonwealth to use extreme caution in making similar arguments. Indeed, had a timely objection been made, we may have found the Commonwealth's comments to constitute reversible error. But, as in [prior cases], upon a consideration of the overall trial and the context in which the comments in question were made, we do not find that there is a substantial possibility that the Commonwealth's argument seriously affected the overall fairness of the proceedings. Thus, we decline to find that the Commonwealth's comments rise to the level of palpable error.

Eugene wonders exactly what is improper about urging a sentencing jury to "send a message." In addition, I have certainly seen this sort of argument used by many prosecutors in many jurisdictions. Have any other courts held or suggested a "send a message" sentencing argument is improper? On what basis?

(For a link to the opinion, see Doug's post.)

Two important points to keep in mind:

(1) This is an argument made to the jury while it's determining the defendant's sentence, not while it's deciding whether he's guilty. The defendant had already been found guilty; Kentucky is one of the few states in which the jury is also called on to impose a sentence.

(2) Generally, some theories of punishment — deterrence (general and specific) and norm-setting — are all about sending either the public or the defendants a message. Rehabilitation may also be partly about sending a message. The other major theories, retribution and incapacitation, aren't focused on message-sending. Is the Kentucky court implicitly requiring that the prosecution argument stick solely to retribution or incapacitation? Or is the Kentucky court acknowledging the legitimacy of deterrence and norm-setting as theories of punishment, but nonetheless concluding for some reason that the prosecution can't overtly argue to the jury about the message that their sentence would send?

"Sending a message" is implicitly a call for an unusually harsh sentence. This means non-equal treatment of the offender compared to other, similar, offenders and gets you into Fourteenth Amendment trouble.
11.27.2006 10:15pm
TJIC (www):
Perhaps the thinking is that a prosecutor asking one specific jury to "send a message" results in a deviation away from normal sentencing, and thus a disproportionate share of the cost of setting social norms can land on one individual. As per Epstein's utilitarian arguing in _Takings_, if the total pie of societal utility is increased by the deterence effect then the cost of the pie-expanding action should be shared by all citizens by increasing the punishment meted out to any citizen who breaks a law, not just one particular citizen whom the prosecutor picks out.
11.27.2006 10:19pm
Bruce Hayden (mail) (www):
I agree with PersonFromPorlock - it sounded to me to be an appeal to the jury to impose an abnormally harsh sentence. I think that the ideal is supposed to be that similar crimes get similar punishments, and a call to make it harsher, penalizing this one person, in order to send a message to the rest of the country, comes across as fundamentally unfair to that one person being so penalized.
11.27.2006 10:28pm
"Have any other courts held or suggested a "send a message" sentencing argument is improper? On what basis?"

I don't think that there's anything esoteric going on here. I don't think the Kentucky court is engaging in any sort of debate about theories of punishment.

I just think the court is saying: The factors for a jury to consider in sentencing are set forth in the statute, and general deterrence isn't one of them.

(That's admittedly putting a heavy gloss on thin analysis -- especially since the Ky sentencing statute isn't specific on this point -- but I think that's the basic idea.)
11.27.2006 10:31pm
Corey Rayburn Yung (mail) (www):
I think the chief problem raised by "sending a message"-type arguments by a prosecutor is that those arguments can remove individualization from the sentencing process. Rather than saying the offender should be sentenced for the particulars of his or her crime, the prosecutor is making the defendant accountable for a larger population of potential criminals. At least in the context of capital sentencing, there is some case law to support the notion that prosecutors have to be careful in making those types of arguments. See e.g., Romano v. Oklahoma, 512 U.S. 1, 7 (1994) ("States must ensure that 'capital sentencing decisions rest on [an] individualized inquiry,' under which the 'character and record of the individual offender and the circumstances of the particular offense' are considered.") (quoting McCleskey v. Kemp, 481 U.S. 279, 303 (1987)). However, I doubt that anything as simple as "sending a message" would result in reversible error, but I understand why the Kentucky court is loathe to allow the prosecutors to push the envelope further in that area.

