A bill to revamp Virginia’s jury sentencing system has passed the General Assembly and now awaits a decision by the governor on whether to sign it into law.
Those on both sides of the issue say the change — which would largely take criminal sentencing decisions out of juries’ hands — would mark one of the state’s biggest criminal justice reforms in decades.
Juries have been involved in sentencing in Virginia for hundreds of years. The bill, sponsored by Sen. Joseph Morrissey, D-Richmond, would change that, allowing defendants convicted at jury trials the option of being sentenced by judges instead.
Proponents say that will end Virginia’s “jury penalty” — the stiffer sentences that typically result when defendants exercise their constitutional right to a jury trial.
“This is a revolutionary change in the way that we do sentencing,” Del. Don L. Scott, D-Portsmouth, said on the House floor last week, saying the legislation would “level the playing field for defendants against the overpowering power of the state.”
Del. Jeffrey Bourne, D-Richmond, said the bill is among the most important of this legislative session, saying it gives defendants “a way to avail themselves of their constitutional rights.”
“For too often, defendants from Black and brown communities are often railroaded and bullied by the system by prosecutors,” he said. “What is the cost of not enacting this law? The cost is more lives behind bars.”
But not everyone agrees the change is a good one.
“I think it’s a horrific bill,” said Jason Miyares, R-Virginia Beach, a former prosecutor and member of the House Courts of Justice Committee.
“The same jury that you’re entrusting to decide your guilt or innocence, why don’t you trust that same jury to decide your sentence?” he asked. “I think it’s a fair question. I would love to hear an answer … I think there are too many people in Richmond, that are completely forgetting victims.”
In 44 states and in federal court, defendants who are tried and convicted by juries are sentenced by judges at later hearings. But in Virginia and a few other states, the same jury that decides guilt or innocence then goes into an immediate sentencing hearing.
Though juries are more likely than judges to acquit defendants — given that only one juror can block a conviction — they tend to hand down stiffer punishments on the guilty.
The change to judge sentencing, proponents say, will make jury trials less risky, causing prosecutors to offer much fairer plea deals rather than holding the jury trial out over a defendant’s head as a threat.
Unlike judges, juries in Virginia don’t get discretionary state sentencing guidelines and don’t have the power to suspend time or run sentences together. And though judges have the power to reduce jury sentences later, they hardly ever do. A state report says they intervene on a jury’s sentence only 8 percent of the time.
But cost concerns with the change — that it could lead to lots more jury trials across the state without enough money to pay for it — had appeared to derail the bill two weeks ago.
Lawmakers at a House Appropriations Committee hearing said at the time that the bill could cost well into the hundreds of millions of dollars a year statewide for such things as new prosecutors, public defenders, judges, bailiffs and jurors.
The committee advanced the bill, but only after adding a “re-enactment clause” that meant the legislation would have to start the entire approval process again at the January session. But a conference committee between the two legislative chambers in recent weeks got the bill back on track.
The committee removed the re-enactment clause, and instead delayed implementation until July 1.
That version of the bill passed 22-16 in the Senate and 55-43 in the House of Delegates last week on a party-line vote, with Democrats in favor and nearly all Republicans opposed.
Gov. Ralph Northam now must decide whether to sign the legislation into law, with the Democrat having been largely in favor of criminal justice reform measures.
The House Appropriations Committee chairman, Del. Luke Torian, D-Dumfries, had voted for the re-enactment clause two weeks ago because of the uncertainty about costs. He said at the time that lawmakers should lawmakers should await ongoing studies on the impact of the proposal.
But he changed his mind, saying Friday that some money intended for another unsuccessful bill can be used for this one.
“I have been in contact with the governor … and he has pledged continual support, in an effort to make sure that folks who are being served by our judicial system get the kind of service that they are deserving,” Torian said.
Del. Mike Mullin, D-Newport News, a Hampton prosecutor, voted against the bill when it went through the House Courts of Justice Committee, citing the potential for costs and delays in jury trials. But he ended up voting for the legislation Friday, saying it appears lawmakers will have the willingness to pay for the increased costs.
“This will be revolutionary when it happens,” Mullin said. “People should be allowed to exercise their constitutional right to a jury whenever they so wish, and there should never be a penalty to that.”
Opponents, however, contend the change will take power out of citizens’ hands, and tilt the state’s jury trial system in favor of defendants.
Harvey Bryant, the former longtime commonwealth’s attorney in Virginia Beach, said jury sentencing generally results in far higher sentences for a reason.
Jurors, he said, “are more concerned with public safety, with street safety, with neighborhood safety, and they think that this (crime) could happen to me or somebody I know or love.”
“Judges, God bless them, they see this stuff day after day after day after day, and pretty soon, one burglary, one robbery, it all sort of runs together,” Bryant said. “They lose a sense of how the public feels about this stuff.”
Opponents also say the change will lead to many more jury trials — leading to significant trial delays across the state — and that the increased costs might be too much for the system to bear.
Jeff Haislip, the president of the Virginia Association of Commonwealth’s Attorneys and the top prosecutor in Fluvanna County, said the association was strongly opposed to the change for that reason.
“We’ve got a we’ve got a system that’s already operating on budgets that are close to the bottom,” he said. “And if our calculations and beliefs are true, we’re going to be seeing a manifold increase in the number of jury trials.”
Because of COVID, he said, trials are already backed up severely.
“It’s really an unfortunate time in a special session to push something of this magnitude through,” he said. “It’s a very monumental change to the way we do criminal justice in Virginia — probably the biggest change in a quarter century — and it was in a special session where we couldn’t have in person meetings.”
Haislip said he understands the goals and concerns of those who proposed it. “I just think there were some things that could have been done incrementally, that would have made some major changes” that would not be “so disruptive,” he said.
But Morrissey, the bill’s sponsor, disagreed that the change would lead to a need for many more judges, prosecutors, defense attorneys and clerks.
Instead, he said, plea agreements will quickly become more fair, with the jury trial seen as a right rather than a threat. He predicts a reduction in prison sentences that he contends will actually save the state money in the long term.
“What we will have is a system that is fair,” Morrissey said on the Senate floor Friday. “We will no longer chill people’s constitutional rights to a jury trial. That’s all this bill does. … The only people that really object to this are the Virginia Association of Commonwealth Attorneys. You know why? Because they have had the upper hand for the last 200 years.”
“I’m feeling so sorry for them,” he said sarcastically. “That finally we get a system where the jury can decide guilt or innocence, and the judge then can impose an appropriate sentence. I feel no pain. I feel no sorrow for those commonwealth’s attorneys.”
Peter Dujardin, 757-247-4749, pdujardin@dailypress.com
