1. Possible Recommendations for Guidelines Revisions November 5, 2014 VIRGINIA CRIMINAL SENTENCING COMMISSION

2. 2 Proposals reflect the best fit for the historical data. Proposals are designed to closely match the historical rate of incarceration in prison and jail. Current guidelines worksheets serve as the base for scoring historical cases, but the points assigned to those factors may be different for the new offense and new factors may be added. Proposals for New Guidelines Offenses

3. Proposed Recommendation 1: Add Distribution of Schedule IV Drugs (§ 18.2-248(E2)) to the Drug/Other Guidelines

4. 4 The penalty for distribution of a Schedule IV drug was increased from a Class 1 misdemeanor to a Class 6 felony in 2005. Currently, convictions under § 18.2-248(E2) are not covered by the sentencing guidelines when this offense is the primary (or most serious) offense at sentencing. Distribution of Schedule IV Drugs (§ 18.2-248(E2))

5. 5 Generally, Schedule IV drugs have less potential for abuse and dependency compared to Schedule III drugs. Many of these drugs are accepted in medical treatment (e.g., managing seizures, anxiety, and insomnia). Schedule IV drugs have a depressant effect on the central nervous system. Schedule IV drugs include: Valium, Xanax, Darvocet, Ativan, and other tranquilizers and sedatives. Distribution of Schedule IV Drugs (§ 18.2-248(E2))

6. 6 DispositionPercent Median Sentence No Incarceration40.5%NA Incarceration Up to 6 Months 40.4%2.8 Months Incarceration More than 6 Months 19.1%1 Year Distribution, etc., of a Schedule IV Controlled Substance (§ 18.2-248(E2)) FY2010 – FY2014 131 Cases Note: Data reflect cases in which this offense was the primary (or most serious) offense at sentencing; two offenders were excluded because a rap sheet could not be located. Source: Supreme Court of Virginia, Circuit Court Case Management System (CMS)

7. 7 Middle 50% of sentences: 9.5 mos. to 1.2 years Sentence in Years Distribution, etc., of a Schedule IV Controlled Substance (§ 18.2-248(E2)) FY2010 – FY2014 Offenders Sentenced to Incarceration of More than 6 Months 25 Cases

8. Proposed 8 Create new Primary Offense scores I. Sell, etc., Schedule IV drug 1 count ……………………………………………………………. 6 2 counts …………………………………………………………... 8

9. Proposed 9 Create new Primary Offense scores E. Sell, etc., Schedule IV drug 1 count.……………………………………………………………. 6 2 counts.…………………………………………………………... 9

10. 10 Proposed Score Prior Incarcerations/Commitments and Legally Restrained factors for Schedule IV drugs in the same manner as Schedule III drugs or Schedule IV drug

11. Proposed Create new Primary Offense scores Prior Record Classification Category I Category II Other I. Sell, etc., Schedule IV drug Attempted, conspired or completed 1 count.……………… 8 ……… 4..……. 2

12. 12 Disposition Recommended under Proposed Guidelines Actual Practices Prior to Sentencing Guidelines No Incarceration38.9%40.5% Incarceration 1 Day to 3 Months 19.8%20.6% Incarceration 3 Months to 6 Months 21.5%19.8% Incarceration More than 6 Months 19.8%19.1% Distribution, etc., of a Schedule IV Controlled Substance (§ 18.2-248(E2)) FY2010 – FY2014 131 Cases

13. 13 Sentence in Years Distribution, etc., of a Schedule IV Controlled Substance (§ 18.2-248(E2)) FY2010 – FY2014 Offenders Sentenced to Incarceration of More than 6 Months 25 Cases Actual Sentence (median): 1 year Proposed Guidelines Midpoint (median): 1.1 years

14. 14 Proposed Recommendation 1 Add Distribution, etc., of a Schedule IV Controlled Substance (§ 18.2-248(E2)) to the Drug/Other Guidelines as proposed

15. Proposed Recommendation 2: Add Certain Identity Fraud Offenses (§ 18.2-186.3) to the Fraud Guidelines

16. 16 Identity Fraud (§ 18.2-186.3) Section 18.2-186.3, defining identity fraud offenses, was added to the Code of Virginia in 2000. One of the five felony offenses in § 18.2-186.3(D) is currently covered by the guidelines. − Added in 2006 Other felonies in § 18.2-186.3(D) are not currently covered by the sentencing guidelines as the primary (or most serious) offense.

