The Origins of Felony Jury Sentencing in the United States

This Article traces the development of jury sentencing in non-capital felony cases in Virginia and Kentucky, as well as the rejection of jury sentencing in Pennsylvania, in the late eighteenth century. Several of the explanations that modern commentators on jury sentencing have offered for the adoption of jury sentencing are questioned. In Virginia, where party politics may have affected the choice of jury over judge, pockets of judicial sentencing power remained, inconsistent with a strong preference for the democratic judgment of a jury in punishment over the professional decisions of the judiciary. Kentucky's experience suggests that settlement patterns and legal heritage, as well as distrust of judges, were prime determinants of that state's sentencing policy.

An appendix listing early sentencing law for several states is included.