virginia criminal sentencing commission · to: the honorable leroy rountree hassell, sr., chief...

Probation Violation Studyt R 1

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VIRGINIA CRIMINALSENTENCINGCOMMISSION

2004 ANNUAL REPORT

100 North Ninth Street

Fifth FloorRichmond, Virginia 23219

Website: www.vcsc.state.va.us

Phone 804.225.4398

2 R VCSC Annual Report, 2004

Appointed by the Chief Justice of the Supreme Court andConfirmed by the General Assembly

Judge Robert W. StewartChairman, Norfolk

Appointments by the Chief Justice of the Supreme Court

Judge F. Bruce Bach, Vice Chair, Fairfax CountyJudge Joanne F. Alper, ArlingtonJudge Junius P. Fulton, III, NorfolkJudge Lee A. Harris, Jr., HenricoJudge Robert J. Humphreys, Virginia BeachJudge Dennis L. Hupp, Woodstock

Attorney General

The Honorable Jerry W. Kilgore(Joseph R. Carico, Attorney General’s Representative)

Senate Appointments

Eric J. Finkbeiner, RichmondSheriff Clarence G. Williams, Chesterfield County

House of Delegates Appointments

Douglas L. Guynn, HarrisonburgThe Honorable Linda D. Curtis, HamptonArnold R. Henderson, Richmond

Governor’s Appointments

Francine L. Horne, RichmondRobert C. Hagan, Jr., DalevilleAndrew M. Sacks, NorfolkThe Honorable S. Randolph Sengel, Alexandria

Richard P. Kern, Ph.D., DirectorMeredith Farrar-Owens, Associate Director

Thomas Y. Barnes, Research AssociateTama S. Celi, Ph.D., Research AssociateAlfreda A. Cheatham, Data Processing SpecialistJames C. Creech, Ph.D., Research Unit ManagerJody T. Fridley, Training/Data Processing Unit ManagerAngela S. Kepus, Training AssociateCarolyn A. Williamson, Research Associate

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VirginiaCriminal Sentencing

Commission Members

Commission Staff

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December 2004

To: The Honorable Leroy Rountree Hassell, Sr., Chief Justice of Virginia The Honorable Mark R. Warner, Governor of Virginia The Honorable Members of the General Assembly of Virginia The Citizens of Virginia

Section 17.1-803 of the Code of Virginia requires the Virginia Criminal SentencingCommission to report annually upon its work and recommendations. Pursuant to thisstatutory obligation, we respectfully submit for your review the 2004 Annual Report of theCriminal Sentencing Commission.

This report details the work of the Commission over the past year and outlines theambitious schedule of activities that lies ahead. The report provides a comprehensive exami-nation of judicial compliance with the felony sentencing guidelines for fiscal year 2004. TheCommission’s recommendations to the 2005 session of the Virginia General Assembly arealso contained in this report.

January 1, 2005, marks the tenth anniversary of the Commission’s implementationof Virginia’s no-parole, truth-in-sentencing system. At this milestone, the Commission’sreport takes a close look at the performance of the new sentencing system in meeting specificobjectives set forth by its designers.

The Commission wishes to sincerely thank those of you in the field whose diligentwork with the guidelines enables us to produce this report.

Sincerely,

Robert W. StewartChairman

HON. ROBERT W. STEWART

CHAIRMAN

RICHARD P. KERN, PH.D.DIRECTOR

100 NORTH NINTH STREET

RICHMOND, VIRGINIA 23219TEL. (804) 225-4398FAX (804) 786-3934

Commonwealth of Virginia

Supreme Court of VirginiaVirginia Criminal Sentencing Commission


1 Introduction

Overview .........................................................................................................7Commission Profile .........................................................................................8Monitoring and Oversight ...............................................................................8Training and Education ...................................................................................9Probation Violator Study ...............................................................................10Methamphetamine Crime in Virginia ............................................................11Projecting Prison Bed Space Impact of Proposed Legislation ..........................12Prison and Jail Population Forecasting ...........................................................13Application of Virginia Crime Codes (VCCs) in Criminal Justice Databases ..........................................................................13Sentencing Guidelines Software .....................................................................15

2 Guidelines Compliance

Introduction ..................................................................................................17Compliance Defined ......................................................................................17Overall Compliance with the Sentencing Guidelines .....................................19Dispositional Compliance ..............................................................................19Durational Compliance .................................................................................20Reasons for Departure from the Guidelines ...................................................22Compliance by Circuit ...................................................................................23Virginia Localities and Judicial Circuits .........................................................26Compliance by Sentencing Guidelines Offense Group ...................................28Compliance Under Midpoint Enhancements .................................................29Juries and the Sentencing Guidelines .............................................................32Compliance and Nonviolent Risk Assessment ................................................35Compliance and Sex Offender Risk Assessment .............................................39

3 A Decade of Truth-In-Sentencing

Introduction ..................................................................................................43Goals of Sentencing Reform...........................................................................44Virginia’s Truth-in-Sentencing Guidelines ......................................................46

Sentencing Reform Performance Measure: Sentencing Guidelines Compliance ...............................................................................47

Sentencing Reform Performance Measure: Unwarranted Disparity ...............50

Sentencing Reform Performance Measure: Percent of Sentence Served ..........................................................................................51

Table of Contents

“The judicial de-

partment comes

home in its effects

to every man’s

fireside; it passes

on his property,

his reputation,

his life, his all.”

–– John Marshall

continued next page


Sentencing Reform Performance Measure: Time Served by Violent Offenders ....................................................................................... 53

Sentencing Reform Performance Measure: Violent Recidivism......................56

Sentencing Reform Performance Measure: Alternative Punishment for Nonviolent Offenders .............................................................................58Sentencing Reform Performance Measure: Percent of Violent Offenders Housed in Prison ........................................................................58Sentencing Reform Performance Measure: Controlled Prison Growth ..........60Sentencing Reform Performance Measure: Crime Rates ................................61Other Sentencing Initiatives ...........................................................................63Summary ....................................................................................................... 64

4 Probation Violator Study

Introduction ..................................................................................................67Phase 1: Probation Violation Sentencing Guidelines .....................................68Phase 2: Probation Violator Risk Assessment ................................................76Recidivism Analysis ........................................................................................79Proposed Risk Assessment Instrument ...........................................................83Proposals for Integrating Probation Violator Risk Assessment ........................85

5 Methamphetamine Crime in Virginia

Introduction ..................................................................................................87Drug Use in Virginia .....................................................................................88Methamphetamine Use Among Arrestees ....................................................... 90Use of Methamphetamine Among Felony Offenders in Virginia ....................92Drug Arrests in Virginia ................................................................................. 94Methamphetamine Lab Seizures ....................................................................96Methamphetamine Convictions in Virginia .................................................100Relative Prevalence of Methamphetamine ....................................................106Virginia Sentencing Guidelines for Drug Offenses ....................................... 108Mandatory Penalties for Schedule I or II Drug Offenses ..............................111Comparing Virginia & Federal Sentencing Guidelines .................................113Quantity of Methamphetamine and Sentencing in Circuit Court ................114Legislative Responses to Methamphetamine Around the Nation ..................117Commission Deliberations ...........................................................................124References ....................................................................................................125

6 Recommendations of the Commission .........................................127

7 Appendices ........................................................................................145

Table of Contents, continued

Introduction R 7

Overview

January 1, 2005, will mark the tenthanniversary of the abolition of paroleand the institution of truth-in-sentenc-ing in the Commonwealth of Virginia.The reform of a decade ago dramati-cally changed the way felons are sen-tenced and serve time in Virginia. Ofthe many approaches to truth-in-sen-tencing taken by states around the na-tion, Virginia’s approach has proven tobe one of the most successful and ef-fective avenues for reform. Otherstates, and recently other nations, havebegun to look to Virginia as a modelfor change. The new year will alsomark the ten-year milestone for theVirginia Criminal Sentencing Com-mission, which was created to imple-ment and oversee sentencing guide-lines compatible with the state’s newpunishment system for felons.

The Virginia Criminal SentencingCommission is required by § 17.1-803of the Code of Virginia to report annu-ally to the General Assembly, the Gov-ernor and the Chief Justice of the Su-preme Court of Virginia. To fulfill itsstatutory obligation, the Commissionrespectfully submits this report, thetenth in the series. As in previous years,the report provides detailed analysis ofjudicial compliance with the discre-tionary sentencing guidelines. Thisreport also includes a ten-year retro-

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Virginia’s approach

has proven to be

one of the most

successful and

effective avenues

for reform.

Introduction1spective of truth-in-sentencing in Vir-ginia, documenting both the successesof Virginia’s system and the ongoingwork of the Commission. Addition-ally, the report presents the findingsof groundbreaking research conductedby the Commission during the lastyear. As mandated, the report includesthe Commission’s recommendations tothe 2005 Virginia General Assembly.

The report is organized into six chap-ters. The remainder of the Introduc-tion chapter gives a general profile ofthe Commission and an overview ofits various activities and projects dur-ing 2004. The Guidelines Compli-ance chapter provides the results of acomprehensive analysis of compliancewith the sentencing guidelines duringfiscal year (FY) 2004, as well as otherrelated sentencing trend data. Acomprehensive review of the First De-cade of Truth-in-Sentencing is pre-sented in the chapter that follows.Subsequent chapters detail two of theCommission’s most recent analyticprojects. A chapter devoted to the Pro-bation Violator Study describes theCommission’s efforts to examine thispopulation of offenders. The chapteron Methamphetamine Crime in Vir-ginia examines the impact of this drug,and the criminal justice response, inthe Commonwealth. The report’s fi-nal chapter presents the Commission’srecommendations for 2004.