17. 1 11 17 Obtain identifying info. with intent to defraud§18.2-186.3(A)Class 1 misd. Sell or distribute, obtain identifying info. with intent to defraud §18.2-186.3(B)Class 1 misd. Obtain identifying info. to avoid arrest or impede investigation §18.2-186.3(B1)Class 1 misd. Obtain identifying info. of 5 or more people§18.2-186.3(D)Class 5 felony Obtain identifying info. of 50 or more people§18.2-186.3(D)Class 4 felony Obtain identifying info. with intent to defraud, 2nd or subsequent §18.2-186.3(D)Class 6 felony Use of identifying info. to defraud, results in detention of victim §18.2-186.3(D)Class 5 felony Use of identifying info. to defraud, financial loss greater than $200 §18.2-186.3(D)Class 6 felony Covered by current guidelines Identity Fraud (§ 18.2-186.3) Cases 1 156

18. 18 DispositionPercent Median Sentence No Incarceration19.2%NA Incarceration Up to 6 Months 41.7%4 Months Incarceration More than 6 Months 39.1%1 Year Obtain Identifying Information with Intent to Defraud, 2nd or Subseq. (§ 18.2-186.3(D)) FY2010 – FY2014 156 Cases Note: Data reflect cases in which this offense was the primary (or most serious) offense at sentencing; four offenders were excluded because a rap sheet could not be located. Source: Supreme Court of Virginia, Circuit Court Case Management System (CMS)

19. 19 Middle 50% of sentences: 9 mos. to 1.3 years Sentence in Years Obtain Identifying Information with Intent to Defraud, 2nd or Subseq. (§ 18.2-186.3(D)) FY2010 – FY2014 Offenders Sentenced to Incarceration of More than 6 Months 61 Cases

20. Proposed 20 Create new Primary Offense scores H. Obtain identifying information with intent to defraud, 2nd or subseq. 1 count ……..………………..………………..………..……………. 1

21. Proposed 21 Split Prior Convictions/Adjudications factor and assign different points for Obtaining Identifying Information with Intent to Defraud, 2 nd or Subsequent  Prior Convictions/Adjudications Primary offense OTHER THAN Primary offense Obtain Identifying Info 2 nd or subseq. Obtain Identifying Info 2 nd or subseq. Maximum Penalty Points Maximum Penalty Points Years: Less than 2........................... 0 Years: Less than 9............................ 0 2 – 7..…..................……..…. 1 9 – 41 ….................……...…… 1 8 – 17 …..................……..…. 2 42 or more.............……...…… 2 18 – 24 …..................…….… 3 25 – 35 …..................………. 4 36 or more................………. 5

22. Proposed 22 Split Prior Misdemeanor Convictions/Adjudications factor and assign different points for Obtaining Identifying Information with Intent to Defraud, 2 nd or Subsequent  Prior Misdemeanor Convictions/Adjudications Primary offense OTHER THAN Primary offense Obtain Identifying Info 2 nd or subseq. Obtain Identifying Info 2 nd or subseq. Number of Counts Points Number of Counts Points 1 – 3 …........................... 1 1 – 5 ….…..........……...…… 1 4 – 6 ….….........……….. 2 6 or more …......……...…… 2 7 or more …....……….. 3

23. Proposed 23 Create new Primary Offense scores H. Obtain identifying information with intent to defraud, 2 nd or subsequent 1 count ……..………………..………………..………..……………. 6

