Proposed Recommendations for Guidelines Revisions

Commonly Used Source Material for Identifying Possibilities for Revisions to Sentencing Guidelines  Low compliance rate  Clusters of similar reasons for judicial departures from sentencing guidelines  Observations from sentencing guidelines users – Judges – Prosecutors – Public defenders – Defense attorneys – Probation officers  Empirical examination of sentencing practices for relatively new felony crimes

3 Proposals for Guidelines Revisions  Steps Review existing worksheet, compliance and departure patterns Analyze judicial reasons for departure Test revised scoring scenarios – Best fit for the data Project judicial concurrence with proposal – Score cases using guidelines data and/or pre-sentence report information – Use current Recommendation Tables Maximize compliance (and balance departures, if possible)

Proposed Recommendation 1: Drugs and Weapons

5 Proposed Recommendation 1 Add a factor to Section C of the Schedule I/II and Other Drug Sentencing Guidelines to increase the prison sentence recommendation for offenders who have an accompanying weapons offense that carries a mandatory minimum term  Issue Current guidelines were developed prior to Virginia Exile, legislation which created new mandatory minimum terms for certain weapons offenses and increased existing mandatory minimum terms for others. The Commission has received comments that these mandatory minimums have been in effect for several years but have not been incorporated into the guidelines. This is most noticeable when a drug crime is accompanied by weapons offense. Guidelines users are instructed to adjust the recommended range, if necessary, to reflect the mandatory minimum. Any part of the range that falls below the mandatory minimum should be adjusted to be equal to the required minimum term. Approximately 73% of drug cases with weapons crimes carrying a mandatory minimum should have a range adjustment.

6 Compliance in Cases with Convictions for Drug Crimes Accompanied by Weapons Offenses Requiring a Mandatory Minimum Term FY2003 – FY cases Proposed Recommendation 1

7  A factor can be added to the Section C of both Drug guidelines to increase the sentence recommendation for cases involving this combination of offenses. Proposed Recommendation 1

 Mandatory Firearm Conviction for Current Event Assign points to each additional offense with a mandatory minimum and total the points Years Mandatory Minimum Years Mandatory Minimum

9  Adding 13 points for every two-year mandatory minimum term required and 32 points for every five-year mandatory minimum term required, maximizes compliance and balances mitigation and aggravation rates. Proposed Recommendation 1 Current Guidelines Proposed Change Compliance69%72% Mitigation10%15% Aggravation21%13%

10 Proposed Recommendation 1 Add a factor to Section C of the Schedule I/II and Other Drug Sentencing Guidelines to increase the prison sentence recommendation for offenders who have an accompanying weapons offense that carries a mandatory minimum term

Proposed Recommendation 2: Street Robbery with Certain Additional Offenses

12 Proposed Recommendation 2 Add a factor to Section A of the Robbery Sentencing Guidelines to increase the likelihood that offenders convicted of robbery will receive a prison sentence recommendation when they are also convicted of an additional offense  Issue This case circumstance was suggested by a Commission member. Robbery without the use of a gun or simulated gun does not always yield a prison recommendation on the sentencing guidelines even when accompanied by an additional felony offense. Example: Primary offense: Completed street robbery (without a gun or simulated gun) Additional offenses: Attempted street robbery (no gun or simulated gun) Sexual battery (misdemeanor)

13 Proposed Recommendation 2  During FY2003-FY2006, more than 93% of all robbery offenders were recommended for a prison term.  Among offenders convicted of robbery and an additional felony offense during FY2003-FY2006, 99% were recommended for a prison term.  For FY2003-FY2006, 17 cases were identified in which the offender was convicted of robbery and another felony offense but was not recommended for a prison term.