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Commission Profile

The Virginia Criminal SentencingCommission is comprised of 17 mem-bers as authorized in the Code of Vir-ginia § 17.1-802. The Chairman ofthe Commission is appointed by theChief Justice of the Supreme Court ofVirginia, must not be an active mem-ber of the judiciary and must be con-firmed by the General Assembly. TheChief Justice also appoints six judgesor justices to serve on the Commis-sion. Five members of the Commis-sion are appointed by the General As-sembly: the Speaker of the House ofDelegates designates three members,and the Senate Committee on Privi-leges and Elections selects two members.The Governor appoints four members,at least one of whom must be a victimof crime or a representative of a crimevictim’s organization. The final mem-ber is Virginia’s Attorney General, whoserves by virtue of his office.

The Virginia Criminal SentencingCommission is an agency of the Su-preme Court of Virginia. The Com-mission’s offices and staff are locatedon the Fifth Floor of the SupremeCourt Building at 100 North NinthStreet in downtown Richmond.

Monitoring and Oversight

Per § 19.2-298.01 of the Code of Vir-ginia, sentencing guidelines work-sheets must be completed in all felonycases for which there are guidelines.This section of the Code also requiresjudges to announce during court pro-ceedings for each case that the guide-lines forms have been reviewed. Aftersentencing, the guidelines worksheetsmust be signed by the judge and be-come a part of the official record ofeach case. The clerk of the circuitcourt is responsible for sending thecompleted and signed worksheets tothe Commission.

The Commission reviews the guide-lines worksheets as they are received.Commission staff performs this checkto ensure that the guidelines forms arebeing completed accurately and prop-erly. As a result of the review process,any errors or omissions are detectedand resolved.

Once the guidelines worksheets arereviewed and determined to be com-plete, they are automated and ana-lyzed. The principal analysis per-formed with the automated guidelinesdatabase relates to judicial compliancewith sentencing guidelines recommen-dations. This analysis is conductedand presented to the Commissiontwice a year. The most recent studyof judicial concurrence with the sen-tencing guidelines is presented in thenext chapter.

* CommissionMeetings

The full membership of

the Commission met

four times during 2004.

These meetings, con-

vened in the Supreme

Court of Virginia, were

held on March 29, June

21, September 13 and

November 15. Minutes

for each of these meet-

ings are available on the

Commission’s website

(www.vcsc.state.va.us).

Introduction R 9

Training and Education

The Commission continuously offerstraining and educational opportunitiesin an effort to promote the accuratecompletion of sentencing guidelines.Training seminars are designed toappeal to the needs of attorneys for theCommonwealth and probation offic-ers, the two groups authorized bystatute to complete the official guide-lines for the court. The seminars alsoprovide defense attorneys with aknowledge base to challenge the accu-racy of guidelines submitted to thecourt. Having all sides equally trainedin the completion of guidelinesworksheets is essential to a system ofchecks and balances that ensures theaccuracy of sentencing guidelines.

In 2004, the Commission providedsentencing guidelines assistance in avariety of forms: training and educa-tion seminars, assistance via the “hotline” phone system, and publicationsand training materials. The Commis-sion offered 65 training seminars in 29different locations across the Com-monwealth, returning to many of theselocations multiple times throughoutthe year. This year the Commissionstaff offered two training seminars:an introduction for new users ofguidelines and a “What’s New” coursedesigned to update experienced userson recent changes to the guidelines.Both seminars included a significantcomponent on the probation violationsentencing guidelines that were im-plemented July 1, 2004.

Commission staff traveled throughoutVirginia, in an attempt to offer train-ing that was convenient to most of theguideline users. Staff continues to seekout facilities that are designed for train-ing, forgoing the typical courtroomenvironment for the Commission’straining programs. The sites for theseseminars included a combination ofcolleges and universities, libraries, stateand local facilities, a jury assemblyroom, a museum and criminal justiceacademies. Many sites, such as theRoanoke Higher Education Center,were selected in an effort to providecomfortable and convenient locationsat little or no cost to the Commission.

The Commission will continue toplace a priority on providing sentenc-ing guidelines training on request toany group of criminal justice profes-sionals. The Commission regularlyconducts sentencing guidelines train-ing at the Department of Corrections’Training Academy as part of the cur-riculum for new probation officers.The Commission is also willing toprovide an education program onguidelines and the no-parole sentencingsystem to any interested group or orga-nization. If an individual is interestedin training, the user can contact theCommission and place his or her nameon a waiting list. Once there is enoughinterest, a seminar is developed andpresented in a locality convenient tothe majority of individuals on the list.

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Probation Violator Study

Since 1991, Virginia’s circuit judgeshave been provided with historically-based sentencing guidelines groundedin actual judicial sanctioning practicesin the Commonwealth. Today, sen-tencing guidelines apply to nearly allfelony offenses. These discretionaryguidelines are an important tool avail-able to judges to assist them in for-mulating sentences for convicted fel-ons. Judges, however, have not hadthe benefit of guidelines when sentenc-ing probation violators. With the abo-lition of parole, circuit judges in theCommonwealth now handle the largemajority of supervision violation cases,including violations of supervision fol-lowing release from incarceration thatformerly were handled by Virginia’sParole Board as parole violations. In2003, the General Assembly directedthe Commission to develop, with dueregard for public safety, discretionarysentencing guidelines for felony of-fenders who are determined by thecourt to be in violation of probationsupervision but not convicted of a newcrime (Chapter 1042 of the 2003 Actsof Assembly). These offenders are of-ten referred to as “technical violators.”The directive specified that the guide-lines be based on an examination ofhistorical judicial sanctioning patternsin revocation hearings. The mandatealso charged the Commission withanalyzing recidivism among probationviolators not convicted of a new crimeand evaluating the feasibility of integrat-ing a risk assessment instrument intothe guidelines for these offenders.

In addition to providing training andeducation programs, the Commissionmaintains a website and a “hot line”phone system (804-225-4398). Byvisiting the website, a user can learnabout upcoming training sessions, ac-cess Commission reports, look upVirginia Crime Codes (VCCs) andutilize on-line versions of the sentenc-ing guidelines forms. The “hot line”phone is staffed from 7:45 a.m. to5:15 p.m., Monday through Friday, torespond quickly to any questions orconcerns regarding the sentencingguidelines. The “hot line” continues tobe an important resource for guidelinesusers around the Commonwealth. Asin previous years, the staff of the Com-mission has responded to thousands ofcalls through this service during 2004.

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The truth-in-sentencing reform,

instituted a decade ago, dramatically

changed the way felons are sentenced

and serve time in Virginia.

Introduction R 11

In 2003, the Commission embarkedupon an extensive data collection ef-fort in order to learn more aboutVirginia’s probation violators. Thiseffort, which included reviewing of-fenders’ probation files and criminalhistory reports (rap sheets), providedrich detail about violators, their behav-ior while under supervision and thespecific reasons why probation offic-ers brought offenders back to court forrevocation hearings. Based on thisexhaustive data collection, the Com-mission developed sentencing guide-lines that reflect historical practices inthe punishment of violators returnedto court for reasons other than a newcriminal conviction. In its 2003 An-nual Report, the Commission recom-mended to the General Assembly thatthe probation violation guidelines beimplemented statewide. The 2004General Assembly accepted theCommission’s recommendation andstatewide use began July 1, 2004.

The second phase of this study, ana-lyzing recidivism and evaluating thefeasibility of developing a risk assess-ment tool for violators not convictedof a new crime, was completed thisyear. The results of the analysis areprovided in considerable detail in thechapter of this report dedicated to theProbation Violator Study. TheCommission’s recommendations forintegrating the newly-developed riskassessment tool can be found in theRecommendations chapter.

Methamphetamine Crimein Virginia

Methamphetamine, a derivative ofamphetamine, is a potent psycho-stimulant that affects the central nervoussystem. A man-made drug (unlikeother drugs such as cocaine that areplant derived), methamphetamine canbe produced from a few over-the-counter and low-cost ingredients. Inthe United States, the use of metham-phetamine is most prevalent in theWest, but is becoming increasinglypopular in the Midwest as well. Con-cern over the potential impact of meth-amphetamine-related crime in theCommonwealth prompted the 2001Virginia General Assembly to directthe Commission to examine the state’sfelony sentencing guidelines for meth-amphetamine offenses, with specificfocus on the quantity of methamphet-amine seized in these cases (Chapters352 and 375 of The Acts of the Assem-bly 2001).

In its 2001 study, the Commissionfound that the number of convictionsinvolving methamphetamine, al-though increasing, represented at thattime a small fraction of the drug casesin the state and federal courts in theCommonwealth. The Commission’sanalysis revealed that sentencing in thestate’s circuit courts was not stronglylinked to the quantity of methamphet-amine seized. The Commission care-fully considered the sentencing guide-lines and existing statutory penaltiesapplicable in methamphetamine cases.With little evidence to suggest thatjudges were basing sentences on theamount of methamphetamine seized,

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Projecting Prison BedSpace Impact of

Proposed Legislation

The Code of Virginia, in § 30-19.1:4,requires the Commission to preparefiscal impact statements for any pro-posed legislation that might result ina net increase in periods of imprison-ment in state correctional facilities.Such statements must include detailsas to any increase or decrease in adultoffender populations and any neces-sary adjustments in guideline mid-point recommendations. Additionally,any impact statement required under§ 30-19.1:4 must include an analysisof the impact on local and regional jailsas well as state and local communitycorrections programs.

During the 2004 General Assemblysession, the Commission prepared 295separate impact analyses on proposedlegislation. These proposals fell intofive categories: 1) legislation to increasethe felony penalty class of a specificcrime; 2) legislation to add a new man-datory minimum penalty for a specificcrime; 3) legislation to expand orclarify an existing crime; 4) legislationthat would create a new criminal of-fense; and 5) legislation that wouldincrease the penalty class of a specificcrime from a misdemeanor to a felony.

