Virginia Attorney General J. Marshall Coleman faced hostile questioning and comments yesterday in a Senate committee hearing on a proposed bill to establish fixed sentences for different crimes and abolish jury sentencing.
The proposal, called "presumptive" sentencing," has been introduced by fellow Republican Wiley F. Mitchell (R-Alexandria). During last fall's campaign Coleman promised to present the legislation, but the Democratic-dominated Committee for Courts and Justice, which must approve the bill, did not appear to be enthusiastic.
"The Courts of Justice Committee greets every question with skepticism," Coleman said after the hearing, declaring that he was not discouraged. "They took an interest and I'm sure they will be willing to examine it."
Fairfax County commonwealth's Attorney Robert F. Horan Jr. told the committee that the program was "nonsensical . . . (and has) "a myriad of technical flaws."
The legislation is aimed at eliminating disparities in sentences received by criminals for the same crime. A "sentencing council" of five persons would be appointed by the General Assembly to classify every crim according to seriousness, consider mitigating and aggravating circumstances, and devise a system of penalties within existing sentence prescriptions. This would be used as a guideline for judges in imposing setences; if a judge deviates from the guideline he would have to write a legal brief explaining why.
The state parole board would be abolished as well as the system of jury sentencing that has for several years been a target of legislators - including Mitchell and Coleman when he was in the Senate.
"What is wrong with the current system of sentencing is that it is completely unstructured and generally unfair," Coleman said.
"I've never seentwo identical crimes yet," said Sen. J. Harry Michael (D-Charlottesville). Sen. Willard J. Moody (D-Portsmouth), agreed, and added, "If you carry this theory far enough, why not just do away with judges and juries altogether?"
Mitchell answered that in most other states juries determine guilt or innocence, but do not impose sentences, as they do in Virginia.
Horan said the legislation would take sentencing authority away from the General Assembly and place it in the hands of "group of unelected bureaucrats.
"The General Assembly would have even more authority than it does now," Coleman argued after the hearing. "What Horan said is misdirected."
Opponents claim that presumptive sentencing amounts to manadatory sentencing and eliminates flexibility in imposing sentences to take into account various circumstances that might call for a lighter or a harsher sentence.
Coleman and Mitchell said that since sentencing is so unpredictable criminals are no longer deterred by the certainty of punishment, that such disparities are unfair, and that flexibility is built into their proposal.
In another matter yesterday, legislators considered a proposal that would in effect overhaul Virginia's rape laws and would shift the emphasis in prosecution from the level of resistance by the victim to the amount of force used by the assailant.