24 February 2009

Interesting Possiblity of Sentencing Juries

In Virginia we have bifurcated jury trials for all offenses. In the first part the jury decides guilt or innocence. In the second the jury sets the sentence to be served.

A while back, I ran across an interesting phenomenon which I think may be unique to Virginia, or at least to the few States which allow jury sentencing. In Virginia, accommodation is an imperfect defense to drug distribution. Accommodation is basically the distribution of drugs for another without any expectation of gain. If an offender is convicted of distribution of a schedule I or II drug it's an unclassified felony and the jury must impose 5-40 years in prison. If that same person is convicted of distribution of a schedule I or II drug as an accommodation it's a class 5 felony and the jury may impose 0-10 years in prison. The decision of which felony to convict the defendant is a jury decision. However, this decision is not made during the trial; it's done during the sentencing hearing.

The prosecution has to prove guilt of distribution during trial. During the sentencing phase, and only during the sentencing phase, the defense can try to prove that the distribution was not for the defendant's gain. In other words, the prosecution must prove the illegal act, then the defense must prove which type of felony his client is actually guilty of (or default to the max).

That's an interesting way to structure a trial and I must admit to never having thought of it before. It led me to some interesting thoughts on how statutes might be changed to fit within this framework.


What if Virginia rewrote her statutes, or the appellate courts interpreted them, so that the prosecution only had to prove the general offense (larceny, distribution, homicide)? The default punishment would be the maximum under that offense. The defense could only raise perfect defenses during the trial on guilt or innocence. If the defendant is found guilty, the defense would raise any imperfect defenses during the sentencing hearing which would lower the offense from the maximum sentence.

For instance, the maximum punishment under Virginia's larceny scheme is 2-20 years (larceny over $200 with intent to sell). Let's assume that this would be the maximum punishment if the offense was changed simply to larceny. During the guilt or innocence phase of a trial the Commonwealth would merely have to prove a larceny. The defense could raise perfect defenses during the guilt or innocence phase, such as an alibi showing the defendant was playing poker at a buddy's house when the larceny occured. Assuming that the defendant is found guilty, during the sentencing hearing the defense would put on evidence trying to lessen the range of the sentence. In other words, the defense would show that there was no intent to sell, lowering the range to 0-20 years, the defense could show that the item stolen was a farm animal, lowering the range to 0-10 years, the defense could show the item was not worth $200, lowering the range to 0-12 months.

It's an interesting idea and, as the accommodation defense demonstrates, it could be done. I can see some procedural difficulties it might cause, but I can't come up with any constitutional bar.

Thoughts anyone?


Jamie said...

Texas juries decide sudden passion, i.e. manslaughter, during punishment.

Yep, murder first - during guilt/innocence - then maybe manslaughter during sentencing.

Frankly, it doesn't make sense to me, but hey...

Mark Bennett said...

In your larceny example, lack of intent to sell is not an imperfect defense; it is (at this time, and by definition) an inferential rebuttal (because intent to sell is an element of the crime).

Now, the legislature can define the elements of crimes, so I suppose "lack of intent to sell" could be redefined as a mitigating factor (or as irrelevant altogether) but it seems to me that there is a point at which they go too far.

Otherwise, why not require the prosecutor to prove only that the defendant "did sump'n wrong" with an automatic life sentence, and then allow the defense on punishment to unprove all of the things he didn't do wrong, trying to lessen the range of the sentence?

Ken Lammers said...

Careful Mark. You live in Texas and I live in Virginia. You posit an idea like that and a State legislator reads it and . . .

Mark Bennett said...

You've got legislators who can read?

Ken Lammers said...

Why Suh, you wound me. We here in Vuhginia have been reading since we founded the very first college in the colonies (Henricus). We have William and Mary, Mr. Jefferson's school, and General Lee's University. I am certain that each and every Delegate and Senator is well lettered (if not in liberal arts, then maybe as athletes from Polytech).

Mark Bennett said...

I am envious. You must have much better laws than we have, with all of those presumptively literate representatives.