Virginia lawmakers vote to reform 224-year-old jury sentencing law

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. If signed by the governor, 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.

“We don’t have that much money in the budget,” warned Del. Barry Knight, R-Virginia Beach, urging lawmakers to delay the bill’s passage until a more complete study of the potential costs.

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.”

“These plea offers would be dictated by the availability of resources rather than by justice and public safety.”

Some Democrats in the House shared the concerns about the potential expense and on Friday — the last day of the special session — its passage appeared uncertain. But ultimately, they agreed to the measure with the addition of an enactment clause that will delay its effective date until July 2021, giving lawmakers time to make budget adjustments if necessary.

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.

They said a more likely outcome was that prosecutors would have to begin issuing more appealing plea offers to defendants — not because they didn’t have the resources to try the case, but because they were commensurate with what a defendant could expect from a judge.

“It’s my prediction that once we have a system that has some actual balance to it, where both sides have a decent amount of leverage, they’re going to offer some fair dispositions and we’ll see just as many cases going to trial every day,” said Sen. Scott Surovell, D-Fairfax. “Right now we have a system where one side has a sledgehammer and the other side has some talking points.”