The De Facto Ban on Jury Trials in Virginia

Reading this article about the high percentage of guilty pleas and the absolute dearth of jury trials in Virginia Beach reminded me that I haven't had a jury trial in a while. How, you ask, can that be? Have I not proceeded to trial on a matter of guilt or innocence? Why yes, I have but lately none of my clients has been desperate or stupid enough to take a jury.

Let me explain. Jury trials in Virginia are not often a shield to defend the innocent, they are usually a sword to punish the guilty. This is because the jury sentences in Virginia. Juries cannot suspend any part of a sentence, cannot run sentences concurrently, and are by law denied the sentencing recommendations that judges get. Therefore, if a Defendant is charged with a class 4 felony (2-10 years), a class 3 felony (5-20 years), or a class 2 felony (20-Life) most often he is faced with the inescapable threat that if he exercises his right to a jury trial and is found guilty he will be sentenced to the mandatory prison time. Even if there is no mandatory sentence juries tend to sentence higher than judges. A judge gets a sentencing recommendation and usually follows it. Additionally, quite often a sentencing recommendation will be far lower than the mandatory sentence; in these cases the judge can, and usually will, follow the recommendations by suspending a portion of the mandatory time. But wait, there's more. In Virginia not only must the Defendant waive his right to a jury trial both the prosecutor and judge must waive their right to a jury trial. Thus, in serious cases it is not uncommon for a prosecutor to threaten to exercise her right to a jury trial and I've seen cases go to jury simply because the Defendant refused to plead guilty to everything the prosecution charged him with. However, the worst was probably the day I was sitting in court and heard a judge tell another attorney that if his client pled not guilty the judge was going to require a jury trial.

And your next question is how the system outlined above doesn't tread heavily upon a Virginian's right to a "trial, by an impartial jury of his vicinage", Va Const Art I sec 8, or an American's right to "an impartial jury of the State and district wherein the crime shall have been committed?" US Const Amend VI.

Well, while the punishment "shall be ascertained by the jury" it can be suspended by the judge. Therefore, the jury is merely setting an upper limit beyond which the judge cannot impose incarceration. The Defendant has a right to a sentencing hearing with a presentence report. The judge is then free to suspend any excessive prison time the jury imposes and render the same active prison sentence that he would have had there never been a jury trial. The Virginia courts appellate have found that this solves any constitutional problems.

It's a nice theory and probably correct in finding that the statutory scheme is de jure constitutional. The only problem is that those of us out in the trial courts live on the other side of the de jure / de facto line. In reality judges rarely change a sentence which has been handed down by a jury and when they do often do not lower it to where the sentence recommendation would have had it. Considering this, it is probably malpractice to recommend a jury trial in the vast majority of cases. I think that most jury trials occur when Defendants know they are going to spend a large amount of time in prison whether found guilty by a judge or jury, when Defendants will face the same penalty from either a judge or jury (Virginia Exile), when the trial takes place in an urban area where the population has equal parts serious distrust of anything the police do in the lower classes and very liberal tendencies in the upper classes, and those cases which occur every so often where the Defendant is either unable or refuses to understand the consequences of his actions. And even if you add all those together, only "1.3 percent of all criminal cases in circuit courts in 2003 went to a jury trial." That says a lot about the lack of confidence that Virginians and their lawyers have that a just result can be reached through a jury trial.

Of course, I'm a Defense attorney and an avowed advocate of the right to a jury trial. If I could ever truly recommend them to my clients I'd be happy trying one a week. With that in mind you should probably be somewhat dubious of my view of the way the system currently works. So here are passages from the Virginia Criminal Sentencing Commission: Annual Report 2003:

“Virginia is one of only five states that allow juries to determine sentence length in non capital offenses. Since the implementation of the [no-parole] system, Virginia juries have typically handed down sentences more severe than the recommendations in the sentencing guidelines. In fact, in FY2003, as in previous years, a jury sentence was far more likely to exceed the guidelines than fall within the guidelines range. By law, juries are not allowed by law to receive any information regarding the sentencing guidelines to assist them in their sentencing decisions.

. . . .

In FY2003, the Commission received 351 cases tried by juries. While the compliance rate for cases adjudicated by a judge or resolved by a guilty plea was at 80 percent during the fiscal year, sentences handed down by juries fell into compliance with the guidelines only 37 percent of the time. In fact, jury sentences fell above the guidelines recommendation in 42 percent of the cases. This pattern of jury sentencing vis-a-vis the guidelines has been consistent since . . . 1995.

Judges, although permitted by law to lower a jury sentence they feel is inappropriate, typically do not amend sanctions imposed by juries. Judges modified jury sentences in less than one-fourth of the FY2003 cases in which juries found the defendant guilty. Of the cases in which the judge modified the jury sentence, judges brought a high jury sentence into compliance with the guidelines recommendation 26 percent of the time. In 39 percent of the cases, judges modified the jury sentence but not enough to bring the final sentence into compliance.

In those jury cases in which the final sentence fell short of the guidelines, it did so by a median value of just over one year. In cases where the ultimate sentence resulted in a sanction more severe than the guidelines recommendation, the sentence exceeded the guidelines maximum recommendation by a median value of less than three years.

Note that the last sentence talks about the median rather than the average difference. I suspect that the average is much higher. Unfortunately, I cannot find anyplace where I can find distilled statistics to confirm that suspicion (nor raw stats either but I'm not sure how I'd do with them anyway).