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Punishment Decisions at Conviction: Recognizing the Jury as Fault-Finder
University of Chicago Legal Forum (2005)
  • Michael T. Cahill, Brooklyn Law School
Discussions of criminal punishment tend to focus on sentencing as the unique moment when punishment is affixed. Yet two punishment decisions are made in the course of establishing a criminal defendant's liability. The first occurs at conviction, where the range of available punishments is narrowed to that defined by the conviction offense's statutory grade. The second occurs at sentencing, when a more refined decision is made as to a punishment within that range. At present, the first punishment decision involves no explicit judgment by the decisionmaker (the jury, in a jury trial) as to what constitutes a proper punishment, even in broad terms. Instead, the jury makes a set of factual findings and votes to convict of an offense, without knowing its grade or the punishment range attaching to that grade. The first cut punishment level determined by the offense's statutory grade is then imposed administratively, by operation of law. This Article argues that the first punishment decision, the one made at conviction, should not be made while blind as to its consequences, as is currently done in jury trials (though, significantly, not in bench trials). The jury should have both a greater, and more explicit, role in assigning punishment - not only (or, perhaps, even at all) by taking on a greater role with respect to the second, sentencing decision, which is the focus of most current attention, but also by wielding more (and more informed) power with respect to the punishment consequences of the initial decision to convict. In short, the Article proposes that we instruct criminal juries not only about the elements of the offenses with which a defendant is charged, but also about the offense grades and overall sentencing ranges that correspond to each of those offenses. Such a reform would acknowledge and affirm the jury's role as a finder of fault, not merely a finder of facts. Available for download at
Publication Date
Fall 2005
Citation Information
Michael T. Cahill, Punishment Decisions at Conviction: Recognizing the Jury as Fault-Finder, 2005 U. Chi. Legal F. 91