Criminal Justice Reform in Virginia: Leaving the “Ice Age” by Abolishing the Jury Penalty

 

Authored by: Allie Frasca, Staff Editor

 

Since flipping the Virginia legislature in 2019 from a republican majority to a democratic one, Virginia has seen significant criminal justice reform.^[1] Prior to these reforms, Virginia maintained some of the strictest criminal procedure laws in the country, such as a 224-year-old jury sentencing statute, mandatory minimums, and the death penalty.^[2] Brad Haywood, Chief Public Defender in Arlington, expressed that these new reforms will bring us “out of the ice age” and “into the stone age.”^[3] In other words, while these justice reforms are a step in the right direction, Virginia is simply playing catch up with our more progressive counterparts.^[4]

Jury sentencing is one of the most crucial, yet wildly late, reforms to Virginia’s criminal justice system. While this change may not seem particularly revolutionizing to the average citizen the way that some other essential reforms do (i.e., marijuana decriminalization and death penalty abolition), jury sentencing reform will significantly change Virginia’s criminal justice system for the better.

When I first learned about how defendants in Virginia were sentenced prior to this reform, I could not believe it. Ramin Fatehi, Deputy Commonwealth’s Attorney for Norfolk and supporter of the jury sentencing reform, summed up those feelings pretty well with his statement that “‘the average Virginian…. would be surprised and probably upset if they understood just how unfair in practice our jury system has been.” ^[5] Virginia was one of only two states that still used jury sentencing, a practice that contributes to mass incarceration, longer sentencing, and trial deterrence. ^[6] For bench trials, judges are knowledgeable and experienced at sentencing defendants, and they also receive sentencing guidelines to assist in making a fair decision based on the crime, criminal record, and a plethora of other factors.^[7] More importantly, judges can suspend all of the mandatory minimums, cutting down say a five-year minimum prison sentence to only probation. ^[8] In short, if the judge does the sentencing, they can look at the circumstances and decide to suspend any and all prison time. On the other hand, if there was a jury trial under the old law, the jury must do the sentencing. Juries do not know what a fair sentence would be, receive no sentencing guidelines for assistance in making that determination, must give at least the mandatory minimum (leading to the term “jury penalty”), and are known to give harsher sentences.^[9] In 2018 alone, jury sentences exceeded the sentencing guidelines nearly 50% of the time.^[10] If a defendant wanted a jury trial, they risked a significantly longer sentence if found guilty.

The effect of jury sentencing often deterred defendants from going to trial, instead encouraging them to take plea bargains (which could still exceed a likely sentence by a judge).^[11] The old law not only required mandatory minimums, but juries were not permitted to know about or recommend any alternative to incarceration, such as probation, treatment, or community service.^[12] Prosecutors were aware of these facts and would add on charges and the threat of a jury trial to coerce guilty pleas.^[13] In 2019, only 1.2% of felony sentences in Virginia were from a jury because all other defendants opted to take a plea bargain.^[14] The jury penalty caused the right to a jury trial in Virginia to more or less become a myth.^[15] Fortunately, the new law allows defendants to be sentenced by a judge regardless of whether there is a bench trial or a jury trial, removing a severe barrier to exercising the right to a jury trial.^[16] Now that this legislation has passed, Virginia will join almost all other states in abolishing the “Jury Penalty,” leaving Kentucky as the last remaining state with mandatory jury sentencing.^[17]

Sentencing reform will possibly lead to more trials in Virginia, as the prosecution will no longer be able to use the threat of a jury trial and the penalties that come with it to negotiate a plea deal.^[18] Critics worry about that increase and the financial strain it may put on the criminal justice system. In contrast, supporters argue trial numbers might not increase, as it will force the prosecution to offer more reasonable plea deals in order to keep the trial numbers manageable.^[19]  Additionally, even if the trial numbers do increase, this reform will still save the state significant revenue by cutting down on the number of inmates and the length of time those inmates are in the system. ^[20]

Regardless of how much money it saves or costs, jury sentencing reform is a needed implementation. The jury penalty was a severe barrier that turned a constitutional right to a jury trial into a threat, deterring far too many defendants from utilizing it. If this reform ends up increasing costs and trials, so be it. That is the price to pay to ensure fair trials and fair sentencing for the people of Virginia.

^[1]Ned Oliver, Every criminal justice reform that passed in Virginia after George Floyd’s death, Va. Mercury (Nov. 11, 2020), https://www.virginiamercury.com/2020/11/11/every-criminal-justice-reform-that-passed-in-virginia-after-george-floyds-death; Molly Ball, Democrats Seize Control of Historically Red Virginia’s State Legislature, TIME Nov. 6(2019), https://time.com/5719513/democrats-flip-virginia-state-legislature/.

^[2] Ned Oliver, Virginia Democrats continue push for criminal justice reform as General Assembly Convenes, Va. Mercury (Jan. 13, 2021), https://www.virginiamercury.com/2021/01/13/virginia-democrats-continue-push-for-criminal-justice-reform-as-general-assembly-convenes/.

^[3] Id.

^[4] Id.

^[5] Jenny Gathright, Jury Sentencing Reform Brings Virginia ‘Out Of The Ice Age,’ Proponents Say, dcist  (Dec. 17 2020), https://dcist.com/story/20/12/17/jury-sentencing-reform-brings-virginia-out-ice-age/.

^[6] Id.

^[7]  Id.; Ned Oliver, Every criminal justice reform that passed in Virginia after George Floyd’s death, Va. Mercury (Nov. 11, 2020), https://www.virginiamercury.com/2020/11/11/every-criminal-justice-reform-that-passed-in-virginia-after-george-floyds-death.

^[8] Ned Oliver, Virginia lawmakers vote to reform 224-year-old jury sentencing law, Va. Mercury (Oct. 17, 2020), https://www.virginiamercury.com/2020/10/17/a-revolutionary-change-va-lawmakers-vote-to-reform-224-year-old-jury-sentencing-law/.

^[9] Mandatory Jury Sentencing in Virginia Ends July 1, 2021, Justice Forward Va. (July 17 2020) https://justiceforwardva.com/jury-sentencing.

^[10] Denise Lavoie, After 200 years, Virginia to let judges decide sentences, ABC News (Oct. 24, 2020) https://abcnews.go.com/US/wireStory/200-years-virginia-judges-decide-sentences-73802890#:~:text=Only%20six%20states%20%E2%80%94%20Virginia%2C%20Arkansas,requests%20sentencing%20by%20a%20jury.

^[11] Denise Lavoie, After 200 years, Virginia to let judges decide sentences, ABC News (Oct. 24, 2020) https://abcnews.go.com/US/wireStory/200-years-virginia-judges-decide-sentences-73802890#:~:text=Only%20six%20states%20%E2%80%94%20Virginia%2C%20Arkansas,requests%20sentencing%20by%20a%20jury.

^[12] Mandatory Jury Sentencing in Virginia Ends July 1, 2021, Justice Forward Va. (July 17 2020) https://justiceforwardva.com/jury-sentencing.

^[13] Id.

^[14]Jenny Gathright, Jury Sentencing Reform Brings Virginia ‘Out Of The Ice Age,’ Proponents Say, dcist  (Dec. 17 2020), https://dcist.com/story/20/12/17/jury-sentencing-reform-brings-virginia-out-ice-age/.

^[15] Id.

^[16] Id.

^[17] Id.

^[18] Mandatory Jury Sentencing in Virginia Ends July 1, 2021, Justice Forward Va. (July 17 2020) https://justiceforwardva.com/jury-sentencing.

^[19] Lavoie, supra note 11.

^[20] Id.