Virginia Sentencing Guidelines Preliminary FY 2014 Report September

Virginia Sentencing Guidelines Preliminary FY 2014 Report September 8, 2014

FY 2014 - Cases Coded and Keyed* JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC TOTAL 2, 368 1, 938 2, 185 2, 042 1, 468 1, 084 2, 225 2, 120 2, 077 2, 293 1, 913 1, 786 12, 414 11, 085 23, 499 *Keyed as of August 14, 2014 (Includes all forms received) 2

Preliminary FY 2014 Report: General Compliance 3

Preliminary FY 2014 Report Judicial Agreement with Guideline Recommendations General Compliance: The degree to which judges agree with the overall guidelines recommendation. N=22, 829 4

Preliminary FY 2014 Report Judicial Agreement with Type of Recommended Dispositional Compliance: The degree to which judges agree with the type of sanction recommended. ACTUAL DISPOSITION RECOMMENDED DISPOSITION Probation/No Incarceration 6 months or less Incarceration over 6 months Probation/No Incarceration 69. 7% 25. 0% 5. 3% Incarceration 6 months or less 11. 2% 78. 3% 10. 5% Incarceration over 6 months 5. 0% 7. 6% 87. 4% N=22, 827 – Disposition missing in 2 cases 5

Preliminary FY 2014 Report Judicial Agreement with Sentence Length Durational Compliance: The degree to which judges agree with the sentence length in cases in which defendants are recommended for jail/prison and receive at least one day incarceration. Median 9 months below midpoint N=16, 117 (Incarceration recommended with a disposition of incarceration (missing 186) 6

Preliminary FY 2014 Report: Departure Reasons 7

Preliminary FY 2014 Report Most Frequently Cited Departure Reasons Aggravation (n=2, 342) Mitigation (n=2, 487) • Plea agreement 903 (36%*) • Plea agreement 601 (26%**) • • Judicial discretion Cooperated with Authorities 242 (10%*) • Flagrancy of offense/facts of case 412 (18%**) 210 (8%*) • • Sentenced to alternative 199 (8%*) Severity/type of prior record 346 (15%**) • • Facts of the case Will serve sentence in other case 188 (8%*) Poor rehabilitation potential 124 (5%**) 173 (7%*) • Multiple counts involved in event 152 (7%**) Recommendation of CA 162 (7%*) • Recommendation of jury 119 (5%**) • SG Recommendation too low 92 (4%**) • Offense involves drugs 86 (4%**) • n=391 (16%) missing a departure reason * Of mitigating cases requiring departure reason • n=361 (15%) missing a departure reason ** Of aggravating cases requiring departure reasons 8

Preliminary FY 2014 Report: Compliance by Circuit 9

Preliminary FY 2014 Sorted By Circuit Most cases received: -Circuit 15 (Fredericksburg Area) -Circuit 26 (Harrisonburg Area) FY 2013: 76% 17% 7% -Circuit 2 (Virginia Beach) -Circuit 13 (Richmond) -Circuit 27 (Radford) FY 2013: 74% 19% 8% Compared to FY 2013 Annual Report Compliance Changes of 4% or More FY 2013: 76% 11% 13% 10

Preliminary FY 2014 Sorted By Compliance Highest aggravation: -Circuit 30 (Lee Area) 17. 7% Highest mitigation: -Circuit 13 (Richmond City) 22. 6% 11

Preliminary FY 2014 Report: Compliance by Offense Type 12

Preliminary FY 2014 Report Compliance by Type of Offense 5, 708 1, 895 8. 3% 6. 6% 9. 0% 12. 0% 1, 584 1, 331 6, 352 10. 9% 12. 2% 9. 1% 8. 6% 7. 1% 10. 5% 417 1, 297 656 424 439 10. 8% 12. 5% 11. 1% 12. 3% 16. 2% 12. 5% 11. 3% 12. 8% 14. 4% 175 12. 0% 99 15. 2% 557 21. 5% 998 16. 5% 708 189 10. 3% 31. 2% 11. 8% 16. 6% 15. 2% 10. 6% 15. 8% 24. 3% 12. 2% 82. 7% FY 2013 81. 4% 80. 8% 82. 7% 84. 4% 79. 1% Larceny LAR Fraud FRD Traffic TRAF 80. 7% 83. 2% 80. 4% 76. 7% 76. 2% 76. 1% 73. 3% 80. 8% 77. 4% 73. 8% 74. 5% Drug-Oth Drug-I/II NAROTH NARIII Misc-Oth MISCO Assault ASL Weapon WPN Aggravation Mitigation 75. 8% 72. 0% 71. 4% 69. 7% 74. 8% 61. 9% 69. 1% Burg-Oth Misc-PP Bur. Oth MISCPP Rape RAP Kidnap KID 67. 9% 67. 6% 65. 4% 68. 0% 65. 6% Burg-Dwel BURD Robbery ROB Sex-Asl SEX 56. 6% 66. 4% Murder MUR Compliance 13