14 Proposed Recommendation 2  Three potential guideline changes were explored.  Scenario 1: – Add 1 point on Section A of the Robbery guidelines for any additional felony with a statutory maximum of 10 years or more  Scenario 2: – Add 1 point on Section A of the Robbery guidelines for any additional person felony  Scenario 3: – Add 1 point on Section A of the Robbery guidelines for any additional Category 1 or 2 felony

2 – or more SCENARIO 1

 Additional Offense is a Felony Crime Against Person If YES, add 1 SCENARIO 2

 Additional Offense is Defined as Violent § (Category I or II) If YES, add 1 SCENARIO 3

18 Proposed Recommendation 2 Current Guidelines Proposed Change Compliance1110 Mitigation04 Aggravation63 FY2003-FY2006 (17 cases) Scenario 1: Current Guidelines Proposed Change Compliance1110 Mitigation05 Aggravation62 FY2003-FY2006 (17 cases) Scenario 2: Current Guidelines Proposed Change Compliance119 Mitigation05 Aggravation63 FY2003-FY2006 (17 cases) Scenario 3:

19 Proposed Recommendation 2 Add a factor to Section A of the Robbery Sentencing Guidelines to increase the likelihood that offenders convicted of robbery will receive a prison sentence recommendation when they are also convicted of an additional offense Scenario 1, 2 or 3

Proposed Recommendation 3: False Statement on Firearm Consent Form

21 Proposed Recommendation 3 Revise the Weapons Sentencing Guidelines to increase the likelihood that some offenders convicted of Making a False Statement on a Firearm Consent Form will be recommended for incarceration up to six months instead of incarceration of more than six months.  Issue This offense was added to the guidelines effective July 1, During the first year of implementation, compliance for Making a False Statement on a Firearm Consent Form was 67%, with mitigation comprising nearly all of the departures (30%). Most commonly cited reasons for mitigation are: minimal circumstances of the case, plea agreement, lack of serious prior record, and recommendation of Commonwealth’s attorney. Many of the offenders whose sentences were mitigated had only one count of the offense, no additional offenses, no victim injury, prior record that included a previous incarceration, but no legal restraint at the time of the current offense.

22  For the crime of Making a False Statement on a Firearm Consent Form, the guidelines can be refined to better identify offenders for whom judges have ordered a jail sentence of six months or less (versus those given a sentence greater than six months).  Revising the points assigned for the primary offense factor on Section A of the Weapons Guidelines can achieve this. Proposed Recommendation 3

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24 By revising the primary offense score for Making a False Statement on a Firearm Consent Form on Section A of the Weapons Guidelines from 4 points to 3 points, compliance can be improved slightly. Proposed Recommendation 3 Current Guidelines Proposed Change Compliance67%70% Mitigation30%24% Aggravation3%6% FY2007 (66 cases)

25 Proposed Recommendation 3 Revise the Weapons Sentencing Guidelines to increase the likelihood that some offenders convicted of Making a False Statement on a Firearm Consent Form will be recommended for incarceration up to six months instead of incarceration of more than six months.

Proposed Recommendation 4: Involuntary Manslaughter

27 Proposed Recommendation 4 Revise Section A of the Murder/Homicide Guidelines to increase the likelihood that offenders convicted of Involuntary Manslaughter and Involuntary Vehicular Manslaughter will be recommended for a prison sentence.  Issue Combined, the compliance for Involuntary Manslaughter and Involuntary Vehicular Manslaughter is 52%, with nearly all of the departure sentences above the guidelines. Most commonly cited reasons for aggravation are: aggravating circumstances/flagrancy of offense, extreme violence/victim injury, guidelines recommendation is too low, offender has drug/alcohol problems In nearly two-thirds of the aggravating departure cases, the offender had been recommended for probation or up to six months in jail but was sentenced to serve more than six months of incarceration.

28 Compliance in Cases of Involuntary Manslaughter and Involuntary Vehicular Manslaughter FY2003 – FY cases Proposed Recommendation 4

29  For Involuntary Manslaughter and Involuntary Vehicular Manslaughter, the guidelines can be refined to better identify offenders for whom judges have ordered a prison sentence.  Revising the points assigned for the primary offense on Section A of the Murder/Homicide Guidelines can achieve this. Proposed Recommendation 4

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31  By increasing the points for the primary offense on Section A of the Murder/Homicide Guidelines from 1 point to 3 points (1 count) and from 3 to 8 points (2 counts), the guidelines would be more in sync with judicial practice. Proposed Recommendation 4 Current Guidelines Proposed Change Compliance52%62% Mitigation7% Aggravation41%31%

32 Proposed Recommendation 4 Revise Section A of the Murder/Homicide Guidelines to increase the likelihood that offenders convicted of Involuntary Manslaughter and Involuntary Vehicular Manslaughter will be recommended for a prison sentence.

