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The Virginia Senate passed legislation today that would authorize a court to impanel a new jury for the sentencing phase of a criminal case if the original jury deadlocks on a punishment.

The bill already has passed the House of Delegates and now will go to Gov. Bob McDonnell, who supports the legislation. The General Assembly passed a nearly identical bill in 2007, but then-Gov. Tim Kaine vetoed it.

Under Virginia’s bifurcated criminal trial system, a jury first decides whether a defendant is guilty. If the defendant is found guilty, the same jury hears additional evidence before deliberating on a punishment. If a jury is deadlocked on sentencing, a new jury can be impaneled only if the court, the prosecutor and the defendant agree to it.

Under House Bill 77, the court would impanel a new jury for sentencing unless the prosecutor and the defendant ask the judge to determine sentencing. The new jury only would determine the defendant’s sentence, not guilt or innocence. Del. Greg Habeeb, R-Salem, sponsored the bill, which was requested by state prosecutors.

“What this does is it weighs the balance between the victims and the perpetrator, and it errs a little bit on the side of the victims, and makes it much more efficient,” Habeeb said.

Habeeb noted that lower courts already convene new juries for sentencing proceedings when an appellate court remands a case to reconsider an offender’s penalty.

“It’s not a radical departure from what we already do,” Habeeb said. “We already do it when cases are returned for sentencing.”

The Senate passed Habeeb’s bill by a vote of 33-7. The House of Delegates approved it by a vote of 66-32 last month.

Both supporters and opponents of the bill said juries rarely get hung up on sentencing. Sen. Tom Garrett, R-Louisa County, a former commonwealth’s attorney, said hung juries often involve a lone juror holding out for a tougher sentence. Garrett said the legislation would protect the rights of victims who might otherwise have to endure an entirely new trial.

Sen. Bill Stanley, R-Franklin County, a trial lawyer, argued against the bill during the Senate’s floor debate.

“The jury system we have today works,” Stanley said. “There are instances, and I know of them personally from my own experience in my own trial practice, where that system in place as it is now has actually helped – not only the person who is accused, but the prosecution.”

– Michael Sluss