A Senate panel advanced a slate of criminal justice and policing bills this week, including legislation that could take criminal sentencing out of the hands of juries and into those of judges.
The change would bring Virginia in line with 44 other states.
Sen. Joe Morrissey (D-Richmond) proposed the bill, which would allow a criminal defendant to be tried by a jury and sentenced by a judge. Right now, Virginia is one of only six states that allows the jury to determine guilt or innocence and also hand down the sentence.
In an interview with VPM, Morrissey said that in many instances, a jury will dispense a tougher sentence than state sentencing guidelines prescribe, which is an incentive for a defendant to take a plea deal rather than go to trial.
In a case he’s reviewing right now, Morrissey said a defendant was charged with malicious wounding of an off-duty police officer and a jury sentenced him to 26 years, when the sentencing guidelines called for roughly 2 to 5 years.
“That happens every day in the commonwealth,” Morrissey said. “This bill is transformational.”
Under this bill, the prosecutor may proceed to offer a plea deal and a defendant can still accept it or go to trial, but they won’t risk a tougher punishment.
During a Senate Judiciary hearing Thursday, Senate Minority Leader Tommy Norment (R-James City), who is a criminal defense attorney, condemned the change. He said it would flip Virginia’s criminal judicial system on its head.
“I think this bill needs to look like Atlanta in ‘Gone with the Wind’ and go down in flames,” Norment said.
Sen. Mark Obenshain (R-Harrisonburg) also opposed the legislation.
“What this does is basically, it says, we do not trust our citizens of the Commonwealth of Virginia to sit in judgement and to hand down punishment for people who are prosecuted and convicted of crimes,” Obenshain said.
Sen. Scott Surrovell (D - Fairfax) defended the bill, noting, again, that Virginia is an outlier.
“This isn’t some weird idea,” he said. “This is how the rest of the country is doing this right now.”
Maria Jankowski, with the Virginia Indigent Defense Commission, testified in support of the bill, saying jurors often don’t want to hand down the tougher sentences demanded by local prosecutors.
“Often our jurors are horrified to learn what they must impose,” she said. “And it’s highly problematic because this can be demanded by the prosecutor and can be abused by the prosecutor.”
Zoe Spencer, a sociology professor at Virginia State University, pointed to research on racial discrimination in jury selection, noting African Americans are disproportionately excluded from juries and racial bias among juries who are not comprised of the defendant’s peers.
“This bill will be a significant contribution to anti-racism legislation by encouraging greater parity in both criminal justice sentencing in the commonwealth,” Spencer said.
Senate Bill 5007 passed out of a Senate Judiciary Committee on Thursday with a 10-5 vote. The legislation now goes to Senate Finance and Appropriations to determine how much it will cost.
