Why Eliminating Jury Sentencing in Virginia Hasn’t Changed The Game
On July 1, 2021, Virginia decided to let its hair down and get freaky, scrapping mandatory jury sentencing. The move was hailed as groundbreaking. Joe Morrissey, the law’s chief patron, proclaimed it “the most significant piece of criminal justice legislation in the last decade.” The Westendorf & Khalaf blog was on board, dubbing it “a true game changer for those of us in the trenches of criminal courts.” Progressive legislators like Don Scott popped the corks on Dom P, claiming, “It will level the playing field for defendants against the overpowering power of the state.”
Meanwhile, some groups of prosecutors and Republican legislators sounded the alarm. The Virginia Association of Commonwealth’s Attorneys predicted a courtroom apocalypse, warning that jury trials would multiply like Gremlins doing cannonballs into a swimming pool.
Three years later, it seems the revolution has been postponed. The frequency of jury trials has barely budged. No courtroom fireworks, no jury trial armageddon, just a faint uptick.
The Numbers
Let’s look at the scoreboard, comparing jury trial data from the last two years under the old regime (2018–2019) to the first two full years under the new system (2022–2023):
2018–2019: 557 felony sentencings following jury trials (1.3% of felony cases in circuit court).
2022–2023: 676 felony sentencings following jury trials (2.1% of felony cases in circuit court).
That’s about a 20% increase in jury trials statewide. Not exactly the eightfold explosion the doomsday prophets at the Virginia Association of Commonwealth’s Attorneys warned about.
Why Aren’t Defense Attorneys Taking Advantage?
The only modest uptick in jury trials has sparked plenty of theories. But here are some factors that, in my view, aren’t moving the needle much:
1. Sentencing Data Doesn’t Tell the Whole Story
Some mention that the numbers only count jury trials ending in felony convictions, ignoring acquittals. True enough, but this has always been the case. And there’s no evidence of a stealthy surge in not guilty verdicts since the rule change. (For what it’s worth, our firm has had eight jury trials with zero felony convictions since jury sentencing went away. When the lawyers are sweet, the juries must yeet the acqueet. Just saying.)
2. Adjustments to Sentencing Guidelines
On the same day jury sentencing went extinct, sentencing guidelines were tweaked, allowing the low end of the range to drop to zero for defendants who accepted responsibility or provided substantial assistance. This was a solid bone thrown to the defense, but in my experience, it hasn’t moved the needle on plea negotiations. Prosecutors stick to unadjusted guidelines for the most part, and judges' interpretation of “acceptance of responsibility” has been inconsistent.
3. Reduced Time for Non-Violent Felonies
As of July 2022, inmates convicted of non-violent felonies serve 65% of their sentences instead of 85%. While that’s a sweet perk for inmates, it’s a nuance that is rarely a deciding factor for defendants weighing a jury trial.
4. Better Plea Offers
Some suggest prosecutors are making more reasonable offers to dodge jury trials. Maybe that’s true in some places, but I haven’t seen much evidence of it where I practice.
What’s Really Holding Back Jury Trials
If scrapping jury sentencing was supposed to spark a jury trial renaissance, why aren’t defense attorneys oiling up their legal biceps and flexing for jurors? Here’s what’s weighing them down:
1. Mandatory Minimums Still Loom Large
During the same legislative session that nixed jury sentencing, there was talk of abolishing mandatory minimum sentences. The debate got bogged down with the question of: “Should we get rid of all mandatory minimums or just some?” Sadly, a failure to compromise resulted in the final result being that none went away. And let’s be real, mandatory minimums suck big time. They give prosecutors a powerful tool to scare defendants into plea deals by raising the stakes. For example, if a client is charged with possession with intent to distribute drugs (PWID) and possession of a firearm, the prosecutor can easily amend the charge to PWID with a firearm, triggering a five-year mandatory minimum sentence. Even if the case is shaky, the threat of mandatory minimums makes it tough for a defendant to gamble on a jury trial. This dynamic plays out in countless other cases, especially those involving guns or drugs.
2. Murky Legal Distinctions Give Prosecutors Leverage
Many offenses hinge on distinctions so thin they verge on meaningless, giving prosecutors a lot of leeway to stack charges or raise the stakes if a defendant dares resist rejecting a plea deal.
Take the difference between first-degree and second-degree murder. On paper, it seems simple: first-degree murder requires premeditation, while second-degree does not. But when you try to pin down what "premeditation" actually means, you end up in an Abbott and Costello routine:
Abbott: What’s the legal definition of premeditation?
Costello: It’s a specific intent to kill, adopted at some time before the killing.
Abbott: How far ahead does someone need to think about it for it to be premeditated?
Costello: It doesn’t have to exist for any particular length of time. It could be a split second.
Abbott: So premeditation is when you don't premeditate?
Costello: Now you’ve got it!
Abbott: …WTF?
This kind of ambiguity gives prosecutors enormous latitude. And it’s not just murder charges. What separates aggravated malicious wounding from malicious wounding? A significant and permanent physical impairment. What qualifies as a significant physical impairment? According to the Court of Appeals, pretty much anything. Yes, even a scar.
These fuzzy lines allow prosecutors to upcharge cases, pressuring defendants into plea deals. Don’t like the second-degree murder offer? Here’s a first-degree murder indictment instead. It’s a game of raising the stakes, making the risk of going to trial even more daunting for defendants.
3. Defense Bar Playing Catch Up
Between 1995 and 2021, mandatory jury sentencing created a culture of fear around jury trials. Many defense attorneys steered clear of them altogether, and an entire generation of lawyers emerged with little, if any, experience standing in front of a jury. Now, it's understandable that some attorneys are slow to adapt. You can’t flip a switch and expect lawyers who built careers without stepping into the jury arena to suddenly dive in. For them, the idea of embracing jury trials feels about as comfortable as picking up a lightsaber after 30 years of hiding in exile on Dagobah.
Conclusion
The end of mandatory jury sentencing was predicted to shake things up in Virginia’s criminal justice system, but so far it’s been more fizzle than sizzle. We might have underestimated just how deeply entrenched the advantages prosecutors have are. That said, it’s clear that defense attorneys have been slow to realize that they can often be more aggressive than they’ve been previously allowed. You’re no longer leashed animals. Run unbridled, free, like the gorgeous animals you are.
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