Reinforcing a Constitutional Right

By Dick Hall-Sizemore

While there are several high-profile bills on police and criminal justice reforms making their way through the General Assembly, another, less-noticed bill, SB 5007 (Morrissey, D-Richmond), ending jury sentencing, has the potential to have as great an impact on the Commonwealth’s criminal justice system as any of the others.

Currently, in Virginia, if there is a jury trial in a criminal case, the jury determines the guilt of a defendant and, if it finds him guilty, makes a sentencing recommendation to the judge. The judge may impose a lower sentence than recommended by the jury, but not a higher one. It is unusual for a judge to impose a sentence other than the one recommended by the jury. SB 5007 would restrict the role of the jury to the question of guilt, with the judge determining the sentence, unless the defendant requested that the jury also determine the sentence.

This is not a radical idea. However, some Republicans tried to depict it as such, with Sen. Thomas Norment (R-James City County) declaring that it “stands the criminal justice system on its head.” The fact is that judges, rather than juries, in 44 other states and the federal judicial system determine the sentence after the jury finds a defendant guilty. The Commonwealth is one of only six states in the country that allows juries to determine sentences.

Nevertheless, the legislation would have a profound impact on the Commonwealth’s criminal justice system. In the words of one defense attorney, “This is the biggest reform that could happen in criminal law in Virginia…. If you want a more fair system, there is nothing close to this reform.”

To understand why this change seems to be such a big deal, one needs a little background on the realities of Virginia’s criminal justice system. Under law, the Commonwealth’s attorney can insist on a jury trial, even over the defendant’s objections. Juries in Virginia generally hand down much tougher sentences than do judges for the same offenses. The inability of juries to have access to the sentencing guidelines that judges use may be a major reason for this propensity to sentence higher. Also, juries do not have the flexibility that judges do. For example, they cannot suspend all or part of a sentence nor can they provide that sentences for multiple charges be served concurrently, rather than consecutively, all of which judges can do.

Defense attorneys are well aware of these differences and they so advise their clients. Because prosecutors can force a defendant to have a jury trial, they have the upper hand in negotiating a plea bargain. They can offer plea deals with fairly stiff sentences, thereby placing the defendant in the difficult position of accepting an offer with a relatively stiff sentence or taking his chances with a jury and getting a higher sentence if found guilty. Even a defendant who is actually innocent may find himself in this quandary if there is some evidence pointing to his guilt. SB 5007 would eliminate the threat of a jury sentence that a Commonwealth’s attorney now can use as leverage.

Partly because of the danger of submitting to a jury trial, the vast majority of criminal trials in Virginia are either bench trials adjudicated by a judge or plea deals negotiated by the prosecution and the defense and agreed to by the judge. It is estimated that only 1% to 2% of criminal trials are decided by a jury.

If the legislation were to result in more jury trials, there could be additional costs—additional judges, additional staff for clerks’ offices, more sheriffs’ deputies for court security, additional charges for court-appointed attorneys, and more juror per diem payments. However, because it is not feasible to project the extent to which the number of jury trials may increase, it is not feasible to estimate any potential additional costs. Furthermore, the bill’s proponents contend that the bill will not result in a significant increase in the number of jury trials, at least not in the long run. Rather, the system, they predict, will reach a new equilibrium, with Commonwealth’s attorneys offering plea deals that are more in line with sentencing guidelines. (The Daily Press has an excellent article providing more detail on the implications of the legislation, including the example of a defendant who turned down a plea deal offer of 15 years and took his chance with the jury, which ended up giving him 128 years and 1 day.)

My Soapbox

I like this legislation. At first I did not realize that Virginia was only one of a few states that used jury sentencing. I also did not appreciate all its implications. Each person accused of a crime has a constitutional right to a trial by a jury of his peers. He should not have to feel pressure to forfeit that right because the system is skewed in such a way that he may be severely penalized after choosing to exercise it.

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13 responses to “Reinforcing a Constitutional Right”

  1. LarrytheG Avatar

    Another very good post! thanks!

    I must plead ignorance on these issues.

    I always thought the defendant had a Constitutional right to decide if they would be tried by a Judge or Jury…

    Further – when I read of Judges using Sentencing Guidelines – I just assumed it was – all the time …so apparently they’re only doing this when the Jury is not?

    thanks again for the informative posts – and patience in dealing with questions.

  2. Steve Haner Avatar
    Steve Haner

    Technically, a judge in Virginia can set aside a jury’s sentence recommendation, as I recall, but it doesn’t happen often.

