Legislative Impact Analysis for the 2007 General Assembly

2 Code of Virginia § :4  The Virginia Criminal Sentencing Commission must prepare a fiscal impact statement for any bill which would result in a net increase in the population of offenders housed in state adult correctional facilities.  Current law became effective July 1,  Effective July 1, 2002, the impact statement must: Include analysis of the impact on local and regional jails as well as state and local community corrections programs; Detail any necessary adjustments to the sentencing guidelines.

3 Code of Virginia § :4  The amount of the estimated increase in operating costs identified in the Commission’s impact statement must be printed on the face of the bill.  For each law enacted that results in a net increase in the prison population, a one-year appropriation must be made. Appropriation is equal to the highest single-year increase in operating cost for the six years following the effective date of the law.  Appropriations per § :4 are deposited into the Corrections Special Reserve Fund.

4 Legislative Impact Analysis  The requirement for an impact statement includes, but is not limited to, those proposals that: Add new crimes for which imprisonment is authorized; Increase the periods of imprisonment authorized for existing crimes; Raise the classification of a crime from a misdemeanor to a felony; Impose minimum or mandatory terms of imprisonment; or Modify the law governing release of prisoners.

5 Legislative Impact Analysis  The necessary appropriation is calculated by: Estimating the net increase in the prison population likely to result from the proposal for the six years following enactment; Multiplying the highest single-year figure by the cost of holding a prison inmate for a year (operating costs, not to include capital costs);  For 2006, the annual operating cost per prison inmate was $25,709. This figure is provided each year by the Department of Planning and Budget.

6 Type of Legislative Change% of Analyses Expansion or Clarification of Crime44.9% New Crime33.1% Increase Felony Penalty12.2% Mandatory Minimums11.8% Misdemeanor to Felony10.6% Increase Misdemeanor Penalty1.5% Death Penalty0.8% Presumptive Denial of Bail0.8% Normative Modification of Guidelines0.8% Percentages do not add to 100% as proposed legislation can involve multiple types of changes. Multiple analyses may be performed on each bill, depending on the number of amended and substitute versions that are adopted General Assembly – 263 Impact Analyses Completed

7 Type of Offenses in Proposed Legislation  Sex Offenders and Offenses (68 analyses) Established mandatory minimum sentences for many child porn crimes Increased restrictions on SOR offenders Increased penalties for several sex crimes Expanded number of SOR offenses Expanded those needing to register with SOR

8 Type of Offenses in Proposed Legislation  Illegal Aliens (30 analyses) Expanded immigration extortion Targeted human trafficking Defined a new crime for being an illegal alien in Virginia Defined a new felony for DWI by an illegal alien in Virginia

9 Type of Offenses in Proposed Legislation  Gang crimes (18 analyses) Defined gang-related terrorism Expanded gang predicate crimes Defined new gang offenses in conjunction with proximity to children

10 Proposal to Raise Misdemeanor to a Felony  House Bill 1864 (Stalking) The proposal amends § by increasing the penalty for a second or subsequent conviction from a Class 1 misdemeanor to a Class 6 felony. The proposal was left in Senate Finance Committee.

11 Proposal to Add Mandatory Minimum Sentences  Senate Bill 1234 (Methamphetamine) The proposal adds § to create a felony with mandatory, minimum penalties for violations related to manufacturing, selling, giving, distributing or possessing with intent to manufacture, sell, give or distribute 28 grams or more of methamphetamine. –For 28 grams or more, the mandatory minimum sentence would be 3 years. –For 227 grams or more, the mandatory minimum sentence would be 5 years. The proposal was left in House Appropriations Committee.

12 Proposal to Create New Crime  House Bill 2978 (Maiming with operating watercraft while intoxicated) The proposed legislation adds § to make it a Class 6 felony for a person to operate a watercraft while intoxicated in a manner that shows reckless disregard for human life and causes serious bodily injury resulting in permanent and serious impairment to another. The bill passed and is awaiting the Governor’s signature.

13 Proposal to Expand an Existing Crime  House Bill 1923 (Sex offender registration of those found not guilty by reason of insanity) The proposed legislation amends § to require those found not guilty by reason of insanity for offenses that, if found guilty, would require registration with SOR to register. Failure to meet registration requirements could lead to felony convictions. The bill passed and is awaiting the Governor’s signature.

