Almost every day across Virginia, convicted felons are sentenced to prison by juries that have at their disposal far less information than a reasonably conscientious consumer would collect before buying a household appliance. I know. I recently served on a jury and, without any great enthusiasm, joined in sentencing the defendant.
This curious situation exists because Virginia law requires a jury to sentence a defendant when it returns a guilty verdict. The jury announces the sentence at the same time it delivers its verdict. But juries are ill-equipped to determine sentences.
Why? A prime requisite of jury duty is an ignorance that permits an open-minded judgment about the facts in the case. As in the Garden of Eden, knowledge subverts. Thus, during voir dire (the examination of potential jurors), the questions are identical trial after trial. Do you know the defendant? Do you know the attorney? Have you read or heard anything about this case?
Awareness can undo this process. To stretch the analogy, those who have knowledge are, like Adam and Eve, exiled from the world of innocence. They are excused from jury service.
Fine by me. I am not about to take issue with a central precept of American jurisprudence. Nevertheless, when it comes to jailing people, ignorance is not bliss.
Consider, for example, the issue of prior convictions for the same offense. It is perfectly appropriate for a jury sitting in judgment to be kept in the dark about a defendant's record. But can it be reasonable to suggest that this state of ignorance serves justice in setting a sentence?
Punishment, the theory goes, is supposed to fit the crime, and if someone has committed the same offense before, the penalty should reflect that fact. In Virginia, however, how's a jury to know?
Moreover, the information the jury receives comes from the most partisan possible sources. The defense wants an acquittal; the prosecution, a conviction. To those ends, the advocates work to make the strongest possible case for their positions and the key to a strong case is selective use of evidence and arguments -- and that's what a jury gets.
The judges take pains to point out that to render a verdict they need only know what the prosecution and defense tell them. No doubt that is true. Yet this same -- and sole -- information is not terribly helpful when it comes to sentencing.
Add to this ignorance about the defendant and the skewed character of such information as the jury gets, a third imponderability -- the indeterminate character of the penalties set by the legislature.
The General Assembly provides minimal guidance as to what fitting punishment might be. Robbery -- five years to life. Pushing dope -- five to 25 years. Serious assault -- five to 40 years. A nice range of choices that: what's a 30-year robbery as opposed to, say, a 40-year one? The answer -- what a jury says it is.
Though the judge is empowered to reduce the sentence a jury might impose, the system, clearly, does not place a premium on coherence. So juries lurch around trying to do the right thing without any firm sense of what the state of Virginia might regard as appropriate. This sentencing procedure ought to be changed.
The obvious answer is to let the judge sentence. Other states and the federal government do this precisely because the bench is best suited to assess the factors that bear on sentencing. That may be too revolutionary for the Old Dominion, but jury sentencing could at least be a more informed process.
After reaching a verdict, juries could be given access to pre-sentencing reports so that they would know something objective about the defendant. In addition, the legislature could enact, or authorize some group to promulgate, sentencing guidelines. These need not be binding, but some standards about the length of sentences would be a vast improvement. After all, democracies depend on informed decisions by their citizens. -- Mark Greenberg