I'm researching a presentation, and I'm curious to know if anyone has the definitive answer to the question of which states allow juries to assess punishment. I found a less-than-definitive source that indicates Texas, Arkansas, Kentucky and Virginia all have similar bifurcated proceedings, along with a hybrid process in Missouri. This is one of those factoids about the Texas criminal justice system which we often explain to veniremen. But who else allows it? Thanks.

You may want to see if your audience agrees with the conclusions of Professors King and Noble: Sentencing by jury is promoted for its democratic appearance, but its vitality may turn instead upon its ability to streamline case disposition and protect elected officials from political accountability for sentencing policy. Jury sentencing is viewed by these criminal justice insiders as a critical component of the justice system in each state, a tool they have adapted to deter trials, to accommodate elected judges, and to appease constituents who support ever higher sentences for crime. Vanderbilt Law Review. The only other state utilizing jury sentencing that needs to be added to your list is Oklahoma.

[This message was edited by Martin Peterson on 01-19-10 at .]

Maybe you should add Mississippi and Tennessee.

Moton v. State, 999 So.2d 1287, 1288 (Miss.App. 2009) ("A Coahoma County jury found Kevin Moton guilty of burglary, kidnapping, and sexual battery. The jury sentenced Moton to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC) for the kidnapping charge. The trial judge sentenced Moton to twenty years each for the burglary and sexual battery charges, to run concurrently with the life imprisonment sentence.").

T. C. A. 40-20-104

(a) When the offense is punished by imprisonment in the county jail or workhouse, the term of imprisonment shall be fixed by the court, unless otherwise provided; provided, that when any person is indicted or presented in a court of record for the alleged commission of any misdemeanor, and pleads not guilty and is tried by a jury, upon demand of defendant timely made, the trial jury shall as a part of its verdict assess the punishment for the offense both as to fine and imprisonment within the limits now or later prescribed by law.

T.C.A. 40-20-103
(a) In no case shall any person convicted of a felony be confined in the penitentiary for less than twelve (12) months. Whenever the minimum punishment is imprisonment in the penitentiary for one (1) year, but in the opinion of the jury the offense merits a lesser punishment, the jury may punish by confinement in the county jail or workhouse for any period less than twelve (12) months, except as otherwise provided.

I tried to research this issue many years ago. My recollection is that Oklahoma is the only other state that has "true" jury sentencing like Texas, in that a jury's sentence cannot be overridden by the trial judge. A few other states permit juries to issue or "recommend" sentences subject to a judicial override/reformation, but that's not the same as our system, IMO.

Shannon, could that state legislatures group maybe help the topic starter? I don't remember the name.

Shannon -
I thought that in Texas a judge could override a jury's sentence, at least in terms of the recommendations that a sentence not be suspended. I'm not sure that Texas is still in the category of "true" jury sentencing if there are judges out there that are willing to disregard it.

Gretchen, while I agree that recent caselaw authorizes a judge to disregard a jury's failure to recommend probation, that does not allow the judge to change the actual sentence of "x" years. In some of the other "jury sentencing" states that I found, judges could do just that (similar to how civil judges can reform monetary awards that may be excessive, etc.). I think that is a significant distinction.

John, if I recall correctly, the National Conference of State Legislatures (NCSL) was of no help.

You have all been helpful. Thanks for the input! The subject is part of a larger topic that I will be presenting to laymen in the community. They don't need to hear about some of the distinctions mentioned. A clear-cut answer would be nice, but it's certainly not necessary.