Proposed Recommendations for Guidelines Revisions

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Proposed Recommendations for Guidelines
Revisions
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Proposals for Guidelines Revisions

• Best fit for the data
• Steps
• Review existing worksheet, compliance patterns
  and departure reasons
• Test revised scoring scenarios
• 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

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Proposed Recommendation 1Felony Vandalism
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Felony Vandalism, 18.2-137(B,ii)

• Issue
• Currently, felony vandalism (damage to property
  of 1,000 or more) under 18.2-137(B,ii) is not
  covered by the sentencing guidelines.
• According to the Pre/Post-Sentence Investigation
  (PSI) database and the Supreme Courts Court
  Automated Information System (CAIS), there were
  439 cases of felony vandalism between FY2003 and
  FY2007.

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Felony Vandalism, 18.2-137(B,ii)
FY2003 - FY2007 (439 cases)
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Proposed Recommendation 1 Section A
M. Damage/destroy any property or
monumentgt1000 (1 count) ........................
... 2
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Proposed Recommendation 1 Section A

• Legally Restrained at Time of Offense
• Primary offense other than felony
  vandalism- Primary offense felony
  vandalism-
• Damage to property 1,000 or more
  Damage to property 1,000 or more
• None .... 0 Any
  legal restraint 1
• Other than post-incarceration supervision
  ... 2
• Post-Incarceration supervision 5

• SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY
  OFFENSE IS FELONY VANDALISM
• DAMAGE TO PROPERTY 1,000 OR MORE
• Prior Vandalism Convictions/Adjudications
• Misdemeanor vandalism .......................
  ..................................................
  .. 1
• Felony vandalism ........................
  .................................................
  2
• Both felony and misdemeanor vandalism
  ............................................... 3

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Proposed Recommendation 1 Section B
M. Damage/destroy any property or
monumentgt1000 (1 count) ........................
... 8
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Proposed Recommendation 1 Section B

• SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY
  OFFENSE IS FELONY VANDALISM
• DAMAGE TO PROPERTY 1,000 OR MORE
• Prior Incarceration IF YES, add 1

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Proposed Recommendation 1 Section C

• Category I Category II
  Other
• M. Damage/destroy any property or
  monumentgt1000 (1 count) .. 32 .. 16 .....
  8

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Proposed Recommendation 1
FY2003 - FY2007 (439 cases)
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Proposed Recommendation 1

• Revise the Miscellaneous Sentencing Guidelines to
  add the crime of felony vandalism (
  18.2-137(B,ii)) as proposed.

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Proposed Recommendation 2Distribution of a
Schedule III Drug (Not Anabolic Steroid)
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Distribution of a Schedule III Drug (Not Anabolic
Steroid), 18.2-248(E1)

• Issue
• Currently, distribution of a Schedule III drug
  (not anabolic steroid) under 18.2-248(E1) is
  not covered by the sentencing guidelines.
• The offense was elevated from a Class 1
  misdemeanor to a Class 5 felony by the 2005
  General Assembly.
• According to the Pre/Post-Sentence Investigation
  (PSI) database, there were 66 cases where this
  crime was the most serious offense between FY2006
  and FY2008.
• Prosecutors have requested that the offense be
  added to the guidelines.

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Distribution of a Schedule III Drug (Not Anabolic
Steroid), 18.2-248(E1)
FY2006 - FY2008 (66 cases)
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Proposed Recommendation 2

• Distribute, etc. a Schedule III drug-not anabolic
  steroid (1 count) ..................... 8

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Proposed Recommendation 2
D. Distribute, etc. a Schedule III drug-not
anabolic steroid (1 count) .....................
6
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Proposed Recommendation 2
Category I Category II
Other H. Distribute, etc. a Schedule III
drug-not anabolic steroid (1 count) . 64 . 32
. 16
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Proposed Recommendation 2
FY2006 - FY2008 (66 cases)
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Proposed Recommendation 2

• Revise the Drug/Other Guidelines to add the
  distribution of a Schedule III drug-not anabolic
  steroid ( 18.2-248(E1)) as proposed.

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Proposed Recommendation 3Child Abuse/Neglect
with Serious Injury
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Child Abuse/Neglect with Serious Injury,
18.2-371.1 (A)

• Issue
• Between FY2003 and FY2007, overall compliance for
  Child Abuse/Neglect with Serious Injury was
  43.7, with an aggravation rate of 42.7.
• Analysis has revealed that numerous cases of
  non-guidelines child abuse offenses were scored
  out on these guidelines when they should not have
  been. These cases are excluded from the figures
  above.
• The Commission recommended, and the General
  Assembly did not reject, revisions to the
  guidelines for this offense, effective July 1,
  2008.
• The revisions were projected to improve
  compliance, albeit modestly. The Commission
  directed staff to continue examining this offense
  in hopes that the guidelines could be further
  improved.

