Prior to the General Assembly adopting the bifurcated jury trial, all mitigation was the sole province of the judiciary. The courts walked away from 19.2-295.1's depiction of the jury's role as "ascertain[ing] punishment" or "agree[ing] on a punishment", instead declaring that:
If the jury finds that he is guilty, it then "ascertains" or "fixes" the maximum punishment in accordance with contemporary community values and within the limits established by law.This interpretation of the law was immediately problematic in that there is absolutely nothing in the statute that states the jury is setting a "maximum punishment." Thus, Duncan does not follow the statute and invites us to lie every time we instruct a jury that they are going to determine the punishment.1 Duncan's departure from the actual language of the statute is necessary because in all felonies class 4 and above there are sentences which a jury must impose that a judge could suspend (and usually would in part). This raises a constitutional denial of jury trial issue which had to be addressed. However, faced with the option of giving jurors the ability to impose the same sentencing incarceration ranges2 as judges or develop a byzantine dual sentencing system, Virginia chose the latter.
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By vesting the trial court with discretionary authority to suspend or modify the sentence imposed by the jury, the legislature intended to leave the consideration of mitigating circumstances to the court.
Duncan v. Commonwealth, 1986, Va. App., No. 0274-85.
Of course, in creating the bifurcated trial and allowing mitigating during the sentencing phase the General Assembly evinced an intent not to make the judge the sole mitigator. The question becomes exactly what role the jury's mitigation decision should play.
There is no provision under Virginia law for a judge to have witnesses and evidence introduced at a full-blown sentencing hearing and the statutory provision of a jury sentencing hearing and the basic canon of statutory interpretation expresio unius est exclusio alterus militates against one. In fact, under Virginia law the judge is only authorized to do one thing.
After a finding of guilty, sentence shall be pronounced, or decision to suspend the imposition of sentence shall be announced, without unreasonable delay.However, he is also required to receive a presentence report before imposing the sentence. This report is to contain no less than "the defendant's criminal history, any history of substance abuse, any physical or health-related problems as may be pertinent, and any applicable sentencing guideline worksheets". More can be included, but the statute isn't clear as to what else is required. The judge shall "direct a probation officer of such court to thoroughly investigate and report upon the history of the accused." This has developed into a standardized format which has academic, job, military service, family histories, &cetera along with the minimum information required. These histories are a list of schools, list of jobs, notification of time spent in the military, and a list of family members. In addition to all this, a Victim Impact Statement is also required.
Via the presentence report the defendant is entitled to a sort of rump-sentencing hearing.
The probation officer shall be available to testify from this report in open court in the presence of the accused, who shall . . . be given the right to cross-examine the investigating officer as to any matter contained therein and to present any additional facts bearing upon the matter.So, if the report states that the defendant has two children he could cross the probation officer about that and bring the mother of child three in to testify as to the child's existence, age, and relationship to the defendant.
Of note are three things. First, there is no provision for the prosecutor to dispute the contents of the presentence report and, except perhaps in cross examination of a witness the defense called, no role for the prosecutor in this hearing. Second, the defendant is not allowed impact witnesses. No crying fiance on the stand telling the judge how the defendant must be at home to support their three children. No mother telling the judge how this particular time in jail awaiting trial has finally cured the defendant of his percocet addiction. Third, any attorney arguments allowed would be limited to the content of the presentence report.
Once any conflicts in the presentence report are resolved, the judge is required to consider mitigation beyond what the jury has already decided.
Failure to consider whether a jury sentence should be mitigated because of a belief that the jury sentence is inviolable is an abuse of discretion.Finally, "[b]efore pronouncing the sentence, the court shall inquire of the accused if he desires to make a statement and if he desires to advance any reason why judgment should not be pronounced against him." After any such statement (assuming he's not persuaded), the judge pronounces the sentence.
Bruce v. Commonwealth, 1990, Va. App., No. 0504-88-2
In conclusion, only a jury is allowed a sentencing hearing, with witnesses, evidence, and argument by opposing counsel. However, the evidence allowed is limited in scope and, despite the actual wording of the statute, is not the actual punishment of the defendant. On the other hand, the judge is given far more to consider in mitigation through the presentence report. Virginia law does not provide for a separate sentencing hearing in front of the judge although it does allow, at the defendant's behest, a hearing as to the facts in the presentence report. Once this is done the judge is required to consider further mitigation of the jury's sentence, give the defendant a chance to speak, and pronounce the defendant's actual sentence.
1 A truthful instruction would advise the jury that they were setting a maximum possible penalty which the judge could not exceed when the defendant was sentenced.
2 The General Assembly could easily pass a statute stating that jurors shall not be informed of any minimum sentence except "mandatory minimum sentences" (which even judges cannot suspend) and that any time a jury sentences below the minimum time required by statute the remaining time shall be imposed solely as suspended time by the judge.