The Commission utilized a computersimulation-forecasting program to es-timate the projected impact of theseproposals on the prison system. Inmost instances, the projected impact

the Commission did not recommendany adjustments to Virginia’s histori-cally-based sentencing guidelines toaccount for the quantity of this drug.

Many public officials in Virginia haveremained concerned about metham-phetamine in the years since theCommission’s last study. In response,the Commission this year has con-ducted a second detailed study on thisspecific drug. The chapter of this re-port entitled MethamphetamineCrime in Virginia presents the mostrecent data available on use of thedrug, lab seizures, and arrests and con-victions in the state. A summary oflegislation targeting methamphet-amine manufacture and distributionin other states is also included. In ad-dition, the results of a new analysiscomparing quantity and sentencingoutcome are provided.

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Introduction R 13

Prison and Jail PopulationForecasting

Since 1987, Virginia has projected thesize of its future prison and jail popula-tions through a process known as “con-sensus forecasting.” This approach com-bines technical forecasting expertisewith the valuable judgment and ex-perience of professionals working in allareas of the criminal justice system.

While the Commission is not respon-sible for generating the prison or jailpopulation forecast, it is included inthe consensus forecasting process. Dur-ing the past year, Commission staffmembers served on the technical com-mittee that provided methodologicaland statistical review of the forecast-ing work. Also, the Commission’sDirector served on the Policy AdvisoryCommittee that oversees the develop-ment of the prison and jail forecasts.

Application of Virginia CrimeCodes (VCCs) in Criminal

Justice Databases

In 2002, the General Assembly created§ 19.2-390.01 to require criminal jus-tice agencies across the Commonwealthto report and maintain criminal offenseinformation in a standardized manner.The legislation, which became effec-tive October 1, 2004, mandates the useof the Virginia Crime Codes, or VCCs,as the standardized method for record-ing offenses throughout the state’scriminal justice system.

Specifically, § 19.2-390.01 requiresthat all charging documents issued bymagistrates, and all criminal warrants,criminal indictments, informationsand presentments, criminal petitions,misdemeanor summonses, and the dis-positional documents from criminaltrials involving a jailable offense mustinclude the VCC references for theparticular offense or offenses covered.In addition, all reports to the CentralCriminal Records Exchange main-tained by the Virginia State Police andto any other criminal offense or of-fender database maintained by theSupreme Court of Virginia, the De-partment of Corrections, the Depart-ment of Juvenile Justice, the VirginiaParole Board, and the Department ofCriminal Justice Services must includethe VCC references for the particularoffense or offenses covered.

The manner in which offense infor-mation is recorded on criminal justicedatabases has important implicationsfor those who rely on such data to

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Rand accompanying analysis of a bill waspresented to the General Assemblywithin 48 hours after the Commissionwas notified of the proposed legisla-tion. When requested, the Commis-sion provided pertinent oral testimonyto accompany the impact analysis.


make both individual and system-widedecisions. Because the Code of Virginiadefines many distinct criminal actswithin a single statute, the statutenumber is an inadequate method toidentify the specific offense commit-ted or its statutory seriousness. Theinclusion of a narrative offense de-scription usually does not provideenough additional information tomatch the crime to its specific statu-tory penalty. These offense descrip-tions are not standardized acrosscriminal justice data systems, or evenwithin a single agency’s data system,and often lack the elements of thecrime needed to make critical distinc-tions between discrete offenses. Thismethod of reporting and recording of-fense information has been repeatedlycriticized by officials who must usecriminal history reports and othercriminal justice documents to makeimportant decisions.

The Virginia Crime Code (VCC) sys-tem is a set of standardized offensecodes that accurately identify eachunique crime in the Code of Virginia.When entered into a database, thestatutory reference can be generated,as well as a narrative offense descrip-tion containing the critical elementsof the offense. The VCC system wasestablished in the mid-1980s and,since 1995, has been maintained andupdated by the Commission.

Many criminal justice entities in Vir-ginia have used the VCC references foryears to record offense information.The Commission has always requiredVCC references on the sentencingguidelines forms. The Department ofCorrections has utilized VCCs for itsPre/Post-Sentence Investigation (PSI)reporting since 1985. The Depart-ment of Juvenile Justice began usingVCC references in the late 1990s. TheVirginia Compensation Board, since2000, has required sheriff ’s offices touse the VCCs in the automated reportsthey submit to request state reimburse-ment for prisoners housed in local andregional jails. As of October 1, 2004,all remaining entities specified by thelegislation were required to adopt theVCC reporting system. Recordingoffense information in a uniform fash-ion will greatly improve the efficiencyand the quality of criminal justice de-cision-making in Virginia.

During the year, the Commissionworked with the Virginia State CrimeCommission to support the transitionto statewide utilization of the VCCsystem. To assist law enforcement andother field personnel, the Commissionprepared a booklet listing the mostcommon felony crimes resulting inconvictions in the Commonwealth. Asecond booklet containing the mostcommon misdemeanor crimes wasalso prepared. The Commission alsopublishes a VCC reference guide con-taining the complete list of all VCCsorganized alphabetically by crime type,with a second section listing the VCCs

Introduction R 15

The Commission’s website (www.vcsc.state.va.us) offers a variety of helpfultools for those who prepare or useVirginia’s sentencing guidelines. Avisitor to the website can learn aboutupcoming training sessions, accessCommission reports, and look upVirginia Crime Codes (VCCs). Inaddition, the web-site provides on-line versions of the sentencing guide-lines forms. The guidelines formsavailable on-line allow a user to printblank forms to his or her local printeror to fill in the form’s blanks on screenso that the completed form can beprinted locally.

The current system, however, is lim-ited. Users must still select whichforms to prepare, determine each scoreto enter, sum the points, enter the to-tal score, look up the guidelines rec-ommendation corresponding to thetotal score and insert the guidelinesrange on the cover sheet of the form.No information is saved or stored bythe system once the user prints andexits the on-line screen.

In 2003, the Commission contractedwith a software development company,Cross Current Corporation, to en-hance and expand the functionality ofthe current system. The Commissionis striving to fully automate the prepa-ration of the sentencing guidelinesforms and provide this service on-lineto users. The development of sentenc-ing guidelines software is proceeding

in statute order. The Commission dis-tributed nearly 30,000 booklets con-taining the most common felony andmisdemeanor crimes and nearly 3,000VCC reference guides to police depart-ments, sheriffs, the Virginia State Po-lice, circuit and general district courts,Commonwealth’s attorneys, probationofficers, public defenders and privatedefense attorneys. The complete VCCreference guide is also available on theCommission’s website at www.vcsc.state.va.us. The on-line version allowsusers to search for a particular VCCby entering all or part of a statute orby entering a key word. The Com-mission will continue to provide assis-tance to all agencies affected by thislegislative mandate.

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Sentencing GuidelinesSoftware


in phases. Phase 2 is nearing comple-tion. Phase 2 will provide users withadditional features beyond what iscurrently available through theCommission’s website. For example,it will total the scores automaticallyand fill in the appropriate guidelinessentence range for the case on the coversheet of the form. It will also allowusers to run multiple charging sce-narios, save prepared guidelines formsto a local computer, send completedforms to the Commission electroni-cally, and search the guidelines data-base for previously completed formsfor a particular offender. The softwarewill be available through the websiteto all prosecutors, probation officers,public defenders and defense attorneyswho register with the Commission andreceive a log-in identification and pass-word. The Commission hopes to pi-

lot test this phase of the software inearly 2005 and make it available state-wide during the coming year.

Other features will be incorporated intothe final phase of the project. For thefinal phase, the Commission is con-sidering a question-and-answer formatto assist users in the preparation of theguidelines. With this format, the useris asked a series of questions about theoffender, the conviction offense(s), thecircumstances of the case, and theoffender’s prior criminal record. Asthe user responds to each question, thesoftware will automatically generatethe appropriate guidelines score. Thisquestion-response concept is very simi-lar to software applications developedin other fields, such as tax preparation.The final phase is expected to be com-plete by early 2006.

By statute, the truth-in-sentencing guidelines process is mandatory. Com-

pliance with the guidelines remains discretionary; however, a judge must

state in writing the reason for any departure from the guidelines.

Guideline Compliance R 17

Introduction

On January 1, 2005, Virginia’s truth-in-sentencing system will reach its ten-year anniversary. Effective for anyfelony committed on or after January1, 1995, the practice of discretionaryparole release from prison was abol-ished, and the existing system ofawarding inmates sentence credits forgood behavior was eliminated. Un-der Virginia’s truth-in-sentencing laws,convicted felons must serve at least85% of the pronounced sentence, andthey may earn, at most, 15% in earnedsentence credit regardless of whethertheir sentence is served in a state facil-ity or a local jail. The Commissionwas established to develop and admin-ister guidelines to provide Virginia’sjudiciary with sentencing recommen-dations in felony cases under the newtruth-in-sentencing laws. Under thecurrent no-parole system, guidelinesrecommendations for nonviolent of-fenders with no prior record of vio-lence are tied to the amount of timethey served during a period prior tothe abolition of parole. In contrast,offenders convicted of violent crimesand those with prior convictions forviolent felonies are subject to guide-lines recommendations up to six timeslonger than the historical time servedin prison by similar offenders. In more

than 200,000 felony cases sentencedunder truth-in-sentencing laws, judgeshave agreed with guidelines recom-mendations in more than three out ofevery four cases.

The Commission’s last annual reportpresented an analysis of cases sentencedduring fiscal year (FY) 2003. This re-port will focus on cases sentenced fromthe most recent year of available data,FY2004 (July 1, 2003, through June30, 2004). Compliance is examinedin a variety of ways in this report, andvariations in data over the years arehighlighted throughout.

