Bill that would reform Virginia’s jury trial sentencing system passes key House committee

A key judicial committee has signed off on a bill to revamp Virginia’s jury trial sentencing system.

The legislation — allowing defendants to be sentences by judges rather than the juries that just convicted them — passed the House Courts of Justice Committee Tuesday on an 11-9 vote.

Sen. Joe Morrissey, D-Richmond, said that was a key hurdle, given that a subcommittee of the same House committee killed off the same measure earlier this year.

Two Democrats, Del. Mike Mullin of Newport News and Karrie Delaney of Centerville, joined Republicans in voting against the bill. But that wasn’t enough to overcome Democrats' otherwise solid support for legislation that proponents say would rank among the state’s most significant criminal justice reform in decades.

“We’ve considered a lot of very, very good bills this special session, in particular dealing with justice reform and police reform,” said Del. Bourne, D-Richmond. “There are a handful that are ... transformational. This is one of those that are transformational.”

The legislation, which has already passed the state Senate, now goes to the House Appropriations Committee for consideration.

Proponents say the bill would do away with “the jury penalty” in Virginia -- the stiffer sentences that can result when defendants exercise their constitutional right to a jury trial.

The move to judge sentencing, they say, will make jury trials less risky, causing prosecutors to offer fairer plea deals rather than holding out the trial as a threat. Advocates say that could lead to lower prison sentences, too.

Opponents, however, contend the change will tilt the jury trial system in favor of defendants. They also say it will lead to many more jury trials -- leading to significant trial delays across the state — and increased costs.

In 44 states and in federal court, defendants who are tried and convicted by juries are then sentenced by judges later on. But in Virginia and a few other states, the same jury that decides on guilt or innocence then goes into an immediate sentencing hearing.

That can make taking a trial a risky proposition: Though juries are more likely than judges to acquit defendants — especially since only one juror can block a conviction — they tend to hand down stiffer punishments on the guilty.

Unlike judges, for example, juries in Virginia don’t get discretionary state sentencing guidelines. Jurors also have no power to suspend time or run sentences together, even in cases when the jury believes the state minimums seem high.

But judges hardly ever intervene to change a jury’s sentence recommendation: One state report shows that judges modified only 9 percent of jury sentences last year.

During the committee debate on Tuesday, Mullin, a Hampton assistant commonwealth’s attorney, said he was against the legislation because of the trial delays the change might bring, and the potential for increased costs.

“The jury penalty is real,” he acknowledged, but so is a defendant’s constitutional right to a speedy trial. “If we grind this system to a halt, everyone who is in jail or prison right now will stay there for months, if not years,” he said.

Increased costs — for new judges, prosecutors and defense lawyers — "would be passed on to Norfolk, to Richmond, to Arlington, to Alexandria, to Newport News and everywhere else.”

Mullin suggested that the Virginia Crime Commission, which has already been studying the bill, should come back to lawmakers with their review early next year.

“Everyone here is speculating,” Mullin said. “And that is not the way that this body and this committee has done business for so long.” If the legislature comes up with the money for the reform, he said, “then I will be the first to speak in favor of it.”

Morrissey counters that the bill would lead to increased jury trials at the outset, but not over the long term as prosecutors offer fairer plea deals. He asserts that costs to the state would actually decrease with shorter prison terms.

The senator said that since Mullin concedes the jury penalty is real, “that means he agrees that people are not taking juries because of the jury penalty.”

“If we delay this matter, then we are saying that we will not allow people to avail them themselves of the right to a jury trial because we’re worried about cost,” he said.

When women won the right to vote 100 years ago, Morrissey said, "No one talked about how it was going to cost registrar’s offices more money if we let women vote,” he said. “They simply said it’s a violation of the Constitution.”

Another lawmaker, Del. Don Scott, D-Portsmouth, called the bill’s opponents’ emphasis on costs “offensive.”

“It’s sickening to see that we continue to say that we would rather continue to destroy lives, put people away, do economic harm to communities of color that we cannot recover from, because it costs too much to do the right thing,” he said.

“We find reasons and ways to pay for all kinds of things,” Scott continued. “But we cannot figure out a way to pay for justice?”

Though most prosecutors statewide -- including the Virginia Association of Commonwealth’s Attorneys -- strongly oppose the bill, a Norfolk prosecutor spoke in support of the bill Tuesday, saying he was also speaking on behalf of prosecutors in Fairfax and Alexandria.

But Del. Jason Miyares, R-Virginia Beach, asserted that crime victims were being left out of the discussion.

“The one word I’m not hearing in any of the testimony is ‘victim,’” Miyares said. “I keep hearing about fairness and equity. But I don’t understand the idea that if you’re a victim of a rape, you can’t get a jury to actually sentence your rapist unless your rapist gives permission.”

He spoke of a college student raped behind a dumpster, with a judge sentencing the rapist to 90 days in jail. “Is that fair and equitable to the victim who has to live through that for the rest of her life?” he asked.

Of Morrissey’s statement that a goal of the bill is to cut prison terms, Miyares said: “I appreciate the honesty, but I think all of us need to take into account the trauma that victims have gone through.”

Democrats persisted in pushing the bill through the committee.

“When you think about the justice system, and who wields the most power, clearly, a lot of things are out of whack,” said Bourne, the Richmond lawmaker. “Black and brown defendants do not get a fair and equitable shake ... This proposal will allow people to get a shot at the fairness and equity.”

Peter Dujardin, 757-247-4749, pdujardin@dailypress.com

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