Just out of curiosity, does anyone know how many other states utilize jury sentencing to the extent that Texas does? I always hear that we're in a distinct minority, but I don't even know where to begin looking to find a good comparative answer. The NDAA-APRI site was of no help.

Here's a quote from "JURY SENTENCING AS DEMOCRATIC PRACTICE" 89 Va. L. Rev. 311 (2003). The six states they cite: Texas, Arkansas, Virginia, Kentucky, Missouri, and Oklahoma.

"Advocates of jury sentencing have been a distinct minority for decades. Only six states currently employ jury sentencing in non-capital cases, down from thirteen in 1960. [FN16] For decades, legal *315 scholarship has been overwhelmingly skeptical toward the practice. [FN17] Many commentators have cited jurors' lack of experience and expertise as the source of unwarranted sentencing disparities and irrational verdicts. [FN18] The mistrust of jury sentencing is part of a larger discomfort with the jury as an institution. Civil juries have been accused of being unable to handle the complex issues arising in modern civil litigation, [FN19] and criminal juries have been branded as subversive of the rule of law. [FN20] As the most recent Supreme Court cases have suggested, however, the jury has continuing vitality as a democratic institution."

You might check the statutes in those states. It has been my understanding that in the other states that permit jury sentencing, the trial judge still has the final say, making the jury verdict in essence advisory. Texas I believe is the only state with this kind of dispositive jury sentencing.

Of course, that knowledge comes unverified from the recesses of my memory. Use it at your own risk.

If you are including death penalty cases, the SC has expanded that number by requiring a jury to make the decision.

Are there any states that have jury sentencing only for death penalty cases, or are all those states no death states?

Prior to Apprendi, New Jersey had jury sentencing only for death cases. Don't know about any others.

I'm actually interested more in non-death cases. We see a lot of legislative ideas that are imported from other states, and many are not suitable for our system or need to be changed to be compatible. I'm just trying to get some info to back us up when we tell folks that ...

I found several things interesting, and several trends (after further researching Arkansas, Kentucky, Missouri, Oklahoma, and Virginia).

1. Texas is the only state with jury sentencing where, if a jury hangs on punishment, the entire trial is nullified. (All have a provision allowing the judge to set punishment if the jury hangs.) Most states have a requirement that the same jury assess guilt and punishment, but some (VA, for example) create an exception where the sentence is overturned on appeal.

2. Three states allow the judge to reduce the jury's sentence, but I am not sure the extent to which it is put to practice. Virginia does not appear to allow judicial modification, but the court can suspend or probate the sentence.

3. Arkansas� system of jury-assessed punishment seems most illusory--the jury has the option to "defer" sentencing to the judge, and, even if the jury returns a verdict on punishment, the judge can lower it.

4. No state provides for jury punishment where there is no jury trial.

5. Of course, these observations do not account for capital punishment (which must be assessed by a jury) or Apprendi-style "sentence enhancement facts" (which must be affirmatively found by a jury). This is only an assessment of states with procedures where a jury may assign punishment following an adjudication of guilt.