미국에서의 배심원의 양형 참여

Jury Sentencing in the United States

In Korea, the citizen's participation system in criminal trial has been enforced from January 2008. The system is mingled with the factors of jury system and the factors of mixed court system or Schöffengerichtsbarkeit, and the system's destiny will be decided after it's experimental operation for years. This paper aims to acquire some implications for the system's development in Korea by examining jury sentencing in the United States. Jury discretion to select sentences in felony cases was first adopted in the United States in 1796. Jury sentencing made its way westward from the Old Dominion as Virginia-trained lawyers and politicians moved to Kentucky and revised the criminal law of that state in 1798. Six states today still permit juries to fix sentences in felony cases. The Tennessee Legislature abolished mandatory capital punishment for first degree murder and inaugurated absolute capital sentencing discretion. The sentencing authority, whether judge or jury, was given unfettered discretion to choose between the penalty of death and life imprisonment. Jury sentencing in capital cases is practiced in all jurisdiction in the United States today. The main criticism of jury sentencing is disparity and unfairness of jury sentencing verdicts, compromise verdicts and high cost of jury sentencing. In this paper, Part Ⅱ surveys the history of jury sentencing to the present in the United States, Part Ⅲ examines the United States Supreme Court's decisions about jury sentencing, Part Ⅳ addresses the issues in the jury sentencing in the United States, and Part Ⅴ provides some implications for the system's development in Korea.