As to the secondary point that limiting these types of arguments makes deterrence an improper argument for prosecutors. I'm not sure why this is such a bad thing. Legislatures are free to prescribe punishments or punishment ranges to criminals with deterrence in mind. However, once the trial begins, it is more just, in my mind, to focus on the particular wrongdoings of that particular defendant.
11.27.2006 11:31pm
It seems to me, "send a message" in this context is either laziness or blowing smoke to obscure inadequate facts.

If the newly convicted felon has earned the upper end of the permissible punishments, then the prosecutor should make that case based on what the NCF did.

I also don't get the relevance of victim statements to the legal process of sentencing.
11.28.2006 12:16am
Ragerz (mail):
I am not sure what I think about this. I do think that the "send a message" argument is usually flawed, because I don't think with the thousands and thousands of sentences handed down, that any particular sentence sends a message to much of the general public in the typical case (of course, in certain well publicized cases, this may be different).
11.28.2006 12:24am
PersonfromPorlock and Bruce Hayden: Good point, but shouldn't deterrence still be a factor in all sentencing, as it is virtually always under the USSG?

tdsj: Does the KY sentencing statute really not include deterrence? This opinion may draw attention from the KY legislature. This point may make everything I say to Corey Rayburn Yung irrelevant.

Corey Rayburn Yung: You cite a capital case. Incarceration is very different than the death penalty.

Individual rights are, without question, of extremely high importance throughout a trial. They are, of course, not the only interests, particularly at sentencing. They do, clearly, still have importance, and we agree that deterrence is not an individual right. However, even the USSG proscribe deterrence as an important factor for sentencing.

Any capable defense attorney can present witnesses and make arguments to show the individual needs and humanity of his or her client. When you sit on jury duty, you should be able to hear all of the positive and negative information that fit within the broad range of relevancy, including wider interests like deterrence. Most jurors recognize this balance and want to hear fair argument before making their decision.

Individuals who are convicted criminals in the State of Kentucky do not need, or deserve, any more than competent counsel, fair procedures, and a trial judge that applies the law fairly. Under these circumstances, jurors should be able to reflect on the needs of the individual who is a convicted criminal and the needs of the State of Kentucky, which, of course, includes deterrence, as well as rehabilitation, respect for individuals, punishment for people who have committed crimes, etc.

I write this as a person who has for several years practiced criminal law on both sides in a state that has jury sentencing, advising both law enforcement and criminal defendants. In my opinion, the limits of proper argument should be left in the hands of a competent trial judge, with general guidelines to couch his or her discretion. The Kentucky Supreme Court has taken that away (or did the legislature), and apparently applied a standard for lower courts that puts a stranglehold on a trial judge's discretion and a litigant's reasonable range of argument.

I base my opinion on my conclusions that, when dealing with non-capital crime, little of it is caught and that the majority of crime is not capable of being proven beyond a reasonable doubt without far more invasive policing. In our system, there is a high tolerance for crime balanced against individuals' rights to be presumed innocent and a societal expectation of privacy.

Once a person is proven guilty, beyond a reasonable doubt, in a non-capital case, there should be far less tolerance for the needs of an individual in a system designed to protect the innocent, protect privacy, and to hold accountable only a minority of offenders. Not all of our highly placed values that we expect for those presumed innocent should not be expanded to the guilty, and privacy interests go down when a person has, proven beyond a reasonable doubt, committed acts that are against the laws created in a democratic system of government.

Deterrence, like other issues before a fact finder who has a legally-limited range of sentencing, are in the fact finder's discretion. You state that this is the legislator's domain. I respectfully disagree, again. Once the law is written, it needs to be applied at the appropriate times. The legislature does not do this. The jury sits outside of this branch of government, judging the individual and then executing the law. You are delegating this role strictly to the legislature (unless the KY Constitution is really weird).
11.28.2006 1:21am
Wouldn't "sending a message" be permissible if the sentence is within the statutory maximum and minimum? It seems like "sending a message", where there are statutory boundaries, is simply asking for the outer limit of what is already permissible for a given offense and recidivism status.

