Mike Gives Thoughts on Jury Sentencing in Washington Post Article

Over the weekend, The Washington Post ran a story on the front page of the Metro section on Virginia’s new jury sentencing reform law. You can read the article here. WaPo columnists Rachel Weiner and Laura Vozzella did an excellent job summarizing the “revolutionary” change.

Jury sentencing is right in spirit but wrong in practice. Here is the central problem with it.

Most people don’t realize that most criminal laws actually come with two punishments: one from the legislature and the other from sentencing guidelines. Legislative punishments are often more harsh than guidelines recommendations. But juries don’t use guidelines. We attorneys can’t even tell them they exist. The guidelines are only used by judges after guilty pleas.

See where I am headed? The less-harsh sentence is available if you forego trial and plead guilty. If you want your jury trial, you are exposed to harsher punishments. This is often termed the “trial penalty.”

Jury sentencing would have been great if jurors got to hear everything judges do after a guilty plea and if they were given sentencing guidelines. Instead, jury sentencing became just another reason to not go to trial.

Take the crime of drug distribution. The legislative punishment is 5 to 40 years in prison. That’s what the jury uses. But the sentencing guidelines would likely call for around two years in jail, assuming no prior criminal record. So even if the jury wanted to cut a person a break, they would be unable to do so because they are bound by the 5-year minimum.

This system was crafted by design. Ours is a system of pleas and trials are the exception, not the rule. Will the new law change that? Probably not. But it will allow more people to exercise their right to trial by jury without fear of the trial penalty.

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