possible recommendations for guidelines revisions november 5, 2014 virginia criminal sentencing...
TRANSCRIPT
Possible Recommendations
for Guidelines Revisions
November 5, 2014
VIRGINIA CRIMINAL SENTENCING COMMISSION
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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
Proposed Recommendation 1:
Add Distribution of Schedule IV Drugs (§ 18.2-248(E2))to the Drug/Other Guidelines
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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))
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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))
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Disposition PercentMedian
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
Distribution, etc., of a Schedule IV Controlled Substance(§ 18.2-248(E2))
FY2010 – FY2014131 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)
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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 – FY2014Offenders Sentenced to Incarceration of More than 6 Months
25 Cases
Proposed
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Create new Primary Offense scores
I. Sell, etc., Schedule IV drug
1 count ……………………………………………………………. 6 2 counts …………………………………………………………... 8
Proposed
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Create new Primary Offense scores
E. Sell, etc., Schedule IV drug
1 count .……………………………………………………………. 6 2 counts .…………………………………………………………... 9
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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
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
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DispositionRecommended 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%
Distribution, etc., of a Schedule IV Controlled Substance(§ 18.2-248(E2))
FY2010 – FY2014131 Cases
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Sentence in Years
Distribution, etc., of a Schedule IV Controlled Substance(§ 18.2-248(E2))
FY2010 – FY2014Offenders Sentenced to Incarceration of More than 6 Months
25 Cases
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
Proposed Recommendation 2:
Add Certain Identity Fraud Offenses (§ 18.2-186.3)to the Fraud Guidelines
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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.
1
11
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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
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Disposition PercentMedian
Sentence
No Incarceration 19.2% 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)
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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 – FY2014Offenders Sentenced to Incarceration of More than 6 Months
61 Cases
Proposed
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Create new Primary Offense scores
H. Obtain identifying information with intent to defraud, 2nd or subseq.
1 count ……..………………..………………..………..……………. 1
Proposed
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Split Prior Convictions/Adjudications factor and assign different points for Obtaining Identifying Information with Intent to Defraud, 2nd or Subsequent
Prior Convictions/Adjudications
Primary offense OTHER THAN Primary offense Obtain Identifying Info 2nd or subseq. Obtain Identifying Info 2nd 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
Proposed
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Split Prior Misdemeanor Convictions/Adjudications factor and assign different points for Obtaining Identifying Information with Intent to Defraud, 2nd or Subsequent
Prior Misdemeanor Convictions/Adjudications
Primary offense OTHER THAN Primary offense Obtain Identifying Info 2nd or subseq. Obtain Identifying Info 2nd or subseq.
Number of Counts Points Number of Counts Points
1 – 3 …........................... 1 1 – 5 ….…..........……...…… 14 – 6 ….….........……….. 2 6 or more …......……...…… 27 or more …....……….. 3
Proposed
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Create new Primary Offense scores
H. Obtain identifying information with intent to defraud, 2nd or subsequent
1 count ……..………………..………………..………..……………. 6
Proposed
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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
Proposed
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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
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DispositionRecommended 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%
Obtain Identifying Information with Intent to Defraud, 2nd or Subseq.(§ 18.2-186.3(D))FY2010 – FY2014
156 Cases
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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 Months61 Cases
Actual Sentence (median):
1 year
Proposed Guidelines Midpoint(median):
1 year
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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
Proposed Recommendation 3:
Add Certain Credit Card Offenses (§§ 18.2-192 and 18.2-194)to the Fraud Guidelines
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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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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
Covered by current guidelines
Credit Card Offenses (§§ 18.2-192 and 18.2-194)
Cases
77
8
4
0
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Disposition PercentMedian
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
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 locatedSource: Supreme Court of Virginia, Circuit Court Case Management System (CMS)
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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 Months28 Cases
Proposed
