An Evaluation of the D.C. Voluntary Sentencing Guidelines Frederick H. Weisberg, Chairman Barbara Tombs-Souvey, Executive Director D.C. Sentencing Commission The National Association of Sentencing Commission 2017 Annual Conference August 28, 2017

Sentencing in the District of Columbia 1997 National Capital Revitalization and Self-Government Improvement Act Formation of the Truth in Sentencing Commission 1998 DC Advisory Commission on Sentencing is created 1999 Report to Council: Criminal Sentencing Practices in the District of Columbia 1993-1998 2000 Report to Council: Sentence Recommendations to the Council of the District of Columbia Sentencing Reform Amendment Act 2003 Advisory Commission recommends adoption of voluntary sentencing guidelines 2004 The District launches the Voluntary Sentencing Guidelines as a pilot project 2006 Voluntary Sentencing Guidelines become permanent (see slide)

Purpose of the Evaluation Identify the impact of the Guidelines Sentencing trends and practices Types and lengths of sentences imposed 2. Determine if Guidelines are achieving their statutory goals: Certainty Consistency Adequacy of punishment 3. Identify any areas for improvement Examine the impact of Guidelines on sentencing practices and trends Types and lengths of felony sentences imposed Determine the extent to which the Guidelines are achieving their D.C. mandated goals of punishment Certainty Consistency Adequacy Identify any areas of the Guidelines that may need to be revisited

Methodological Challenges Pre- and Post-Guideline Analysis 1. Data from three distinct sentencing structures Pre-Guideline Indeterminate Pre August 5,2000 Pre-Guideline Determinate August 5,2002 - June 13,2004 Guideline sentences June 14,2004- 2015 2. Lack of length of stay data for Pre-Guideline Indeterminate Comparing Criminal History data across three sentencing structures 4. Missing/Unreliable data Involved data from three distinct sentencing structures Pre-Guideline Indeterminate - Offenses committed before August 5, 2000, and sentenced in the years 1999 through 2002 Pre-Guideline Determinate - Offenses committed on or after August 5 2000, and sentenced in the years 2000 through 2002 Guideline - Offense committed on or after June 2004, and sentenced in the years 2010 through 2015 Length of stay data for pre-guideline indeterminate sentences Criminal History comparisons Missing/Unreliable data

Sentencing Guidelines Basics Voluntary Felony Offenses Dual Grids Master Drug Vertical Axis Offense Severity Group Horizontal Axis Criminal History Score Multiple Sentence Options (grids in next slide) Voluntary Dual Grids – Master & Drug Vertical Axis – Offense Severity Group Master Grid 1-9 Drug Grid 1-4 Horizontal Axis – Criminal History Group A to E Colors / Shades: Prison Sentence available in every grid box Short Split sentences available in green grid boxes Probation sentences available in yellow grid boxes

The Basics of the Voluntary Guidelines (see previous slide)

Pre- and Post-Guidelines Comparisons I. Offender Demographics Similar across sentencing structures 90% Male 90% Black 40% individuals sentenced were between 20-30 years of age (see slide)

Pre- and Post-Guidelines Comparisons II. Types of Offenses Sentenced Homicide, Property, and Sex offenses Remained fairly steady Violent and Weapon offenses Number increased Drug Offenses Significant decline Proportion of sentences for Homicide, Property, and Sex offenses remained steady Proportion of sentences for Violent and Weapon offenses increased

Pre- and Post-Guidelines Comparisons Drug Sentences Imposed (see chart) Drug sentences decreased significantly

Pre- and Post-Guidelines Comparisons III. Sentence Types Imposed Minimal change in the likelihood of receiving a prison sentence between Pre-Guideline and Guideline structures Change in the likelihood of receiving a prison sentence between Pre-Guideline Indeterminate and Determinate sentencing structures Likelihood of receiving a prison sentence very little change Change in sentencing structure from indeterminate to determinate had a greater impact on the likelihood of receiving a prison sentence than the implementation of the Guidelines

