UPDATED: Coalition of 66 Virginia Prosecutors Voice Concern, Offer Alternatives to SB 5007

UPDATE: The hope of having a dialogue on how to make the system fairer for everyone — citizens, victims, and the accused — was dashed Friday when the General Assembly passed SB 5007 by a vote of 57-42.

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A vote on Senate Bill 5007 is expected Friday in the Virginia House of Delegates when it reconvenes during this special session of the General Assembly.

Earlier this week a press release was sent out on behalf of 66 Virginia prosecutors from every area of the Commonwealth who raised concerns about the bill:

RICHMOND–A coalition of 66 elected Commonwealth’s Attorneys from across Virginia, responsible for the safety of nearly four million Virginians and consisting of over half of the elected prosecutors in the Commonwealth, sent a letter this week to members of the Virginia House of Delegates asking them to reject or delay approval of Senate Bill 5007.

Trial by jury is one of the most fundamental rights guaranteed to Americans. In Virginia, if a jury convicts someone of a crime, the jury also fixes punishment after a separate hearing is held. Because Virginians do not elect their judges, a jury’s recommendation is an important check on the excesses of the judicial system and allows a community to have a voice on whether judges are overly lenient or overly harsh. Senate Bill 5007 would deprive citizen jurors of the right to have a voice in the final outcome of criminal cases in their community. It effectively eliminates jury sentencing unless requested by the Defendant.

Wise County and the City of Norton Commonwealth’s Attorney Chuck Slemp said, “Stripping citizens of a right should be the last resort, not an initial act. With this letter, we are saying ‘Don’t throw the baby out with the bathwater.’ We support real, effective, and constitutional reforms. We pray for the General Assembly to keep our current system and make it better. ”

Madison County Commonwealth’s Attorney Clarissa Berry said, “As former Nuremberg prosecutor and Justice Robert H. Jackson reminded us in a 1940’s speech, the role of a prosecutor is not to be a Democrat or Republican, but to simply do what is right and to protect the entire community, defendants and victims alike.”

Pittsylvania County Commonwealth’s Attorney Brian Haskins said, “At a time when we want increased citizen involvement in the criminal justice system, we should be reminded that a jury is the first citizen review commission.”

Lynchburg City Commonwealth’s Attorney Bethany Harrison said, “The Commonwealth has a long tradition of recognizing the value of citizen input in the criminal justice process. While it is in the purview of the General Assembly to shape public policy, the enactment of SB 5007 will effectively remove a necessary voice in the ultimate outcome of a criminal prosecution: the community.”

Senate Bill 5007 is expected to be heard on the floor of the Virginia House of Delegates this week, after receiving favorable approval along party lines in Committee and in the Senate of Virginia.

The letter to the House members was signed by the sixty-six prosecutors:

September 29, 2020

Dear Speaker Filler-Corn, Majority Leader Herring, Minority Leader Gilbert, and members of the House of Delegates:

We are sixty-six elected Commonwealth’s Attorneys responsible for the safety of nearly four million citizens and over 42% of the population of the Commonwealth. We represent diverse communities in every region of Virginia. We are Democrats, Republicans, and Independents. Collectively, we commend the General Assembly for seeking ways to reform the criminal justice system making it more efficient, effective, and equitable; however, we join together opposing Senate Bill 5007. We implore this body to preserve Virginia’s important jury system together with the right of the people to participate fully in their government.

The stated policy goal behind SB 5007 is good and noble: ensuring that defendants get their fair day in court. We collectively share that goal. We take seriously that it is our sworn duty to ensure that justice, truth, and equity prevail. Because of our deep commitment, we cannot support SB 5007. As Commonwealth’s Attorneys seeking justice in our communities, we do not believe the appropriate solution is to strip citizens of the right to render a sentence reflective of their community’s values. We believe eliminating the jury’s involvement in an outcome of a trial might actually do more harm than good.

Jurors are more than twelve random people brought together; they are a cross-section of the community. As a society, it is important for the community to be engaged in the process of government. After all, an elected official’s power exists only because the citizens granted it. This principle is sacred. We should ensure that citizens are included in the outcomes of trials.