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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
Proposed
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Create new Primary Offense scores
H. Receiving stolen credit card or credit card number with the intent to use or sell
1 count ....................………………………..………………..………..…… 7
Proposed
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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
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DispositionRecommended 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%
Receiving a Stolen Credit Card or Number with the Intent to Use or Sell
(§ 18.2-192(1,b))FY2010 – FY2014
77 Cases
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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 Months28 Cases
Actual Sentence (median):1.1 years
Proposed Guidelines Midpoint(median): 1.1 years
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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
Proposed Recommendation 4:
Add Strangulation Resulting in Injury or Bodily Wounding (§ 18.2-51.6)
to the Assault Guidelines
Strangulation Resulting in Bodily Injury(§ 18.2-51.6)
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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)
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
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Strangulation Resulting in Bodily Injury(§ 18.2-51.6)
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Disposition PercentMedian
Sentence
No Incarceration 21.3% 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 – FY201494 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)
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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 Months42 Cases
Proposed
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Score Strangulation Resulting in Bodily Injury the same as Assault and Battery Against a Family Member, 3rd or Subsequent
A.Assault and battery against a family member, 3rd 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
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)
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
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
Proposed
SCORE THE FOLLOWING FACTORS ONLY IF PRIMARY OFFENSE AT CONVICTION ISASSAULT & BATTERY AGAINST A FAMILY MEMBER (§ 18.2-57.2(B))
OR STRANGULATION (§ 18.2-51.6)Also score these factors for strangulation
Proposed
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Score Strangulation Resulting in Bodily Injury the same as Assault and Battery Against a Family Member, 3rd or Subsequent
Prior Record Classification Category I Category II Other
A. Assault and battery against a family member, 3rd or subseq. or strangulation resulting in bodily injury
1 count .…………………………….…….…... 28 ...….. 14 ...… 7
50
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DispositionRecommended 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%
Strangulation Resulting in Bodily Injury(§ 18.2-51.6)
FY2013 – FY201494 Cases
52
Sentence in Years
Strangulation Resulting in Bodily Injury(§ 18.2-51.6)
FY2013 – FY2014Offenders Sentenced to Incarceration of More than 6 Months
42 Cases
Actual Sentence (median):
1 year
Proposed Guidelines Midpoint(median): 1.3 years
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Proposed Recommendation 4
Add Strangulation Resulting in Bodily Injury (§ 18.2-51.6)
to the Assault Guidelines
as proposed
Other Analyses:
Indecent Liberties (§§ 18.2-370(A) and 18.2-370.1(A))
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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
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 withChild 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
Compliance 70.1%
Mitigation 8.2%
Aggravation 21.6%
Compliance 62.3%
Mitigation 9.2%
Aggravation 28.5%
Compliance with Sentencing Guidelines forIndecent Liberties (§ 18.2-370(A) and § 18.2-370.1(A))
FY2010 – FY2014
56
57
Actual versus Recommended Dispositions forIndecent Liberties with Child under Age 15 (§ 18.2-370(A))
FY2010 – FY2014
ActualPractice
Recommendedunder 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 recommendincarceration 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
ActualPractice
Recommendedunder 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 = 112
Cases in which guidelines recommendincarceration of more than 6 months(range includes prison)
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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.
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 462
Add new factor for Victim Injury
SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY OFFENSE AT CONVICTION ISINDECENT 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
Dispositional Compliance
OverallCompliance
Current Projected
Compliance 78.7% 80.1%
Mitigation 6.2% 7.9%
Aggravation 15.1% 12.0%
Compliance with Sentencing Guidelines forIndecent Liberties with Child under Age 15 (§ 18.2-370(A))
FY2010 – FY2014
Current Projected
Compliance 70.1% 70.4%
Mitigation 8.2% 10.0%
Aggravation 21.6% 19.6%
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Dispositional Compliance
OverallCompliance
Current Projected
Compliance 64.0% 72.4%
Mitigation 6.6% 14.0%
Aggravation 29.4% 13.6%
Compliance with Sentencing Guidelines forIndecent Liberties with Child by Custodian (§ 18.2-370.1(A))
FY2010 – FY2014
Current Projected
Compliance 62.3% 61.8%
Mitigation 9.2% 17.1%
Aggravation 28.5% 21.1%
65
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
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
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
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 forOther Sexual Assault Offenses
FY2010 – FY2014
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%
68