CRIMINAL LAW – “Send a message” closing arguments: Brent Cantrell v. Com. of Kentucky (SC 6/25/20090

Brent Cantrell v. Com. of Kentucky
2007-SC-000218-MR June 25, 2009

Opinion by Justice Cunningham. All sitting; all concur.

Cantrell appealed his conviction on charges of complicity to manufacture and possess methamphetamine and PFO-2. On appeal, he argued that during the penalty phase the prosecution was allowed, over Cantrell’s objection, to make a “send a message” argument to the jury. The Court found no error. The Court noted that both the U.S. Supreme Court and the federal sentencing guidelines include deterrence among the factors to be considered when imposing a sentence. The Court cited nearly a century of Kentucky case law where prosecutors’ comment on the deterrent effect of a sentence has been held proper. “[S]o long as the jury is well aware that it is sentencing the particular defendant before it […] on the crime for which he or she has been convicted, there is no prejudice in the
prosecutor commenting on the deterrent effect of the sentence.”

The Court repeated its continued disapproval of “send a message arguments” during the guilt phase of a trial, and cautioned that such arguments must be “channeled down the narrow avenue of deterrence.” Any argument by the prosecution that a lighter sentence would “send a message to the community” which would hold the jurors accountable or in bad light is inappropriate.

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