In a recent federal case from the Northern District of Ohio, United States v. Collins, the Sixth Circuit Court of Appeals upheld a downward sentencing variance from 262-327 months to the mandatory minimum of 60 months. The defendant was convicted at trial of receiving and distributing, and possessing, child pornography.
In an unusual move, District Court Judge Gwin revealed at sentencing that he had polled the jury after the verdict as to the appropriate sentence. Responses ranged from 0 to 60 months, with a mean of 14.5 months and a median of 8 months. All but one juror recommended a sentence less than half the mandatory minimum.The Circuit Court upheld the sentencing procedure because the jury did not decide or impose the sentence. The jury "provided insight into the community’s view of the gravity of an offense." The judge considered it as just one factor bearing on just punishment. Further, Judge Gwin adequately considered all of the other sentencing factors, including deterrence, and considered the defendant’s personal characteristics.
This is interesting because this is clearly not the practice of our New Jersey Superior Court judges, nor is it done by our Federal District Court judges here in the Third Circuit. I wonder what reception we would get if we asked the judge to poll the jury after they returned a verdict and said, “Hey, folks, what do YOU think would be a fair sentence?” I think we would all be surprised, as evidenced by the Collins case, that the jury will indicate a sentence that is far lower than what the sentencing guidelines call for.