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Only so much of the truth

A judge erred in telling jurors that he could lower their sentencing recommendation but not increase it, the Supreme Court of Virginia ruled today.

The judge’s comment came in response the question, “Can the [judge] alter the sentence[?]” Justice Barbara Milano Keenan said the Supreme Court draws a distinction between instructions that further the goal of “truth in sentencing” and those that invite speculation “concerning the likelihood of future actions that may ultimately affect the length of a defendant’s incarceration.”

Instructing a jury that a defendant must serve 85 percent of any sentence imposed is in the first category while telling it that the judge can reduce its recommendation encourages speculation on “whether the circuit court later would reduce [the defendant’s] sentence given the nature of his crimes, the other evidence in the case, or factors unknown to the jury at the time it imposed its sentence,” Keenan wrote in Booker v. Commonwealth.

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