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November 2, 2020

Will reform of quirky approach to jury sentencing greatly impact Virginia's criminal justice system?

A helpful reader reminded me that I had forgotten to blog about a recent significant change in sentencing procedure in Virginia, which is effectively explained in this local article from a few weeks ago headlined "Virginia lawmakers vote to reform 224-year-old jury sentencing law."  Here are the basics:

Virginia lawmakers passed a closely watched bill Friday aimed at ensuring people can exercise their right to a jury trial without risking much steeper punishments.

Criminal justice reform advocates frequently called the legislation one of the most important changes the General Assembly could adopt during a special legislative session that has been largely devoted to issues of policing, courts and prisons.  “Everything else is window dressing compared to this bill,” said Sen. Joe Morrissey, D-Richmond, who proposed the measure.  “The result will be an end to excessive sentencing in the Commonwealth of Virginia.”

Virginia and Kentucky are currently the only two states where if a defendant or prosecutor asks for a jury trial, the jury must also hand down the sentence....  Morrissey’s bill will transfer sentencing responsibilities to the judge unless a defendant specifically requests it be set by the jury.

The state’s unusual approach to sentencing dates to 1796 and has been called the jury penalty because it often leads to criminal sentences that are significantly longer than defendants would have faced if they had opted for a trial before a judge or taken a prosecutor’s plea deal.  That’s because unlike judges, juries must hand down sentences that fall within statutory sentencing ranges.  And unlike judges, juries aren’t provided the sentencing guidelines that tell them what the typical punishment is for a similarly situated defendant.

That means a defendant facing a robbery or drug distribution charge would face a five year mandatory sentence if a jury finds him guilty, whereas a judge issuing the sentence could suspend time based on the facts of the case and mitigating circumstances.  Juries exceeded sentencing guidelines in half of the cases they heard in 2018, according to the Virginia Sentencing Commission, which found they issued prison sentences that were on average four years longer than would have been recommended.  Judges, meanwhile, handed down sentences that exceeded guidelines in just 9 percent of cases.

Lawmakers and advocates say prosecutors often take advantage of the arrangement by tacking on charges with steep mandatory penalties and threatening to demand a jury trial if the defendant doesn’t accept a plea agreement. “Most defendants plead out, even when they did not do it.  This is a very difficult decision people have to make,” said Del. Don Scott, D-Portsmouth, who like many lawmakers argued the leverage the law gives to prosecutors contributes to Virginia’s higher than average incarceration rates.  “This would be a revolutionary change in the way we do sentencing.”

While the bill won limited bi-partisan support, Republicans mostly opposed the measure, as did most prosecutors in the state.  They warned that the reform could lead to a huge uptick in jury trials that would require more judges, more courtrooms and more prosecutors — all things that would cost the state millions of dollars.... 

The Virginia Association of Commonwealth’s Attorneys estimated the change could lead to an eightfold increase in jury trials, writing in a letter to lawmakers that without additional money to hire more prosecutors, they’d be forced to agree to plea deals “that are not commensurate with the crime or the harm inflicted upon the victim.”...

Supporters of the bill, which included a contingent of commonwealth’s attorneys from some of the state’s most populated areas, said the concerns about an explosion of jury trials were misplaced, noting that Virginia would simply be adopting the system already used in most states.  And even if the number of jury trials did increase, that would only prove that the existing system was preventing defendants from exercising their constitutional rights.

I would like to be optimistic that this procedural reform would ensure an "end to excessive sentencing" in Virginia, but we see an awful lot of excessive sentencing in a lot of other jurisdictions that have a more "traditional" approach to trials and sentencing.  And, as the question in the title of this post is meant to suggest, I sincerely doubt Virginia will see a huge increase in jury trial  after this law becomes effective.  As we see nationwide, in all jurisdictions, there are a broad array of legal and structural factors that create, in the words of Justice Kennedy in Lafler v. Cooper, 566 U.S.156 (2012), "the reality that criminal justice today is for the most part a system of pleas, not a system of trials."

Because I generally believe juries should play a larger role in the administration of our modern criminal justice systems, I tend to be a supporter of jury sentencing in principle.  But Virginia's recent experiences, which prompted these latest reforms, serve as an important reminder that just how jury sentencing operates in practice plays a critical role in whether this form of sentencing can serve as a help or hinderance to a more fair and transparent and effective criminal justice system.

November 2, 2020 at 03:27 PM | Permalink


Weren't them six ??

The six states are Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia. See
Jenia lontcheva, Jury Sentencing as Democratic Practice, 89 VA. L. REV. 311, 314 n.16 (2003)


Posted by: claudio giusti | Nov 2, 2020 4:18:42 PM

Missouri still has jury sentencing. The statute has always had exceptions. Prior offenders do not have the right to jury sentencing in Missouri and a defendant can waive jury sentencing prior to jury selection. And, the judge can reduce the jury sentence (or grant probation)if she believes that the sentence recommended by the jury is excessive. (On the other hand, the judge also gets to decide, in multi-count cases, whether the sentences run concurrently or consecutively.)

Posted by: tmm | Nov 2, 2020 5:31:09 PM

In Kentucky, the jury makes a sentencing recommendation to the Judge (during the penalty phase, after the jury has already found guilt). The Judge then must then impose a sentence at or below the number of years recommended by the jury.

Posted by: James J. Gormley | Nov 2, 2020 9:15:24 PM

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