Jury Sentencing: Allow Juries to Recommend Treatment & Rehabilitation in Addition to Punishment

Virginia law claims to entrust juries with the power to sentence people who have been convicted after a trial by jury. But the law undercuts that notion of trust by depriving jurors of vital information and then severely limiting the jury’s sentencing options. Virginians are more in tune than they have ever been with the need to sentence people fairly and to give them a chance for rehabilitation following conviction. Virginia claims to have adopted a “truth in sentencing” regime in the 1990s. In practice, however, we routinely hide the truth from jurors. We need to change Virginia’s criminal code to give jurors the power to fashion fairer sentences.

Today, the Commonwealth remains one of six states in the country that still require jurors to fix a punishment for defendants they convict. Until 2020, Virginia was the only jurisdiction in the country that did not allow jurors to be instructed about the sentencing ranges at the outset of the case. It was only after they made a finding of guilt that jurors learned what possible sentence awaited the person they had just convicted. Last year, the General Assembly finally changed the law to permit jurors to know if, for instance, convicting the accused would require them to impose a five-year minimum sentence. While this change was a real step forward in jury reform, there are still serious problems relating to jury sentencing that the legislature should address.

The first problem is the limitation on what jurors are allowed to recommend when they fix a punishment. In some cases, jurors have spent days or weeks listening to evidence before sentencing occurs. At the sentencing hearing, they often hear significant mitigation evidence that helps them to better understand the history and circumstances of the person they’re about to sentence. For example, the accused may have a serious substance use disorder, which may have led them to steal. The accused may suffer from a mental illness that contributed to the offense (but does not reach Virginia’s very high bar for a mental illness defense).

Based on post-trial interviews with jurors, many are very sympathetic to these issues. Many want the criminal justice system to help those who stand convicted get the help they need. But when the time comes to impose a sentence, the court gives jurors exactly three options: (1) a jail or prison sentence, (2) a fine, or (3) both. Jurors are not permitted to recommend any kind of probation, treatment, rehabilitation, community service, or other alternatives to incarceration. Nor are the parties allowed to inform the jury about these options during sentencing, since the jury cannot impose them. Even worse, when jurors ask about the court’s ability to sentence someone to non-jail alternatives, the court’s answer is always some version of “you have to choose among the options provided to you.”

The most frustrating part about this process is that the court does have the power to suspend a sentence entirely in most cases. The court can put someone on probation, where they can avoid a sentence with good behavior and compliance with the court’s instructions. The court can also provide support and services, such as drug and alcohol treatment, mental health services, and sometimes employment or housing assistance and more. The court can take steps to ensure that probationers don’t pose a threat to others, using intensive supervision, sex offender supervision, or electronic and alcohol monitoring. The court has vast resources to supervise probationers without incarcerating them. But jurors aren’t allowed to hear about those resources or to recommend that they be used.

Even worse, once jurors are forced to choose between jail and a fine, judges often treat their sentences as if they were sacrosanct. Judges have the power, at the final sentencing hearing, to suspend some or all of any sentence the jury recommended (except in cases with mandatory minimums – then even the judge cannot exercise her discretion!). While a judge is not permitted to give more time than the jury did, the judge can reduce a sentence and order probation with whatever terms, conditions, and programs the judge deems appropriate. But most judges, reasoning that the jury is the purest representation of the will of the people, decline to reduce a jury’s sentence once it has fixed one. There is reason to change this informal practice – judges often have better perspective on what makes for a fair sentence than jurors do. But when the law denies jurors all the information the court gets for sentencing purposes, and then the court defers to the jury’s judgment, then the system has failed to produce a just sentence.

During the 2020 session HB 297 was authored by Justice Forward Virginia and proposed in the House of Delegates. It would have permitted a jury to recommend (1) a suspended sentence, (2) concurrent sentences (two sentences running at the same time), (3) probation in lieu of a jail sentence, (4) restitution payments to victims, (5) or mental health or substance abuse treatment in lieu of incarceration. This legislation would substantially increase fairness in jury sentencing and would create jury sentences worthy of the courts’ deference. While it was referred for study, it will be proposed again, and with the support and advocacy of Virginia residents has a chance to pass.

Our jurors are our peers and our neighbors. They can be trusted with the information currently kept from them, and they deserve it. Their judgment should be taken seriously, and they should be allowed to exercise it fully. Our system deserves as much.

Courtney Roberts and Andy Elders contributed to this article.