About the author: Jess Johnson
Partner of Johnson/Citronberg, PLLC
Jess Johnson is a founding partner of Johnson/Citronberg, PLLC, where he defends people charged with federal crimes nationwide and with criminal offenses in Virginia state courts.
Jury Sentencing in Virginia
Contact Johnson/Citronberg | (855) 959-4003
Jury sentencing in Virginia is now the defendant’s choice. After a trial, the judge decides your sentence unless you are tried by a jury and file a written request for jury sentencing at least 30 days before trial, under Va. Code § 19.2-295. In serious cases, such as major felonies and sex offense cases, this decision deserves careful thought, because the same jurors who heard the evidence would decide your punishment.
This article explains how the choice works, the deadline that catches people off guard, and what to weigh before you decide if a jury should sentence you. For help with a Virginia charge, see our Virginia criminal defense lawyer page.
How jury sentencing in Virginia changed in 2021
For more than two centuries, a Virginia jury that convicted someone also set the sentence. That changed on July 1, 2021. Today, the judge sentences by default, and a jury sentences only when the defendant asks for it.
The old system gave prosecutors leverage. Prosecutors could demand a jury trial, and a jury trial meant a jury sentence. The jury didn’t have any guidelines and often doled out harsher sentences. Many defendants simply entered guilty pleas than to take that risk. In 2018, juries exceeded the sentencing guidelines in about half the cases they decided, according to reporting cited by the Fairfax Circuit Court. Virginia’s sentencing guidelines are used by judges to fashion reasonable sentences in many cases.
The 30-day deadline to request jury sentencing
The request must be filed with the court as a written pleading at least 30 days before trial. Virginia courts enforce that deadline strictly.
In Bland-Henderson v. Commonwealth, 303 Va. 211 (2024), the defendant filed his request 13 days before trial. The Supreme Court of Virginia held that he had waived jury sentencing, and the judge sentenced him. The Court noted that a judge may still grant a continuance in an appropriate case, but a late filer can’t count on one.
Three practical points follow:
- You decide early. The deadline usually falls before you know everything about how trial will go.
- It only applies to jury trials. If you plead guilty, or your case is tried by a judge, the judge sentences you.
Can you change your mind after requesting a jury sentence?
The statute doesn’t say whether you can withdraw a request. Two judges of the Fairfax County Circuit Court have reached different answers:
- In Commonwealth v. Burkard, 112 Va. Cir. 1 (2023), the judge ruled that a defendant could withdraw his request for jury sentencing.
- In Commonwealth v. Green, 110 Va. Cir. 161 (2022), the judge ruled that a defendant does not have the right to revoke jury sentencing unless he does so more than 30 days before trial.
Until a higher court or the General Assembly settles the question, you should assume that your request may be locked in once trial is less than 30 days away.
Judge vs. jury: how sentencing differs
| Topic | Judge sentencing (the default) | Jury sentencing (only if you request it) |
|---|---|---|
| Who decides | The trial judge | The same jury that convicted you |
| Sentencing guidelines | The judge must review Virginia’s discretionary sentencing guidelines | The jury is told nothing about the guidelines (§ 19.2-298.01) |
| Evidence at sentencing | Sentencing guidelines worksheets, plus evidence and argument from both sides | The prosecutor presents your prior record and may present victim impact testimony; you may present evidence about punishment (§ 19.2-295.1) |
| Sentencing range | The limits set by law, including any mandatory minimum | The same limits, including any mandatory minimum |
| If there’s no agreement | Not applicable | If the jury can’t agree on a sentence, the judge sets it |
| After the sentence | The judge can suspend all or part of it | The judge can lower it but not raise it, and must explain any change in writing (§ 19.2-303) |
What to weigh before you decide
There is no right answer for every case. These are the factors we look at with clients before the deadline.
- The evidence the jury has already seen. The sentencing hearing typically takes place right after the verdict. Whatever troubled the jury about the evidence is still fresh when they choose a sentence.
- No guidelines for jurors. A judge sentences with Virginia’s guidelines in front of them and experience with many similar cases. Jurors pick a sentence without either.
- Your record and your mitigating evidence. If you have no prior convictions, the prosecutor has no record to present. Treatment records, character witnesses, and other mitigation can be presented either way, but they may land differently with jurors than with a judge.
- What the judge can do afterward. A jury’s sentence works as a ceiling. The judge can impose a lower sentence, but not more.
- The limits don’t move. Neither a judge nor a jury can go outside the range the law sets. Where an offense carries a mandatory minimum term, it binds both.
- Plea negotiations. Prosecutors can no longer use the threat of a jury sentence as leverage. Your lawyer should factor this decision into plea discussions before the 30-day deadline.
Jury sentencing in sex offense cases
Sex offense cases are often different from run of the mill criminal cases. Many jurors are much more sensitive to child victims and want to be viewed as protecting children. In cases involving child pornography, solicitation of a minor, or a contact offense, these factors deserve extra weight when making a decision:
- What the jury has seen. In a child pornography trial, jurors may have just seen graphic images and videos involving young children. In an online sting case, they will usually have read the chat logs containing damaging language. Those reactions carry straight into the sentencing hearing.
- Mandatory minimums. Some of these charges carry mandatory minimum terms that neither a judge nor a jury can go below. Our Virginia child pornography lawyer page lists the penalties.
- Mitigating evidence. Evidence such as a psychosexual evaluation or an autism diagnosis often takes careful explanation. A judge who has handled many of these cases may weigh it differently than jurors hearing it for the first time. The defense should also consider presenting character testimony. In many cases, the most important thing is to assure the jury that the defendant is not a future danger to children.
For specific charges, see our pages on solicitation of a minor and child pornography in Virginia.
Federal cases work differently
This choice exists only in Virginia state court. In a federal case, the judge always decides the sentence. If federal agents are involved in your case, see our federal criminal defense lawyer page.
Talk to a lawyer before the deadline
Because the request must be filed at least 30 days before trial, this is one of the earliest strategic decisions when going to trial in Virginia. If you’ve been charged, talk to a lawyer well before your trial date. Contact Johnson/Citronberg for a confidential consultation.
Frequently asked questions
Does a jury decide my sentence in Virginia?
Not by default. Since July 1, 2021, the judge decides the sentence unless you are tried by a jury and have filed a written request for jury sentencing at least 30 days before trial.
When do I have to request jury sentencing?
At least 30 days before trial. The deadline is strict. In 2024, the Supreme Court of Virginia held that a request filed 13 days before trial was too late.
Can I withdraw a request for jury sentencing?
The statute doesn’t say. Fairfax County Circuit Court judges have disagreed. One ruled a request can be withdrawn only more than 30 days before trial. But another judge allowed a withdrawal after the guilty verdict.
Does the jury see Virginia’s sentencing guidelines?
No. Only the judge reviews the sentencing guidelines.
Can a judge change a jury’s sentence in Virginia?
Yes, but only downward. The jury’s sentence works as a maximum.
What happens if the jury can’t agree on a sentence?
The judge sets the sentence instead.
If I plead guilty, can a jury sentence me?
No. When you plead guilty to a felony, the judge decides the case and the sentence. Jury sentencing is only available when a jury finds you guilty at trial.
Can I request jury sentencing in a sex offense case?
Yes. The same rules apply to sex offenses as to other felonies. You must be tried by a jury and file a written request at least 30 days before trial.