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Most Frequently Cited Departure Reasons,
FY2003-FY2007

• Mitigation (13.6)
• Plea Agreement
• Cooperated with authorities
• Has made progress in rehabilitation
• Weak evidence/witness refused to testify
• Alternative sanction imposed
• 2 offenders
• 1 received teen challenge,
• 1 sentenced to Diversion Center

• Aggravation (42.7)
• Extreme injury
• Vulnerable victim
• Facts of the case
• Child victim
• Guidelines recommendation is too low

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Child Abuse/Neglect with Serious Injury,
18.2-371.1 (A)
Actual Disposition
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Child Abuse/Neglect with Serious Injury,
18.2-371.1 (A)

• Based on a special study of child abuse cases
  conducted this year, the high aggravation
  rate is partially attributable to victim injury,
  victim vulnerability, and the number of victims.
• For Section A, three avenues were explored
• Adjusting victim injury factor
• Adding a factor for age of youngest victim
• Adding a factor for number of victims
• For Section C, several approaches were
  considered
• Increasing primary offense scores, increasing the
  victim injury scores, adding a new category of
  injury, adding a factor for age of youngest
  victim, and adding a factor for number of victims

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Proposed Recommendation 3
NEW FACTOR ON SECTION A

• SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY
  OFFENSE IS CHILD NEGLECT/ABUSE, SERIOUS INJURY
• Age of Youngest Victim at Time of Offense
• Less than 8 years old ...........................
  ..................................................
  ............. 10
• 8 11 years old ................................
  ..................................................
  .................... 5
• 12 years or older ...............................
  ..................................................
  ................... 2

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Proposed Recommendation 3
NEW FACTOR ON SECTION C

• SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY
  OFFENSE IS CHILD NEGLECT/ABUSE, SERIOUS INJURY
• Number of Victims
• 1 victim ........................................
  ..................................................
  ....................... 3
• 2 victims .......................................
  ..................................................
  ...................... 4
• 3 or more victims ...............................
  ..................................................
  ............... 13

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Proposed Recommendation 3

• By adding a victim age factor on Section A and a
  factor representing the number of victims on
  Section C, the guidelines would better approach
  current judicial practice and would improve the
  balance between mitigation and aggravation
  departures.

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Proposed Recommendation 3

• Revise Section A of the Miscellaneous Sentencing
  Guidelines to increase the likelihood that
  offenders convicted of Felony Child Abuse/Neglect
  with Serious Injury are recommended for
  incarceration of more than 6 months if they abuse
  younger children.
• Revise Section C of the Miscellaneous Sentencing
  Guidelines to increase the length of
  incarceration recommended based on the number of
  children abused.

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Proposed Recommendation 4Gross, Wanton or
Reckless Care of a Child and Cruelty and
Injuries to Children
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Child Abuse Felonies ( 18.2-371.1(B)
40.1-103)

• Issue
• In November 2007, the Commission recommended
  adding guidelines for Gross, Wanton or Reckless
  Care of a Child ( 18.2-371.1(B)) and
  Cruelty and Injuries to Children ( 40.1-103).
• The Commission recommended and the General
  Assembly approved adding guidelines for this
  offense, which took effect July 1, 2008.
• The new guidelines were projected to result in
  modest compliance rates. The Commission directed
  staff to continue examining this offense in hopes
  that the guidelines could be further improved.

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Child Abuse Felonies ( 18.2-371.1(B)
40.1-103)

• Analysis
• Further analysis of the data suggests that the
  guidelines should be revised to account for the
  recklessness, neglect, or endangerment associated
  with these offenses.
• A new category of victim injury can be created
  specific to child abuse cases.

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Proposed Recommendation 4
NEW CATEGORY OF INJURY FOR CHILD ABUSE CASES

• Victim Injury
• Primary offense VCC prefix other than
  FAM Primary Offense with VCC prefix of FAM
• Threatened, emotional, or physical
  .......... 1 Reckless care, neglect,
  endangerment .... 2
• Serious physical ...........................
  .............. 2 Threatened, emotional, or
  physical .......... 2
• Serious physical ..........................
  ............... 5

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Proposed Recommendation 4
Create a new category of victim injury to account
for the recklessness, neglect, or endangerment
associated with felony child abuse cases that
would score these circum-stances the same as
emotional or threatened injury.
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Proposed Recommendation 5Other Sexual Assault
Worksheet C
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Child Pornography Electronic Solicitation (
18.2-374.1 et al.)

• Issue
• In November 2006, the Commission recommended
  guidelines for child pornography and electronic
  (online) solicitation. The recommendations were
  not rejected by the 2007 General Assembly.
• However, the 2007 General Assembly also enacted
  legislation elevating penalties for certain child
  pornography and online solicitation crimes. For
  example, the maximum penalties of 5 and 10 years
  for some offenses were increased to 30 and 40
  years.
• The guidelines that became effective on July 1,
  2007, were implemented as approved by the General
  Assembly and, therefore, did not account for the
  new penalty structures.

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Proposed Recommendation 5

• Primary Offense Additional Counts
• Maximum Penalty 5 ....................
  ........................ 5
• 10 ........................................ 10
• 20 ........................................ 19
• 30 ........................................ 29
• 40 or more .......................... 39

Points
(in years)
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Proposed Recommendation 5
Expand the factor for Primary Offense Additional
Counts on the Other Sexual Assault guidelines to
correspond to the higher penalty structures
adopted by the 2007 General Assembly.
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