Compliance Defined

In the Commonwealth, judicial com-pliance with the truth-in-sentencingguidelines is voluntary. A judge maydepart from the guidelines recommen-dation and sentence an offender eitherto a punishment more severe or lessstringent than called for by the guide-lines. In cases in which the judge haselected to sentence outside of theguidelines recommendation, he or shemust, as stipulated in § 19.2-298.01of the Code of Virginia, provide a writ-ten reason for the departure on theguidelines worksheet.

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Guidelines Compliance2 In the Common-

wealth, judicial

compliance

with the truth-

in-sentencing

guidelines is

voluntary.


The Commission measures judicialagreement with the sentencing guide-lines using two classes of compliance:strict and general. Together, they com-prise the overall compliance rate. Fora case to be in strict compliance, theoffender must be sentenced to the sametype of sanction (probation, incarcera-tion up to six months, incarcerationmore than six months) that the guide-lines recommend and to a term of in-carceration that falls exactly within thesentence range recommended by theguidelines. When risk assessment fornonviolent offenders is applicable, ajudge may sentence a recommendedoffender to an alternative punishmentprogram or to a term of incarcerationwithin the traditional guidelines rangeand be considered in strict compli-ance. A judicial sentence is consideredin general agreement with the guide-lines recommendation if the sentence1) meets modest criteria for rounding,2) involves time served incarceration,or 3) complies with statutory diversionsentencing options in habitual trafficoffender cases.

Compliance by rounding provides fora modest rounding allowance in in-stances when the active sentencehanded down by a judge or jury is veryclose to the range recommended by theguidelines. For example, a judge wouldbe considered in compliance with theguidelines if he sentenced an offenderto a two-year sentence based on aguidelines recommendation that goesup to 1 year 11 months. In general,the Commission allows for roundingof a sentence that is within 5% of theguidelines recommendation.

Time served compliance is intendedto accommodate judicial discretion andthe complexity of the criminal justicesystem at the local level. A judge maysentence an offender to the amount ofincarceration time served in a local jailawaiting trial and sentencing when theguidelines call for a short jail term.Even though the judge does not sen-tence an offender to post-sentence in-carceration time, the Commission typi-cally considers this type of case to be incompliance. Conversely, a judge whosentences an offender to time servedwhen the guidelines call for probationis also regarded as being in compliancewith the guidelines because the of-fender was not ordered to serve anyincarceration time after sentencing.

Compliance through the use of statu-tory diversion sentencing options arisesin habitual traffic cases as the result ofamendments to §46.2-357(B2 and B3)of the Code of Virginia, effective July 1,1997. The amendment allows judgesto suspend the mandatory minimum12-month incarceration term requiredin felony habitual traffic cases providedthe offender is ordered to a DetentionCenter or Diversion Center Incarcera-tion Program. For cases sentenced sincethe effective date of the legislation, theCommission considers either mode ofsanctioning of these offenders to be anindication of judicial agreement withthe sentencing guidelines.


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Overall Compliance with theSentencing Guidelines

The overall compliance rate summa-rizes the extent to which Virginia’sjudges concur with recommendationsprovided by the sentencing guidelines,both in type of disposition and inlength of incarceration. BetweenFY1995 and FY1998, the overall com-pliance rate hovered around 75%, in-creased steadily between FY1999 andFY2001, and then decreased slightlyin FY2002. Over the past two fiscalyears the compliance rate has been in-creasing once again. For FY2004, thecompliance rate was its highest ever,at 80.7% (Figure 1).

In addition to compliance, the Com-mission also studies departures fromthe guidelines. The rate at whichjudges sentence offenders to sanctionsmore severe than the guidelines rec-ommendation, known as the “aggra-vation” rate, was 9.7% for FY2004.The “mitigation” rate, or the rate atwhich judges sentence offenders tosanctions considered less severe thanthe guidelines recommendation, was9.6% for the fiscal year. Of theFY2004 departures, 50% were casesof aggravation while 50% were casesof mitigation.

Dispositional Compliance

Since the inception of truth-in-sen-tencing in 1995, the correspondencebetween dispositions recommended bythe guidelines and the actual disposi-tions imposed in Virginia’s circuitcourts has been quite high. Figure 2illustrates judicial concurrence inFY2004 with the type of dispositionrecommended by the guidelines. Forinstance, of all felony offenders recom-mended for more than six months ofincarceration during FY2004, judgessentenced 87% to terms in excess ofsix months. Some offenders recom-mended for incarceration of more thansix months received a shorter term ofincarceration (one day to six months),but fewer received probation with noactive incarceration.

Judges have also typically agreed withguidelines recommendations forshorter terms of incarceration. InFY2004, 80% of offenders received asentence resulting in confinement ofsix months or less when such a pen-alty was recommended. In some cases,judges felt probation to be a more ap-propriate sanction than the recom-mended jail term, and in other casesoffenders recommended for short-termincarceration received a sentence ofmore than six months. Finally, 75%of offenders whose guidelines recom-mendation called for no incarcerationwere given probation and no post-dis-positional confinement. Some offend-ers with a “no incarceration” recom-mendation received a short jail term,

Figure 1

Overall Guidelines Complianceand Direction of Departures,FY2004

Compliance 80.7%

Aggravation 9.7%

Mitigation 9.6%

Aggravation 50%

Mitigation 50%

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but rarely did offenders recommendedfor no incarceration receive jail orprison terms of more than six months.

Since July 1, 1997, sentences to thestate’s Boot Camp, Detention Centerand Diversion Center programs havebeen defined as incarceration sanctionsfor the purposes of the sentencingguidelines. The state’s Boot Camp pro-gram was discontinued in 2002 whilethe Detention and Diversion Centerprograms continue to be defined as“probation” programs in their enact-ment clauses in the Code of Virginia,the Commission recognizes that the pro-grams are more restrictive than proba-tion supervision in the community. TheCommission, therefore, defines them asincarceration terms under the sentenc-ing guidelines. The Detention and Di-version Center programs are counted assix months of confinement. In the pre-vious discussion of recommended andactual dispositions, imposition of one ofthese programs is categorized as incar-ceration of six months or less.

Figure 2

Recommended Dispositions and Actual Dispositions, FY2004

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Durational Compliance

In addition to examining the degreeto which judges concur with the typeof disposition recommended by theguidelines, the Commission also stud-ies durational compliance, defined asthe rate at which judges sentence of-fenders to terms of incarceration that fallwithin the recommended guidelinesrange. Durational compliance analysisconsiders only those cases for which theguidelines recommended an activeterm of incarceration and the offenderreceived an incarceration sanction con-sisting of at least one day in jail.

Durational compliance among FY2004cases was approximately 80%, indicat-ing that judges, more often than not,agree with the length of incarcerationrecommended by the guidelines in jailand prison cases (Figure 3). For FY2004cases not in durational compliance, miti-gations were slightly more prevalent(53%) than aggravations (47%).

For cases recommended for incarcera-tion of more than six months, the sen-tence length recommendation derivedfrom the guidelines (known as themidpoint) is accompanied by a high-end and low-end recommendation.The sentence ranges recommended bythe guidelines are relatively broad, al-lowing judges to utilize their discre-tion in sentencing offenders to differentincarceration terms while still remain-ing in compliance with the guide-lines. Among FY2004 cases receivingincarceration in excess of six monthsthat were in durational compliance,

Actual Disposition Incarceration Incarceration

Recommended Disposition Probation 1 day - 6 mos > 6 mos

Probation 74.6% 21.2% 4.2%

Incarceration 1 day - 6 months 9.1 79.7 11.2

Incarceration > 6 months 5.3 7.7 87.0


16% were sentenced to prison termsequivalent to the midpoint recommen-dation (Figure 4). For cases in whichthe judge sentenced the offender to aterm of incarceration within the guide-lines recommended range, nearly two-thirds (63%) were given a sentence be-low the recommended midpoint. Only21% of the cases receiving incarcera-tion over six months that were indurational compliance with the guide-lines were sentenced above the mid-point recommendation. This patternof sentencing within the range hasbeen consistent since the truth-in-sen-tencing guidelines took effect in 1995,indicating that judges, overall, have fa-vored the lower portion of the recom-mended range.

Offenders receiving more than sixmonths of incarceration, but less thanthe recommended time, were given“effective” sentences (sentences less anysuspended time) short of the guide-lines range by a median value of ninemonths (Figure 5). For offenders re-ceiving longer than recommended in-carceration sentences, the effective sen-tence exceeded the guidelines range bya median value of nine months. Thus,durational departures from the guide-lines are typically less than one yearabove or below the recommendedrange, suggesting that disagreementwith the guidelines recommendationis, in most cases, not extreme.

Figure 5

Median Length of Durational Departures, FY2004

Figure 3

Durational Compliance and Direction of Departures, FY2004

Figure 4

Distribution of Sentences within Guidelines Range, FY2004

Analysis includes only cases recommended for and receiving an active term of incarceration

Compliance 79.9%

Aggravation 9.5%

Mitigation 10.6%

Below Midpoint 63.2%

Above Midpoint 20.9%

At Midpoint 15.9%

Aggravation 47.1%

Mitigation 52.9%

Durational Compliance Direction of Departures

9 months

9 monthsAggravation Cases

Mitigation Cases


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Reasons for Departure fromthe Guidelines

Compliance with the truth-in-sentenc-ing guidelines is voluntary. Althoughnot obligated to sentence within guide-lines recommendations, judges are re-quired by § 19.2-298.01 of the Codeof Virginia to submit to the Commis-sion their reason(s) for sentencing out-side the guidelines range. Each year,as the Commission deliberates uponrecommendations for revisions to theguidelines, the opinions of the judi-ciary, as reflected in their departurereasons, are an important part of theCommission’s discussions. Virginia’sjudges are not limited by any standard-

ized or prescribed reasons for depar-ture and may cite multiple reasons fordeparture in each guidelines case.

