In his dissent in Glossip v. Gross, Justice Breyer declared that “[t]he arbitrary imposition of punishment is the antithesis of the rule of law.” He went on to assert that, for a defendant, to be sentenced to death was akin to being struck by lightning. Such randomness and arbitrariness in capital sentencing results from the wide discretion granted to sentencing actors, and runs counter to the firmly held belief that every defendant in the criminal justice system deserves fair and just treatment.

However, these arbitrary sentences are not limited to the capital context; they are the result of every sentencing jury determination. In Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia, juries determine a defendant’s sentence in the non-capital context. These sentences are the result of broad discretion and little guidance. As a result, non-capital juries tend to impose sentences that are just as arbitrary as those imposed by juries in the capital context. Such arbitrary sentences run counter to the purpose of jury sentencing and undermine the Founders’ belief that the jury is “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Because jury sentencing tends to produce such arbitrary and unjust results, significant revisions need to be made to the jury sentencing regime if such a regime is to continue.

This article demonstrates that the statutory jury sentencing scheme in each of these states contributes significantly to the arbitrary nature of sentences imposed, as each sentencing scheme is characterized by significant discretion for juries and a lack of guidance as to how to wield such discretion. It contends that this lack of guidance leads to arbitrary and unjust sentences that juries ultimately do not feel responsible for imposing. Instead of accepting responsibility, jurors tend to place responsibility on other actors in the criminal justice system like the defendant, the judge, the prosecutor, or the state. This trend has been analyzed and studied in the capital context but has yet to be explored in the non-capital context. In fact, numerous studies have demonstrated that capital jurors do not feel responsible for the death sentences they impose. Instead, capital jurors are insulated from the punishment they impose by procedural safeguards surrounding the imposition of the death penalty. This lack of responsibility stems, in part, from the decision by each state to adopt statutory provisions that insulate the jury from the impact of their decisions, allowing them to feel as if they are not solely responsible for the sentence imposed. Such insulation enables jurors to enact more severe sentences than they may otherwise enact and undermines the credibility of the criminal justice sentencing system.

The demonstrated lack of responsibility felt by capital jurors is a critical issue, but it is one that effects few defendants. On the other hand, the lack of responsibility that is similarly perpetuated by state processes, and that is felt by jurors in non-capital cases, has a significant impact on the justness and consistency of every single jury sentence imposed throughout the country. If the goal of the criminal justice system is to ensure sentences are reliable and equitable, it is important to both increase procedural protections for defendants sentenced by juries and to explicitly stress to jurors the impact their decisions will have on the defendant. In order to truly be sentenced by a jury of one’s peers, it is essential for jurors to accept responsibility for the choice they have made and the sentence they have imposed. By providing the jury more information and being explicit about the court’s expectations of jurors, jurors will have to directly face the sentences they choose to impose, acknowledge their role in the criminal justice system, and acknowledge their role in the life of that defendant. The solutions proposed in this article draw on studies about promoting attentive students in the classroom to similarly create attentive jurors. This new approach to creating an engaged jury represents minor steps that states can take to ensure their jury sentencing systems are operating equitably and non-arbitrarily. While these steps are minor, they can significantly contribute to the credibility of jury sentences and the criminal justice system in states that continue to regularly use sentencing juries.

I advance my argument in three parts. In Part I, I explore why juror responsibility is so critical to promoting just and non-arbitrary sentences. I further analyze the lack of responsibility felt by capital jurors and discuss from where that lack of responsibility originates. Part II briefly explores jury sentencing in Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia. Because no article has previously explored the responsibility felt by jurors in the non-capital context, I analyze the jury sentencing processes that promote a lack of responsibility in capital cases that are also utilized in non-capital cases. I conclude that these processes in capital cases create the feeling of a lack of responsibility in non-capital jurors as well. Part III outlines a possible framework that would enable jurors to feel responsible for the sentences they impose. This framework includes efforts to increase juror activism and to increase juror comprehension. I conclude that unless such changes are made, jury sentences for felons will continue to be arbitrary and will continue to cast doubt on the credibility of the sentencing jury that was intended to contribute to the Nation’s “peace, liberty, and safety.”