14 The Iterative Process of Legislation  House Bill 2749 (Child pornography and the Sex Offender Registry) Introduced: $1,322,375 House Appropriations Committee Substitute: $1,194,404 Engrossed bill: $1,194,404 Senate Courts Committee Substitute: Cannot be determined Conference Committee Substitute : $1,238,469 Enrolled bill: $ 1,238,469

House Bill 2749/Senate Bill 1071

16 House Bill 2749/Senate Bill 1071  These bills: Increased penalties and added mandatory minimum penalties for certain offenses related to child pornography and online solicitation of minors (§§ , :1, ) Expanded the requirements for offenders who must register or re-register with the Sex Offender and Crimes against Minors Registry (SOR) to include the offender’s address and instant messaging, chat or other Internet communication names (§§ , , ).

Offense(s)Victim’s AgeCurrent PenaltyProposed Penalty Use of a communication system to solicit minors with the intent to take indecent liberties with a child (Proposed § C) Less than 15 years old Class 5 felony (1 to 10 years) 1 st conviction and offender is less than 7 years older than victim: Class 5 felony (1 to 10 years) (no mandatory minimum) 1 st conviction and offender is at least 7 years older than victim: Imprisonment 5 to 30 years Mandatory minimum: 5 years 2 nd conviction and offender is at least 7 years older than victim: Imprisonment 10 to 40 years Mandatory minimum: 10 years Use of a communication system to solicit minors with the intent to take indecent liberties (Proposed § D) 15 to 17 years old None1 st conviction and offender is at least 7 years older than victim: Class 5 felony (1 to 10 years) (no mandatory minimum) 2 nd conviction and offender is at least 7 years older than victim: Mandatory minimum: 1 year Note: There are no proposed penalties if the offender is less than 7 years older than the victim. House Bill 2749/Senate Bill 1071

Offense(s)Victim’s AgeCurrent PenaltyProposed Penalty Accosting or enticing a minor to be the subject of child pornography – § (B1) Producing or attempting to produce child pornography – § (B2) Participating in the filming or production of child pornography - § (B3) Less than 15 years old Class 5 felony (1 to 10 years) 1 st conviction and offender is less than 7 years older than victim: Imprisonment 5 to 30 years (no mandatory minimum) 1 st conviction and offender is at least 7 years older than victim: Imprisonment 5 to 30 years Mandatory minimum: 5 years 2 nd conviction and offender is at least 7 years older than victim: Imprisonment 15 to 40 years Mandatory minimum: 15 years 15 to 17 years old Class 5 felony (1 to 10 years) 1 st conviction and offender is less than 7 years older than victim: Imprisonment 1 to 20 years (no mandatory minimum) 1 st conviction and offender is at least 7 years older than victim: Imprisonment 3 to 30 years Mandatory minimum: 3 years 2 nd conviction and offender is at least 7 years older than victim Imprisonment 10 to 30 years Mandatory minimum: 10 years

House Bill 2749/Senate Bill 1071 Offense(s)Victim’s AgeCurrent PenaltyProposed Penalty Financing or attempting to finance child pornography (Proposal moves from § C to § B4 Less than 15 years old Class 4 felony (2 to 10 years) 1 st conviction and offender is less than 7 years older than victim: Imprisonment 5 to 30 years (no mandatory minimum) 1 st conviction and offender is at least 7 years older than victim: Imprisonment 5 to 30 years Mandatory minimum: 5 years 2 nd conviction and offender is at least 7 years older than victim: Imprisonment 15 to 40 years Mandatory minimum: 15 years 15 to 17 years old Class 4 felony (2 to 10 years) 1 st conviction and offender is less than 7 years older than victim: Imprisonment 1 to 20 years (no mandatory minimum) 1 st conviction and offender is at least 7 years older than victim: Imprisonment 3 to 30 years Mandatory minimum: 3 years 2 nd conviction and offender is at least 7 years older than victim Imprisonment 10 to 30 years Mandatory minimum: 10 years

House Bill 2749/Senate Bill 1071 Offense(s)Victim’s AgeCurrent PenaltyProposed Penalty Selling, giving, distributing, transmitting, etc., child pornography (Proposal moves from § B4 to § :1C) Less than 18 years old Class 5 felony (1 to 10 years) 1st conviction: Imprisonment 5 to 20 years (no mandatory minimum) 2nd conviction: Mandatory minimum: 5 years

Commission Recommendations  In 2006, the Commission conducted a special study of offenses involving child pornography and online/electronic solicitation of minors.  In its 2006 Annual Report, the Commission recommended to the 2007 General Assembly that offenses defined in §§ , :1 and be added to the sentencing guidelines beginning July 1,  The General Assembly did not take action to counter the implementation of the Commission’s recommendations.  In many cases, the new mandatory minimum penalties will “trump” the guidelines recommendation.