In FY2004, 9.6% of guideline casessentenced received sanctions that fellbelow the guidelines recommendation.An analysis of the 21,716 sentencingguidelines cases reveals that 2% of thetime, judges sentence below the guide-lines recommendation and a departurereason cannot be discerned from a re-view of the submitted guidelines form.Another 2% cite the involvement of aplea agreement as the reason for a miti-gating departure (Figure 6).

With regard to other mitigated sen-tences, an offender’s potential for re-habilitation was indicated, in conjunc-tion with the use of an alternative sanc-tion, in 1% of the guideline cases. Theuse of an alternative sanction, such asDetention or Diversion Center, wascited as a mitigating reason in 1% ofguideline cases. Judges also referredto the offender’s cooperation with au-thorities, such as aiding in the appre-hension or prosecution of others, aswell as minimal circumstances sur-rounding the case. Although otherreasons for mitigation were reportedto the Commission in FY2004, onlythe most frequently cited reasons arediscussed here.

Figure 6

Most Frequently Cited Reasons for Mitigation,* FY2004

Figure 7

Most Frequently Cited Reasons for Aggravation,* FY2004

No Reason Provided

Aggravating Circumstances/Flagrancy

Plea Agreement

Previous Conviction for Same Offense

Prior Record Understates Criminal Orientation

Other Incarceration Sanction

* Represents most frequently cited reasons only. Multiple reasons may be cited in each case.

2%

2%

1%

1%

1%

1%

2%

1%

1%

1%

1%

1%

No Reason Provided

Plea Agreement

Good Rehabilitation Potential

Alternative Sanction to Incarceration

Cooperative with Authorities

Minimal Circumstances


Judges sentenced 9.7% of the FY2004cases to terms more severe than thesentencing guidelines recommenda-tion, resulting in “aggravation” sen-tences. In examining the 21,716 sen-tencing guideline cases, the Commis-sion found that 2% of the time anupward departure rationale could notbe discerned from a review of the sub-mitted guidelines form. (Figure 7).The most commonly cited reason,however, relates to the flagrancy of theoffense (1%). These felony cases of-ten involve complex sets of events orextreme circumstances for whichjudges feel a harsher than recom-mended sentence should be imposed.In 1% of guideline cases, a plea agree-ment which called for a tougher sanc-tion than that recommended by guide-lines was listed as the reason for anupward departure.

Judges also cited the offender’s priorconvictions for the same or a similaroffense (1%) as a reason for harshersanctions. In 1% of the FY2004 cases,judges cited the defendant’s priorrecord as the reason for upward de-parture. For another 1% of guidelinecases, judges sentenced the offender toDetention or Diversion Center ratherthan a straight probation period rec-ommended by the guidelines. Manyother reasons were cited by judges toexplain aggravation sentences but withmuch less frequency than the reasonsdiscussed here.

Appendices 1 and 2 contain detailed sum-maries of the reasons for departure fromguidelines recommendations for each of the14 guidelines offense groups.

Compliance by Circuit

Compliance rates and departure pat-terns vary somewhat across Virginia’s31 judicial circuits. These patterns areshown in Figure 8. The map and ac-companying table on the followingpages identify the location of each ju-dicial circuit in the Commonwealth.

In FY2004, nearly two-thirds (61%)of the state’s 31 circuits exhibited com-pliance rates at or above 80%, whilejust over one-third (35%) reportedcompliance rates between 70% and79%. Only one circuit had a compli-ance rate below 70%. There are likelymany reasons for the variations in com-pliance across circuits. Certain juris-dictions may see atypical cases not re-flected in statewide averages. In addi-tion, the availability of alternative orcommunity-based programs currentlydiffers from locality to locality. Thedegree to which judges agree withguidelines recommendations does notseem to be primarily related to geogra-phy. The circuits with the lowest com-pliance rates are scattered across thestate, and both high and low compli-ance circuits can be found in close geo-graphic proximity.

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Figure 8

Compliance by Circuit, FY2004

801

1,534

719

1,559

527

400

797

454

454

525

409

851

1,104

1,107

1,193

595

618

432

1,237

379

343

655

541

768

694

745

688

419

324

192

612

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

89%

82

78

80

84

73

90

81

79

85

85

80

81

83

72

81

78

82

79

89

75

75

77

74

83

79

86

83

68

84

86

6%

9

12

4

8

15

5

8

13

7

8

13

9

6

17

12

14

9

11

6

13

18

9

10

8

10

6

6

24

6

6

5%

9

10

16

8

12

5

11

7

8

7

7

10

11

11

7

7

10

10

5

12

7

13

16

10

12

8

11

8

9

8

Circuit Number of Cases

■ Compliance ■ Mitigation ■ Aggravation


In FY2004, the highest rates of judi-cial agreement with the sentencingguidelines, at 89% or higher, werefound in Newport News (Circuit 7),the Loudoun County area (Circuit 20)and Chesapeake (Circuit 1). The low-est compliance rates among judicialcircuits in FY2004 were reported inCircuit 29 (Buchanan, Dickenson,Russell and Tazewell counties), Cir-cuit 15 (Fredericksburg, Stafford,Hanover, King George, Caroline,Essex, etc.), and Circuit 6 (Brunswick,Greensville, Hopewell, Prince George,Surry and Sussex).

In FY2004, some of the highest miti-gation rates were found in the Lynch-burg area (Circuit 24) and Norfolk(Circuit 4). Each of these circuits hada mitigation rate around 16% duringthe fiscal year. With regard to highmitigation rates, it would be too sim-

plistic to assume that this reflects areaswith lenient sentencing habits. Inter-mediate punishment programs are notuniformly available throughout theCommonwealth, and those jurisdic-tions with better access to these sen-tencing options may be using them asintended by the General Assembly.These sentences generally would appearas mitigations from the guide-lines. In-specting aggravation rates reveals thatCircuit 29 (Buchanan County area) hadthe highest aggravation rate at 24%, fol-lowed by Circuit 22 (Danville) at 18%,and Circuit 15 (Fredericksburg, Staf-ford, Hanover, King George, Caroline,Essex, etc.) at 17%. Thus, lower com-pliance rates in these circuits are dueprimarily to high aggravation rates.

Appendices 3 and 4 present compliancefigures for judicial circuits by each of the14 sentencing guidelines offense groups.

One of the goals of the reform was to reduce the gap between the

sentence given in the courtroom and the time actually served by a

convicted felon. Today, under the truth-in-sentencing system, each

inmate is required to serve at least 85% of his sentence.


R Virginia Localities and Judicial Circuits

Accomack ............................................. 2Albemarle ........................................... 16Alexandria ........................................... 18Alleghany ............................................ 25Amelia ................................................ 11Amherst .............................................. 24Appomattox ........................................ 10Arlington ............................................ 17Augusta ............................................... 25

Bath .................................................... 25Bedford City ....................................... 24Bedford County .................................. 24Bland .................................................. 27Botetourt ............................................ 25Bristol ................................................. 28Brunswick ............................................. 6Buchanan ............................................ 29Buckingham ....................................... 10Buena Vista ........................................ 25

Campbell ............................................ 24Caroline .............................................. 15Carroll ................................................ 27Charles City .......................................... 9Charlotte ............................................ 10Charlottesville ..................................... 16Chesapeake ......................................... 1Chesterfield ........................................ 12Clarke ................................................. 26Colonial Heights ................................. 12Covington .......................................... 25Craig ................................................ 25Culpeper ............................................. 16Cumberland ....................................... 10

Danville .............................................. 22Dickenson .......................................... 29Dinwiddie .......................................... 11

Emporia .............................................. 6Essex ................................................... 15

Fairfax City ......................................... 19Fairfax County .................................... 19Falls Church ....................................... 17Fauquier ............................................. 20Floyd .................................................. 27Fluvanna ............................................. 16Franklin City ........................................ 5Franklin County ................................. 22Frederick ............................................. 26Fredericksburg .................................... 15

Galax .................................................. 27Giles ................................................... 27Gloucester ............................................. 9Goochland .......................................... 16Grayson .............................................. 27Greene ................................................ 16Greensville .......................................... 6

Halifax ................................................ 10Hampton ............................................ 8Hanover .............................................. 15Harrisonburg ...................................... 26Henrico .............................................. 14Henry ................................................. 21Highland ............................................ 25Hopewell ............................................ 6

Isle of Wight ....................................... 5

James City .......................................... 9

King and Queen ................................. 9King George ....................................... 15King William ...................................... 9

Lancaster ............................................. 15Lee ...................................................... 30Lexington ........................................... 25Loudoun ............................................. 20Louisa ................................................. 16Lunenburg .......................................... 10Lynchburg .......................................... 24


