Norfolk judge addresses upcoming changes to jury sentencing in Virginia

10-year-old gets called for jury duty
Posted at 4:18 PM, Feb 24, 2021
and last updated 2021-02-24 16:47:14-05

NORFOLK, Va. - A defendant's fate is decided inside the courtroom, but starting July 1, who hands down the sentence will change.

"Now a criminal defendant will have the option to elect to have a jury decide guilt or innocence, but then they can have a judge decide on sentencing," said Norfolk's Chief Judge Mary Jane Hall.

In what has been called a major move for criminal justice reform, the General Assembly passed a bill in 2020 that takes some sentencing out of jurors' hands.

Starting July 1, 2021, a defendant on trial can choose whether they will be sentenced by the jury or the judge.

"Juries historically sentence much more harshly [and] they give longer sentences than judges," Hall said. "Defendants have a lot of predictability when they go in front of a judge. They know what the guidelines are, they know that the judge is likely to give them what the range is. The jury - they have no idea. It's a big, wild gamble."

Hall said judges have the ability to suspend a defendant's time whereas the jury does not. Historically, jurors are only given the context of what they heard during trial before making a sentencing determination.

Judge Hall said, "When I see a person with a minimal criminal record and the facts of the crime aren’t the most aggravated facts, then I can go on the low side, and if I see something that is more aggravated, there’s a weapon used [or] somebody got hurt, that would warrant a sentence on the higher side. Jurors aren't really given the points system that [judges are] given."

The centuries-old sentencing system in Virginia encouraged lawmakers, like Democratic Sen. Joe Morrissey from Richmond, to bring this reform forward. Morrissey sponsored the bill that will now change sentencing for defendants, jurors and judges across the state.

The issue has been highly contested. Hall said, "The opponents to this change in law say that if you do that, the number of jury trials in Virginia will explode and we don't have enough prosecutors, we don't have enough public defenders, we don't have enough courtrooms and judges to deal with the explosion. The other side of that argument was no, that's not going to happen. What will happen is that the prosecutors are going to make more reasonable plea offers instead of knowing that we have all the power on our side, because if you take a jury, the jury could hammer you if you're found guilty, now they can have the same awareness in advance of what the judge is likely to give this person if they are found guilty. They can adjust their plea offer accordingly."

Jury trials in Norfolk are paused until April 2021 due to COVID-19. Hall said this new law could impact the already backlogged pipeline if more criminal defendants put in for continuances so they could enter the July 1 time frame.

In Virginia, juries have been involved with sentencing since the 1700s. Now they will have less of a burden, only having to decide guilt or innocence.

Hall said, "[If the number of defendants wanting a jury trial] does explode, that may just tell you that we’ve been chilling people's rights to have a trial by jury. Is it a bad thing if you remove some obstacle to a fundamental constitutional right and now people are exercising the right? I don’t know if that’s a bad thing."