Function Over Form: Reviving the Criminal jury\u27s Historical Role as a Sentencing Body

This Article argues that the Supreme Court, as evinced by its recent spate of criminal jury decisions, has abandoned the criminal jury known to the Founders and, in so doing, has severely eroded the protections intended to inhere in the Sixth Amendment jury trial right. It then proposes one potential solution to this problem. According to the Supreme Court, this recent line of cases has been motivated by the need to preserve the ancient guarantee articulated in the Sixth Amendment under a new set of legal circumstances. Unfortunately, the Court misinterprets the ancient guarantee that it is ostensibly attempting to preserve by focusing exclusively on the criminal jury\u27s formal aspects and ignoring its long-standing historical function as a quasi-sentencing body. The author argues that both the criminal jury known to the Founders and its English antecedent were, at heart, sentencing bodies and that this sentencing function was essential to the Sixth Amendment protections promised to criminal defendants. By recasting the jury in the mold of simple fact-finder the modern Court has hindered the jury\u27s ability to interpose a body of citizens between the government and the accused, leaving the accused without adequate protection against prosecutorial overreaching and the various other forms of government oppression with which the Founders were concerned. The article concludes with an argument that this evisceration of the Sixth Amendment could be remedied, at least in large part, by informing juries of the sentencing consequences of their actions. This solution would not only serve to reinforce the various protections that the jury system was intended to confer upon criminal defendants, but would create a trial dynamic which more closely adheres to the archetype endorsed by the Founders