Virginia lawmakers have voted to change a 224-year-old jury sentencing law, with the hope of ensuring defendants can choose a jury trial without facing the likelihood of a stiffer punishment if convicted.
Currently, Virginia and Kentucky are the only two states that mandate if a defendant or prosecutor asks for a jury trial, the same jury must hand down the sentence.
The problem is, according to proponents, jury-recommended sentences in Virginia have historically been more severe than those decided by a judge alone. The centuries-old sentencing system has even been nicknamed “the jury penalty” by defense attorneys for its stiffer sentences.
“Jury sentencing tends to be a real lottery,” said Virginia State Sen. Scott Surovell, a Democrat whose district includes Fairfax, Prince William and Stafford counties.
“It tends to keep people from going to trial, because there’s a lot of risk that they may get a sentence that’s really out of whack, compared with what they’re charged with.”
Approximately 90% of criminal cases in Virginia end with a plea.
“There’s no question this is part of our systemic and structural racism that’s built into our criminal justice system,” Surovell told WTOP.
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If signed by Gov. Ralph Northam, SB5007 authored by Sen. Joe Morrissey, a Democrat, would transfer sentencing responsibilities to the judge unless defendants specifically request to be sentenced by the jury that convicted them. Juries would continue to pronounce sentences in death penalty cases.
Sentencing juries are not provided with sentencing guidelines that a judge receives, which offers insight into penalties typically received by defendants with similar criminal backgrounds.
“Jurors have no idea what a normal sentence is,” Morrissey said. “That’s why it is important to have a judge sentencing who has the guidelines and can put it into context.”
For instance, a judge would have the latitude to suspend a portion of the time behind bars, after considering a defendant’s record, background and willingness to comply with conditions.
The presentence report that judges see provides details of how a crime was committed. Sentencing juries are not privy to that information, which can result in a longer sentence.
“In Virginia, robbery is five (years) to life — no matter what the robbery is,” Surovell said. “So, the jury is just told, ‘You have to sentence me to at least five years, all the way up to life,’ regardless of how serious the robbery was.”
Although judges in Virginia are allowed to reduce sentences affixed by juries, it seldom happens.
“Eighty or 90% of judges never deviate from what the jury recommends, because they see it as being the community’s judgment as to what a sentence ought to be,” Surovell said.
In its 2018 annual report, the Virginia Criminal Sentencing Commission found sentences handed down by a judge were within sentencing guidelines 82% of the time, but only 39% were within guidelines when a jury affixed the penalty. Jury sentences were more likely to fall above the guidelines than within them.
According to the commission, sentences pronounced by juries were, on average, four years longer than those handed down by the presiding judge.
Surovell said under the current system, “a lot of people end up pleading to offenses they probably should go to trial on, and they might actually win,” rather than risk a jury sentencing.
The Virginia Association of Commonwealth’s Attorneys had warned changing the law would lead to an eightfold increase in jury trials, requiring funding for more prosecutors, or risk an increase in plea deals that aren’t commensurate to the seriousness of the crime or the harm inflicted on the victim.
Northam has not said publicly whether he will sign the bill into law, but Surovell said discussions with the governor’s office helped move it through the state General Assembly, and he is confident Northam will sign it.
“The lives of Virginians that are affected by this is immeasurable,” said Morrissey. “It’s not just defendants who are sentenced to an excessive sentence. It’s also their families.”
The Associated Press contributed to this report.