    I think this will indeed be a major change, producing different outcomes. Whether that is good or bad I will leave to others, but I would expect far fewer jury trials. More experienced legal minds need to advise how this interacts with all the other things coming out of this special session, especially the move back to a more active parole and more generous “good time” calculation. One piece of the puzzle means little until you assemble it with the other pieces.

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      I was also wondering about how the other proposed changes, if passed, would interact. I have learned over the years that the criminal justice system is a complex one. A change in one element will have rippling effects, some of them unexpected or unpredictable. It will take several years to discern the effects of whatever is enacted during this spasm of criminal justice reform.

  3. TooManyTaxes Avatar

    In 2002, SCOTUS held that the Sixth Amendment requires a jury to find the aggravating factors necessary for imposing the death penalty and not the judge. Ring v. Arizona, 536 U.S. 584 (2002).

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      HB 5007 maintains that provision.

  4. warrenhollowbooks Avatar

    Hmmm, well if we can’t trust Joe Morrissey to bring “equity” to our criminal justice system who can we trust? What with his discerning, discriminating legal mind always finding a way to “fight for you.”

    This is sarcasm- it being 2020 I thought I should add this disclaimer.

    1. sherlockj Avatar

      That can’t be the same Joe Morrissey who is a convicted pedophile who’s been arrested five times, disbarred after his law license was suspended twice, and indicted on federal charges of possession and distribution of child pornography.

      The other Joe Morrisey also plead guilty to a misdemeanor count of contributing to the delinquency of a minor, as well as spent a year in prison, with six months suspended, after being caught having a sexual relationship with a 17-year-old assistant who worked at his law firm.

      That Joe Morrisey would have no chance to be elected to the Senate of Virginia. If he was, the other Democrats in the Senate would never follow his lead on criminal justice matters.

      Same disclaimer.

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        Despite his tempermental outbursts, it is obvious that Morrissey has a good legal mind. Yes, he did plead guilty to contributing to the delinquency of a minor involving a 17-year old assistant in his office. For what he is worth, he did marry that young woman and they now have three children. Marriage and a few more years under his belt seemed to have matured Morrissey.

        He certainly has not had any problem getting elected. His constituents re-elected him to the House after his conviction. Then he bumped off a senior Democratic senator in a primary.

        My question is: Now that he has lost his law license (for the second time), how does he make a living?

  5. sherlockj Avatar

    Dick, you wrote:

    “Rather, the system, they predict, will reach a new equilibrium, with Commonwealth’s attorneys offering plea deals that are more in line with sentencing guidelines.”

    Are you suggesting that Commonwealth’s Attorneys currently offer defense attorneys plea deals that exceed sentencing guidelines if the defendant went to trail? And they accept them?

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      I can’t speak from any direct experience or research. The implication of the defense attorneys interviewed for the newspaper article is that the plea agreement offers are often higher than what could be expected. If they don’t exceed the guidelines, they are certainly in the higher end of the range recommended by the guidelines. They accept them because they know that, if the CA insists on a jury trial, the jury sentence is likely to be even higher.

  6. As a former prosecutor, I think this is a good law. Juries are all over the place with sentencing. There is really no way to read them. They might impose a 100 year sentence or an acquittal for the same case.
    Now, extend the power to judges in civil cases.

  7. Nancy_Naive Avatar

    The more stringently codified, the better.

    What would be ideal is the jury determines the “facts found” as well as the verdict, the judge applies the sentencing guidelines, and let the defendant seek relief from the sentence, within the guidelines, given mitigating circumstances to a sight unseen board.

    The problem with juries simply determining a verdict is that if, in the future, evidence or testimony is found to be prejudicial/false, then having the jury determine what facts led to the verdict would be important in upholding or overturning a verdict and ordering a new trial.

    For example, if the jury convicted largely based on “bullet alloy analysis” (something that has been shown to be overblown science), it would help to know that. Likewise, if the jury discarded testimony as false and convicted, then later the witness recants, who cares? It would certain save trouble.

    Of course, you might get fewer convictions if the jury is forced to say why…

  8. Nancy_Naive Avatar

    Oh, and on an entirely different subject, if a prosecutor is shown to have violated Brady in a capital murder case that is later overturned because of that violation, an attempted murder charge, or two, would go a long way to cleaning up some cesspools in the legal system. Not that any of the fine Commonwealth of Virginia prosecutors would ever withhold exculpatory evidence…

    Cops aren’t the only ones who can kill someone using illegal force and they shouldn’t be the only ones to face the consequences.

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