Where no statutory boundaries (or Booker-like "guidelines" exist), it makes sense to wait for the legislature to impose them.

I do agree with Ragerz:

I do think that the "send a message" argument is usually flawed, because I don't think with the thousands and thousands of sentences handed down, that any particular sentence sends a message to much of the general public in the typical case (of course, in certain well publicized cases, this may be different).

The "send a message" argument seems most relevant when the offense is rarely prosecuted and the case is particularly well known.
11.28.2006 1:58am
Hans Gruber:
""Sending a message" is implicitly a call for an unusually harsh sentence."

Aslong as the law allows for the sentence, who cares if it's unusual? Maybe the "ideal" is to treat every similar case identically, but this isn't an "ideal" world. If a community is fed up with a particular crime (rape, robbery, murder, embezzlement, etc), and a jury feels like instituting an "unsually harsh" sentence that is allowed by law, then so be it.

Let's put it into a different context. Is it a bad thing that Bernie Ebbers and company received "unsually harsh" sentences for their crimes? It's very possible he would have avoided prosecution or received a shorter sentence had corporate corruption not peaked when it did. But he was caught up his troubles when the country was roiling from others; should we feel bad his conviction and sentence was affected by motivations to "send a message"?
11.28.2006 2:07am
bones (mail):
Because in the South, "sending a message" has meant putting away a 16 year old black youth for possession of a marijuana cigarette for 25 years vice the "understandable daliance of inexperienced youth" of an upper class white 16 year old who gets probation. You make the case based on what the individual did or didn't do, not the fact that you try to scare the jury that if you don't put this 16 year old black kid in jail forever then he'll be running through the streets commiting assault, arson, and rape. It's scare tactics, and it is unfair.
11.28.2006 5:49am

PersonfromPorlock and Bruce Hayden: Good point, but shouldn't deterrence still be a factor in all sentencing...

Oh, no problem. But in all sentencing, not just a few cases selected for their message-carrying potential (or whatever other reason the court pleases). Otherwise we end up with the sort of abuses 'bones' describes, which are clearly an equal-protection violation.
11.28.2006 7:02am
TJIC (www):

""Sending a message" is implicitly a call for an unusually harsh sentence."

Aslong as the law allows for the sentence, who cares if it's unusual?

I've got this vague memory that the word "unusual" crops up somewhere in the Constitution.

It's located near the word "punishment", as I recall.

...maybe in the 8th amendment?
11.28.2006 8:11am
Gary McGath (www):
The "send a message" motivation is often cited for legislation as well as sentencing. It's horribly wrong. It says that the government should use force as a form of communication, that force is a valid means to get people to act in the "right" way.
11.28.2006 8:34am
isn't the whole criminal justice system an example of "force is a valid means to get people to act in the "right" way"?

If you act in the "wrong" way, (steal, assault) then the police will arrest you (that is force right there) and judges will put you in jail (more force).
11.28.2006 9:59am
Houston Lawyer:
I believe this line of argument works equally well in punitive damages cases. Or is it somehow ok to send a message when the protections of the criminal courts don't apply?
11.28.2006 10:18am
Hans Gruber:

I believe the phrase is "cruel and unusual." If "unusual" punishments were themselves prohibited more humane methods of execution could never be implemented, or tracking of child predators after their release. The first state to adopt a "three strikes" law would be unable to do so. A standard like this would prevent the law from moving forward, even if it was less cruel than before.
11.28.2006 10:53am
Chris 24601 (mail):
Isn't retribution also about sending a message? I've always thought that the idea behind retribution is that the punishment is an expression of justice. See, e.g., here: "Retribution does not have to be malicious. It can be considered as an expression of justice..."
11.28.2006 10:58am
Hans Gruber:

Theories of evolutionary pyschology propose just that--that our desire for retribution or "justice" is intended to prevent harms against the peace of the community. Anyway, I'm not sure why you think retribution to be "malicious." What we mean by "justice" today is that retribution is achieved in an orderly fashion with plenty of due process for the accused. It's still retribution.
11.28.2006 11:10am
logicnazi (mail) (www):
I think it's totally reasonable to think that punishment exists entirely for deterrence but that the level of punishment required for deterrence is something that needs to be set by the legislature not individual juries.

