TOP VIRGINIA STATE LEGISLATOR, DAVE ALBO,
EXPLAINS VIRGINIA CRIMINAL LAW
Dave Albo served as a Member of the Virginia House of Delegates from 1994-2017, and served as Chairman of the House Courts of Justice Committee from 2005-2017. This is the committee that writes all of Virginia’s criminal laws.
If you are reading this, you, a friend, or loved one is probably facing a felony or misdemeanor charge somewhere in Virginia. By clicking on the criminal law icon above, you will receive more detailed information regarding your situation. In this introductory article, I thought you would like some general information on how Virginia criminal law and process works, and what makes Virginia’s laws and procedures different.
I have a lot to offer you in this article. That is because for over two decades I wrote or co-wrote all the criminal laws for Virginia. And, for over a decade, I was the Chairman of the Committee responsible for writing these laws that you, your friend, or loved one face. There is no one in Virginia who can better understand the pending against you than me.
First, let me start by explaining the difference between a Misdemeanor and a Felony. It is simple: A Misdemeanor is punishable by a maximum of one year in jail, and a Felony is any charge that is punishable by more than one year. There are classes of Misdemeanors and Felonies. The most serious Misdemeanors (such as Larceny, DUI, Assault and Battery) are Class 1 Misdemeanors. They are punishable by up to one year in jail and a $2,500 fine. Class 2 Misdemeanors are punishable by up to six months in jail and a $1000 fine. Class 3 and 4 Misdemeanors are just punishable only by fines. Misdemeanors are crimes and are reported to a Defendant’s criminal record. But while getting convicted of any crime is a serious thing, a Misdemeanor conviction is less serious than a Felony. As such, a Misdemeanor conviction does not take away a Defendant’s civil rights (e.g. right to vote and possess a firearm). Felonies, on the other hand, are considered serious crimes. A Felony conviction results in the loss of several civil rights in addition to any fines or incarceration. The lowest class of felonies is the Class 6 Felony (such as Grand Larceny); the highest class is the Class 1 Felony (such as First Degree Murder).
Here are the different punishment ranges in the Code:
§ 18.2-10. Punishment for conviction of felony; penalty.
The authorized punishments for conviction of a felony are:
(a) For Class 1 felonies, death, if the person so convicted was 18 years of age or older at the time of the offense and is not determined to be mentally retarded pursuant to § 19.2-264.3:1.1, or imprisonment for life and, subject to subdivision (g), a fine of not more than $100,000. If the person was under 18 years of age at the time of the offense or is determined to be mentally retarded pursuant to § 19.2-264.3:1.1, the punishment shall be imprisonment for life and, subject to subdivision (g), a fine of not more than $100,000.
(b) For Class 2 felonies, imprisonment for life or for any term not less than 20 years and, subject to subdivision (g), a fine of not more than $100,000.
(c) For Class 3 felonies, a term of imprisonment of not less than five years nor more than 20 years and, subject to subdivision (g), a fine of not more than $100,000.
(d) For Class 4 felonies, a term of imprisonment of not less than two years nor more than 10 years and, subject to subdivision (g), a fine of not more than $100,000.
(e) For Class 5 felonies, a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
(f) For Class 6 felonies, a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
(g) Except as specifically authorized in subdivision (e) or (f), or in Class 1 felonies for which a sentence of death is imposed, the court shall impose either a sentence of imprisonment together with a fine, or imprisonment only. However, if the defendant is not a natural person, the court shall impose only a fine.
In addition to these classifications, there are some code sections that have their own specific range of punishment. These punishment ranges are quite broad. For Grand Larceny, for example, the punishment range is from probation (no incarceration) to 20 years in prison. Most people charged with a crime immediately ask, “What time can I expect if I am convicted?” The truthful answer is … it depends. In all cases, there are mitigating and aggravating factors that affect a sentence.
For most crimes, Virginia has created applicable Sentencing Guidelines, based on historical sentencing statistics. The goal of the guidelines is for similarly situated defendants convicted of similar crimes to get similar punishments. They are just what the name implies: “guidelines.” Their use is discretionary with the Judge – he or she can follow them, impose a greater sentence, or a lesser sentence. If the Judge finds justification to deviate from the guidelines, however, he or she must explain on the record the reason for doing so. For example, a Judge may state that aggravating factors made the crime worse than usual, or mitigating factors that showed that the defendant, prior to having committed the crime, had been a particularly good person with a long record of honorable behavior and community service.
