The Jury’s Not Out

The Jury’s Not Out

Defendants are increasingly opting to forgo trail by jury in Virginia.

Trial by jury is one of the hallmarks of the American legal system — a vestige of the English colonial heritage that was explicitly protected by the Fifth, Sixth and Seventh Amendments to the United States Constitution. The concept of simple: committee of neighbors get together to make a finding of facts and — in Virginia — decide on a sentence of punishment.

But the jury box is increasingly sitting empty.

According to Virginia sentencing statistics, felony convictions — those defendants who are eventually found guilty — are overwhelmingly opting for plea agreements or bench trials. Researches say that the reasons for the declines are the “truth in sentencing” reforms that were made in the mid-1990s, when the General Assembly and then-Gov. George Allen abolished the parole system and introduced a two-phase trial where jurors first chose guilt or innocence and then decided on a sentence. The reforms were a watershed moment for the Virginia courts, drastically altering how the system works and the best way for defendants to navigate their way through it.

“Juries have a tendency to be much tougher,” said Rick Kern, director of the Virginia Sentencing Commission. “A judge sentences hundreds of people every year, but a juror will probably only serve on one jury during the course of a lifetime. So they are looking at the situation from a very different perspective.”

Since the “truth-in-sentencing” reforms, Virginia’s juries have inflicted punishments that are much more severe than Virginia’s sentencing guidelines. By law, juries are not allowed to receive any information on the guidelines — so researchers say that the reason for the disparity can be found in the psyche of the jurors.

“It defiinitely sends a deterrent message,” Kern said. “If you opt for a jury trail, you risk a sentence that’s 10 to 15 times longer than the guidelines.”

BEFORE THE REFORMS, many people complained that the Virginia system was deeply flawed. Most of the anger was directed toward the parole system, which allowed convicted felons to serve only fractions of their sentences.

“The average rapist in Virginia-the average-serves only four years in prison,” said then-Gov. Allen in a 1994 speech advocating the abolition of parole. “For armed robbery, a typical 14-year sentence gets you only about four years of actual time.”

Aside from doing away with the parole system, another important change that took place in the mid-1990s changed how the juries impose criminal sentences. Virginia is one of five states that allow juries to determine sentence length in non-capital cases. Before the “truth-in-sentencing” reforms, jurors were confronted with making a simultaneous finding of guilt or innocence along with the difficult decision of selecting a punishment that was appropriate for the crime.

“The change made for a fairer system,” said Del. Brain Moran (D-46), who was a prosecutor with the Arlington County Commonwealth’s Attorney’s office in 1995 when the changes were made. “You could get into a person’s record, so it was beneficial to the prosecutors. And it was also beneficial to the defense, because the jurors could learn about the person’s background.”

THE BIFURCATED jury system created a two-phase approach to jury trials. In the first phase, jurors made a finding of guilt or innocence. Then, in the second phase, they would decide on an appropriate sentence. For the first time, juries became aware of an offender’s prior criminal record. And the introduction of victim-impact testimony had a dramatic influence in the courtroom.

“Before, it was a one-shot deal,” said Alexandria Commonwealth’s Attorney S. Randolph Sengel. “The victim-impact testimony can have a very powerful impact, especially in violent crimes. On balance, I’d say that people who are convicted of violent crime are serving longer sentences than before the abolition of parole.”

Sengel said that last year, 3.2 percent of the city’s felony cases were heard by a jury, 31 percent went to a bench trail and 43 percent ended in a plea agreement. Some defense lawyers are critical of the “truth-in-sentencing” reforms, saying that the new framework wasn’t necessarily designed with the best interest of the accused in mind.

“I don’t think there were any untruthful sentences before the reforms,” said Jim Clark, dean of Alexandria’s criminal defense bar. “These changes were designed to encourage people to plead guilty. I don’t think that they were designed to discourage the use of juries, but that is certainly the net effect.”

Clark said that by making the risk factor so extreme, the General Assembly’s reforms created a situation where the accused overwhelmingly shunned the jury trial process. And because judges have the power to suspend a sentence, which the juries do not, more defendants decide to go with a bench trial.

“Jury trials are expensive and time consuming and often the result is unpredictable,” Clark said. “But these cases have got to be decided somehow.”

THE HISTORY of juries in this country dates back to the Anglo-Saxon traditions of England. In colonial Virginia, trial by jury was perceived as a great bulwark of the British Constitution. For colonists, it was often seen as a way to evade authority. In “Law and People in Colonial America,” legal historian Peter Charles Hoffer traces the evolution of jury trials in early America.

“Juries regularly mitigated the severity of the laws,” Hoffer wrote. “When the defendants was a first offender — for example, a child accused of grand larceny — juries almost always reduced the value of the object taken to less than 12 pence, turning the offense into petty larceny and saving the child from the hangman.”

As the colonies developed, so did their legal proceedings. According to Hoffer, this was a period that saw an important evolution of formal protection for the accused.

“The seventeenth century criminal trial in England and America was changing its contours from an order-keeping device to a test of individual guilt or innocence, and with that shift came greater concern for improved fact-finding,” Hoffer wrote. “From what was, too often, little more than an argument between the accused and their accusers in front of a judge and jury, the criminal trial was moving toward the adversarial cut and thrust of its modern descendant.”

BUT MODERN TIMES have seen a dwindling reliance on juries. The “truth-in-sentencing” reforms have drastically altered the way defendants must face their future — choosing between an uncertain jury and a predictable judge. In 2005, only 1.6 percent of felony convictions were adjudicated by juries. Many court watchers say that the increasing reliance on judges is a positive development.

“Judges are uniquely interested in rehabilitation,” said Jim Lay, a former Alexandria prosecutor who is now a defense attorney. “Having seen so many cases, they know what is going to work and what isn’t.”

Lay said that because judges have the power to impose a sentence and then suspend part of it, they are able to follow the guidelines while still keeping in mind the best possible outcome for the defendant. Their experience with the criminal justice system allows them to make sentencing decisions that are better informed than jurors who do not have that kind of background.

“For the most part, jurors aren’t thinking about what happens to these people after they’ve been found guilty,” Lay said. “But this is something that judges consider when they make sentencing decisions.”