Possible%20Recommendations%20for%20Guidelines%20Revisions

1
Possible Recommendations for Guidelines
Revisions
VIRGINIA CRIMINAL SENTENCING COMMISSION

• November 5, 2014

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Proposals for New Guidelines Offenses

• 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.

3

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

4
Distribution of Schedule IV Drugs ( 18.2-248(E2))

• 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.

5
Distribution of Schedule IV Drugs ( 18.2-248(E2))

• 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.

6
Distribution, etc., of a Schedule IV Controlled
Substance( 18.2-248(E2))FY2010 FY2014131
Cases
Disposition Percent Median Sentence
No Incarceration 40.5 NA
Incarceration Up to 6 Months 40.4 2.8 Months
Incarceration More than 6 Months 19.1 1 Year
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
Distribution, etc., of a Schedule IV Controlled
Substance ( 18.2-248(E2)) FY2010
FY2014Offenders Sentenced to Incarceration of
More than 6 Months25 Cases
Sentence in Years
Middle 50 of sentences 9.5 mos. to 1.2
years
8
Proposed
Create new Primary Offense scores
I. Sell, etc., Schedule IV drug 1
count . 6
2 counts ... 8
9
Proposed
Create new Primary Offense scores
E. Sell, etc., Schedule IV drug 1
count .. 6
2 counts .... 9
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
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
Distribution, etc., of a Schedule IV Controlled
Substance( 18.2-248(E2))FY2010 FY2014131
Cases
Disposition Recommended under Proposed Guidelines Actual Practices Prior to Sentencing Guidelines
No Incarceration 38.9 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
13
Distribution, etc., of a Schedule IV Controlled
Substance ( 18.2-248(E2))FY2010
FY2014Offenders Sentenced to Incarceration of
More than 6 Months25 Cases
Sentence in Years
Actual Sentence (median) 1 year Proposed
Guidelines Midpoint (median) 1.1 years
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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 2Add Certain Identity
Fraud Offenses ( 18.2-186.3) to the Fraud
Guidelines
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.

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Identity Fraud ( 18.2-186.3)
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
Cases
1
1
156
11
Covered by current guidelines
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Obtain Identifying Information with Intent to
Defraud, 2nd or Subseq.( 18.2-186.3(D))FY2010
FY2014156 Cases
Disposition Percent Median Sentence
No Incarceration 19.2 NA
Incarceration Up to 6 Months 41.7 4 Months
Incarceration More than 6 Months 39.1 1 Year
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)
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Obtain Identifying Information with Intent to
Defraud, 2nd or Subseq. ( 18.2-186.3(D)) FY2010
FY2014Offenders Sentenced to Incarceration of
More than 6 Months61 Cases
Sentence in Years
Middle 50 of sentences 9 mos. to 1.3 years
20
Proposed
Create new Primary Offense scores H.
Obtain identifying information with intent to
defraud, 2nd or subseq. 1 count
......... 1
21
Proposed
22
Proposed
23
Proposed
Create new Primary Offense scores H. Obtain
identifying information with intent to defraud,
2nd or subsequent 1 count
......... 6
24
Proposed

• 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, 2ND OR
  SUBSEQ. ( 18.2-186.3(D))
• Prior Misdemeanor Convictions/Adjudications
• Number of Counts Points
• 1 7 ..................................
  1
• 8 or more ...... 4

25
Proposed
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
Obtain Identifying Information with Intent to
Defraud, 2nd or Subseq.( 18.2-186.3(D))FY2010
FY2014156 Cases
Disposition Recommended under Proposed Guidelines Actual Practices Prior to Sentencing Guidelines
No Incarceration 19.2 19.2
Incarceration 1 Day to 6 Months 41.7 41.7
Incarceration More than 6 Months 39.1 39.1
27
Obtain Identifying Information with Intent to
Defraud, 2nd or Subseq. ( 18.2-186.3(D))FY2010
FY2014Offenders Sentenced to Incarceration of
More than 6 Months61 Cases
Sentence in Years
Actual Sentence (median) 1 year Proposed
Guidelines Midpoint (median) 1 year
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 3Add Certain Credit
Card Offenses ( 18.2-192 and 18.2-194) to the
Fraud Guidelines
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

