CrimLaw

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Virginia's Attorney General has stated that he thinks judges should have to justify their actions if they lessen a sentence reccomended by the jury.

Considering the general inequities of jury sentencing in Virginia, I think that would be interesting. In general, Defendants in Virginia are severely punished when they take a jury trial (unless of course they are found not guilty). Once the sentencing phase has begun, jurors are not provided with the sentencing recommendations or background investigation that judges receive. They cannot suspend time¹, or send a Defendant to a rehab program or take a case under advisement. As well, jurors are neither versed in the law nor exposed often to its enforcement, thus when the Defendant's record is read - in high dudgeon, by a prosecutor who sees far worse every day - they are shocked². Consequently, juries strongly tend toward higher sentences.

How, you ask, does this not run afoul of the right of a jury trial as guaranteed in both the federal and Virginia constitutions? Well, the jury doesn't get the last word. The judge actually has the ability to suspend all or part of the jury's sentence. As I remember it - and it has been some time since I researched the matter - the Virginia Courts Appellate have actually interpreted this as making the judge the sentencer. And of course, the judge has all the resources available at the sentencing hearing which he would have at any sentencing hearing.

Despite all of this a judge (at least where I practice) will almost never choose the sentencing guidelines over the sentence which has been handed down by the jury. The attitude seems to be that you took your chances now you're stuck with the outcome, even if it is substantially harsher; some of the less circumspect judges will even say as much during the sentencing. Despite the fact that jury trials are supposed to be the default, there is a strong incentive on the part of Circuit Court judges to discourage them. If 20-30 people a term were to decide to invoke their right to a jury it would quickly grind many courthouses to a halt³.

How, you ask, does this not run afoul of the right of a jury trial as guaranteed in both the federal and Virginia constitutions? Prove it. All I have is anecdotal evidence and that's just not going to cut it in either the trial court or the courts appellate. Of course, if anyone out there has a couple hundred thousand and wants to survey the courts across Virginia providing a comprehensive study of comparative sentencing and provide me with an expert for trial, I'll be happy to raise the issue in the next appropriate case.

What - no takers?

Basically, the decision to take a jury is often almost suicidally stupid, even if you are innocent and standing in front of Judge Smith who hasn't found anyone not guilty in five years.

What would solve all this? (1) Remove sentencing from the realm of the jury or (2) at least give the jury the ability to suspend time and a copy of the sentence recommendation before they go back to deliberate. Personally, as a great fan of the common sense found in jurors, I favor the second solution. However, I doubt either will solution will be adopted anytime soon.



¹ This is particularly nasty. Starting at Class 4 felonies there are mandatory sentences a great number of which are recommended (in whole or part) for suspension under the guidelines.

² I've seen a prosecutor stand before jurors, voice aquiver with rage, speaking of this evil man with three prior felony "habitual offender" convictions while the jurors sat in horror. Of course when I stood up and explained that that meant being convicted three times of "felony driving when Virginia told you not to" it took the edge off and I think made the jury mistrust the prosecutor some (at least my client got one of the rare sentences less than a judge would have handed down).

³ Not that I've had any judge say this to me. I just note it in passing.

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