The Origins of Felony Jury Sentencing in the United States

All of the states admitted to the Union by 1800 eventually abandoned capital punishment for most felonies in favor of discretionary terms of imprisonment. But of these states, only Virginia, Kentucky, and Georgia adopted jury sentencing. In 1786, Pennsylvania became the first state to adopt discretionary terms of hard labor and imprisonment as the primary punishment for felony offenses-delegating to judges the authority to select those terms. In 1796, Virginia opted for jury sentencing, while New York followed Pennsylvania\u27s lead. After 1796, with both Pennsylvania\u27s judge sentencing and Virginia\u27s jury sentencing models to choose from, New Jersey and all of the remaining eastern seaboard states except Georgia, including Maryland and the Carolinas, chose judge sentencing. This Article explores why, despite the Pennsylvania precedent, the lawmakers in Virginia and Kentucky pioneered what was then, and remains today, an unusual delegation of sentencing authority