AUGUSTA

ROCKBRIDGE

Lexington

AMHERST

CAMPBELL

Lynchburg

ROCKINGHAM

Harrisonburg

ALBEMARLECharlottesville

WinchesterLOUDOUN

FAIRFAX

ARLINGTON

Alexandria

PRINCEWILLIAM

CULPEPERFredericksburg

HENRICO

Richmond

CHESTERFIELD

Petersburg

HopewellJAMESCITY

YORKPoquoson

Hampton

NewportNews

ISLE OFWIGHT

Williamsburg

Norfolk

Portsmouth

Chesapeake

Suffolk

Virginia Beach

GREENSVILLE

EmporiaMECKLENBURG

HALIFAX

HENRY

PATRICK

FRANKLIN

Roanoke

PULASKI

TAZEWELL

Bristol

NELSON

Buena VistaBUCKINGHAM

APPOMATTOX

PRINCE EDWARD

CHARLOTTE

LUNENBURG

BRUNSWICK

CUM

BERL

AND

AMELIA

NOTTOWAYBEDFORD

Bedford

South Boston

PITTSYLVANIA

Danville

BOTETOURT

Salem

CRAIG

MONTGOMERYRadford

GILES

FLOYD

CARROLL

Galax

BLAND

WYTHESMYTH

GRAYSON

RUSSELL

BUCHANAN

DICKENSONWISE

Norton

SCOTTLEE WASHINGTON

POWHATAN

SUSSEX

SOUTHAMPTON

Franklin

Colonial Heights

ALLEGHANY

Covington

Clifton Forge

BATH

HIGHLAND

Staunton

Waynesboro

FAUQUIER

WARREN

SHENANDOAH

PAGE

STAFFORDMADISON

GREENEORANGE

SPOTSYLVANIA

LOUISA

FLUVANNA GOOCHLAND

HANOVER

KINGGEORGE

CAROLINE

KING WILLIAM

WESTMORELAND

NORTHUMBERLANDRICHMOND

ESSEX

KING AND QUEEN

PRINCE GEORGE

NORTHAMPTON

Martinsville

RAPPAHANNOCK

CLARKE

FREDERICK

Falls Church

Fairfax

Manassas

Manassas Park

CHARLES CITY

SURRY

LANCASTERMIDDLESEX

MATHEWSGLOU-

CESTER

ACCO

MACK

ROANOKE

25

26

2410

22

21

23

27

28

29

30

20 17

1819

31

1516

9NEW KENT

14 13

11

12

6 5

12

34

8

2

7

Madison ............................................. 16Manassas ............................................. 31Martinsville ......................................... 21Mathews ............................................. 9Mecklenburg ....................................... 10Middlesex ........................................... 9Montgomery ....................................... 27

Nelson ................................................ 24New Kent ........................................... 9Newport News .................................... 7Norfolk ............................................... 4Northampton ....................................... 2Northumberland ................................. 15Norton ............................................... 30Nottoway ............................................ 11

Orange ................................................ 16

Page .................................................... 26Patrick ................................................ 21Petersburg ........................................... 11Pittsylvania ......................................... 22Poquoson ............................................ 9Portsmouth ......................................... 3Powhatan ............................................ 11Prince Edward .................................... 10Prince George ..................................... 6Prince William .................................... 31Pulaski ................................................ 27

Radford .............................................. 27Rappahannock .................................... 20Richmond City ................................... 13Richmond County .............................. 15Roanoke City ...................................... 23Roanoke County ................................. 23Rockbridge ......................................... 25Rockingham ....................................... 26Russell ................................................ 29

Salem .................................................. 23Scott ................................................... 30Shenandoah ........................................ 26Smyth ................................................. 28Southampton ...................................... 5Spotsylvania ........................................ 15Stafford ............................................... 15Staunton ............................................. 25Suffolk ................................................ 5Surry ................................................... 6Sussex ................................................. 6

Tazewell .............................................. 29

Virginia Beach .................................... 2

Warren ............................................... 26Washington ........................................ 28Waynesboro ........................................ 25Westmoreland .................................... 15Williamsburg ........................................ 9Winchester ......................................... 26Wise ................................................... 30Wythe ................................................. 27

York ...................................................... 9

Virginia Judicial Circuits


Compliance by SentencingGuidelines Offense Group

In FY2004, as in previous years, varia-tion exists in judicial agreement withthe guidelines, as well as in judicialtendencies toward departure, when com-paring the 14 offense groups (Figure 9).For FY2004, compliance rates rangedfrom a high of 86% in the fraud offensegroup to a low of 62% in robbery cases.In general, property and drug offensesexhibit rates of compliance higher thanthe violent offense categories. The vio-lent offense groups (assault, rape,sexual assault, robbery, homicide andkidnapping) had compliance rates at orbelow 75% whereas many of the prop-erty and drug offense categories hadcompliance rates above 82%.

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Judicial concurrence with guidelinesrecommendations increased for ten ofthe fourteen offense groups during thefiscal year. The largest increase in com-pliance is evident for the kidnappingoffense group, driven primarily by thesmall number of cases. Four of thefourteen offense groups had lowercompliance rates than the previous fis-cal year. The largest decrease in com-pliance (-5%) occurred on the Rapeworksheet, due to an increase in themitigation rate. Compliance on theMiscellaneous worksheet decreased by3%, due primarily to an increase in theaggravation rate.

Since 1995, departure patterns havediffered across offense groups, andFY2004 was no exception. Among the

Offense Compliance Mitigation Aggravation Number of Cases

Assault 75.4% 12.7% 11.9% 1,291Burg./Other Structure 73.9 14.5 11.6 536

Burglary/Dwelling 66.9 16.6 16.5 812Drug/Other 82.8 7.3 9.9 765Drug/Schedule I/II 82.2 7.8 10.0 6,540Fraud 85.9 10.5 3.6 2,620Kidnapping 69.5 10.5 20.0 95Larceny 83.9 7.6 8.5 4,796

Miscellaneous 73.2 9.6 17.2 552Murder/Homicide 66.7 15.9 17.4 252Rape 66.1 29.2 4.7 233Robbery 61.8 27.3 10.9 714Sexual Assault 74.3 12.5 13.2 413Traffic 84.8 4.4 10.8 2,087

Figure 9

Guidelines Compliance by Offense, FY2004


property crimes, fraud cases showed amarked mitigation pattern. With re-spect to violent crime groups, bothrape and robbery departures showedtendencies toward sentences that fellbelow the guidelines recommendation,with over one-quarter of cases result-ing in mitigation sentences. This miti-gation pattern has been consistent withboth rape and robbery offenses sincethe abolition of parole in 1995. Themost frequently cited mitigation rea-sons provided by judges in rape casesinclude the refusal of victims and wit-nesses to testify, the involvement of aplea agreement, and the defendant’spotential for rehabilitation. The mostfrequently cited mitigation reasonsprovided by judges in robbery casesinclude the defendant’s cooperationwith law enforcement, the involve-ment of a plea agreement, and the useof sanctions other than jail or prison.

In FY2004, the groups with the high-est aggravation rates were Kidnapping(20%), Murder/Homicide (17%),and Miscellaneous (17%). BecauseKidnapping offenses are uncommon,the aggravation rate can be affected bya relatively small number of cases. InMurder/Homicide cases, the influenceof jury trials and the extreme case cir-cumstances have historically contributedto high aggravation rates.

Compliance under MidpointEnhancements

Section 17.1-805, formerly §17-237,of the Code of Virginia describes theframework for what are known as“midpoint enhancements.” Theseenhancements significantly increaseguideline scores for violent offenders.Midpoint enhancements are an inte-gral part of the design of the truth-in-sentencing guidelines. The objectiveof midpoint enhancements is to pro-vide sentence recommendations forviolent offenders that are significantlygreater than the time that was servedby offenders convicted of such crimesprior to the enactment of truth-in-sen-tencing laws. Offenders who are con-victed of a violent crime or who havebeen previously convicted of a violentcrime are recommended for incarcera-tion terms up to six times longer thanthe terms served by offenders fittingsimilar profiles under the parole sys-tem. Midpoint enhancements are trig-gered for homicide, rape, and robberyoffenses, most assaults and sexual as-saults, and certain burglaries, when anyone of these offenses is the current mostserious offense, also called the “instantoffense.” Offenders with a prior recordcontaining at least one conviction fora violent crime are subject to degreesof midpoint enhancements based onthe nature and seriousness of theoffender’s criminal history. The mostserious prior record receives the mostextreme enhancement. A prior recordlabeled “Category II” contains at leastone violent prior felony conviction car-rying a statutory maximum penalty of

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less than 40 years, whereas a “CategoryI” prior record includes at least one vio-lent felony conviction with a statutorymaximum penalty of 40 years or more.

Because midpoint enhancements aredesigned to target only violent offend-ers for longer sentences, enhancementsdo not affect the sentence recommen-dation for the majority of guidelinescases. Among the FY2004 cases, 79%of the cases did not involve midpointenhancements of any kind (Figure 10).Only 21% of the cases qualified for amidpoint enhancement because of acurrent or prior conviction for a felonydefined as violent under § 17.1-805.The proportion of cases receiving mid-point enhancements has not fluctuatedgreatly since the institution of truth-in-sentencing guidelines in 1995. Ithas remained between 19% and 21%over the last eight years.

Of the FY2004 cases in which mid-point enhancements applied, the mostcommon midpoint enhancement wasthat for a Category II prior record.Approximately 44% of the midpointenhancements were of this type, appli-

cable to offenders with a nonviolentinstant offense but a violent priorrecord defined as Category II (Figure11). In FY2004, another 15% of mid-point enhancements were attributableto offenders with a more serious Cat-egory I prior record. Cases of offend-ers with a violent instant offense butno prior record of violence represented27% of the midpoint enhancementsin FY2004. The most substantial mid-point enhancements target offenderswith a combination of instant andprior violent offenses. About 9%qualified for enhancements for both acurrent violent offense and a CategoryII prior record. Only a small percent-age of cases (5%) were targeted for themost extreme midpoint enhancementstriggered by a combination of a cur-rent violent offense and a Category Iprior record.