24. Proposed 24 Add a factor to Section B to increase the recommendation in certain cases SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY OFFENSE AT CONVICTION IS OBTAIN IDENTIFYING INFORMATION WITH INTENT TO DEFRAUD, 2 ND OR SUBSEQ. (§ 18.2-186.3(D))  Prior Misdemeanor Convictions/Adjudications Number of Counts Points 1 – 7 ….................................. 1 8 or more ………....……….. 4

25. Proposed 25 Create new Primary Offense scores Prior Record Classification Category I Category II Other G. Obtain identifying information with intent to defraud, 2nd or subseq. 1 count.…………………………….…….……... 16 ….….. 8....…. 4

26. 26 Disposition Recommended under Proposed Guidelines Actual Practices Prior to Sentencing Guidelines No Incarceration19.2% Incarceration 1 Day to 6 Months 41.7% Incarceration More than 6 Months 39.1% Obtain Identifying Information with Intent to Defraud, 2nd or Subseq. (§ 18.2-186.3(D)) FY2010 – FY2014 156 Cases

27. 27 Sentence in Years Obtain Identifying Information with Intent to Defraud, 2nd or Subseq. (§ 18.2-186.3(D)) FY2010 – FY2014 Offenders Sentenced to Incarceration of More than 6 Months 61 Cases Actual Sentence (median): 1 year Proposed Guidelines Midpoint (median): 1 year

28. 28 Proposed Recommendation 2 Add Obtain Identifying Information with Intent to Defraud, 2nd or Subseq. (§ 18.2-186.3(D)) to the Fraud Guidelines as proposed

29. Proposed Recommendation 3: Add Certain Credit Card Offenses (§§ 18.2-192 and 18.2-194) to the Fraud Guidelines

30. 30 Receiving, buying, or selling stolen credit card or credit card number (§ 18.2-192 (1,b), (1,c), and (1,d)) Section 18.2-192 was last modified in 1985. One of the four felony offenses in this Code section is currently covered by the guidelines. − Covered by truth-in-sentencing guidelines when implemented in 1995

31. 31 Theft of credit card or credit card number§18.2-192(1,a)Felony 1 - 20 years Receive stolen credit card or credit card number with intent to use or sell §18.2-192(1,b)Felony 1 - 20 years Sell or buy stolen credit card or credit card number §18.2-192(1,c)Felony 1 - 20 years Receive 2 or more stolen credit cards within 12 months §18.2-192(1,d)Felony 1 - 20 years Possession of two or more signed credit cards § 18.2-194Felony 1 - 20 years Covered by current guidelines Credit Card Offenses (§§ 18.2-192 and 18.2-194) Cases 77 8 4 0

32. 32 DispositionPercent Median Sentence No Incarceration44.2%NA Incarceration Up to 6 Months 19.5%3 Months Incarceration More than 6 Months 36.4%1.1 Years Receiving a Stolen Credit Card or Number with the Intent to Use or Sell (§ 18.2-192(1,b)) FY2010 – FY2014 77 Cases Note: Data reflect cases in which this offense was the primary (or most serious) offense at sentencing; one offender was excluded because a rap sheet could not be located Source: Supreme Court of Virginia, Circuit Court Case Management System (CMS)

33. 33 Middle 50% of sentences: 1 year to 2 years Sentence in Years Receiving a Stolen Credit Card or Number (§ 18.2-192(1,b)) FY2010 – FY2014 Offenders Sentenced to Incarceration of More than 6 Months 28 Cases

34. Proposed 34 Create new Primary Offense scores H. Receiving stolen credit card or credit card number with the intent to use or sell 1 count.....………………………..………………..………..……………. 3 2 counts......………………………..………………..………..…………. 10

35. Proposed 35 Create new Primary Offense scores H. Receiving stolen credit card or credit card number with the intent to use or sell 1 count....................………………………..………………..………..…… 7

36. Proposed 36 Create new Primary Offense scores Prior Record Classification Category I Category II Other G. Receiving stolen credit card or credit card number with the intent to use or sell 1 count..………………………….…….…….. 24 …... 12....…. 6

