As the video above demonstrates, jury trials in Virginia are extremely rare (make sure to turn on the captions). In fiscal year 2017, a staggering 91% of felony sentences were the result of guilty pleas, 8% were convictions after bench trials, and 1% were the result of convictions after jury trials. So what gives? Aren't jury trials supposed to be important? The founders evidently thought so since they put it in the Bill of Rights. The reason that jury trials have nearly gone extinct is simple. Jury sentencing. Virginia is one of the only states in the country with a jury sentencing system. Only 5 other states - Arkansas, Kentucky, Missouri, Oklahoma, and Texas - currently use jury sentencing in any form for noncapital felonies. Only Virginia and Kentucky employ a mandatory jury sentencing scheme.
So what's the big deal with jury sentencing? I'm glad you asked. Jury sentences are far more unpredictable than judge sentences. To the extent that there is any predictability, they are predictably harsh. In fiscal year 2016, 48% of jury sentences were above the high end of the guidelines compared to only 9.1% of judge sentences. In 2017, 46% of jury sentences were above the guidelines compared to only 8.6% of judge sentences. In other words, defendants who had a jury trial and lost were about 5 times more likely to be sentenced above their sentencing guidelines compared to defendants who had bench trials. And not only do juries sentence over guidelines, they smash sentences over guidelines like Aaron Judge smashes 500 foot moonshots over fences. The median upper end departure in FY2017 was 54 months.
Why are jury sentences so arbitrary and harsh? Simple. Jurors have zero experience with sentencing and we give them zero guidance. By law, juries don't get sentencing guidelines. That's right. The same sentencing guidelines that are required in all felony cases in Virginia and that are routinely relied on by judges don't go to juries. Our system is to send 12 amateurs into a room and let them flail around blindly. It's a recipe for insane results and that's what we get.
It wouldn't be hard to increase the number of jury trials. If any of the following, jury trials would increase immediately:
1. Get rid of jury sentencing like almost every other state.
2. Give guidelines to juries.
3. Have real judicial oversight of jury sentencing. In theory, judges have the power to reduce jury sentences but it rarely happens. In 86% of jury trials in FY2017, the judge didn't modify the jury sentence.
If it's that simple then why don't we do something? Here's the honest truth. Most of the players in the system know jury sentencing is nuts, but they like it. Jury sentencing promotes guilty pleas. Prosecutors get to close cases easily. Defense attorneys get to collect fees with less work. Judges get to finish their dockets earlier. Legislators get to save money. We need to look in the mirror and decide if that's what we want to be about. I'm about to go full Sam the Eagle on you. Juries set America apart. They're an important part of living in a democracy. It's not healthy to democracy when the criminal justice system becomes 100% insider baseball. For democracy to work right, there has to be transparency. And there is no greater transparency in the justice system than jury trials.