Virginia Ends “The Jury Penalty”

Not too long ago, there was an argument on the twitters between a friend of mine, an old criminal defense lawyer, and a prominent think-tank crim law reformer about jury nullification. The theorist was pandering to unduly passionate reformers about the glories of nullification when the lawyer called him out.

The old lawyer argued that, based upon a career trying cases in front of juries, the belief that they’re the defendant’s friend, hate criminal laws and, given a free hand to ignore the law, would acquit defendants in the name of justice, jury nullification was no silver bullet, but a steaming pile of malarkey. Others with neither the old lawyer’s experience, nor any actual experience in crim law, joined into the fray to parrot the reform belief that Jury nullification will absolutely work to save defendants from bad laws and never be used to convict the innocent.

That’s what the reformers say. That’s what the think-tankers say. That’s what the academics say. That’s what the baby lawyers and law students say. So why did the old criminal defense lawyer not say so too? Contrary to this aspirational belief that juries, that people in general, are really on “our” side, that’s not always the case. Perhaps that’s not usually the case. Perhaps most jurors are sincerely concerned about crime, very much against criminals and would be far more inclined to convict without evidence beyond a reasonable doubt than acquit despite the evidence.

We want to believe that a jury of our peers will naturally be on “our” side. After all, we’re the side of good and justice, and who isn’t on the side of good and justice if given the choice?

Virginia has changed its procedures so that a defendant can be sentenced by a judge rather than a jury.

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.

It’s odd for those of us who toil in states or the federal well, where sentences are imposed by a judge, to think of jurors imposing sentence. I’ve never experienced it. Lawyers in Texas, where juries impose sentence, have told me they prefer it, perhaps because Texas tends to elect harsh law and order judges.

But juries are weird. The problem isn’t that they don’t work hard to reach the right decision, do “the right thing.” They do, and they’re usually very serious about their duty. At the same time, few trial lawyers won’t tell you that they often miss the salient legal issues that were at stake in the trial and decide for peculiar, if not bizarre, reasons.

While the lawyers are fighting mightily over one huge issue, the jury reaches its decision for some completely irrelevant reason. We talk to the jurors after the verdict and they explain to us why they reached their decision, and we shake our heads. “What about the this critical fact that we spent three days talking about,” we ask? “Oh, we didn’t think about that.” And before they deliberate, they are given instructions by the judge as to the law.

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.”

People believe there’s some magic to a sentence, some length of time which is right, which will punish them enough, but no more, than they deserve, which will turn out good citizens from prison. But their frame of reference tends to be outliers, the cases we hear about, and they tend to be long and harsh. This creates the expectation that the right sentence is a long sentence, that a particular crime “deserves” life plus cancer.

Much as guidelines can be as much a part of the problem as no guidelines, they suddenly look like a better idea when juries sentence defendants above the guidelines. So much for the assumption that jurors are kind and generous, and will be gentler toward the defendant than a judge.

Republican Sen. Mark Obenshain voted against the legislation, saying sentencing decisions should be left to jurors.

“We are saying we don’t trust the people in our communities to make judgments about the appropriate punishment for criminal behavior. We have entrusted that to our friends and neighbors.” Taking that away, he said, “is the wrong policy choice.”

Do you trust your friends and neighbors with your life? The argument proffered here is in support of the proposition that judge sentencing will be too lenient. Better to trust your friends and neighbors to condemn you to Draconian punishment. And as the prosecutors argue, this shift could result in more trials, as people will be more willing to roll the dice knowing that they won’t be sentenced by their friends and neighbors.

The sides have, as so often happens, swapped arguments. When we’re busy hating judicial sentencing, we exalt the virtues of jurors to nullify society’s harsh laws and sentences. When left to jurors, judges magically become the saviors of parsimony.

Defense attorneys call it “the jury penalty.”

The point isn’t the one side is right and the other wrong, or that there is a better way and it’s not the way we’re doing it now. The point is that simplistic one-size-fits-all solutions, such as jury nullification, may work in our favor on occasion, but may prove disastrous on others, and may well be far worse than the alternative given that jurors rarely care more about a defendant’s struggles than they do about their daughter not being raped in her bed by an intruder at night.

Do criminal defense lawyers love jurors? Of course we do. Except when they’re worse than judges, and then we don’t. In Virginia, ending juror sentencing is a reform favored by the defense. Theories about how reform should work are great at think tanks, but Virginia defense lawyers call it “the jury penalty” because they have to live with it.

10 thoughts on “Virginia Ends “The Jury Penalty”

  1. Denverite

    Prosecution tactic when as in Texas juries sentence. In a former life I worked for a fed agency that worked with state prosecutors in Texas on state securities violation cases. Here was the tactic. Charge fraud in counts 1-x and unregistered securities in counts 2-x for every victim who testified. No intent requirement for registration violations – simple to prove and a separate 5 year exposure for every sale. Fraud harder to prove – need intent and often complex facts. Put on all the defrauded victim testimony and then drop all the fraud counts leaving only the registration counts. Predictable result (DOH) – Jury convicts on all counts and hits long ball sentence before lunch.

  2. Bob

    In my state, at least, the principal driver of long sentences is, ironically enough, “criminal justice reform.” It seems like every other year the legislature finds some new and underhanded way to let people out of prison early. So the judges, who can’t predict what the legislature will do and often don’t understand the existing DOC arcana, end up throwing the book at defendants. Sometimes it sticks and sometimes it doesn’t. Is that any less arbitrary than sentencing by juries?

  3. B. McLeod

    For people who worry about the now apparently pervasive concern of “systemic racism,” jury sentencing poses a series of random one-offs that can never be controlled. Shifting to judicial sentencing likely gives them some comfort, although the reality of the criminal system embodies widespread randomness with either form of sentencing.

  4. Patrick

    I’ll note two other aspects of Virginia practice that have affected this debate.

    First, judges in Virginia have the power to suspend part of a sentence a jury imposes (juries cannot impose suspended time), but in practice they rarely do so. If judges more frequently dialed back jury sentences, then there might be fewer jury sentences that look like outliers.

    Second, under the Virginia constitution, the Commonwealth has a right to a jury trial, just as the defendant does. Prosecutors can wield that right in negotiations. So, in practice, the choice for a defendant is not always jury trial/jury sentencing vs. bench trial/judge sentencing; it’s jury trial/jury sentencing vs. guilty plea/judge sentencing.

  5. rsf

    The reason jury punishment is so excellent for us Texas Lawyers is that we get to pick where we go for punishment, jury or judge. I assure you that when you have a bad judge, you are ecstatic for a jury, but often, the facts are rather emotional and a jury may be more likely to light your guy up (or you might have an excellent judge).

Comments are closed.