VIRGINIA CRIMINAL SENTENCING COMMISSION New Nonviolent Offender Risk

VIRGINIA CRIMINAL SENTENCING COMMISSION New Nonviolent Offender Risk Assessment Instruments – Status Update November 5, 2014

Legislative Directive for Nonviolent Offender Risk Assessment n In 1994, Virginia’s legislature directed the newlycreated Sentencing Commission to: n l Develop an empirically-based risk assessment instrument predictive of a felon’s relative risk to public safety, and l Apply the instrument to nonviolent felons recommended for prison, with a goal of placing 25% of those offenders in alternative sanctions. After the instrument was developed and pilottested, the Commission recommended, and the General Assembly approved, statewide implementation for July 1, 2002. 2

Legislative Directive for Nonviolent Offender Risk Assessment Legislative Directive to Revisit Offender Risk Assessment n In 2003, the General Assembly directed the Commission to determine, with due regard for public safety, the feasibility of adjusting the instrument threshold to recommend additional low-risk nonviolent offenders for alternative punishment. n The Commission concluded that the threshold could be raised from 35 to 38 points without significant risk to public safety. − Change became effective July 1, 2004. 3

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Use of Nonviolent Offender Risk Assessment n The risk assessment is completed in larceny, fraud and drug cases for offenders who are recommended for incarceration by the sentencing guidelines. n Offenders recommended for probation without incarceration do not undergo risk assessment. − n Goal is to avoid net widening. Offenders must also meet the eligibility criteria. − Most importantly, offenders with a current or prior violent felony conviction (as defined in § 17. 1 -805) are excluded from risk assessment. 5

Use of Nonviolent Offender Risk Assessment n For offenders who score low enough on the risk scale, the sentencing guidelines cover sheet indicates a dual recommendation. − − Traditional incarceration Alternative punishment n As with the sentencing guidelines, compliance with the risk assessment recommendation is discretionary. n If a judge follows either sentencing recommendation, he or she is considered in compliance with the guidelines. 6

Most Recent Risk Assessment Study n Because it had been a number of years since the instrument was last examined, the Commission, in 2010, directed staff to begin the process of revalidating its risk assessment tool based on a more recent sample of felony cases. n Following completion of the study, the Commission approved the revised risk assessment tools (one for fraud/larceny offenders and one for drug offenders). n The 2012 Annual Report included a recommendation to implement the revised risk instruments, which was accepted by the General Assembly. n The new instruments became effective on July 1, 2013. 7

Recidivism Measures n As with prior nonviolent offender risk assessment studies, the official measure of recidivism was a new felony conviction within 3 years. n However, multiple measures of recidivism were collected. l Any new arrest l New felony arrest l Any new conviction l New felony conviction New conviction is measured as a new arrest within three years of release that ultimately resulted in a conviction. 8

Three-Year Recidivism Rates (following release to community) New conviction is measured as a new arrest within three years of release that ultimately resulted in a conviction. Analysis is based on the sample weighted to reflect the population of offenders eligible for risk assessment. 9

Three-Year Recidivism Rate: New Felony Conviction within Three Years by Offense Group Total = 1, 509 New conviction is measured as a new arrest within three years of release that ultimately resulted in a conviction. Analysis is based on the sample weighted to reflect the population of offenders eligible for risk assessment. 10 10

Scoring of Employment Record and Marital Status on FY 2003 -FY 2013 Risk Assessment Instrument n Guidelines users reported that information for two factors on the previous risk assessment instrument (employment history and marital status) was not always available. n It has always been the Commission's policy that the guidelines preparer err on behalf of the defendant if a particular piece of information is unknown. n As a result, some offenders recommended for an alternative sanction would not have been recommended had unemployment and marital status been known and scored accurately. 11

Scoring of Employment Record and Marital Status on FY 2003 -FY 2013 Risk Assessment Instrument n A check box was added to the Nonviolent Offender Risk Assessment form in FY 2011 to indicate when offender information was not available. n In addition, data entry procedures were modified to track instances where scores were missing. In FY 2011, the check box was marked or information was missing relating to unemployment or marital status in 14. 4% of eligible cases. 12

Three-Year Recidivism Rate: New Felony Conviction within Three Years Based on Previous Risk Assessment Instrument (as scored) Total = 1, 509 New conviction is measured as a new arrest within three years of release that ultimately resulted in a conviction. Analysis is based on the sample weighted to reflect the population of offenders eligible for risk assessment. 13

Three-Year Recidivism Rate: New Felony Conviction within Three Years Based on Previous Risk Assessment Instrument For Offenders Who Received Points on the Employment or Marital Factor Total = 963 New conviction is measured as a new arrest within three years of release that ultimately resulted in a conviction. Analysis is based on the sample weighted to reflect the population of offenders eligible for risk assessment. 14

MOST RECENT RISK ASSESSMENT STUDY For Drug offenders: The FY 2003 -FY 2013 instrument correctly identified 82. 6% of non-recidivists. The FY 2014 instrument correctly identified 84. 0% of non-recidivists. This figure was found to be stable across 750 subsamples. The threshold for the FY 2014 instrument was set such that approximately the same percentage of drug offenders would be recommended for alternatives as had been in FY 2012 (61. 3%).

MOST RECENT RISK ASSESSMENT STUDY For Larceny/Fraud offenders: The FY 2003 -FY 2013 instrument correctly identified 76. 3% of non-recidivists. The FY 2014 instrument correctly identified 79. 3% of non-recidivists. This figure was found to be stable across 650 subsamples. The threshold for the FY 2014 instrument was set such that approximately the same percentage of larceny/fraud offenders would be recommended for alternatives as had been in FY 2012 (42. 6%).

Risk Assessment Outcomes for Nonviolent Offenders* Recommended for Alternative Not Recommended for Alternative N=6, 062 N=7, 060 N=6, 704 N=6, 200 * Offenders recommended by the sentencing guidelines for prison or jail incarceration 17 17

Risk Assessment Outcomes for Nonviolent Offenders* FRAUD Recommended for Alternative LARCENY Not Recommended for Alternative N=1, 025 N=2, 537 N=806 N=2, 436 SCHEDULE I/II DRUG Recommended for Alternative 18 Not Recommended for Alternative OTHER DRUG Not Recommended for Alternative N=2, 549 N=594 N=2, 400 N=560 * Offenders recommended by the sentencing guidelines for prison or jail incarceration 18

Examples of Differences in Offender Population: FY 2005 -FY 2006 versus FY 2014 19 FY 2005 -FY 2006* FY 2014 Fraud 55. 7% Male 62. 9% Male Fraud 65. 9% Legally Restrained 68. 3% Legally at Offense Restrained at Offense Larceny 31. 4% Female 37. 6% Female Other Drug 5. 0 median prior record points scored on Section C 7. 0 median prior record points scored on Section C * Population used to create sample for the most recent risk assessment study. 19

Monitoring n While the analysis to develop the new risk assessment instruments was valid, the proportion of certain types of individuals in the felon population appears to have changed. n These shifts in the population appear to be affecting risk assessment outcomes (i. e. , the percentage of offenders recommended for alternatives). n Staff will continue to monitor the new risk assessment instruments throughout FY 2015. 20