The sentencing wisdom of the jury

The Sixth Circuit offered up a major sentencing win for the defense today in United States v. Collins, reaffirming the notion that judges have broad discretion in what factors they consider at sentencing. Here, the judge considered a "jury poll" as just one factor in imposing concurrent five-year sentences for receiving and distributing child pornography.

While juries are not ordinarily supposed to be involved in sentencing decisions, some judges have begun polling juries after the verdict to see how they would have sentenced the defendant, in part to see how far "off" our mandatory minimum sentencing schemes really are. It has become common to hear of juries assuming that a defendant would receive six months for a drug crime that imposes a decades-long mandatory sentence. Perhaps less common is to see a jury think that a child-pornography defendant should get only a little more than a year, but that is exactly what happened here. The district court considered that jury poll as one factor in granting a downward variance from the guidelines range of 262-327 months to only 60 months. The government appealed.

The Sixth Circuit panel made explicit what it had only expressed in dicta in a previous case, United States v. Martin, 390 F. App'x 533 (6th Cir. 2010): The district judge did not err in considering the jury poll. Indeed, as the panel noted, a guidelines sentence must consider "the community view of the gravity of the offense" in accordance with Section 994(c)(4) of Title 28. The opinion is remarkable in its rereading of cases that defense lawyers typically hate, including the notorious Bistline opinion. The panel reads that case as suggesting "the plausibility of rejecting guidelines ranges in child pornography cases based on policy disagreements." (Unfortunately, the opinion also suggests that the district judge in Bistline "made no genuine efforts to discuss the § 3553(a) factors," which is inaccurate.)

The opinion makes clear that it does not affect precedent prohibiting juries from considering sentencing in rendering a verdict, but it does offer a reminder that juries can rightly be considered as the voice of their communities.