37. 37 Disposition Recommended under Proposed Guidelines Actual Practices Prior to Sentencing Guidelines No Incarceration46.8%44.2% Incarceration 1 Day to 6 Months 16.9%19.5% Incarceration More than 6 Months 36.4% Receiving a Stolen Credit Card or Number with the Intent to Use or Sell (§ 18.2-192(1,b)) FY2010 – FY2014 77 Cases

38. 38 Sentence in Years Receiving a Stolen Credit Card or Number (§ 18.2-192(1,b)) FY2010 – FY2014 Offenders Sentenced to Incarceration of More than 6 Months 28 Cases Actual Sentence (median): 1.1 years Proposed Guidelines Midpoint (median): 1.1 years

39. 39 Proposed Recommendation 3 Add Receiving a Stolen Credit Card or Number with the Intent to Use or Sell (§ 18.2-192(1,b)) to the Fraud Guidelines as proposed

40. Proposed Recommendation 4: Add Strangulation Resulting in Injury or Bodily Wounding (§ 18.2-51.6) to the Assault Guidelines

41. Strangulation Resulting in Bodily Injury (§ 18.2-51.6) 41 Any person who, without consent, impedes the blood circulation or respiration of another person by knowingly, intentionally, and unlawfully applying pressure to the neck of such person resulting in the wounding or bodily injury of such person is guilty of strangulation, a Class 6 felony. (Effective July 1, 2012)

42. Currently, convictions under § 18.2-51.6 are not covered by the sentencing guidelines when this offense is the primary (or most serious) offense at sentencing 42 Strangulation Resulting in Bodily Injury (§ 18.2-51.6)

43. 43 DispositionPercent Median Sentence No Incarceration21.3%NA Incarceration Up to 6 Months 34.0%4 Months Incarceration More than 6 Months 44.7%1 Year Strangulation Resulting in Bodily Injury (§ 18.2-51.6) FY2013 – FY2014 94 Cases Note: Data reflect cases in which this offense was the primary (or most serious) offense at sentencing; one offender was excluded because a rap sheet could not be located. Source: Supreme Court of Virginia, Circuit Court Case Management System (CMS)

44. 44 Middle 50% of sentences: 10 mos. to 2.5 years Sentence in Years Strangulation Resulting in Bodily Injury (§ 18.2-51.6) FY2013 – FY2014 Offenders Sentenced to Incarceration of More than 6 Months 42 Cases

45. Proposed 45 Score Strangulation Resulting in Bodily Injury the same as Assault and Battery Against a Family Member, 3 rd or Subsequent A.Assault and battery against a family member, 3 rd or subseq. or strangulation resulting in bodily injury 1 count ……..………………..………………..………..……………. 2 C. Any attempted or conspired assault and battery or unlawful injury 1 count..……………………..………………..………..……………. 1

46. Proposed Also score this factor for strangulation SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY OFFENSE AT CONVICTION IS A: ASSAULT & BATTERY AGAINST A FAMILY MEMBER (§ 18.2-57.2(B)) OR STRANGULATION (§ 18.2-51.6)

47. Proposed Split Additional Offense factor and assign higher points for Strangulation Resulting in Bodily Injury  Additional Offenses Primary offense OTHER THAN Primary offense Strangulation § 18.2-51.6 Strangulation § 18.2-51.6 Maximum Penalty Points Maximum Penalty Points Years: Less than 5.......................... 1 Years: Less than 5............................ 5 5 or more................……..…. 2 5 or more...............……...…… 6

48. Proposed Split Prior Convictions/Adjudications factor and assign higher points for Strangulation Resulting in Bodily Injury  Prior Convictions/Adjudications Primary offense OTHER THAN Primary offense Strangulation § 18.2-51.6 Strangulation § 18.2-51.6 Maximum Penalty Points Maximum Penalty Points Years: Less than 5.......................... 0 Years: Less than 4............................. 0 5 – 18 …..................……..…. 1 4 – 15 ….................……...…… 3 19 – 38 …................……..…. 2 16 – 38.…...............……...…… 4 39 or more................………. 3 39 or more...............……...….. 5