Pre- and Post-Guidelines Comparisons Sentence Types Imposed Cont. Carrying a Pistol Without a License (CPWL) One exception Prison less likely under the Guidelines vs. Pre-Guideline Determinate Sentences 27% shorter under Guidelines Impact of recent ongoing court challenges to District’s gun laws District of Columbia v. Heller Carrying a pistol without a license (CPWL) was the only offense for which a prison sentence was less likely under the Guidelines than Pre-Guideline determinate sentencing structure CPWL sentences were also 27% shorter under Guidelines Impact of recent ongoing court challenges to District’s gun laws District of Columbia v. Heller

Pre- and Post-Guidelines Comparisons IV. Sentence Lengths Imposed Comparison between Pre-Guideline Determinate and Guidelines only Pre-Guideline Indeterminate data issue Sentences 18% shorter under Guidelines vs. Pre-Guidelines Determinate Violent offenses: Decrease by 31% (on average 18 months) Shift in types of violent offenses sentenced Drug offenses: Decreased on average 6 months Exceptions: Property and Sex Offenses Prison Sentences were 18% shorter under Guidelines than Pre-Guidelines Determinate Exceptions: Property and Sex offenses Violent offenses: Decrease by 31% (18 months) Shift in types of violent offenses sentenced Violent offenses showed more sentences for attempts than completed Less armed offenses sentenced Drug offenses: Attempted distribution of cocaine and heroin Decreased on average 6 months

Pre- and Post-Guidelines Comparisons V. Criminal History Shift from an unstructured to structured way of counting prior convictions Points assigned for prior convictions Pre-Guidelines: likelihood of receiving a prison sentence increased by 20% for each increase in criminal history category Guidelines: likelihood of receiving a prison sentence increased by 40% for each increase in criminal history category Shift from unstructured to a structured way of incorporating criminal history Incorporation of points for prior convictions Pre-Guidelines likelihood of receiving a prison sentence increased by 20% for each criminal history category Under Guidelines the likelihood of receiving a prison sentence increased by 40% for each criminal history category

Pre- and Post-Guidelines Comparisons Criminal History Cont. (see chart) Under pre-Guideline determinate sentencing, sentence length increased by 21% for each increase in criminal history category Under Guidelines the sentence length increased by 34% for each criminal history category

Sentencing Under the Guidelines (see chart) Overall decrease in the number of cases, counts, and offenders sentenced 2010-2015 Decline in felony sentences imposed 2010-2015 Drug offenses accounted for much of decline 76% decline in drug offenses sentenced

Sentencing Under the Guidelines I. Demographics Females sentenced between 2010 – 2015 Decreased by 45% Under 22 years of age 27.6% of offenders sentenced Ages 41 – 50 Decreased from 20.9% in 2010 to 9.5% in 2015 Females Sentenced declined 45% between 2010 – 2105 Related to decrease in Drug offenses Individuals under 22 years of age accounted for 27.6% of individuals sentenced Individuals 41-50 declined from 20.9% in 2010 to only 9.5% in 2015 Also related to decline in Drug offenses sentenced. Drug offenses sentenced fell from 58.6% to 23.6% for this age group

Certainty in Sentencing Certainty is defined as: Individuals who commit offenses in a prison only box under the Guidelines will receive a prison sentence within the recommended sentencing range Any exception to a prison sentence would be the result of judicial discretion or due to special circumstances or compelling reasons to depart from the recommended sentence type and range 78.5% of all counts sentenced received a prison sentence Prison was imposed in: 97.8% of prison only boxes 82.8% short split boxes 54.8% of probation boxes

Certainty in Sentencing Cont. Master Grid Prison was imposed for 78.5% of counts sentenced Prison sentences imposed: 97.8% in prison-only boxes 82.8% in short split boxes 54.8% in probation boxes Offense Severity Group likelihood of prison increases Criminal History Score sentence length increases 78.5% of all counts sentenced received a prison sentence Prison was imposed in: 97.8% of prison only boxes 82.8% short split boxes 54.8% of probation boxes

