In 1995, Virginia enacted what it calls “Truth in Sentencing”, yet that’s not really the case, especially when it comes to jury trials. When Virginia did away with parole, they started requiring offenders to serve a minimum of 85% of their sentence regardless of how well behaved they remained throughout years of incarceration.
Just this year, Virginia is finally correcting an error they have known about for 20 yrs. In Fishback vs Virginia (2000), Mr. Fishback won his claim that it was unconstitutional not to inform the ( or any) jury that parole in Virginia was abolished in 1995. After his win, Virginia corrected the law so future defendants’ juries would be informed that Virginia no longer has parole. However, they choose NOT to correct the roughly 300 other cases from 1995 to 2000 where the jury was not informed, until now. Those guys will now become parole eligible, even though they were convicted after parole was abolished. It’s time to completely fix all the problems with jury sentencing as well as reinstate parole for all inmates in Virginia.
Immediately after a defendant is convicted by a jury, the jury makes a sentence recommendation, but the jury doesn’t have the presentence report which includes the federal guideline recommendation to use as a basis for making their recommendation.
At the sentencing hearing 3 to 4 months later, the judge then has the presentence report which gives him background information about the specific defendant, his personal, work, criminal and mental health history. It also tells him the guideline range for which that specific defendant should be sentenced based on what previous offenders served in the past for the same crimes. When an individual has a trial decided by a judge, the judge typically stays within the recommended guidelines. If the offender was convicted by a jury, the jury makes a sentencing recommendation WITHOUT having the benefit of the presentencing report. They are simply told to decide a punishment that falls within the time range a specific charge can carry. They are also not told whether the sentences for multiple offenses will run concurrent or consecutive, even if they ask. This can lead to drastically different sentences for similar crimes based on where the case is held and who happens to be on the jury.
As in my case, the jury convicted me of 2nd degree murder (not premeditated), use of a firearm, and discharging a firearm in an occupied dwelling. Second degree murder carries a range of 5 to 40 years, so the jury can set the punishment anywhere in that range. For a gun charge there is a mandatory 3 yrs for first time offenders. The shooting in the occupied dwelling carries 2 yrs to 10 yrs. In my case, the jury recommended 30 + 3 + 10 yrs., but before making those recommendations they specifically asked the judge “Would the time be run consecutive or concurrent?” The judge answered “That’s not your concern, just make your decision based on the law.”. My immediate thought then was how is that not their concern? They are deciding how much time to recommend. It’s bad enough they won’t see a presentencing report.
Three months later, at the sentencing hearing, the judge now has the presentence report which in my case recommended a total of 13 yrs 8 months to 22 yrs 10 months with a midpoint of 18 yrs 3 months. Had the jury had this information when they made their sentence recommendation, it is highly likely that they would have recommended a sentence much more in line with the guidelines.
Had my jury recommended the minimum 5 years + 3 yrs (mandatory) + 2 yrs, the judge could not sentence me above that total of 10 yrs, but if they had recommended the maximum 40 + 3 (mandatory) +10, he could give me all 53 years to serve, suspend part of it or reduce it. In my case the jury recommended 43 yrs total (twice my guideline max), but what would they have recommended if they had the presentence report? The judge then sentenced me to the 43 with nothing suspended.
The reality is judges almost always go with the jury’s recommendations and do not suspend any of the time (unlike in most judge only trials). Being that juries typically recommend sentences well above the guidelines, defendants who have a jury trial usually are sentenced much harsher than those who have a judge decide their guilt and sentence. Therefore, defendants in Virginia are punished more severely for their right to a jury trial.
How is not answering specific questions by a jury deciding someone’s fate any different than what happened in Fishback? How does not giving juries access to a presentencing report qualify as “Truth in Sentencing”?
To correct these injustice, I propose three options. The first is that juries ONLY decide the guilt or innocence phase of a trial. They do not make any recommendations regarding the sentence to be served. Then the judge can determine the correct sentence after receiving the presentence report. The second option is rather than making a sentence recommendation immediately after determining guilt, the jury be brought back 3 to 6 months later for the sentencing phase. This way the presentence report will be available and the jury can have all the facts in which to make their recommendation. Third, when a jury asks a specific question about sentencing or what portion of the sentence the defendant will actually serve (minimum 85%), they should be given a straight forward legitimate answer. It doesn’t make sense for juries made up of regular citizens to be less informed prior to making a sentencing decision than a judge with many years on the bench.
If you agree with any of my suggestions, I would ask that you contact your local state representatives and express your concerns.