For over 220 years Virginia law called for juries to sentence criminal defendants if the defendant elected to have a jury trial. If the defendant chooses to have a trial by judge, then the judge would sentence the defendant upon being found guilty. In Virginia, like many other states, juries tend to award far harsher sentences than judges. Typically, the average jury will sentence a defendant to four years longer than a judge would for the same crime. One of the reasons that juries have traditionally given longer sentences is that they do not receive the benefit of a sentencing report and guidelines like a judge would.

The jury is told that the Virginia code, for example, requires a sentence between one and ten years, and they are left to decide any number in that range. Whereas a Judge, who has seen hundreds, or even thousands of similar cases, receives a sentencing report that will recommend a sentence, which could be on the extreme low side of the possible sentence range allowed for in the code. Therefore, you could easily have a judge sentence a defendant to two years per sentencing guidelines, where the jury could sentence the same defendant to eight or nine years per the Virginia Code.

Due to this long standing and well-known disparity between judges and juries when it comes to sentencing, many defendants would waive their Constitutional right to a jury trial. Nearly ninety percent of felony charges in Virginia are resolved by a plead deal. This hammer, used to persuade defendants waive their right to a jury trial, cleared court dockets and allowed for the State to hire fewer Judges and Commonwealth Attorneys.

Effective July 1, 2021 this centuries old law, used to discourage defendants from exercising their Constitutional right to a jury trial, has been ended.

Virginia Code section 19.2-295 was amended to state;

“Within the limits prescribed by law, the court shall ascertain the term of confinement in the state correctional facility or in jail and the amount of fine, if any, when a person is convicted of a criminal offense, unless the accused is tried by a jury and has requested that the jury ascertain punishment.”

Now, a defendant will only be sentenced by a jury upon his request. There are a few very good reasons why a defendant may wish to be sentenced by a jury. If the defendant has a long criminal record and he knows the sentencing guidelines are going to come back on the high side, then he may want to have a jury decide.

Since judges normally do not stray much from the guidelines, there is a good chance the judge will sentence high in this case. But, a jury, who does not have access to the sentencing guidelines may come back with a shorter term of incarceration than would a Judge.

I like the idea that defendants will now be able to exercise their Constitutional right to a jury trial without having to suffer from an intentionally built-in bias against them. I am a bit concerned that this would create a situation where too many defendants will choose a jury trial and it may overload the court system.

However, I am not convinced the system will actually become overloaded because prosecutors still have many tools at their disposal to encourage plead deals. In the future we will be able to look back and see if the warnings of overwhelmed courts were accurate.