A person charged with a felony in Virginia might want to wait until after July 1, 2021 for a jury trial. You have a constitutional right to have a jury of your peers decide whether you are guilty beyond a reasonable doubt. In Virginia, people who are accused of crimes often waive this right not because it is what is best for their case but because the risks of a jury trial outweigh the benefits of a not guilty verdict.
On July 1, 2021, these risks will be greatly diminished with the new law that allows a defendant to elect whether the jury or a judge sentences them in the event of a guilty verdict. The new law changes the Virginia Code Section 19.2-925.
Does the Judge or Jury Decide the Sentence in a Trial in Virginia?
Currently, in a Virginia felony criminal trial, you have the right to a jury of 12 people from the community decide whether you are guilty or not guilty. To be found guilty, all 12 people will have to agree that you have committed the crime beyond a reasonable doubt. However, if they all agree you are guilty, you will be subjected to the statutory punishment that those jurors impose.
To understand the problem fully, you will need a bit of background to how the criminal justice system in Virginia currently works. When you are charged with a felony, typically you will first have a preliminary hearing date in General District Court. General District Court can hear misdemeanor trials but not felony trials.
Therefore, when charged with a felony, the preliminary hearing is an opportunity to negotiate a plea agreement, gather information and potential evidence for the case, and to have the court hear enough evidence to decide whether there is probable cause for the case to be certified to Circuit Court for trial.
Once the case is brought before the Circuit Court, an accused will have to decide whether to plea, waive a jury trial in favor of a judge alone to decide the case (commonly known as a bench trial), or to request a jury trial.
Does the Defendant, Prosecution, or Judge Determine a Bench Trial or Jury Trial?
Currently, even if the defendant would prefer a bench trial, the judge or the prosecution can request a jury and it will be a jury trial. This is significant if a person is found guilty because if a judge hears the case, the judge sentences with the guidance of the Virginia Sentencing Guidelines and if a jury decides the case, they pick an unguided number of months or years within the statute.
In short, the jury has free reign to choose any sentence, as long as it falls within the statutory range of punishment.
The Virginia Sentencing Guidelines (“VSG”) are a tool created to help judges know how judges have sentenced people in similar circumstances in the past. The guidelines consider the type of crime, past criminal record, aggravating circumstances (example: whether a weapon was used or the extent of the injury to the victim), whether there are multiple offenses, and other variables depending on the offense.
These guidelines give attorneys a good idea of what type of punishment the accused is facing if they are found guilty and helps guide negotiations for a plea agreement. While a judge does not have to follow what the guidelines recommend, it is a helpful tool both for the attorneys involved and the judge to narrow down the scope of the statutory punishments that can have wide range of possible incarceration time.
The VSG also are incredibly important for an individual accused of a crime. By example, a person, “Sam”, is charged with 1 count of Possession with Intent to Distribute Cocaine for possession of 4 grams of individually packaged cocaine and this person has no prior criminal history. The Code of Virginia 18.2-248(C) states that, if convicted, the punishment for this crime is five (5) years to forty (40) years of incarceration and up to a $500,000.00 fine, none of which is mandatory so the court can suspend part or all the sentence. The VSG recommends an active sentence as low as seven (7) months to one (1) year, four (4) months with a midpoint of one (1) year. This is a huge difference in potential jail time and must be considered very carefully.
In this scenario, “Sam” must decide whether to have a jury listen to the case or a judge. If “Sam” elects to have a jury hear the case, to improve the chances of acquittal, for example, then if found guilty the jury MUST sentence “Sam” to a term of incarceration between five (5) years and forty (40) years. The jury will never hear about the sentencing guidelines.
Now the judge, in fact, must do the final sentencing order, and does see the guidelines and can suspend some or all of the prison time the jury announced but in practice, judges rarely change the punishment announced by the jury. On the other hand, “Sam” can elect to waive the right to jury and theoretically decrease the odds of an acquittal but have far less risk at sentencing in front of a judge who will more likely than not, follow the VSG and sentence to under one (1) year, four (4) months.
This is to illustrate why there are so few jury trials in Virginia. It simply too risky for most people. Even if a person believes they are not guilty and a jury would agree, it is very difficult to make the decision to risk this much time incarcerated to exercise your right to a trial by jury.
Accused Will Choose After July 1st
The good news is beginning July 1, 2021, an accused will be able to choose whether the jury sentences or the judge sentences. No longer will the decision to elect a jury or judge be guided by the fear of the statutory ranges verses the more manageable VSG.
Now a person such as “Sam”, can choose to have a jury trial to hear the facts of the case to decide whether there was possession with intent to distribute and if found guilty, can still have the benefit of the sentencing guidelines. This monumental change in Virginia law is extraordinary and important to consider with only about 6 months until it is available choice.