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Say Sayonara To Jury Sentencing. You're Welcome.


If you watch the video, make sure to turn on closed captioning

If you’re a follower of the W&K blog, then you know that we’ve been pounding the drum for a long time to get rid of jury sentencing. Well, it turns out that we’ve got fans in high places because today the Virginia Senate voted 22-18 to give criminal defendants the right to be sentenced by a judge after jury trials. Now it goes off to the House of Delegates with a very real chance of being the new law of the land in 2021.

In the Virginian-Pilot article, Senator Joe Morrissey, the chief patron of the new law, called it “the most significant piece of criminal justice legislation in the last decade.” Now we all know that politicians are inclined to hyperbole, but I’m here to tell you that in this case, if anything, he’s underselling it. It’s a true game changer for the folks like us who live in the trenches of criminal courts.

So why is jury sentencing such a big deal you ask? We’ve broken it down before in some of our other posts here, here, and here. We've also covered it on our podcast. The simple answer is that jury sentences are way harsher and way more unpredictable than judge sentences. The numbers show that defendants who have a jury trial and lose are about 5 times more likely to be sentenced above state sentencing guidelines recommendations compared to defendants who lose after bench trials. And not only do juries sentence over guidelines, they throw down tomahawk posterizing sentencing dunks. Juries on average went over the sentencing guidelines by well over 4 freaking years.

Another little mentioned swirly turd on top of harsh jury sentences is that prosecutors in Virginia can demand jury trials themselves. And with all the leverage that harsh jury sentencing gives them, prosecutors can shut down most cases in a heartbeat by demanding a jury trial.

Prosecutors can also inexplicably transform crimes that carry no statutory mandatory minimum into mandatory sentence crimes by simply asking for jury trials. For instance, aggravated malicious wounding carries no mandatory minimum sentence. But a prosecutor can demand a jury trial, and voila like magic, the jury must recommend a minimum sentence of 20 years. Same goes for many other non-mandatory minimum crimes like possession with intent to distribute a schedule I or II, malicious wounding, and robbery which magically transform into 5 year mandatory minimum crimes when the prosecution demands a jury trial.

So Virginia’s current jury sentencing system is a shit show wrapped in a clusterfuck with a dash of clown fiesta. The result is that criminal jury trials barely exist in Virginia. Only about 1% of felony cases are resolved by jury trial. And even that number is deceptively inflated because it doesn’t count the many felony cases that are resolved by reductions to misdemeanors. The most aggressive, experienced, and seasoned criminal defense attorneys in Virginia might handle 1 or 2 jury trials a year at most. And those are the rare ones. I know plenty of defense attorneys who have never handled a jury trial. This is a truly broken system.

The Virginian-Pilot story tells you that Virginia is one of only 6 states in the country with a jury sentencing scheme. (Arkansas, Kentucky, Missouri, Oklahoma, and Texas are the others). But what it doesn’t tell you is that only Virginia and Kentucky employ a mandatory jury sentencing scheme. We are truly bringing up the rear of the criminal justice wagon train on this one. If you’re one of only two states doing something and the other one is Kentucky, you probably need to take a long hard look in the mirror because you're not going to like what you see.

This is common sense legislation that brings Virginia in line with the entire rest of the country’s state courts and federal courts. It’s an absolute no brainer. But according to the Pilot article, not everyone is sold. Senate Minority Leader Tommy Norment opposes the bill saying “I have found that juries are pretty reasonable,” and as a defense attorney, he’s “never been confronted with situation where I felt a prosecutor was attempting to intimidate or leverage my client into a jury trial.”

Woooooh weeee. Don’t miss the hilarious Tommy Norment. He will be performing at the General Assembly all week.