Certainty in Sentencing Cont. Drug Grid Different from Master Grid Prison accounted for 47.8% of sentences Probation accounted for 31.8% of sentences Evaluation of offense severity groups with multiple sentencing options D1: prison accounted 70% of sentences D2: equally likely to receive either a prison or non-prison sentence D3 and D4: were more likely to receive a non-prison than prison sentence Sentence Type Unlike the Master Grid, slightly less than half (47.8%) of counts received prison sentences 31.8% of counts on the Drug Grid received probation sentences Function of the number of Grid Boxes with multiple sentencing options Prison sentences were imposed for armed drug offenses (D1) in70% of the counts sentenced Sentences imposed for D2 offenses were equally likely to receive either a prison or non-prions sentence Drug offenses on D3 and D4 were more likely to receive a non-prison than prison sentence Especially in the lower CH categories

Consistency in Sentencing Consistency is defined as: Controlling for criminal history and severity of the offense, individuals should receive similar sentence types and lengths In a limited number of cases, some variation is permitted by the Guidelines and sentence imposed is still considered compliant Some variation in sentences is expected given the various types of offenses sentenced within a single offense severity group 78.5% of all counts sentenced received a prison sentence Prison was imposed in: 97.8% of prison only boxes 82.8% short split boxes 54.8% of probation boxes

Consistency in Sentencing Cont. Master Grid Sentence length for Master Grid Offenses increased as expected given OSG and CH score but the average sentence in each grid box varied In 30 out of 36 grid boxes had a mean sentence within the middle 50% of the box 30 out of 36 grid boxes have a mean sentence within the middle 50% of the range in the box

Consistency in Sentencing Cont. Master Grid Sex offenses are the exception Consistently shorter sentences than other offenses in M2 Consistently longer sentences than other offenses in M6 Sex offenses are sentenced differently Receive shorter sentences than other offenses on M2 Longer sentences than other offenses on M6

Consistency in Sentencing Drug Grid 38.8% of grid boxes the mean sentence was in the middle 50% of the range in the box 44.4% of grid boxes the mean sentence was in the lower 25% of the range in the box Impact of criminal history on repeat drug offenders is different than for other types of repeat offenders Sentence Length 15 out of the 18 Grid Boxes on the Drug Grid demonstrate sentences that cluster around the mean sentence length Length of prison sentence increase as severity and criminal history category increased. However, the location of the means sentence varied between the middle 50% and lower 25% of the recommended range The impact of criminal history for repeat drug offender is different than for other types of repeat offender

Consistency in Sentencing Cont. Drug Grid Cont. Drug Grid revised in 2011 Additional OSG and increased sentencing options Included Attempted/Possession of Liquid PCP Greater variation in sentencing More grid boxes Multiple sentencing options More flexibility in sentencing Restructuring did result in two statistically significant findings: Length of prison sentences declined by 13% for individuals age 22-30 There was no change in the likelihood of the age group being sentenced to prison versus a non-prison sentence This age group represented 30.3% of individuals sentenced for drug offenses The average length of prison sentence imposed declined by 19% for cases disposed of by jury trials There was no difference in lengths of prison sentences for pleas or bench trials The larger number of grid boxes on the Drug Grid with multiple sentencing options provides for more flexibility in sentencing, which also results in greater variation in the types of sentences imposed

Adequacy of Punishment Adequacy of punishment is defined as: The sentencing range and options recommended by the Guidelines provide for adequate punishment of the individual sentenced Departures from the Guidelines should be limited Upward or downward departures should only be expected when there are substantial and compelling reasons to impose a sentence type or length different than recommended by the Guidelines 78.5% of all counts sentenced received a prison sentence Prison was imposed in: 97.8% of prison only boxes 82.8% short split boxes 54.8% of probation boxes