I personally think this sort of 'send a message' business is incredibly dangerous even though I believe only in deterrence. It asks the jury to reach conclusions about issues far beyond the evidence presented or their intrinsic knowledge, namely how common certain sorts of crimes are and how deterrable they might be. Worse, in the absence of real data juries are likely to substitute prejudice and knee jerk reaction.

Juries are very good at making individualized decisions about guilt and innocence or about the presence of mitigating or aggravating factors. It is thus appropriate to use juries to determine the relative badness of this crime compared to other crimes falling under the same statute, hence whether the defendant ought to be sentenced to more or less time than is normal. However, it seems wholly inappropriate to me for juries to undertake considerations of public policy that are best performed by well informed state legislatures.
11.28.2006 11:38am
Chris 24601 (mail):
I don't think retribution is malicious, or merely the seeking of revenge.
11.28.2006 11:43am
Any sentence the jury imposes will "send a message." If they find at the bottom of the range, this "sends a message." If they find at the top of the range, this "sends a" different "message." The problem, of course, is that the signal-to-noise ratio of this message is abysmally low. I once served on a jury, a drunk driving case, and one of my fellow jurors thought that if we convicted on the lesser included offense we would be "sending the wrong message." I argued then, as I do now, that the messages you think you're sending are likely to be so different from the received messages that its weight in your calculus ought to be very, very small.
11.28.2006 12:39pm
Daniel San:
In Illinois, although sentencing is by judge, sending a message is explicitly a sentencing factor. Among a list of factors in aggravation:

"The sentence is necessary to deter others from committing the same crime" 730 ILCS 5/5-3.2.

With or without prosecutorial argument, every sentence sends a message (or a number of messages). When someone says "send a message," they response should not be that messages should not be sent, but "what message."
11.28.2006 12:51pm
Kovarsky (mail):
the deterrence effect is already built into the statutory penalty range for the sentence. deterrence shouldn't be an issue of discretion for the jury, it should be a subject for legislators. and that's why the notion that you can't do things like this is fairly uncontroversial.
11.28.2006 3:26pm
Daniel San:

As a general principle, I agree wthat legislatures should built deterence into sentencing schemes and allow some room for sentencing to consider more individualized factors (which will usually not include deterence). However, the Illinois legislature would not consider it "fairly uncontroversial" that the sentencing body should not consider deterence (since they require it to be considered).

In addition, there may be a deterence effect that applies differently in different communities. I have heard prosecutors comment that it is necessary to begin prosecuting a particular offense harshly in order to stem some temporary effect. If that is o.k. for prosecutors (and I think it is), then maybe a sentencing jury, drawn from the same community, should be able to make the same judgment.
11.28.2006 3:45pm
Hans Gruber:
I wonder why it's viewed as OK for legislatures to contemplate "sending a message" in evaluating the appropriate punishment but not juries. Prosecutors similarly exercise this discretion regularly, first in deciding whether or not to bring charges at all, and secondly in deciding what sentences to recommend.

Let me pose another hypothetical (nobody bit on my last one). We have two communities, one ravaged by crime and one that is not. If the community that is suffering from the crime epidemic is more likely to seek the maximum penalties available under the law, are we supposed to look down on them (the prosecutors, the judges, the juries) because they are weighing the importance of "sending a message" to their community that crime doesn't pay?
11.28.2006 4:40pm