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Area prosecutors split on change to centuries-old jury sentencing law

As reform to Virginia’s jury sentencing looms, prosecutors in Central Virginia appear split on whether the changes will lead to staffing problems and docket delays.

Passed during a special session of the state General Assembly last year, SB 5007 will end a 244-year-old practice of allowing juries to recommend a sentence for those they convict. The law, which was signed by Gov. Ralph Northam late last year, goes into effect July 1.

Virginia and Kentucky are currently the only two states where if a defendant or prosecutor asks for a jury trial, the jury also must recommend a sentence. Though it is within the power of judges to reduce a jury-recommended sentence, they rarely do.

Under the new Virginia law, sentencing will be the sole responsibility of judges unless a defendant specifically requests a sentence via jury.

The state’s unusual approach to sentencing dates to 1796, according to The Virginia Mercury, and has been called the “jury penalty” because it often leads to sentences that are significantly longer than defendants would have received if they had opted for a bench trial before a judge or taken a prosecutor’s plea deal.

Unlike judges, juries must recommend sentences that fall within statutory sentencing ranges. However, juries are not provided the sentencing guidelines that show what the typical punishment is for a similarly situated defendant.

Proponents of the legislation have accused the current system of allowing prosecutors to add charges with steep mandatory sentences in an effort to get a defendant to accept a plea agreement — in which some of these charges are dropped — rather than face a jury trial.

Opponents of the change, including the Virginia Association of Commonwealth’s Attorneys, have pointed to the increased burden on the court, financial challenges to implementation and potential disenfranchisement of Virginia citizens.

According to a 2020 report from the Virginia Sentencing Commission, about 90% of cases were adjudicated by a plea agreement in fiscal year 2020, whereas only 9.3% and 1% of trials were adjudicated by bench trials and jury trials, respectively.

In FY 2020, the commission received 187 cases adjudicated by juries and sentences recommended by juries concurred with the guidelines 46% of the time. The remaining cases sentenced by a jury were more likely to fall above sentencing guidelines, though the report notes that, by law, juries are not allowed to receive any information regarding the guidelines.

The changes will hit in July, more than a year into the COVID-19 pandemic that has already caused widespread jury trial delays and changes to circuit court hearings throughout the commonwealth.

Joe Platania, commonwealth’s attorney for Charlottesville, said he supports the change, as well as “any reform measure that balances community safety with the fair treatment of offenders, which this legislation seems to do.”

“I’m speculating, but I anticipate a few more jury trials than normal,” he said. “I have no concerns about our office competently, ethically and professionally handling all cases that get set for trial.”

Some of Platania’s colleagues in nearby localities do not share his optimism.

Edwin Consolvo, commonwealth’s attorney for Greene County, said he anticipates a sharp increase in circuit court jury trials as a jury is less likely to find a defendant guilty than a judge but is more likely to recommend a lengthier punishment if it does convict.

“I recognize, and agree, that there are issues (systemic and otherwise) within the criminal justice system that must be addressed. However, this is not one of those issues,” he said. “What this change has created is a disenfranchisement of citizens and their right to have a say in criminal justice outcomes in their communities.”

If there is a dramatic shift toward jury trials, Consolvo said his office, the defense bar, the sheriff’s office, the circuit court clerk’s office and the circuit court of Greene won’t be adequately funded or staffed.

The court would need to add days to its calendar and there could be a need to add a judge, he said, resulting in the need for additional courtrooms and staffing.

“The goal of this new legislation appears to be to remove what has been unfairly referred to as a ‘bludgeon wielded by prosecutors’ in order to force a defendant to accept a plea agreement rather than risk a jury sentence,” Consolvo said. “What this legislation, as written, will cause is a forcing of unfavorable outcomes for victims and communities by granting unjust/unfair/unequal control to a defendant.”

As a potential solution, Consolvo said the law should be amended to allow either party to demand trial by jury but leave the determination of sentencing by jury at the discretion of the opposing party.

“In other words, if the commonwealth demands jury, the defendant will have the right to determine if the judge or the jury sentences,” he said. “If the defendant demands jury, the commonwealth will have the right to determine if the judge or the jury sentences.”

Some of Consolvo’s concerns are shared by Rusty McGuire, commonwealth’s attorney for Louisa County.

Citing testimony given by a colleague of his to members of the House Appropriations Committee last year, McGuire said the law could result in a 700% increase in the number of jury trials. This, in turn, would require a significant increase in the number of prosecutors, public defenders, judges and courtrooms to accommodate the growth.

“This will not be a Louisa problem; this is a commonwealth of Virginia problem,” McGuire said. “Our judge asked a criminal defense attorney last week, ‘how many days for jury trials do you think the court has?’ The attorney is asking for a jury trial in every criminal case.”

Although some prosecutors may have concerns, Liz Murtagh, who manages the Charlottesville-Albemarle Office of the Public Defender, said the impact should be minimal on her office.

“The bottom line is that we’re doing the work already, so I just don’t see it as being a lot of extra labor on defense attorneys or our public defenders,” she said.

Murtagh said she does anticipate an increase in jury trials, which could pose some logistical problems for courts, but less so in Charlottesville and Albemarle County than in other localities that charge more heavily.

Most cases that result in charges should not result in jury trials, Murtagh said, as the facts needed to bring charges are, in most cases, apparent.

“If prosecutors see that there’s a whole bunch of juries being asked for by defendants, then that means they are not adequately sizing up their cases,” she said. “If there’s really a case where the evidence is not really contested by the parties, then that’s more of a sentencing issue.”


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