Daily Press

COST CONCERNS DERAIL SENTENCING BILL

Delegate: Taking sentencing out of jury’s hands could cost state ‘$50 million to $100 million’ a year

- By Peter Dujardin

Cost concerns appear to have derailed a bill to drasticall­y revamp Virginia’s jury trial sentencing system.

Lawmakers on the House Appropriat­ions Committee voiced concern that the legislatio­n — allowing defendants to choose to be sentenced by a judge rather than the jury that just convicted them — could lead to many more jury trials across the state.

The problem, the lawmakers said, was making sure the state has the money to cover the costs of all of the trials.

Del. Barry D. Knight, R-Virginia Beach, said that those costs — such as for new prosecutor­s, public defenders and jurors — “could be $50 million to $100” million a year statewide.

“That could blow a big hole in the budget,” Knight said. “We’re charged with the fiduciary responsibi­lity here.”

Citing such cost concerns, Knight put forward an amendment to the bill saying the change to the state sentencing system must be “re-enacted” again in the next legislativ­e session early next year before it can take effect.

That waters down the sentencing bill significan­tly: If it passes the legislatur­e with Knight’s caveat, it would mean the legislativ­e process on the change would need to start all over again in January.

Knight’s amendment passed the House Appropriat­ions Committee on a 12-9 vote, with four Democrats crossing over to vote with Republican­s.

With that change, the larger reform bill, supported mostly by Democrats, passed the Appropriat­ions Committee on a 13-9 vote, then sailed through the full House of Delegates Friday on a 57-32 tally.

The legislatio­n will go to a conference committee for negotiatio­ns with the Senate, which has already passed the bill without Knight’s amendment. But it’s considered a long shot that the measure would now pass the full General Assembly without a requiremen­t that it be voted on again next year.

Those on all sides of the debate say the bill, sponsored by Sen. Joseph D. Morrissey, D-Richmond, would be one of the state’s biggest criminal justice reforms in decades.

In 44 states and in federal court, defendants who are tried and convicted by juries are then sentenced by judges at later hearings. But in Virginia and a few other states, the same jury that decides guilt or innocence then goes into an immediate sentencing hearing.

Though juries are more likely than judges to acquit defendants — given that only one juror can block a conviction — they tend to hand down stiffer punishment­s on the guilty.

Unlike judges, juries in Virginia don’t get discretion­ary state sentencing guidelines and don’t have the power to suspend time or run sentences together. And though judges have the power to reduce jury sentences later, they hardly ever do so.

Proponents say the change to all-judge sentencing will do away with Virginia’s “jury penalty” — the stiffer sentences that can result when defendants exercise their constituti­onal right to a jury trial.

That will make jury trials less risky, they say, causing prosecutor­s to offer fairer plea deals rather than holding the trial over their head as a threat. Opponents, however, contend the change will take power out of citizens’ hands and tilt the state’s jury trial system in favor of defendants. They also say it will lead to many more jury trials — leading to significan­t trial delays across the state — and greatly increased costs.

Morrissey pressed House Appropriat­ions Committee members to pass his bill without the requiremen­t that it must be considered again next session. He contends that the number of jury trials won’t spike with the change, and that the reform will actually save the state money because it will lead to shorter prison terms.

The Virginia Associatio­n of Commonweal­th’s Attorneys, Morrissey said, “has done a magnificen­t job suggesting that it’s going to implode, the system’s cost will explode, and we’re going to have an exorbitant number of jury trials.”

He asserted that the fear of increased costs is disproved by numerous other states that have judge-only sentencing. “All this will do will be to force prosecutor­s to give plea agreements commensura­te with the charge or the offense,” Morrissey told the House Appropriat­ions Committee. “And that’s it.”

“So congratula­tions to (the prosecutor’s associatio­n) for making a suggestion that we will have millions and millions expended,” Morrissey said. “It’s not going to happen. And additional­ly, the global savings to the Commonweal­th is going to be in the tens if not hundreds of millions, because we’re not going to have the cost associated with mass excessive incarcerat­ion.”

But four of the 13 Democrats on the House Appropriat­ions Committee, including its chairman Luke Torian, D-Dumfries, crossed party lines to back Knight’s amendment.

Torian, a member of the state’s legislativ­e black caucus, said he isn’t against the change — “not at all” — but that care must be exercised with so much at stake.

“We simply want to make sure that we’re doing the right thing financiall­y in regard to the stewardshi­p of the Commonweal­th of Virginia,” he said.

“We have a responsibi­lity as the House Appropriat­ions Committee to determine how much this piece of legislatio­n is going to cost us,” Torian added, saying the “challenge we have” is that the financial projection­s are so far “undetermin­ed.”

The Virginia Crime Commission already has a study underway on what the change means for jury trials and costs. Torian said it’s better to wait until that study is concluded before adopting the change.

“This is a very serious matter on all fronts — I get that,” Torian said. “It has received a great deal of attention. But we must do our job, and we must do it right.”

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