Adequacy of Punishment Cont. Guideline Departures Sentencing ranges Very wide Overlap among grid boxes Dispositional and durational departures: 7.1% of all counts (2010-2015) Dispositional departures: very rare Durational departures: 4.1% above the range 8.1% below the range No relationship between a grid box and the likelihood of a departure Problem Area: only 26.9% of all departures had departure reasons provided Guidelines Departures Dispositional and durational departures accounted for 7.1% of all counts sentence 2010-2011 Including 11(c)(1)(C) – where both parties agree to sentence outside the recommended Guideline sentence. Departure reasons only provided in 26.9% of all departures – problem area Dispositional departures are very rare – 1.6% of departures Durational departures showed 4.1% above the range and 8.1% below the range No Grid box where departure is more likely to occur than a compliant Guideline sentence

Achieving Statutory Goals Overall Guidelines appear to be working as designed Similar sentences imposed for similar offenses and similar criminal history Severity of Sentence Offense Severity Group & Criminal History Sentence Type Imposed Sentencing Options in the Grid Box Overall, the Guidelines appear to be working as they were designed - Offenders with similar CH scores receive similar sentences for the same offense - Severity in sentencing increases as offense severity and criminal history increases - Sentences for counts on the Master and Drug Grids were more likely to receive prison sentences in prison-only grid boxes - Suggesting that there was greater consistency and certainty in the types of sentences imposed than in grid boxes with multiple sentencing options. - Consistency and certainty of sentence length is less apparent on the Master Grid than the Drug Grid - Partly attributable to greater variety of offense types on the Master Grid - Although the Guidelines are voluntary judicial compliance is high – consistently over 90% yearly - Given the high rate of compliance, victims, offenders, and the general public, can generally anticipate likely sentencing outcomes - Judicial discretion is retained allowing for appropriate sentencing for atypical cases.

Achieving Statutory Goals Cont. Consistently high judicial compliance – over 90% yearly Judicial discretion is retained Consistency and Certainty of sentence length: Less apparent on the Drug Grid than the Master Grid Overall, the Guidelines appear to be working as they were designed - Offenders with similar CH scores receive similar sentences for the same offense - Severity in sentencing increases as offense severity and criminal history increases - Sentences for counts on the Master and Drug Grids were more likely to receive prison sentences in prison-only grid boxes - Suggesting that there was greater consistency and certainty in the types of sentences imposed than in grid boxes with multiple sentencing options. - Consistency and certainty of sentence length is less apparent on the Master Grid than the Drug Grid - Partly attributable to greater variety of offense types on the Master Grid - Although the Guidelines are voluntary judicial compliance is high – consistently over 90% yearly - Given the high rate of compliance, victims, offenders, and the general public, can generally anticipate likely sentencing outcomes - Judicial discretion is retained allowing for appropriate sentencing for atypical cases.

Areas for Further Research Overall purpose of sentencing in D.C. Feedback from practitioners Role and impact of Criminal History Modifications to the Guideline sentencing ranges Placement of short-split and probation only grid boxes Offense rankings for specific offenses Impact of case disposition type Obtain additional data Input from judges, prosecutors, and defense attorneys, the primary users of the Guidelines Revisit the overall purpose of sentencing in the District of Columbia Examine the role of Criminal History in determining the Guideline sentence Consider modifications to the Guideline sentencing ranges Re-evaluate the placement of short-split and probation boxes on the grids Consider adding presumptive non-prison boxes to the grids Reassess the ranking of specific offenses on the Master Grid Examine the placement of Escape and BRA on the Master Grid Examine the impact of how a case is disposed Further research regarding the use of Mandatory Minimums in sentencing Request/Obtain additional data.

For more information: Website: http://scdc.dc.gov Email: scdc@dc.gov Phone: (202) 727 8822 Fax: (202) 727 7929 (audience questions)