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4 Rutgers J. L. & Pub. Pol'y 411 (2006-2007)
Old Wine in New Bottles: A Reconsideration of Informing Jurors about Punishment in Determine-and Mandatory-Sentencing Cases

handle is hein.journals/rutjulp4 and id is 411 raw text is: 

Rutgers Journal of Law & Public Policy


         OLD WINE IN NEW BOTTLES: A
     RECONSIDERATION OF INFORMING
       JURORS ABOUT PUNISHMENT IN
       DETERMINATE- AND MANDATORY-
                SENTENCING CASES


         By Lance Cassak & Milton Heumann*

   This is without question the worst case of my judicial
career...'1 So observed United States District Court Judge
Gerard Lynch in 2002 in a case before him involving a
defendant facing a mandatory-minimum ten-year sentence on a
charge of advertising the distribution of child pornography.2
That case and Judge Lynch's actions and observations, about
which more will be said later, brought dramatic if brief attention
to an issue that we first wrote about more than twenty years ago:
whether and under what circumstances jurors should be told
about the punishment faced by defendants in cases before them.
   If, as Victor Hugo observed, no army is as powerful as an
idea whose time has come,3 it must also be true that many an
   Mr. Cassak is Special Counsel with Baker Botts, LP, and Professor
Heumann is Professor of Political Science at Rutgers, The State University of
New Jersey. We want to thank Gabe Pell for his outstanding work as a
research assistant at a critical time in the development of this article. Gabe's
research was excellent, his insights were wonderful and his enthusiasm for
the project matched our own.

   1 Benjamin Weiser, A Judge's Struggle To Avoid Imposing a Penalty He
Hated, N.Y. TIMES, Jan. 13, 2004, at Al.
   2 Id.

   3 This is a rough translation of Hugo's statement, On resiste a 1
invasion des armees; on ne resiste pas a l'invasion des idees. V. HUGO,
HISTOIRE D'UN CRIME (1852).


                           411


Winter 2007


Vol 4:2

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