Be Afraid, Be Very Afraid

When a prosecutor looks forward to jury trials we should all be nervous.

Actually, the jury's power to sentence does not, in and of itself, make the right to a jury in Virginia a nullity. It is the procedure of criminal trials which combine with jury sentencing to make the system nonviable. Among these procedures are sentencing guidelines for judges, bifurcated trials which include the introduction of a client's record without context, and mandatory sentences.

I really don't have any problem with Tom McKenna's assertion "that the traditional function of the jury at common law was not only to decide guilt, but also to reflect the community view of the appropriate punishment." The only difficulty is that he leaves out the qualifying phrase which should come at the end of that sentence: "as a check to overzealous prosecution or punishment." One must remember that the purpose of a jury is to act as a check on the government in the persons of both the prosecutor and the judge. Although different forms of juries were already extant, the place where most people trace our right to a jury trial is the Magna Carta in 1215:

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

Or, in the original Latin:

39. Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terre.

Note that "judicium parium suorum" isn't translated above as "judgement of his peers." That translation has caused mischief over time as people argued that an older definition of peers (peers of the realm: a duke, marquess, earl, viscount, or baron) applied (and therefore argued juries should be comprised of "community leaders") despite the fact that Blackstone lists peers as excused from service (those "above fifty years old, peers, clergymen, women, and the king's tenants in ancient demesne, are excused from attendance"). Anyway, this was clearly a protection sought as a barrier to the King.

Perhaps more important to our national ideal of jury protections is Penn's Case in 1670 (especially since Penn came over here and had a State named after him). Of course, Penn's Case is usually discussed in a religious freedoms context or used by those who argue that a jury has a right to nullify the prosecutor's indictment (assuming that a charge is technically correct but that twelve citizens think it an unjust application of the law). Of course, American courts have long attempted to curtail this ability of juries and in most jurisdictions lawyers are forbidden to argue it. While I'm sure someone who believes as strongly in the history of the jury as Tom does favors reinvigorating this legitimate jury function by giving it the full endorsement of the law, most prosecutors and judges disfavor this power of the jury. Anyway, even if the legal precedent is no longer followed, the idea that a jury stands between a citizen charged and the government's prosecutors and judges finds its roots here.

Okay, having established that juries are meant as protections against the sovereign let's discuss how this protection has been stripped in Virginia.

To begin, let's not pretend that jury sentencing was always a bad thing. There have always been judges who oversentenced for philosophical reasons, political reasons, or because they were just plain ornery. Defendant Hatfield would probably rather have a jury of county citizens decide his sentence rather than Judge McCoy. And yes, this would be a reflection of the community's view of the appropriate punishment. Is there a chance Hatfield would receive a heavier punishment from the jury? Possibly, but probably not. I know if someone like Isaac Parker were my judge I'd want the jury to sentence me. Some juries surely sentenced some defendants to worse prison terms than the judge would have but it seems likely that the greater number of them did not.

Why is that likely? I'm glad you asked. It's rooted in criminal procedure. Virginia (and I'm sure most other States) historically did not have a bifurcated trial (bifurcated trials have a innocence- guilt hearing and if the defendant is found guilty a sentencing hearing). This meant that the jury would have only one hearing and then went back to the jury room to decide innocence or guilt. If they found the defendant guilty they decided the sentence immediately without returning to the courtroom for a second hearing and then returning to the jury room to determine the sentence. This was important because it kept the prosecutor from introducing the defendant's record and using it to get the jury to come back with a greater sentence. A judge would have had recourse to the record in sentencing; worse still, a judge might have seen defendant Hatfield in his court several times in the last couple of years and formed the (never publicly expressed) opinion that Hatfield is scum who really shouldn't see the light of day ever again.

Bifurcated jury trials came into existence as a way to make death penalty cases constitutional. Criminal procedure eventually adopted them for all jury trials (again, I am describing what has happened in Virginia). In capital cases this allows the defense, which is usually pretty hamstrung in the innocence-guilt hearing (prosecutors aren't stupid - they tend not to bring factually iffy cases to a capital trial), to present as much evidence as it can gather in favor of preservation of the client's life. Of course, the prosecution gets to present testimony from the victim's family members and others which it believes to favor the killing of a person by the Commonwealth. Nevertheless, on balance I think that bifurcated hearings are probably a good thing in capital cases.

However, bifurcated hearings in regular trials rarely benefit the defendant. A defense lawyer who is planning his appeal should not put his client on the stand because if his client says anything which implies he is guilty (like expressing remorse) the appeal is dead. The courts appellate Virginian will look at the voluntary confession made within the trial and ignore all other aspects of the trial. As well, in grand larceny or B&E trials there aren't often a group of grieving family members at the courthouse willing to testify in Hatfield's favor; often the only people on the defense side of the courtroom are the defendant and his attorney. Of course, in most cases the prosecutor doesn't have grieving victims breaking down on the stand either. The entirety of this hearing is often a dramatic reading of the defendant's record by the prosecutor (some of these guys should be out doing Hamlet) and argument as to what the sentence ought to be. Then the jury goes back to the room to decide.

