No More Jury Sentencing. General Assembly Reshapes Virginia’s Legal System.

By Brian Carlton

October 17, 2020

The more than 200-year-old jury practice will officially end next year.

UPDATE: Gov. Ralph Northam signed this bill into law on Thursday, Nov. 5. The law now takes effect next year.

RICHMOND- In Virginia last year, only 1.3% of felony cases went to a jury trial. Ninety percent of defendants opted to take a plea deal, rather than risk what comes what comes with the jury. Juries in the Commonwealth don’t just pass judgement. They also hand down sentences, which come with strict guidelines. Or at least they did. On Friday, the General Assembly changed that, putting Virginia in line with most of the country. 

In 48 states, there’s a simple structure: juries decide guilt or innocence and then a judge hands down the sentence. It’s set up that way because judges have authority to make adjustments. They can suspend part or all of the sentence, based on circumstances. Juries don’t have that authority in Virginia. They have to follow specific sentencing ranges. If the range says two to five years in prison, then that’s what they have to work with, even if the crime was an accident. No one tells them about alternatives to prison time like probation, drug treatment or community service. That’s why defendants often take whatever deal is offered. It’s also why prosecutors didn’t want to see the law change. 

“[They say] ‘no, let’s keep it the way it is, so I can force a plea deal on people,’ and most of the time it’s an unfair plea,” Sen. John Edwards (D-Roanoke City) said during the hearing. “Let the defense make the call on whether it’s a judge or jury sentencing.” 

Building a better system

Supporters of the bill in the House and Senate echoed that argument Friday, saying it was time to build a better legal system. 

“We are running rampant with plea deals,” said Del. Don Scott (D-Portsmouth). “Most plead out even when they know they didn’t do it. [This bill] will level the playing field for defendants against the overwhelming power of the state, who has all the resources at their disposal.” 

Scott, who works as an attorney, painted a picture of a legal system where innocent people still plead guilty to avoid the risk of a jury trial. Prosecutors know this and have deals ready to offer. 

“We are in a position where we can bring some justice to the state of Virginia,” Scott said, urging his fellow delegates to support SB5007

Kentucky is the only other state that has a system like Virginia.It’s reached a point where the National Association of Criminal Defense Lawyers even has a label for jury trials in the two areas. They call it “the trial penalty” or “the jury penalty.” Here in the Commonwealth, you hear some people in the legal field refer to a jury trial as “paying the jury penalty”. 

It’s something Del. Jeff Bourne (D-Richmond City) is tired of seeing. 

“Far too often, defendants from black and brown communities, defendants from poor communities, are railroaded and bullied by the system,” Bourne said. “[Bullied] by prosecutors who offer them what seems in the moment to be rational plea deals but we now know they are not.” 

Opponents question the cost

Most of the opposition throughout the last two months focused on how much a change like this would cost. Del. Barry Knight (R-Virginia Beach) raised concerns that if there are more jury trials, the state has to pay for more jurors. The same goes for bailiffs and other courtroom staff. And increased trials means a need for more judges, prosecutors and public defenders, he argued. If more people aren’t hired, then the court system would grind to a halt. Since nobody can say how much all that would cost, he suggested waiting until next year, letting the Crime Commission study it. 

 But by acknowledging there would likely be more jury trials, Knight’s fellow delegates pointed out he’s admitting there’s a problem in the system now. That’s been a point drilled home in both the House and Senate over the last two months, as even those opposed to the bill had to admit the “jury penalty” is a real thing. 

“It is disheartening whenever we’re talking about criminal justice reform, we always default and talk about cost,” said Del. Jennifer Carroll Foy (D-Prince William). “We can’t always do what is politically convenient, expedient or cheap. We have to do what is right. Justice delayed is justice denied.”

The second argument against the bill was one we’ve heard echoed over many that passed during this session. In the Senate, Republican Tommy Norment (R-James City) said the “bill has been contaminated by an unacceptable political process.” 

Norment’s argument was that the Democratic majority pushed through bills that needed more study. He claimed House members called their fellow lawmakers in the Senate, threatening to primary anyone who votes against SB5007. 

“If someone is threatening to primary people for voting against peoples’ constitutional rights, so be it,” Sen. Joe Morrissy (D-Richmond), the bill’s sponsor, said. “I might even help them”. 

What does it change? 

The bill, which now goes to the governor for his signature, includes a few changes. First, it makes sentencing a judge’s responsibility, with one exception. If a defendant specifically asks that a jury sentence him or her, that’s allowed. 

Also, to deal with the cost concerns, the bill doesn’t actually take effect until July 1, 2021. That gives the state, along with local cities and counties, eight months to decide what needs to happen to make this work.

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