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Blind Justice: Virginia’s Jury Sentencing Scheme and Impermissible Burdens on a Defendant’s Right to a Jury Trial


Mitchell E. McCloy


April 2, 2021

This Note argues that Virginia’s mandatory jury sentencing scheme, which bars juries from reviewing state sentencing guidelines, impermissibly burdens a defendant’s Sixth Amendment right to a jury trial. By analyzing both judge and jury sentencing guidelines compliance rates from the past twenty-five years, this Note demonstrates that in Virginia, a defendant has a significantly higher chance of receiving a harsher sentence after a jury trial than after a bench trial or a guilty plea. Given that judges rarely modify jury sentences, the defendant is effectively left with a choice between two different sentences before plea negotiations can even begin.

Because it creates this disparity, Virginia’s mandatory jury sentencing scheme is unconstitutional. Jury sentencing may serve a legitimate purpose by empowering a decision maker more in touch with the “conscience of the community” than a judge—the jury. But by limiting the jury’s ability to review sentencing guidelines and to make further modifications to sentences, this particular jury sentencing scheme fails to serve this legitimate purpose and is, therefore, unconstitutional.

During the Virginia General Assembly’s 2020 Regular Session and a 2020 Special Session, lawmakers introduced a variety of bills to modify jury sentencing. Among other things, the bills would make jury sentencing optional for defendants.

This Note assesses those bills and determines whether they adequately address the constitutional problem created by Virginia’s mandatory jury sentencing scheme. The Note cautions against a rosy impression of jury sentencing. Instead, both academic and political figures must reckon with the possibility that political actors could exploit the practice to threaten a defendant’s fundamental right to a jury trial.

This Note received the 2020 Washington and Lee Law Council Law Review Award for outstanding student Note.


Mitchell E. McCloy, Blind Justice: Virginia’s Jury Sentencing Scheme and Impermissible Burdens on a Defendant’s Right to a Jury Trial, 78 Wash. & Lee L. Rev. 519 (2021).