Reforming Jury Sentencing – Reducing Virginia’s Trial Penalty

Trial by jury is one of the most fundamental rights guaranteed to Virginians in our founding documents. Thomas Jefferson called trial by jury “the only anchor ever yet imagined by man, by which government can be held to the principles of its constitution.” Sadly, jury trials are an endangered species in our criminal justice system. In 2016 and 2017, fewer than 3% of federal criminal cases were resolved by trial.[1] Virginia fares no better – in 2019, only 1.3 percent of criminal convictions resulted from jury trials, with 90% choosing to plead guilty and another 8.7% choosing a trial by judge.[2] A number of factors contribute to the decline of the jury trial, but in Virginia, none looms larger than the prosecutor’s ability to force a defendant into a jury trial, which means a jury sentence, if convicted. A very simple change in the law – giving the defendant the right to choose whether a jury will sentence him if convicted – could begin to rejuvenate the Sixth Amendment and allow many more defendants the ability to have a jury hear their case.

To understand why this simple reform could have so drastic an effect, we need a quick primer on how jury trials work in Virginia. Either the accused, the prosecution, or the judge can elect to have a jury hear a criminal case. This means that an accused can be forced to have a jury trial completely against his will. In Virginia, if the jury convicts someone, the jury also fixes a punishment, after a separate sentencing hearing is held. The jury announces their sentence, and then another hearing is held later, without the jury. At that hearing, the judge can, if she chooses, reduce the jury’s sentence, but cannot increase it. In reality, judges rarely reduce sentences, so the jury sentence stands. Put all of this together, and the endpoint is that a prosecutor can decide whether the accused, if convicted, will be sentenced by a jury or by a judge.

Why does it matter that a jury is sentencing, rather than a judge? Many factors can bias jury sentencing in favor of a longer sentence. The most direct of these factors is that sentencing ranges often require juries to give a minimum sentence – five years for any robbery (including one where no weapon or injury is involved), five years for selling drugs or possessing drugs with the intent to sell them (even very small amounts), twenty years for any assault resulting in a permanent injury (including a scar). Additionally, jurors are not permitted to know about or recommend alternatives to incarceration, such as probation, drug or mental health treatment, or community service. NACDL has a name for the web of disincentives for defendants to enjoy their trial rights – the Trial Penalty. Jury sentencing creates just such a penalty in these kinds of cases, imposing a five-year prison sentence as the penalty for having a jury decide your case.

Prosecutors are not ignorant of the effect these incentives have on the accused. On one hand, they use artfully applied charges and the threat of jury sentencing to coerce guilty pleas from defendants.  By adding charges where a jury would be required to give at least five years at sentencing, a prosecutor protects against having his case heard by a jury. Most defendants will not choose to have a jury hear their case when the jury has to give them five years, but a judge could suspend their sentence entirely. 

Alternatively, prosecutors can further twist the screws by demanding a jury on charges with a five-year minimum. The prosecutor then follows up that jury demand with a plea offer involving a felony conviction and a lighter sentence.  The accused is now forced to accept this plea offer or risk a jury doubling or tripling his sentence, because the jury literally has no other option. And that’s a huge part of how you get jury trial rates down to 1.3% in Virginia.

So, what’s the solution to this problem? Some have advocated for ending jury sentencing entirely, but juries are often the only thing standing between an accused and a pro-incarceration judge. In cases involving drug possession and property crimes, many juries give more thoughtful and lenient sentences than a judge would. Many judges are former prosecutors themselves, many of whom worked in an era where the solution to every problem was a longer prison sentence. In many cases, the jury is a lifeline for an accused, and a reality check for an out-of-touch judge.

Instead, the answer to this problem is giving the accused the option of whether to be sentenced by the judge or the jury, in cases where the jury decides guilt. This was a reform proposed in the Virginia Senate as SB 811 during the 2020 session. This effort passed in the Senate, but was killed in the House Courts of Justice Committee. We anticipate that the reform will be back on the table for the upcoming special session and, if necessary, in 2021. De-linking the jury verdict from arbitrary sentencing requirements is a common-sense reform that permits the accused to enjoy his jury trial right without facing a harsher sentence as a result. This would also eliminate the prosecutor’s power to leverage a plea by threatening a jury trial and the penalties that come with it under the current law. Whether this change will increase or decrease conviction rates depends on the strength of the Commonwealth’s evidence, which is exactly how the system is supposed to work.

The system as it currently stands punishes the defendant who exercises his constitutional right to a trial by an impartial jury. The time has come to make this small change in Virginia law to revitalize the right to a jury trial. 

[1] THE TRIAL PENALTY: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, National Association of Criminal Defense Lawyers, 2018.

[2] Virginia Criminal Sentencing Commission, Annual Report, 2019.

Courtney Roberts and Andy Elders contributed to this article.