Since the inception of the truth-in-sentencing guidelines, judges have de-parted from the sentencing guidelinesmore often in midpoint enhancementcases than in cases without enhance-ments. In FY2004, compliance was70% when enhancements applied, sig-nificantly lower than compliance in allother cases (84%). Thus, compliance

Figure 10

Application of MidpointEnhancements, FY2004

Figure 11

Type of Midpoint Enhancement Received, FY2004

MidpointEnhancement Cases 21%

Cases WithoutMidpoint Enhancement 79%

Category I Record

Category II Record

Instant Offense

Instant Offense & Category II

Instant Offense & Category I

14.6%

44.3%

26.5 %

9.3%

5.3%


in midpoint enhancement cases is sup-pressing the overall compliance rate.When departing from enhancedguidelines recommendations, judgesare choosing to mitigate in three outof every four departures.

Among FY2004 midpoint enhance-ment cases resulting in incarceration,judges departed from the low end ofthe guidelines range by an average ofjust over two years (Figure 12). Themedian mitigation departure (themiddle value, where half are lower andhalf are higher) was 14 months.

Figure 12

Length of Mitigation Departures in Mid-point Enhancement Cases, FY2004

Figure 13

Compliance by Type of Midpoint Enhancement, FY2004

Compliance, while generally lower inmidpoint enhancement cases than inother cases, varies across the differenttypes and combinations of midpointenhancements (Figure 13). InFY2004, as in previous years, enhance-ments for a Category II prior recordgenerated the highest rate of compli-ance of all midpoint enhancements(75%). Compliance in cases receiv-ing enhancements for a Category Iprior record was significantly lower(65%). Compliance for enhancementcases involving a current violent of-fense was 67%. Those cases involvinga combination of a current violent of-fense and a Category II prior recordyielded a compliance rate of 66%,while those with the most significantmidpoint enhancements, for both aviolent instant offense and a CategoryI prior record, yielded a lower compli-ance rate of 63%. Mean 27 months

Median 14 months

NumberOffense Compliance Mitigation Aggravation of Cases

None 83.4% 6.1% 10.5% 17,155

Category I Record 65.3 31.4 3.3 666

Category II Record 75.1 19.0 5.9 2,021

Instant Offense 67.0 22.5 10.5 1,207

Instant Offense & Category I 62.9 30.9 6.2 243

Instant Offense & Category II 65.8 26.7 7.5 424


Analysis of departure reasons in casesinvolving midpoint enhancements fo-cuses on downward departures fromthe guidelines (Figure 14). Examina-tion of midpoint enhancement casesshows that 3% are mitigations, but donot have a departure reason providedon the guidelines form submitted tothe Commission. For those that dohave a departure reason cited, the mostfrequent reasons cited for mitigationwere based on the defendant’s rehabili-tation potential (3%) or the involve-ment of a plea agreement (3%).Among other most frequently citedreasons for mitigating, judges notedthat the defendant cooperated withauthorities, alternative sanctions to in-carceration were imposed, or therewere minimal circumstances involved.

Figure 14

Most Frequently Cited Reasons for Mitigation in Midpoint EnhancementCases,* FY2004

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Juries and theSentencing Guidelines

There are three general methods bywhich Virginia’s criminal cases are ad-judicated: guilty pleas, bench trials,and jury trials. Felony cases in theCommonwealth’s circuit courts over-whelmingly are resolved as the resultof guilty pleas from defendants or pleaagreements between defendants andthe Commonwealth. During the lastfiscal year, more than four in every fiveguidelines cases (85%) were sentencedfollowing guilty pleas (Figure 15).Adjudication by a judge in a benchtrial accounted for 13% of all felonyguidelines cases sentenced, while lessthan 2% of felony guidelines cases in-volved jury trials. Under truth-in-sen-tencing, the overall rate of jury trialshas been approximately half of the jurytrial rate that existed under the last yearof the parole system.

Virginia is one of only five states thatallow juries to determine sentencelength in non-capital offenses. Sincethe implementation of the truth-in-

Figure 15

Percentage of Cases Received by Methodof Adjudication, FY2004

Jury Trial 1.7%

Bench Trial 12.9%

Guilty Plea 85.4%

No Reason Provided

Good Rehabilitation Potential

Plea Agreement

Cooperative with Authorities

Alternative Sanction to Incarceration

Minimal Circumstances/Facts of case

* Represents most frequently cited reasons only. Multiple reasons may be cited in each case.

3%

3%

3%

2%

2%

1%


sentencing system, Virginia’s juries typi-cally have handed down sentences moresevere than the recommendations of thesentencing guidelines. In fact, inFY2004, as in previous years, a jury sen-tence was far more likely to exceed theguidelines than fall within the guidelinesrange. By law, juries are not allowed toreceive any information regarding thesentencing guidelines.

Since FY1986, there has been a gen-erally declining trend in the percent-age of jury trials among felony con-victions in circuit courts (Figure 16).Under the parole system in the late1980s, the percent of jury convictionsof all felony convictions was as highas 6.5% before starting to decline inFY1989. In 1994, the General Assem-bly enacted provisions for a system ofbifurcated jury trials. In bifurcatedtrials, the jury establishes the guilt orinnocence of the defendant in the firstphase of the trial, and then, in a sec-ond phase, the jury makes its sentenc-ing decision. When bifurcated trialsbecame effective on July 1, 1994(FY1995), jurors in Virginia, for thefirst time, were presented with infor-mation on the offender’s prior crimi-

Figure 16

Percent of Felony Convictions Adjudicated by Juries, FY1986 – FY2004Parole System v. Truth-in-Sentencing (No Parole) System

0

6

12

6.55.8

5.26.36.4

4.2 4.2 3.94.75.1

'86 '87 '88 '89 '90 '95'91 '94'93'92

0

6

12

2.2 2.22.7

1.42.1

'99'95 '98'97'96

1.7

'00

1.6

'01

1.7

'02

1.8

'03

1.7

'04

nal record to assist them in making asentencing decision. During the firstyear of the bifurcated trial process, juryconvictions dropped slightly to fewerthan 4% of all felony convictions, thelowest rate since the data series began.

Among the early cases subjected to thetruth-in-sentencing provisions, imple-mented during the last six months ofFY1995, jury adjudications sank to justover 1%. During the first completefiscal year of truth-in-sentencing(FY1996), just over 2% of the caseswere resolved by jury trials, half the rateof the last year before the abolition ofparole. Seemingly, the introduction oftruth-in-sentencing, as well as the in-troduction of a bifurcated jury trialsystem, appears to have contributed tothe significant reduction in jury trials.The percentage of jury convictions rosein FY1997 to nearly 3%, but since hasdeclined to under 2%.

Inspecting jury data by offense typereveals very divergent trends for per-son, property and drug crimes. FromFY1986 through FY1995 parole sys-tem cases, the percent of convictionsby juries for crimes against the person

Parole System Truth-in-Sentencing


(homicide, robbery, assault, kidnap-ping, rape and sexual assault) was typi-cally three to four times the percent forproperty and drug crimes, which wereroughly equivalent to one another (Fig-ure 17). However, with the implemen-tation of truth-in-sentencing, the per-cent of convictions handed down byjuries dropped dramatically for allcrime types. Under truth-in-sentenc-ing, jury convictions involving personcrimes have varied from 7% to nearly11% of felony convictions. The per-cent of felony convictions resultingfrom jury trials for property and drugcrimes has declined to less than 1% un-der truth-in-sentencing.

In FY2004, the Commission received322 cases tried by juries. While thecompliance rate for cases adjudicated

by a judge or resolved by a guilty pleawas at 81% during the fiscal year, sen-tences handed down by juries con-curred with the guidelines only 34%of the time (Figure 18). In fact, jurysentences fell above the guidelines rec-ommendation in 44% of the cases.This pattern of jury sentencing vis-à-vis the guidelines has been consistentsince the truth-in-sentencing guide-lines became effective in 1995.

Judges, although permitted by law tolower a jury sentence, typically do notamend sanctions imposed by juries.Judges modified jury sentences in 16%of the FY2004 cases in which juriesfound the defendant guilty. Of thecases in which the judge modified thejury sentence, judges brought a highjury sentence into compliance with the

Figure 17

Percent of Felony Convictions Adjudicated by Juries, FY1986 – FY2004Parole System v. Truth-in-Sentencing (No Parole) System

0

10

20

4.1 4.6 5.5 5.1 4.6 3.7 3.5 2.9 2.8 2.5

'86 '87 '88 '89 '90 '95'91 '94'93'92

0

1010

2020

14.7 15.1 15.5 14.8 14 13.4 12.711.2

13.212.2

'86 '87 '88 '89 '90 '95'91 '94'93'92

0

10

20

4.8 4.8 4.9 4.4 3.8 4.1 4.1 4 3.2 3.4

'86 '87 '88 '89 '90 '95'91 '94'93'92

0

10

20

1.3 1.21.6.9 1.1

'99'95 '98'97'96

.7

'00

.4

'01

.7

'02

.8

'03

.8

'04

0

10

20

1.2 .81.2.5 .6

'99'95 '98'97'96

.7

'00

.4

'01

.6

'02

.7

'03

.4

'04

0

10

20

8.5 9.110.3

7

10.8

'99'95 '98'97'96

7.8

'00

7.1

'01

7.8

'02

6.7

'03

7.7

'04

Person Crimes

Property Crimes

Drug Crimes





Figure 19

Median Length of Durational Departuresin Jury Cases, FY2004

Figure 18

Sentencing Guidelines Compliance inJury Cases and Non-Jury Cases, FY2004

guidelines recommendation 30% ofthe time. In another 30% of the cases,judges modified the jury sentence butnot enough to bring the final sentenceinto compliance.

In those jury cases in which the finalsentence fell short of the guidelines, itdid so by a median value of just overtwo years (Figure 19). In cases wherethe ultimate sentence resulted in asanction more severe than the guide-lines recommendation, the sentenceexceeded the guidelines maximum rec-ommendation by a median value ofthree and one-half years.