When citizens make decisions about what should happen in connection with other citizens, that is democracy, that is self-government, and there are very few other purer forms of the way in which that type of government can be expressed. The right to vote and jury duty/service are perhaps the two most important elements of our democratic form of government. In our system of checks and balances, the citizen’s jury is the ultimate check on the power of both the legislative and executive branches. A citizen jury reflects the community and also serves as a check on the excesses of professional jurists whether they err in punishments the
community views as overly harsh or overly lenient.

Most prosecutors agree that some change is necessary. We collectively support effective and constitutional criminal justice reform. With this in mind, we ask this body to reject SB 5007. We want to be part of the solution. Allow us to join with other stakeholders to develop legislation guaranteeing defendants access to a jury without stripping citizens of their rights.

There are many alternatives which ought to be considered to ensure a defendant’s right to a jury trial: elimination of some mandatory minimum punishment, submission of sentencing guidelines to the jury, allowing jurors to suspend portions of sentences, removing the bottom end of punishment ranges to allow a jury to start with no active time, or adding an “acceptance
of responsibility” offset to sentencing guidelines are just a few of the options which might be considered.

We respectfully ask that you do not casually disenfranchise citizen jurors of their rights as jurors instead of exploring and effecting better solutions more in keeping with the history, jurisprudence, and Constitution of Virginia.

Respectfully submitted,

Amherst County: W. Lyle Carver
Appomattox Co.: Leslie M. “Les” Fleet
Augusta County: Timothy A. Martin
Bath County: John C. Singleton
Bedford County: Wes Nance
Bristol City: Jerry A. Wolfe
Brunswick County: Lezlie S. Green
Buchanan County: Gerald D. Arrington
Buena Vista City: Joshua O. Elrod
Carroll County: Roger D. Brooks
Chesapeake City: Nancy G. Parr
Chesterfield County: Stacey Davenport
Clarke County: Anne M. Williams
Danville City: Michael J. Newman
Dickenson County: Joshua Newberry
Dinwiddie Co.: Ann Cabell Baskervill
Fauquier County: Scott Hook
Floyd County: Eric Branscom
Fluvanna County: Jeffrey W. Haislip
Frederick County: Ross P. Spicer
Fredericksburg City: LaBravia J. Jenkins
Giles County: Robert M. Lilly, Jr.
Grayson County: Brandon R. Boyles
Hanover Co.: R.E. “Trip” Chalkley, III

Halifax County: Tracy Q. Martin
Harrisonburg City & Rockingham
County: Marsha L. Garst
Henry County: M. Andrew Nester
Isle of Wight Co.: Georgette C. Phillips
King George County: Keri Gusmann
Lancaster County: Anthony G. Spencer
Lee County: H. Fuller Cridlin
Lunenburg County: Robert Clement
Lynchburg City: Bethany A. S. Harrison
Madison County: Clarissa T. Berry
Martinsville City: G. Andrew Hall
Mathews Co.: T.C. “Tom” Bowen, III
Mecklenburg County: R. Allen Nash
Middlesex County: Michael T. Hurd
Montgomery County: Mary K. Pettitt
Nelson County: Daniel L. Rutherford
Northampton County: Beverly Powell Leatherbury
Orange County: Diana W. O’Connell
Patrick County: Stephanie Brinegar-Vipperman
Page County: Kenneth Alger
Pittsylvania County:
Robert “Brian” Haskins

Prince George County: Susan Fierro
Radford City: Chris Rehak
Rappahannock County: Arthur L. Goff
Richmond City: Colette W. McEachin
Richmond County: Elizabeth A. Trible
Roanoke City: Donald Caldwell
Roanoke County: Brian Holohan
Rockbridge County: Jared L. Moon
Russell County: Zack A. Stoots
Shenandoah Co.: Amanda M. Wiseley
Southampton County & City of
Franklin: Eric A. Cooke
Staunton City: Jeffrey Gaines
Suffolk City: C. Phillips Ferguson
Tazewell County: J. Chris Plaster
Virginia Beach City: Colin Stolle
Warren County: John S. Bell
Waynesboro City: David L. Ledbetter
Williamsburg City & James City County: Nathan R. “Nate” Green
Wise County & City of Norton: Charles H. Slemp, III
Wythe County: Mike D. Jones
York County & City of Poquoson: Benjamin M. “Ben” Hahn

SB 5007 is expected to be voted on today.