49. Proposed SCORE THE FOLLOWING FACTORS ONLY IF PRIMARY OFFENSE AT CONVICTION IS ASSAULT & BATTERY AGAINST A FAMILY MEMBER (§ 18.2-57.2(B)) OR STRANGULATION (§ 18.2-51.6) Also score these factors for strangulation

50. Proposed 50 Score Strangulation Resulting in Bodily Injury the same as Assault and Battery Against a Family Member, 3 rd or Subsequent Prior Record Classification Category I Category II Other A. Assault and battery against a family member, 3 rd or subseq. or strangulation resulting in bodily injury 1 count.…………………………….…….…... 28...….. 14...… 7 50

51. 51 Disposition Recommended under Proposed Guidelines Actual Practices Prior to Sentencing Guidelines No Incarceration24.5%21.3% Incarceration 1 Day to 3 Months 6.4% Incarceration 3 Months to 6 Months 28.7%27.7% Incarceration More than 6 Months 40.4%44.7% Strangulation Resulting in Bodily Injury (§ 18.2-51.6) FY2013 – FY2014 94 Cases

52. 52 Sentence in Years Strangulation Resulting in Bodily Injury (§ 18.2-51.6) FY2013 – FY2014 Offenders Sentenced to Incarceration of More than 6 Months 42 Cases Actual Sentence (median): 1 year Proposed Guidelines Midpoint (median): 1.3 years

53. 53 Proposed Recommendation 4 Add Strangulation Resulting in Bodily Injury (§ 18.2-51.6) to the Assault Guidelines as proposed

54. Other Analyses: Indecent Liberties (§§ 18.2-370(A) and 18.2-370.1(A))

55. 55 Proposals are designed to maximize compliance and balance mitigation and aggravation rates to the extent possible. Current guidelines worksheets serve as the base for scoring historical cases, but the points assigned to those factors may be adjusted and new factors may be added. Proposals for Revisions to Existing Guidelines Offenses

56. Compliance with the current guidelines for these offenses is well below the overall compliance rate and when judges depart, they are significantly more likely to sentence above the guidelines than below. Indecent Liberties with Child under Age 15 (§ 18.2-370(A)) Class 5 felony Indecent Liberties by Custodian (§ 18.2-370.1(A)) Class 6 felony Note: Cases with scoring errors were excluded from the analysis. Cases = 291 Cases = 228 Compliance70.1% Mitigation8.2% Aggravation21.6% Compliance62.3% Mitigation9.2% Aggravation28.5% Compliance with Sentencing Guidelines for Indecent Liberties (§ 18.2-370(A) and § 18.2-370.1(A)) FY2010 – FY2014 56

57. 57 Actual versus Recommended Dispositions for Indecent Liberties with Child under Age 15 (§ 18.2-370(A)) FY2010 – FY2014 Actual Practice Recommended under Current Sentencing Guidelines Probation or Incarceration Up to 6 Months 27.1%35.4% Incarceration More than 6 Months (Range includes prison) 72.9%64.6% Current guidelines could be more closely aligned with the actual prison incarceration rate

58. 58 Compliance with Sentencing Guidelines for Indecent Liberties with Child under Age 15 (§ 18.2-370(A)) FY2010 – FY2014 Cases in which guidelines recommend incarceration of more than 6 months (range includes prison) Cases = 188

59. 59 Actual versus Recommended Dispositions for Indecent Liberties by Custodian (§ 18.2-370.1(A)) FY2010 – FY2014 Actual Practice Recommended under Current Sentencing Guidelines Probation or Incarceration Up to 6 Months 38.2%50.9% Incarceration More than 6 Months (Range includes prison) 61.8%49.1% Current guidelines could be more closely aligned with the actual prison incarceration rate

60. 60 Compliance with Sentencing Guidelines for Indecent Liberties by Custodian (§ 18.2-370.1(A)) FY2010 – FY2014 Cases = 112 Cases in which guidelines recommend incarceration of more than 6 months (range includes prison)

61. 61 Modify Primary Offense scoring for Indecent Liberties D. Indecent liberties with a child under age 15 1 count …………………………………………………………………………… 3 2 counts ………………………………………………………………………….. 6 3 counts ………………………………………………………………………….. 9 Indecent liberties by custodian 1 count …………………………………………………………………………… 2 2 - 3 counts..…………………………………………………………………….. 7 If total is 8 or less, go to SECTION B. If total is 9 or more, go to SECTION C.

