The 6th Amendment gives criminal defendants the right to a speedy and public trial by an impartial jury.
Lawyers say their clients often fear exercising this right.
“There’s a chilling effect on people exercising their 6th Amendment rights, because in Virginia, sentencing is a gamble,” said Stephen Pfieffer, a criminal defense attorney in Virginia Beach.
Virginia is one of six states that uses jury sentencing for non-capital felonies. But under a measure passed by the Senate, criminal defendants would have the option to choose a judge or jury for sentencing after a jury trial. Introduced by Sen. Joseph Morrissey, D-Richmond, Senate Bill 811 would apply to all criminal defendants unless found guilty of capital murder.
“[This legislation] would be the most momentous change in criminal justice in Virginia in a very long time,” Pfieffer said.
Since 1994, the role of determining a punishment after a jury trial has rested with the jury in Virginia. Though the judge has authority to suspend time or modify a jury’s sentence to a certain extent, courts often accept whatever the jury decides.
While a jury sets the recommended sentence, their powers are limited in other ways, such as being unable to view sentencing guidelines. Prepared by the Virginia Criminal Sentencing Commission, these guidelines are a range of recommended sentences for various criminal defenses determined by calculating the time served by similar offenders.
Felony sentencing guidelines also work on a point system, wherein cases can be “scored” and assigned an appropriate penalty based on previous rulings.
“The purpose of the guidelines is to grant some uniformity in sentencing across the state,” said Richmond criminal defense attorney Bill Linka.
Linka said that judges can go outside sentencing guidelines if deemed necessary, though that doesn’t happen often. And while a judge is able to suspend jail time, a jury cannot.
Pfieffer said these limitations on the jury is one of the reasons judges should be responsible for doling out punishments.
“A judge is guided by experience of what constitutes a particularly egregious crime and what is within the realm of typical,” Pfieffer said. “Jurors, on the other hand, are law-abiding people with little experience to know why one assault, drug or other case is worse than another.”
House Minority Leader Del. Todd Gilbert, R-Shenandoah, disagrees. He said that although a jury gives the verdict, the judge ultimately decides the sentencing and whether or not to suspend all or part of a jury recommendation.
“It’s not like a jury sentence is the final say in any of these cases,” Gilbert said. “It’s obviously a powerful statement that many judges follow, but the judge has the ultimate decision on sentencing. A jury basically makes a recommendation.”
Gilbert raised the concern that if SB 811 passed, there would be an influx of cases flooding the criminal courts.
“We are not going to be able to handle the volume of trials with our current set up,” Gilbert said.
Pfieffer said his peers have raised similar concerns. However, he doesn’t think an overflow of cases would be an issue, noting that although federal courts allow for judge sentencing, there is not an “overwhelming number” of jury trials.
As such, Pfieffer noted that, economically speaking, SB 811 would not greatly benefit criminal defense attorneys.
“Because in circuit court, you may have a lot more clients wanting to do jury trials, which is substantially more work than a bench trial,” he said. “But for me, the reason I think [SB 811] is such a good thing, is I don’t ever want my client to feel that they have to make a business decision when it comes to their freedom.”
Defendants can avoid a jury trial and opt to plead guilty instead. According to Linka, defendants may often take this route “regardless of how they feel about whether or not they’re guilty” because, historically speaking, a jury sentences more harshly than a judge.
“A lawyer might tell a client, ‘Well, it’s a close case but if you lose, the consequences are just so catastrophic compared to having a judge sentence you,’” Linka said.
In 2011, defendant Robert Via Jr. and two co-defendants were found guilty of conspiracy, robbery, burglary and four counts of abduction resulting from holding individuals at gunpoint. A jury sentenced Via to 128 years and a day in prison.
Via’s co-defendants, who opted to plead guilty and avoid trial, received sentences of approximately 12 years.
“The message that Virginia sends through this twisted game is that the only way to win is not to play. In the criminal justice system, this means pleading guilty and avoiding the possibility of the unknown, unpredictable sentence completely,” wrote Caleb Stone, a law professor at the College of William & Mary, in a 2014 report.
Gilbert noted that SB 811 would offer little incentive for defendants to plead guilty.
“Even in the most obvious cases of guilt you won’t, because you have nothing to lose by drawing this up to a jury of your peers,” Gilbert said.
According to SB 811, defendants would need to elect to be sentenced by a jury at least 30 days prior to trial. This caveat makes Linka question whether the legislation would ease decision-making for his clients.
“I would imagine that once you elect [a jury trial] then you have to commit to it, otherwise it kind of loses its effect,” Linka said. “Halfway through the trial, if you get cold feet, then I think it would probably require the commonwealth’s attorney’s approval to go back, if you can.”
If passed, Pfieffer said SB 811 would bring Virginia in line with sentencing regulations of the federal court, in which a jury determines innocence or guilty, but a judge determines sentencing.
“The reality may be that many judges adhere to jury sentences. But if you are innocent, or think you can beat the case, then being in front of 12 people is often more appealing than just one,” Gilbert said. “I don’t think the proponents [of SB 811] realize to what extent this is going to change the entire criminal justice system.”
Morrissey was not available for comment.