So, what's wrong with that? Shouldn't the jury know about the man they're sentencing? Yes, they should. It was a flaw in the old system (defense attorneys are going to yell at me for saying that). The problem we now run into is the fact that they have no context within which to place the prior convictions. In olden days a judge knew the client's record and therefore was likely to hand defendant Hatfield a more severe sentence. In modern times the judge knows defendant Hatfield's record and also has a sentencing recommendation to place it in context. He knows the general sentence that people with a similar record should receive throughout the Commonwealth. He is not required to sentence accordingly but the vast majority of times he will. The jury is specifically denied this context. Va. Code sec. 19.2-298.01 (A): "In cases tried by a jury, the jury shall not be presented any information regarding sentencing guidelines."

Without this context there is the very real probability that juries are going to oversentence. For example, let's assume that Hatfield is charged with a 1st possession of cocaine and has convictions of misdemeanor possession of marijuana and misdemeanor vandalism from 5 years ago. I run the guidelines and realize that they will recommend probation without an active prison sentence. Then I look to see which judge he is in front of: Judge Smith. Smith hasn't found someone charged with possession not guilty in the last 15 years but he almost never deviates from the guidelines. I don't believe Hatfield is guilty but I know how a bench trial will turn out. I also know that if he is tried in front of a jury he has a 50-50 chance (conservative jurisdiction which favors law enforcement, officer who's been on the force 10 years, looks impressive in his badge and uniform and is basically a professional testifier, etc.). If my client's found guilty the prosecutor will rant about how this is his second drug conviction and I can argue that they don't have to imprison my client. Common sense tells us all how that will turn out. So, Hatfield faces a choice of a 99% probability of no prison time if he forgoes his right to a jury or a 50% chance that he will spend an unknown amount of time in prison if he exercises his right to a jury. This places an onerous burden on the defendant; he must increase his probability of significant prison time in order to exercise his right to a jury. I believe this to be a large enough barrier that it has constitutional ramifications - defendants who should be able to avail themselves of their right to a jury trial will not - in fact dare not - because of the very real threat that the possibility if jury sentencing imposes.

But wait, there's more.

The sentencing jury as a barometer of the community analogy fails completely when we consider mandatory sentences. I'm not talking about things like Virginia Exile (Tom's specialty) where the time is mandatory whether a judge sentences or a jury sentences. What I'm talking about are what might be called "soft mandatory" sentences. These are the sentences which a judge can suspend but a jury must impose. In Virginia Class 4 felonies require 2 years, class 3 require 5 years, and class 2 require 20 years. A judge has the power to suspend all or part of this time and the sentencing guidelines completely ignore soft mandatories. So the choice often becomes even more stark. If I believe Mr. Hatfield has little chance of winning in front of a judge but a 60% chance of winning with a jury but he's charged with aggravated malicious wounding (Class 2 felony: 20-life) it becomes extremely hard to recommend a jury even though I know he's facing 7 years under the guidelines. You think the fact that the jury must sentence him to 20 years if he's found guilty - whether they want to or not - isn't a massive disinclination to the exercise of Hatfield's jury right and the protection he is entitled to of having a group of citizens stand between him and the government.

Tom's correct when he states that the law allows the judge to suspend a part of the jury's sentence. However, they don't. Oh, I know it happens on occasion (although not yet for any of my clients), but there's a reason Tom remembers the cases when the judge reduced the jury sentence: they happen so rarely that they stick out like sore thumbs. I've discussed this in more depth here (in fact I think I've discussed all of the above there as well). While the statutes in the books make good reading, their application doesn't come anywhere near salvaging the reality.

I see four possible fixes. First, we could do it Tom's way and recognize the tradition of letting juries sentence as the community's conscience. In so doing we would have to eliminate soft mandatories (or allow juries to suspend time). And since we're relying on tradition we should bring back the traditional trial procedure. It would make life a lot more interesting: "Well, Mr. Hatfield, Judge Smith is going to convict you and the guidelines call for 2 years in prison. I think you have a good chance of being found not guilty by a jury and they won't see your 5 prior convictions. If they find you guilty, I don't have any idea where they might sentence you. What do you want to do?" It would make things a lot more interesting and might still have some constitutional implications but I think it would confuse the issue so much that it would be be impossible to see them as clearly as we can now. To be clear, I don't favor this solution. I just think it would be the most interesting.

Second, we could allow juries to receive the defendant's convictions but also give them the non-mandatory sentencing guidelines and allow them to suspend time. Or, in the alternative not tell the jury about the soft mandatory and if they sentence less than the soft mandatory have the judge add that back in as suspended time.

Third, we could treat the sentence put in place by the jury as the maximum possible sentence and require judges to sentence according to the guidelines in jury cases but suspend whatever time above the guidelines.

Fourth: We could just do it the easy way and have judges sentence. There's probably a reason the majority of States have adopted judicial sentencing and it probably has a lot do with avoiding all the difficulties described above.