COVID-19 resources

RICHMOND, Va. (AP) — Defense attorneys call it “the jury penalty.” It’s a centuries-old sentencing system in Virginia that calls for juries to decide punishment for criminal defendants, and often leads to stiffer sentences than what judges give or prosecutors offer in plea deals. This sentencing structure has been in place for 224 years, but under a bill recently approved by the state legislature, Virginia is expected to turn sentencing over to judges, joining the vast majority of states around the country. Democratic Gov. Ralph Northam, a strong supporter of criminal justice reform, is expected to sign the bill into law.

The proposal sparked fierce debate during a special legislative session focused on criminal justice and police reform. Supporters of the change said giving judges the sentencing responsibility will result in fairer sentences, but prosecutors predicted it will result in more jury trials and therefore require additional judges, court clerks and public defenders.

The bill’s sponsor, Democratic Sen. Joe Morrissey from Richmond, said that under the current system, many people charged with crimes in Virginia are so fearful of getting a severe sentence from a jury that they often accept a plea deal from prosecutors that includes a longer sentence than they would typically get from a judge.

Unlike judges, juries in Virginia are not given state sentencing guidelines that would tell them what a typical sentence would be for a particular crime, and they tend to hand out stiffer sentences. In fiscal year 2019, sentences handed down by juries went above sentencing guidelines 37% of the time, and in 2018, juries exceeded sentencing guidelines nearly 50% of the time, according to annual reports by the Virginia Criminal Sentencing Commission.

“Jurors have no idea what a normal sentence is,” Morrissey said. “That’s why it is important to have a judge sentencing who has the guidelines and can put it into context.” But prosecutors said turning sentencing over to judges will result in more defendants going to trial instead of accepting a plea deals, adding strain to a judicial system already struggling with a large backload of cases caused by the postponement of jury trials during the ongoing coronavirus pandemic. Prosecutors believe the state will end up needing more judges, public defenders, court clerks and support staff to handle longer trial dockets.