Preliminary FY 2014 Report: Additions/Changes Effective July 1, 2013 14

Nonviolent Risk Assessment Effective July 1, 2013 Replace the nonviolent offender risk assessment instrument, used in conjunction with the guidelines for fraud, larceny and drug offenses, with risk assessment instruments developed based on the results of the Commission’s recent study of felony recidivism. n 15

Preliminary FY 2014 Report Nonviolent Risk Assessment Virginia Code § 17. 1 -803 Effective July 1, 2004 Score 35 38 5. Develop an offender risk assessment instrument for use in all felony cases, based on a study of Virginia felons, that will be predictive of the relative risk that a felon will become a threat to public safety. 6. Apply the risk assessment instrument to offenders convicted of any felony that is not specified in (i) subdivision 1, 2 or 3 of subsection A of § 17. 1 -805 or (ii) subsection C of § 17. 1 -805 under the discretionary sentencing guidelines, and shall determine, on the basis of such assessment and with due regard for public safety needs, the feasibility of achieving the goal of placing 25 percent of such offenders in one of the alternative sanctions listed in subdivision 4. If the Commission so determines that achieving the 25 percent or a higher percentage goal is feasible, it shall incorporate such goal into the discretionary sentencing guidelines, to become effective on January 1, 1996. If the Commission so determines that achieving the goal is not feasible, the Commission shall report that determination to the General Assembly, the Governor and the Chief Justice of the Supreme Court of Virginia on or before December 1, 1995, and shall make such recommendations as it deems appropriate. 16

Preliminary FY 2014 Report Nonviolent Risk Assessment n Risk assessment applies in drug, fraud, & larceny cases n Offender must meet eligibility criteria − Recommended for incarceration − No current or violent felony conviction − Did not distribute an ounce or more of cocaine − Not convicted of crime requiring mandatory minimum term of incarceration n Purpose: To recommend alternative sanctions for offenders who are statistically less likely to recidivate n Type of alternative at discretion of judge 17

Drug/Schedule I/II or Drug Other Fraud and Larceny 18

Preliminary FY 2014 Report Nonviolent Offenders Eligible for Risk Assessment by Type of Offense Larceny 39. 6% Fraud 13. 0% Drug Other 8. 8% 15, 286 Drug, Fraud & Larceny Cases - 9, 637 Excluded: Ineligible, Errors, 1994 Missing 5, 649 Analyzed 19

Preliminary FY 2014 Nonviolent Offenders Eligible for Risk Assessment Compliance Offense Mitigation Alternative Traditional Aggravation Number of Cases Previous Version Drug 7% 28% 26% 84% 58% 9% 2, 679 Fraud 11% 37% 22% 84% 62% 5% 733 Larceny 8% 10% 8% 86% 78% 6% 2, 237 All Risk Cases 8% 22% 18% 85% 67% 7% 5, 649 N=5, 647, 2 Missing Alternative Info 20

Preliminary FY 2014 Nonviolent Offenders Eligible for Risk Assessment Recommended and Received an Alternative 18. 1% n= 1, 025 Recommended and Incarcerated 29. 5% n= 1, 664 Not Recommended and Received Alternative 14. 0% n= Not Recommended and Incarcerated 38. 4% n= 2, 167 791 Of offenders recommended for alternative sanctions, the proportion who received an alternative Previous Version 42% Current Version 38% N=5, 647, 2 Missing Alternative Info 21

Mandatory Minimum Factor Effective July 1, 2013 Revise several guidelines worksheets to ensure that the recommended sentence exceeds six months of incarceration when the primary offense is accompanied by an offense that requires a mandatory minimum sentence of at least six months. n 22

Worksheets Modified: Burglary Dwelling Burglary Other Structure Drug Other Miscellaneous - Other Miscellaneous – Person/Property Murder Weapon/Firearm 23

Preliminary FY 2014 Report New Mandatory Minimum Factor Added Effective July 1, 2013 Offense Worksheet Compliance Mitigation Aggravation Burglary Dwelling (n=57) 71. 9% 10. 5% 17. 5% Burglary Other Structure (n=8) 100% 0% 0% Drug Other (n=22) 77. 3% 4. 5% 18. 2% Miscellaneous - Other (n=2) 50% 0% 50% Miscellaneous – Person/Property (n=5) 60% 40% 0% Murder (n=48) 70. 8% 6. 3% 22. 9% Weapon/Firearm (n=190) 81. 1% 4. 2% 14. 7% 332 cases: Points on section A added for the new mandatory minimum factor 24