Proposed Recommendation 5: Child Abuse Felonies

34 Proposed Recommendation 5 1. Amend Section A of the Miscellaneous Sentencing Guidelines, adding the offenses of Gross, Wanton, or Reckless Care for a Child (§ (B), Class 6 felony) and Cruelty and Injuries to Children (§ , Class 6 felony) 2. Adjusting the points assigned to the current child abuse felony covered by this worksheet (§ (A), Class 4 felony)  Issue The current guidelines cover Child Abuse and Neglect with Serious Injury (§ (A), Class 4 felony) – Two related lesser offenses, including one defined in the same statute as the current guidelines offense, are not covered.

35 Compliance in Cases of Child Neglect & Abuse - § (A) FY2003 – FY2006 (n=216) Proposed Recommendation 5 Commonly cited reasons : Extreme Violence Victim Vulnerabilit y Flagrancy

36  Gross, Wanton, or Reckless Care for a Child (§ (B), Class 6 felony) and Cruelty and Injuries to Children (§ , Class 6 felony) – Not currently covered by the guidelines Proposed Recommendation 5 DispositionPercent Median Sentence No Incarceration43% Up to 6 Months30%3 Months More than 6 Months27%2 Years FY2003 – FY2006 (188 cases)

37  Section A Primary offense scores – For 1 count Gross or Reckless Care of Child: 1 point – For 1 count Cruelty and Injury to Children: 2 points Injury scores – For Serious Physical Injury: 5 points – For Other Injury: 2 points  Section B Primary offense score – For 1 count: 2 points  Section C Primary offense scores – For 1 count, Other Category: 7 points – For 1 count, Category 2: 14 points – For 1 count, Category 1: 28 points Injury scores For Serious Physical Injury: 10 points For Physical Injury: 7 points For Other Injury: 6 points Proposed Recommendation 5 Add Gross, Wanton, or Reckless Care for Child (Class 6 felony) and Cruelty and Injuries to Children (Class 6 felony)

38  Section A Increase the primary offense scores – For 1 count: from 2 points to 3 points – For 2 counts: from 6 points to 7 points Increase the injury scores – For Serious Physical Injury: from 2 points to 5 points – For Other Injury: from 1 point to 2 points  Section B Increase the primary offense scores – For 1 count: from 1 point to 3 points  Section C Reduce the primary offense scores – For 1 count, Other Category: from 9 points to 8 points – For 1 count, Category 2: from 18 points to 16 points – For 1 count, Category 1: from 36 points to 32 points Increase the injury scores – For Serious Physical Injury: from 5 points to 10 points – For Physical Injury: from 4 point to 7 points – For Other Injury: from 2 point to 6 points Proposed Recommendation 5 Adjust Points for Offense Currently Covered (Child Abuse and Neglect, Class 4 felony)

E. Child neglect/abuse, serious injury 1 count counts F.Gross, reckless care of child G.Cruelty and injury to child Primary offense other than child abuse etc.Primary Offense child abuse etc. Threatened, emotional or physical Threatened, emotional or physical Serious physical Serious physical Add New Offenses Increase Scores

E.Child neglect/abuse, serious injury F.Gross, reckless care of child G.Cruelty and injury to child Add New Offenses Increase Scores

E. Child neglect/abuse, serious injury F.Gross, reckless care of child G.Cruelty and injury to child Primary offense other than child abuse etc.Primary Offense child abuse etc. Threatened or emotional Threatened or emotional Physical Physical Serious physical Serious physical Decrease Scores Add New Offenses Increase Scores

42 Proposed Recommendation 5 Current Guidelines Proposed Change Compliance50%56% Mitigation13%15% Aggravation37%29% Expected Compliance Compliance54% Mitigation25% Aggravation21% Child Abuse and Neglect Class 4 Wanton, or Reckless Care for Child Cruelty and Injuries to Children Class 6 FY2003 – FY2006 (188 cases) FY2003 – FY2006 (216 cases)

43 Proposed Recommendation 5 Amend Section A of the Miscellaneous Sentencing Guidelines, adding the offenses of Gross, Wanton, or Reckless Care for a Child (Class 6, § (B)) and Cruelty and Injuries to Children (Class 6, § ) and adjusting the points assigned to the current child abuse felony covered by this worksheet