62. Modify Primary Offense scoring for Indecent Liberties C. Indecent liberties with a child under age 15 (completed) 1 count …………………………………………………………………………….. 2 Indecent liberties by custodian (completed) 1 count …………………………………………………………………………….. 1 2 counts …………………………………………………………………………… 4 Split Victim Age factor and assign higher points for Indecent Liberties Victim Less than Age 13 at Time of Offense Primary offense OTHER THAN Primary offense is Indecent Liberties Indecent Liberties § 18.2-370(A) or § 18.2-370.1(A) If YES, add 3If YES, add 4 62

63. Add new factor for Victim Injury SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY OFFENSE AT CONVICTION IS INDECENT LIBERTIES Victim Injury Primary offense is Indecent Liberties with Primary offense is Indecent Liberties Child under Age 15 § 18.2-370(A) by Custodian § 18.2-370.1(A) Threatened/Emotional ………………… 1 Threatened/Emotional ………………… 3 Physical/Life Threatening …………….. 2 Physical/Life Threatening …………….. 4 63

64. Dispositional Compliance Overall Compliance CurrentProjected Compliance78.7%80.1% Mitigation6.2%7.9% Aggravation15.1%12.0% Compliance with Sentencing Guidelines for Indecent Liberties with Child under Age 15 (§ 18.2-370(A)) FY2010 – FY2014 CurrentProjected Compliance70.1%70.4% Mitigation8.2%10.0% Aggravation21.6%19.6% 64

65. Dispositional Compliance Overall Compliance CurrentProjected Compliance64.0%72.4% Mitigation6.6%14.0% Aggravation29.4%13.6% Compliance with Sentencing Guidelines for Indecent Liberties with Child by Custodian (§ 18.2-370.1(A)) FY2010 – FY2014 CurrentProjected Compliance62.3%61.8% Mitigation9.2%17.1% Aggravation28.5%21.1% 65

66. Percentage Recommended for Incarceration of More than 6 Months (Section C) Indecent Liberties with Child under Age 15 68.7% As proposed Indecent Liberties by Custodian 60.1% As proposed Aggravated Sexual Battery 86.1% Current All other62.5% Current Aggravated Sexual Battery and Other Offenses Covered by the Other Sexual Assault Guidelines FY2010 – FY2014 Note: Rape, forcible sodomy, and object sexual penetration (i.e., sex offenses with a statutory maximum penalty of life) are covered by the Rape sentencing guidelines. 66

67. Victim Less than Age 13 at Time of Offense If YES, add 4 Add new factor for Victim Injury Victim Injury Primary offense OTHER THAN Primary offense is Indecent Liberties Indecent Liberties by Custodian § 18.2-370.1(A) by Custodian § 18.2-370.1(A) Threatened/Emotional ……………… 1 Threatened/Emotional ……………… 3 Physical/Life Threatening …………… 2 Physical/Life Threatening …………… 4 Scoring remaining sexual assault offenses on proposed Section B Victim Age and Victim Injury factors 67

68. Aggravated Sexual Battery Carnal Knowledge, Incest, and Other Sexual Assault Offenses Note: Cases with scoring errors were excluded from the analysis. Compliance with Sentencing Guidelines for Other Sexual Assault Offenses FY2010 – FY2014 Current Scoring Proposed Factors Compliance68.7%69.0% Mitigation15.3%15.7% Aggravation15.9%15.3% Current Scoring Proposed Factors Compliance72.8%72.5% Mitigation8.1%8.4% Aggravation19.1% 68