Mandatory Jury Sentencing in Virginia Ends July 1, 2021

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 rare in our criminal justice system. In 2016 and 2017, fewer than 3% of federal criminal cases were resolved by trial.[1] Virginia fares do 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. During the 2020 Special Session to address Policing and Criminal Justice Reform, the legislature passed SB 5007 (Criminal cases; sentencing reform, procedure for trial by jury, etc) which will end this practice when it goes into effect on July 1, 2021.

To understand why this change will be so impactful, 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 person can be forced to have a jury trial completely against his will. In Virginia under the old law, 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 sentences stands. Put all of this together, and the endpoint is that a prosecutor was able to decide whether the accused, if convicted, would be sentenced by a jury or by a judge. After July 1st, it will be the accused's decision when they are tried by a jury whether they will be sentences by the jury or by the 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. Historically, prosecutors have artfully applied charges and the threat of jury sentencing to coerce guilty pleas from defendants. Most defendants will not choose to have a jury hear their case when the jury has to give them five years, instead opting for a plea, but are more likely to go to trial when a judge could suspend their sentence entirely. 

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. So, in some 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. That is what the new legislation mandates. 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 will 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. This simple change is being called one of the most impactful criminal justice reforms in Virginia history. While there is still significant work to do, starting in July 2021, the system will be substantially more fair that it has been.

[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.