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Credit Card Offenses ( 18.2-192 and 18.2-194)
Covered by current guidelines
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 18.2-194 Felony 1 - 20 years
Cases
77
8
4
0
32
Receiving a Stolen Credit Card or Number with
the Intent to Use or Sell ( 18.2-192(1,b))FY201
0 FY201477 Cases
Disposition Percent Median Sentence
No Incarceration 44.2 NA
Incarceration Up to 6 Months 19.5 3 Months
Incarceration More than 6 Months 36.4 1.1 Years
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
Receiving a Stolen Credit Card or Number (
18.2-192(1,b))FY2010 FY2014 Offenders
Sentenced to Incarceration of More than 6
Months28 Cases
Sentence in Years
Middle 50 of sentences 1 year to 2 years
34
Proposed
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
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
37
Receiving a Stolen Credit Card or Number with
the Intent to Use or Sell ( 18.2-192(1,b))FY201
0 FY201477 Cases
Disposition Recommended under Proposed Guidelines Actual Practices Prior to Sentencing Guidelines
No Incarceration 46.8 44.2
Incarceration 1 Day to 6 Months 16.9 19.5
Incarceration More than 6 Months 36.4 36.4
38
Receiving a Stolen Credit Card or Number (
18.2-192(1,b))FY2010 FY2014 Offenders
Sentenced to Incarceration of More than 6
Months28 Cases
Sentence in Years
Actual Sentence (median) 1.1 years Proposed
Guidelines Midpoint (median) 1.1 years
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 4Add 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)
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
Strangulation Resulting in Bodily Injury (
18.2-51.6)

• 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

43
Strangulation Resulting in Bodily Injury(
18.2-51.6)FY2013 FY201494 Cases
Disposition Percent Median Sentence
No Incarceration 21.3 NA
Incarceration Up to 6 Months 34.0 4 Months
Incarceration More than 6 Months 44.7 1 Year
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
Strangulation Resulting in Bodily Injury (
18.2-51.6)FY2013 FY2014 Offenders Sentenced
to Incarceration of More than 6 Months42 Cases
Sentence in Years
Middle 50 of sentences 10 mos. to 2.5 years
45
Proposed
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
48
Proposed
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
51
Strangulation Resulting in Bodily Injury(
18.2-51.6)FY2013 FY201494 Cases
Disposition Recommended under Proposed Guidelines Actual Practices Prior to Sentencing Guidelines
No Incarceration 24.5 21.3
Incarceration 1 Day to 3 Months 6.4 6.4
Incarceration 3 Months to 6 Months 28.7 27.7
Incarceration More than 6 Months 40.4 44.7
52
Strangulation Resulting in Bodily Injury (
18.2-51.6)FY2013 FY2014Offenders Sentenced to
Incarceration of More than 6 Months42 Cases
Sentence in Years
Actual Sentence (median) 1 year Proposed
Guidelines Midpoint (median) 1.3 years
53
Proposed Recommendation 4
Add Strangulation Resulting in Bodily Injury (
18.2-51.6) to the Assault Guidelines as proposed
54
Other AnalysesIndecent Liberties (
18.2-370(A) and 18.2-370.1(A))
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Proposals for Revisions to Existing Guidelines
Offenses

• 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.

56
Compliance with Sentencing Guidelines
forIndecent Liberties ( 18.2-370(A) and
18.2-370.1(A)) FY2010 FY2014
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
Compliance 70.1
Mitigation 8.2
Aggravation 21.6
Compliance 62.3
Mitigation 9.2
Aggravation 28.5
Cases 291
Cases 228
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.
Note Cases with scoring errors were excluded
from the analysis.
57
Actual versus Recommended Dispositions
forIndecent 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
Compliance with Sentencing Guidelines
forIndecent 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
Actual versus Recommended Dispositions
forIndecent 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
Compliance with Sentencing Guidelines
forIndecent Liberties by Custodian (
18.2-370.1(A))FY2010 FY2014
Cases in which guidelines recommend incarceration
of more than 6 months (range includes prison)
Cases 112
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.
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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 3 If YES, add 4

63
(No Transcript)
64
Compliance with Sentencing Guidelines
forIndecent Liberties with Child under Age 15 (
18.2-370(A))FY2010 FY2014
Dispositional Compliance
Overall Compliance
Current Projected
Compliance 78.7 80.1
Mitigation 6.2 7.9
Aggravation 15.1 12.0
Current Projected
Compliance 70.1 70.4
Mitigation 8.2 10.0
Aggravation 21.6 19.6
65
Compliance with Sentencing Guidelines
forIndecent Liberties with Child by Custodian (
18.2-370.1(A))FY2010 FY2014
Dispositional Compliance
Overall Compliance
Current Projected
Compliance 64.0 72.4
Mitigation 6.6 14.0
Aggravation 29.4 13.6
Current Projected
Compliance 62.3 61.8
Mitigation 9.2 17.1
Aggravation 28.5 21.1
66
Aggravated Sexual Battery and Other Offenses
Covered by the Other Sexual Assault
Guidelines FY2010 FY2014
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 other 62.5 Current
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.
67
Scoring remaining sexual assault offenses on
proposed Section B Victim Age and Victim Injury
factors
68
Compliance with Sentencing Guidelines forOther
Sexual Assault OffensesFY2010 FY2014
Carnal Knowledge, Incest, and Other Sexual
Assault Offenses
Aggravated Sexual Battery
Current Scoring Proposed Factors
Compliance 68.7 69.0
Mitigation 15.3 15.7
Aggravation 15.9 15.3
Current Scoring Proposed Factors
Compliance 72.8 72.5
Mitigation 8.1 8.4
Aggravation 19.1 19.1
Note Cases with scoring errors were excluded
from the analysis.