Burglary With Murder or Malicious Wounding Effective July 1, 2013 Revise the sentencing guidelines for a completed act of burglary with a deadly weapon to increase the prison sentence recommendation for offenders who have an accompanying offense of murder or malicious wounding. n 25

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Preliminary FY 2014 Report New Factor for Additional Offense of Murder or Malicious Wounding Effective July 1, 2013 Offense Worksheet Burglary of a Dwelling (n=4) Compliance 75. 0% Mitigation 0. 0% Aggravation 25. 0% 27

Vehicular Involuntary Manslaughter Effective July 1, 2013 Amend the Murder/Homicide sentencing guidelines for vehicular involuntary manslaughter associated with driving under the influence (§ 18. 2 -36. 1(A)) to more closely reflect judicial sentencing practices for this offense. n 28

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Preliminary FY 2014 Report Vehicular Involuntary Manslaughter Modified Effective July 1, 2013 Offense Worksheet Compliance Vehicular Involuntary Manslaughter (n=16) Probation Jail Prison n=2 n=12 12. 5%* 12. 5% 75. 0% 31. 3% Mitigation 12. 5% Aggravation 56. 3% Median Sentence 12 months Median Sentence 7 years * May include offenders sentenced to time served 30

Larceny With Intent to Sell Effective July 1, 2013 Amend the Larceny sentencing guidelines to add larceny of property with a value of $200 or more or an aggregate value of $200 or more with the intent to sell or distribute as defined by § 18. 2 -108. 01. n 31

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Preliminary FY 2014 Report New Larceny Offenses Added Effective July 1, 2013 Offense Compliance Mitigation Aggravation Larceny with intent to sell, $200 or more (n=100) 76. 0% 4. 0% 20. 0% Larceny with intent to sell, Aggregate value $200 or more(n=29) 82. 8% 6. 9% 10. 3% 33

Sentencing Revocation Reports & Probation Violation Guidelines (FY 2014) 34

Sentencing Revocation Report is completed for all cases involving felony violations of: • Probation • Post-release terms administered by the court • Good behavior • Suspended sentence • Community-based programs 35

New Law Violation: Condition 1 Technical Violations: Conditions 2 – 11 & Special Conditions 36

Sentencing Revocation Reports Received by Judicial Circuit FY 2014 (Preliminary) Circuit Highest Number Received • Circuit 4 - Norfolk (n=770) • Circuit 29 - Buchanan Area (n=699) • Circuit 1 - Chesapeake (n=640) • Circuit 15 - Fredericksburg Area (n=606) • Circuit 22 - Danville (N=604) * Includes all forms received, including those found not in violation or missing information, 1 missing circuit 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Area Number Chesapeake Virginia Beach Portsmouth Norfolk Suffolk Area Sussex Area Newport News Hampton Williamsburg Area South Boston Area Petersburg Area Chesterfield Area Richmond City Henrico Fredericksburg Area Charlottesville Area Arlington Alexandria Fairfax Loudoun Area Martinsville Area Danville Area Roanoke Area Lynchburg Area Staunton Area Harrisonburg Area Radford Area Bristol Area Buchanan Area Lee Area Prince William Area Total 640 229 351 770 363 60 207 320 274 233 69 218 289 397 606 230 82 137 462 213 188 604 325 428 403 684 575 285 699 170 260 10, 771* 37

Sentencing Revocation Reports Received for Technical and New Law Violations* FY 1998 - FY 2014 (Preliminary) 51. 44% 49. 56% *Note: FY 14 includes cases received by July 1, 2014 for cases found in violation with no missing conditions (Data from May and June 2014 are incomplete) 38

Sentencing Revocation Reports Received for Technical and New Law Violations* Calendar Year 2008 - 2013 52. 2% 47. 8% *Note: FY 14 includes cases received by July 1, 2014 for cases found in violation with no missing conditions (May Sentencing Events) 39

Sentencing Revocation Reports Received Dispositions for Technical and New Law Violations FY 2014 (Preliminary) Actual Disposition Received Probation Jail <= 12 mos. Prison >= 1 yr. TECHNICAL VIOLATOR 1, 150 (23%) 2, 508 (49%) 1, 413 (28%) NEW LAW VIOLATOR 996 (19%) 2, 237 (43%) 1, 936 (38%) 2, 146 (21%) 4, 745 (46%) 3, 349 (33%) TOTAL* * n=10, 240 Sentencing information was missing for 250 cases 40

Sentencing Revocation Reports Received New Law Violations by Type of New Crime FY 2014 (Preliminary) Cases = 5, 291 41

