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  • Writer's pictureBrian Latuga

Criminal Jury Sentencing is the DEFENDANT's Option as of July 1, 2021.

Finally, an EPIC change for Virginia’s criminal law and its citizenry. The “Jury Tax” will be gone, and prosecutorial threats of a jury trial and jury sentencing will no longer force guilty pleas. Finally, a win for fairness under the law!

Current law dictates that a defendant’s punishment for a crime is determined by the same jury that tried the case. As of July 1, 2020, a jury will only determine the defendant’s sentence at the defendant’s request. The default will be sentencing by judge. A jury sentence can be a good option under certain circumstances, and is still available, but those situations are rare.

While the presiding judge currently retains the ability to modify a jury’s sentence, it is unusual for one to do that. Judges generally do not want to “reward” the defendant with a sentence different from what the jury recommended. And of course, the Defendant doesn’t need to have a jury trial unless someone involved in the case requests it.

The “Jury Tax” is lingo for the penalty for requesting a jury trial – and often for requesting a trial at all. It comes down to the Virginia Sentencing Guidelines and the statutory minimum sentences for each charged offense. A Judge sentences a defendant using discretionary sentencing “guidelines” which are calculated the same across the state. The goal of the Guidelines is an objective sentencing range for a judge to consider. Judges generally sentence within the guidelines. A jury, however, does not get any guidance and will not benefit from having “guidelines.” Not only that, but a jury’s minimum sentence is often much higher than the judge’s guidelines range.

Hypothetical Case: Thomas is accused of robbing a 7-11 clerk and two customers with the gun. Thomas has been a troublemaker his whole life. He has convictions of felony credit card fraud. But Thomas is adamant that he did not do this hold-up. Thomas doesn’t like guns and isn’t a robber – he’s a non-violent felon. His attorney believes that the eyewitness is mistaken – the star witness was purchasing his fourth “Colt 45” Malt Liquor and picked Thomas out of a rather shady lineup. Nevertheless, this prosecutor has a small bone to pick; Thomas escaped conviction in a previous trial against this same prosecutor. Thomas wants to go to trial. An innocent person will rarely plead guilty to a crime they did not commit (and shouldn’t). The prosecutor says outright “fine, if you want a trial, then I’m asking for a jury.” NOW, Thomas truly fears a trial and is considering the prosecutor’s rather cushy offer of one count of robbery and two firearm charge with an eight (8) year sentence….

Tommy’s charges are:

Three (3) counts of Robber with a firearm;

one (1) count of use of a firearm in the commission of a felony; and,

two (2) counts of use of a firearm in the commission of a felony – subsequent offense.

If Tommy were to be found guilty of all charges after a trial and sentenced before July 1, 2021:

Sentenced by a JUDGE:

13 mandatory years for the firearm offenses and a guideline range of: 11 years - 18 years

Sentenced by a JURY:

Total MINIMUM sentence: 28 Years; Maximum Sentence: LIFE. NO RECOMMENDED SENTENCE.

As you can see, a judge will likely sentence a defendant to much less time than a jury’s minimum sentence. The defendant in this case would certainly think twice before going to a jury trial under those circumstances; if the jury finds him guilty then he knows his sentence will be incredibly harsh. There is enormous benefit to having a judge sentence after a jury trial. The prosecutor’s offer sounds incredible compared to a jury’s potential, but a jury trial after July 1, 2020 may certainly be worth the gamble.

Brian M. Latuga, Esq. is here to help if you are charged with a crime, facing a protective order petition, or are attempting to restore your firearm rights, Call Brian directly (757) 687-3657 for a free consultation. We stand up strongly for yours and your loved one's rights.


Not every case is the same, and all have numerous factors that must be analyzed. By no means is this a full legal analysis of Sentencing law. This short article is not legal advice nor should it be considered legal advice. The sole purpose is to shed some light on your rights in conjunction with jury trial sentencing.

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