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Abstract

We face a crisis of excessive incarceration. Undeserved punishment violates a bedrock principle of justice, yet criminal defendants are often imprisoned without assurance that their deprivation of liberty and exclusion from society is deserved. Legislatures are under powerful pressures to authorize and even mandate carceral penalties that may exceed individual culpability; prosecutors have strong cost incentives to threaten undeserved penalties to induce guilty pleas, and to pursue those penalties if defendants refuse to plead guilty; and judges face like institutional pressures to sentence defendants more harshly if they insist on trial. This Article proposes a new sentencing model that employs the democratic voice of the jury to restrain individual injustice and mass incarceration by having the jury establish the maximum term that an individual defendant deserves and confining judicial sentencing discretion within that upper bound. In a liberal democracy, the people should share responsibility for ensuring that prison sentences imposed in their name are deserved and, therefore, morally just. Because juries directly express lay norms, they can speak with greater democratic legitimacy than judges or other experts on the moral question of desert. On this question, juries should be judges—and courts should not be permitted for any reason to impose a longer prison term than the jury has deemed to be deserved. Even legislatively mandated carceral minimums should be subject to jury override in order to avoid unjust incarceration. This proposal would operationalize a widely endorsed sentencing paradigm often called “limiting retributivism.” This model forbids sentences that exceed desert, but allows sentences to be tailored to utilitarian goals within that moral limit. Blending lay normative sense and judicial expertise, this proposed model would enable juries to perceive and prevent carceral excesses while retaining judicial discretion in the selection of final sentences. This hybrid model not only would prevent undeserved trial penalties but also would diminish plea-bargaining injustices, for prosecutors could no longer induce guilty pleas by threatening penalties that no reasonable jury would deem deserved.

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