Sentencing Revocation Reports Received New Law Violations by Type of New Crime FY 2014 (Preliminary) Seriousness Index Felonies Traffic Infractions Misdemeanors Type Not Clear Missing A 1 A 2 A 3 A 5 A 6 A 9 C 3 C 5 C 6 C 9 F 2 F 3 F 4 F 5 F 6 F 9 I 9 M 1 M 2 M 3 M 4 M 9 S 9 Total Number Percent 542 2 2 4 1 8 25 1 5 3 12 20 26 28 448 729 992 11 1, 902 50 6 194 155 125 5, 291 10. 2 0 0 0. 1 0 0. 2 0. 5 0 0. 1 0. 2 0. 4 0. 5 8. 5 13. 8 18. 7. 2 35. 9 0. 1 3. 7 2. 9 2. 4 100 42

Sentencing Revocation Reports Received by Type of Violation and Sanction Received FY 2014 (Preliminary) Prison Median 1. 5 yrs. Median 1. 8 yrs. Median 2. 0 yrs. Jail Median 5 mos. Median 6 mos. Probation n=5, 071 Technical , n=2, 330 New Misdemeanor, 2, 255 New Felony , 584 Missing 43

Sentencing Revocation Reports Received FY 2014 (Preliminary) Sentencing Revocation Reports 10, 772 Violator Type Unknown 113 Found Not in Violation 169 Technical Violations 5, 199 Included in Probation Violation Guidelines Compliance Analysis 4, 474 New Crime Violations 5, 291 Not Included in Probation Violation Guidelines Compliance Analysis * 725 * Cases are not included in compliance analysis if the guidelines do not apply (the case involves a parole-eligible offense, first offender violation, misdemeanor original offense, or the offender was not on supervised probation), if the guidelines forms were incomplete, or if outdated forms were prepared. 44

Probation Violation Guidelines Cases – “Technicals” by Type of Original Offense FY 2014 (Preliminary) N = 4, 474 45

Types of Violations Cited in Probation Violation Guidelines Cases – “Technicals” FY 2014 (Preliminary) Financial 45% Substance abuse treatment 28% Alternative programs 8% Sex offender restrictions 7% N = 4, 474 Percentages do not total 100% because there may be multiple violations cited for each defendant 46

FY 2006 -FY 2007 Worksheet FY 2008 -2014 Worksheet New factors were added Existing factors were adjusted Point values were increased 47

Probation Violation Guidelines – “Technicals” Compliance by Fiscal Year FY 2005 – FY 2014 (Preliminary) N = 3, 140 N = 4, 905 N = 5, 920 N = 5, 024 N = 4, 486 N = 4, 223 N = 4, 763 N = 4, 482 N = 4, 659 *Note: FY 14 includes cases received by July 1, 2014 for cases found in violation with no missing conditions (May Sentencing Events) N = 4, 474* 48

Probation Violation Guidelines Dispositional Compliance : Recommended Disposition by Actual Disposition FY 2014 (Preliminary) ACTUAL DISPOSITION RECOMMENDED DISPOSITION Probation Jail up to 12 Months Prison 1 Year or More Probation 45. 6% 44. 1% 10. 4% Jail up to 12 Months 17. 2% 66. 9% 15. 4% Prison 1 Year or More 13. 9% 31. 1% 55. 0% Median Jail Sentence 6 months N = 4, 474 Median Prison Sentence 1 yr. 10 mo. 49

Preliminary FY 2014 Sorted By Circuit Most cases received: -Circuit 22 (Danville Area) -Circuit 15 (Fredericksburg Area) -Circuit 29 (Buchanan Area) -Circuit 26 (Harrisonburg Area) -Circuit 4 (Norfolk) n=4, 474 50

Preliminary FY 2014 Sorted By Circuit Highest aggravation: -Circuit 29 (Buchanan Area) 44. 4% Highest mitigation: -Circuit 18 (Alexandria City) 41. 7% n=4, 474 51

Probation Violation Guidelines Most Frequently Cited Departure Reasons - (Percent of Cases) FY 2014 (Preliminary) Mitigation (22. 5%) Aggravation (24. 2%) n n Most frequently cited: l No Reason (52. 9%) l No Reason (48. 7%) l Judicial Discretion (6. 3%) l Subsequent Violation (11. 8%) l Plea Agreement (5. 6%) l Failed to Follow Instructions (7. 1%) l Offender’s Health (5. 4%) l Absconded (6. 4%) l Commonwealth’s Attorney Recommendation (4. 6%) l Substance Abuse Issues (4. 5%) 52

Sentencing Revocation Reports & Probation Violation Guidelines (FY 2014) 53