A momentous change in Virginia criminal procedure almost went unnoticed at first.
An end to jury sentencing for criminal defendants won final approval from the House of Delegates on a Friday evening as the General Assembly brought its pandemic-driven special session to a close.
The bill is “the most important criminal justice reform Virginia has ever seen,” said Richmond criminal attorney Steven Benjamin, who serves as counsel to the Senate Judiciary Committee.
“It was a huge, huge step. I could not be happier,” said Brad Haywood, executive director of the advocacy group Justice Forward. He said the elimination of jury sentencing was at the top of the group’s list of priorities.
“This is a revolutionary change in the way we do sentencing,” said lawyer and Del. Don L. Scott Jr., D-Portsmouth, as he urged House support on Oct. 16.
“It will level the playing field for defendants against the overpowering power of the state, who has all of the resources at their disposal,” Scott said.
Accepting congratulations from reformers after the final vote was Sen. Joe Morrissey, D-Richmond, sponsor of the proposal to give a defendant convicted by a jury the option of skipping a jury sentence recommendation. The legislation marks a “fundamental change in Virginia,” Benjamin said.
Series of amendments
Senate Bill 5007 amends Va. Code § 19.2-264.3 and other criminal procedure statutes to provide for jury sentencing in non-capital cases only when the accused has requested that the jury ascertain punishment. In the absence of a defendant’s request, “deliberations of the jury shall be confined to a determination of the guilt or innocence of the accused,” reads the new language for § 19.2-295.
Since a defendant would almost never request a jury sentence, Benjamin referred to the amendments as the “abolition” of jury sentencing in Virginia.
The bill takes effect July 1, 2021.
Morrissey and other proponents say the change will eliminate the “jury penalty” for criminal defendants. Criminal defense attorneys often complain that prosecutors hold the upper hand in plea negotiations. A defendant may feel wrongly accused or completely innocent, but opting for a jury trial brings a high risk of a sentence far in excess of the sentencing guidelines.
Morrissey said prosecutors routinely make plea offers with punishment well above the guidelines, knowing they can opt for a jury if the deal is rejected and expose the accused to even greater penalties. If the accused is convicted, the jury sentence almost always becomes the final sentence.
“While judges have the power to suspend the jury sentence, few are willing to do so. And I speak from 40 years of experience,” Benjamin said.
The result is that jury trials become a rarity, advocates said.
“Only 1.3% of criminal cases actually go to a jury trial. That’s abysmal,” Scott said, citing 2019 figures from the Virginia State Sentencing Commission.
“We know prosecutors use the jury as a penalty to force folks to take plea agreements,” Scott continued. “This is a very difficult decision that folks have to make even when they know they’re innocent.”
The jury penalty puts a “chilling effect” on a defendant’s constitutional right to have a jury trial, Morrissey contended before the Senate Oct. 16.
“Let the person who is best able to determine what the appropriate sentence is, the judge – who has sentencing guidelines, who can listen to the victim impact statement – make the final decision,” Morrissey said, describing his bill.
The change next year will eliminate prosecutors’ jury leverage, Morrissey explained in an Oct. 20 interview. Without jury sentencing, more defendants will start taking the jury option, Morrissey said. Even if a jury convicts, the judge will sentence within the guidelines.
“Once that happens twice to the prosecutor, what does the prosecutor start doing? He starts making plea offers that are commensurate with the sentencing guidelines. It’s that simple,” Morrissey said.
The Virginia Association of Commonwealth’s Attorneys opposed the bill, warning that an increase in jury trials would clog the system.
“The opposition was really a concern for the ability of the criminal justice system as it is currently staffed to handle what is likely to be a large increase in the number of jury trials,” said VACA president Jeffrey Haislip, the commonwealth’s attorney for Fluvanna County.
“Jury trials take a lot more time and preparation to put on,” he added, speaking in an Oct. 21 interview.
At a House of Delegates session Oct. 16, Del. Barry D. Knight, R-Virginia Beach, urged colleagues to wait for better estimates of the fiscal impact.
“These costs could be between $50 and $200 million. Nobody knows,” Knight said. “We don’t have that kind of money in the budget.”
Republican lawmakers raised other issues. It’s a common practice for prosecutors to consult with crime victims on the jury sentence issue, according to Del. Rob Bell, R-Charlottesville.
“That’s been a rule in Virginia for 224 years,” he said Oct. 20. Bell also said the voice of the community in sentencing will be lost.
“This bill takes both of those away,” he said. “We like the law the way it is,” Bell said.
The rhetoric grew more heated as the session ended. “Felons over police. Criminals over victims. Lawlessness over safety,” the House GOP caucus tweeted after the final Oct. 16 vote.
Advocates discounted the objections. “It’s laughable to suggest the bill will shut down the criminal justice system,” Haywood said.
Morrissey said the cost numbers cited by Knight were baseless. “He has no empirical evidence to support that whatsoever.”
Morrissey said prosecutors were upset because they are losing a substantial advantage.
“They have mandatory minimum sentences. They have sentence enhancements. They have the jury penalty…. They can overcharge. And now, one of their bullying tools, the jury penalty, has been taken out of their quiver. And they’re crying,” Morrissey said.
All agreed the change will impact Virginia criminal practice.
“It is a huge development,” Benjamin said. “There is no more important criminal justice reform than that, because the requirement that 12 citizen jurors unanimously agree that guilt has been proven … is the most essential protection for the falsely accused.
“And, until now, it has been an impaired protection,” Benjamin continued.
“Is this a big deal? It’s the biggest deal there is. Is it radical? No. All it does is bring us in line with 48 other states. But it is a fundamental change in Virginia, because, since the very beginning, our system has had this flaw. But it’s now been corrected,” Benjamin said.