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?