The Guidelines work on a scoring system where certain crimes get certain points (for example, most larceny charges start out with very few base points while robbery starts out with a lot). The number of points are based upon a study done by social scientists who determined the average amount of prison time people historically got in Virginia for each type of crime. The legislature then added points for aggravating factors, such as use of a gun, whether the person was on probation at the time of the offense, and for repeat offenses. After all the points are awarded, the points are added up and an accompanying chart states the sentencing range for each point balance.
The Guidelines create a frame of reference for plea bargaining. Plea bargaining is the negotiations between Prosecutors and Defense Attorneys in an effort to reach a settlement of a criminal case. Defense Attorneys are required to engage in these negotiations, but a Defendant need never accept the result of the negotiations. He or she can always plead Not Guilty and make the Prosecutor prove the case beyond a reasonable doubt. However, most cases are resolved through plea agreements. A Prosecutor cannot possibly take to trial more than a fraction of his or her caseload, and could be persuaded to agree to a lesser penalty for “ends of justice” reasons. So, he or she has an incentive to negotiate. Defendants can often negotiate lesser punishments than he or she might get if convicted at trial, so he or she also has an incentive to negotiate.
If the attorneys negotiate a plea agreement that includes a specific sentence, they can bind the Court to it or state it as a joint recommendation. (Judges usually accept such recommendations). However, often, the plea agreement is only to the specific offense. For example, a person initially charged with Robbery might be happy to have the option to plead guilty to Grand Larceny, leaving the actual sentence a matter for the Judge to decide.
If the parties fail to reach a plea agreement, the Defendant has two choices:
(1) Plead Not Guilty and go to trial; or
(2) Plead Guilty.
If the Defendant chooses to go to trial, he or she might have the choice to have a trial by jury or a trial by a single judge (called a “bench trial”).
In a trial by a Judge, if the Defendant loses, the Judge uses the Sentencing Guidelines discussed above. But if the Defendant goes to trial by jury, then the jury decides both guilt or innocence and sets the punishment without the use of the Sentencing Guidelines. In a jury trial, twelve citizens of the community and compelled to listen to the trial, discuss the case among themselves in private, and decide if the accused is Guilty or Not Guilty. The decision is guided by the Judge’s explanation of the applicable law. The jury decides the facts that are applied to that law. Their verdict must be unanimous. If even one juror disagrees with his or her colleagues, the jury is “hung” and the case may be retried before a second jury.
If the jury unanimously acquits the Defendant, he wins and is free. If the jury unanimously convicts the Defendant, they will be given some additional information about the Defendant’s background, deliberate a second time, and recommend a punishment. Virginia is one of only six states in the United States where the jury not only determines guilt or innocence (this exists in all states), but also recommends the punishment. In Virginia, most Judges impose the jury’s “recommendation” since the jury is the voice of the community.
Jury recommended sentencing is problematic for Defendants because there is no way to accurately predict how punitive any jury will be. An experienced attorney can give an estimate, but can do no more than that. Thus, a jury trial is “high stakes.” Many in the Legislature have suggested getting rid of the jury sentencing rule, but these bills are always defeated because many legislators believe “the people of Virginia should decide the punishment of their peers.”
As you can see, there are lots of decisions to make about whether to accept a plea agreement or go to trial. If going to trial, should one waive a jury or not? That is why guidance of an experienced criminal attorney is essential. It is so important that if one accused of a crime is poor, the Court will appoint a Public Defender (a lawyer paid by the state) to represent the Defendant.
Defendant often feel that a Public Defender is a bad lawyer. That is not necessarily true. Most Public Defenders are very experienced and diligent. The problem is that Public Defenders have huge caseloads. They often complain of not having the time they would like to devote to any one case.
Of course, it is best to have an attorney of one’s own choice. We would be honored to be your attorney. We charge a fair fee for the work we do because we undertake a great amount of legal work prior to court so that we know the possible defenses available to our clients. Then, when in court, our attorneys generally handle only one serious case a day. That way you get individual attention.
In addition, few other firms feature attorneys who:
- Are Former prosecutors,
- Teach criminal law to other lawyers,
- Teach judges about legal updates to the law,
- Speak often on national networks such as Fox News, CNN, MSNBC, and NBC’s “Today Show”;
- Are regularly featured in the media as “Top Lawyers” (such as by the Washingtonian and Northern Virginia magazines), and
- Have had their legal defenses reported state-wide to other attorneys in the Virginia Lawyers Weekly.