Compliance and NonviolentOffender Risk Assessment

In 1994, as part of the reform legisla-tion that instituted truth-in-sentenc-ing, the General Assembly directed theCommission to study the feasibility ofusing an empirically-based risk assess-ment instrument to select 25% of thelowest risk, incarceration-bound, drugand property offenders for placementin alternative (non-prison) sanctions.By 1996, the Commission developedsuch an instrument and implementa-tion of the instrument began in pilotsites in 1997. The National Center forState Courts (NCSC) conducted anevaluation of nonviolent risk assess-ment in the pilot sites for the periodfrom 1998 to 2001. In 2001, the Com-mission conducted a validation studyof the original risk assessment instru-ment to test and refine the instrumentfor possible use statewide. In July2002, the nonviolent risk assessmentinstrument was implemented statewidefor all felony larceny, fraud, and drugcases. This chapter will review the mostrecent year of available statewide non-violent offender risk assessment data.

Between July 1, 2003 and June 30,2004, more than two-thirds of allguidelines received by the Commissionwere for nonviolent offenses. However,only 42% (6,141) of these nonviolentcases were actually eligible to be as-sessed for an alternative sanction rec

R

Compliance81%

Aggravation 9%

Mitigation 10%

Compliance34%

Aggravation 44%

Mitigation 22%

Mitigation Cases

Aggravation Cases

25.5 months

42.0 months

Jury Cases

Non-Jury Cases


ommendation. The goal of the non-violent risk assessment instrument isto divert low-risk offenders, who arerecommended for incarceration on theguidelines, to an alternative sanctionother than prison. Therefore, nonvio-lent offenders who are recommendedfor probation/no incarceration on theguidelines are not eligible for the as-sessment. Furthermore, the instru-ment is not to be applied to offendersconvicted of distributing one ounce ormore of cocaine or those who have acurrent or prior violent felony convic-tion. In addition, there were 2,247nonviolent offense cases for which arisk assessment instrument was notcompleted, including those cases thatmay have been eligible for assessment.

Of the 6,141 eligible nonviolent of-fense cases in FY2004, 38% were rec-ommended for an alternative sanctionby the risk assessment instrument (Fig-ure 20). During the same time period,the average risk score for screened of-fenders was 39 points. Risk assessmentcases can be categorized into fourgroups based upon whether the of-fender was recommended for an alter-

native sanction by the risk assessmentinstrument and whether the judge sub-sequently sentenced the offender tosome form of alternative punishment.Of the eligible offenders screened withthe risk assessment instrument, 17%were recommended for and sentencedto an alternative punishment (Figure21). Another 21% were sentenced toa traditional term of incarceration de-spite being recommended for an alter-native sanction by the risk assessmentinstrument. In 18% of the screenedcases, the offender was not recom-mended for, but was sentenced to, analternative punishment. It is notablethat one in five of these offendersscored just over the thirty-five pointthreshold (36 to 38 points). Begin-ning July 1, 2004 (FY2005), the num-ber of points an offender can score andstill be recommended for an alterna-tive sanction was increased from 35to 38 points. The impact of thischange will be assessed in next year’sAnnual Report. Nearly 45% of theoffenders screened in FY2004 werenot recommended for an alternative,and judges concurred in these cases byutilizing traditional incarceration.

Figure 20

Percentage of Eligible Non-Violent Risk Assessment CasesRecommended for Alternatives,FY2004

Figure 21

Recommended and Actual Dispositions to Alternative Sanctions, FY2004

Recommendedfor Alternatives 38%

Not Recommendedfor Alternatives62%

Actual Disposition

Recommended Disposition Offender Received Alternative Offender Did Not Receive Alternative

Offender Recommended for Alternative 16.5% 21.0%

Offender Not Recommended for Alternative 17.6% 44.9%


In cases in which offenders were rec-ommended for and received an alter-native sanction, judges most often sen-tenced the offender to a period ofsupervised probation (82%) (Figure22). In addition, in nearly half thecases in which an alternative was rec-ommended, judges sentenced the of-fender to incarceration, but to a termshorter than what the traditionalguidelines range provided. Other fre-quent sanctions reported include in-definite probation (23%), restitution(23%), and time served (12%). TheDepartment of Corrections’ DiversionCenter program was cited in 14% ofthe cases; the Detention Center pro-gram was cited as an alternative sanc-tion approximately 9% of the time.Less frequently cited alternatives in-clude unsupervised probation, sus-pended driver’s license, substanceabuse services, home electronic moni-toring (HEM), day reporting, com-munity service, etc.

Of the risk assessment worksheets re-ceived, drug cases represent nearly halfof all offenses, with the large majority(44%) consisting of Schedule I/II drugoffenses. Of the 3,065 eligible drugcases in FY2004, 19% were recom-mended for and received an alterna-tive sanction to prison (Figure 23).

Figure 22

Types of Alternative Sanctions Imposed, FY2004

Another 13% were not recommendedfor an alternative by the risk assessmentinstrument; however, the judgedeemed that an alternative would beappropriate and sentenced the indi-vidual as such.

Just under one-third (31%) of all riskassessment cases sentenced during thetime period were larceny offenses. Ofthe 1,877 eligible larceny cases, 5%were recommended for and received

Supervised Probation

Shorter Incarceration Period

Indefinite Probation

Restitution

Diversion Center

Time Served

Detention Center

Unsupervised Probation

Suspended Driver’s License

Substance Abuse Services

Electronic Monitoring

Day Reporting

Community Service

CCCA*

Intensive Supervision

Drug Court

First Offender

82.2%

48.1%

22.9%

22.8%

14.1%

11.7%

8.7%

7.7%

3.9%

2.8%

2.8%

2.2%

2.1%

1.7%

1.5%

1.3%

0.9%

* Any program established through the Comprehensive Community Corrections Act


an alternative sanction (Figure 24).Another 18% were not recommendedfor an alternative sanction, but the judgesentenced the individual to an alterna-tive form of punishment. Nearly two-thirds of larceny offenders (63%) werenot recommended for, and did not re-ceive, an alternative sanction on therisk assessment instrument. In thesecases, the judge agreed that a tradi-tional incarceration sentence was theappropriate punishment. The nonvio-lent offender risk assessment instru-ment recommends fewer larceny of-fenders for alternative sanctions becauseboth the National Center for StateCourts evaluation and the Commis-sion’s validation study found thatlarceny offenders are most likely to re-cidivate among nonviolent offenders.

Fraud offenses accounted for about23% of the nonviolent risk assessmentcases in FY2004. Of the 1,199 eli-gible fraud cases, 27% were recom-mended for and received an alternativesanction to prison (Figure 25). Another27% were not recommended for an al-ternative on the risk assessment instru-ment, but the judge felt that an alter-native was the most appropriate sanc-tion. In total, 53% of eligible fraudoffenders screened by the risk assess-ment instrument received an alterna-tive sanction. This would seem to indi-cate that judges feel fraud offenders arethe most amenable, among nonviolentoffenders, for alternative sanctions.

Figure 23

Recommended & Actual Dispositions to AlternativeSanctions in Drug Cases, FY2004

Figure 24

Recommended & Actual Dispositions to AlternativeSanctions in Larceny Cases, FY2004

Figure 25

Recommended & Actual Dispositions to AlternativeSanctions in Fraud Cases, FY2004

Received Did Not Receive Alternative Alternative

Recommended for Alternative 19.3% 27.4%

Not Recommended for Alternative 13.5% 39.8%

Drug Schedule I/II & Drug/Other Cases (N=3,065)




Larceny Cases (N=1,877)




Fraud Cases (N=1,199)


Compliance and Sex OffenderRisk Assessment

In 1999, the Virginia General Assem-bly requested the Virginia CriminalSentencing Commission to develop asex offender risk assessment instru-ment, based on the risk of re-offense,which could be integrated into thestate’s sentencing guidelines system.Such a risk assessment instrumentcould be used as a tool to identify thoseoffenders who, as a group, representthe greatest risk for committing a newoffense once released back into thecommunity. The Commission con-ducted an extensive study of felony sexoffenders convicted in Virginia’s cir-cuit courts and developed an empiricalrisk assessment tool based on the riskthat an offender would be re-arrestedfor a new sex offense or other crimeagainst the person.

Effectively, risk assessment means de-veloping profiles or composites basedon overall group outcomes. Groupsare defined by having a number of fac-tors in common that are statisticallyrelevant to predicting repeat offending.Those groups exhibiting a high degreeof re-offending are labeled high risk.Although no risk assessment model canever predict a given outcome with per-fect accuracy, the risk instrument, over-all, produces higher scores for thegroups of offenders who exhibitedhigher recidivism rates during thecourse of the Commission’s study. Inthis way, the instrument developed bythe Commission is indicative of of-fender risk.

RThe risk assessment instrument wasincorporated into the sentencingguidelines for sex offenders beginningJuly 1, 2001. For each sex offenderidentified as a comparatively high risk(those scoring 28 points or more onthe risk tool), the sentencing guidelineshave been revised such that a prisonterm will always be recommended. Inaddition, the guidelines recommenda-tion range (which comes in the formof a low end, a midpoint and a highend) is adjusted. For offenders scor-ing 28 points or more, the high end ofthe guidelines range is increased basedon the offender’s risk score, as summa-rized below.

• For offenders scoring 44 or more, theupper end of the guidelines range isincreased by 300%.

• For offenders scoring 34 through 43points, the upper end of the guide-lines range is increased by 100%.

• For offenders scoring 28 through 33points, the upper end of the guide-lines range is increased by 50%.

The low end and the midpoint remainunchanged. Increasing the upper endof the recommended range providesjudges the flexibility to sentence higherrisk sex offenders to terms above thetraditional guidelines range and still bein compliance with the guidelines.This approach allows the judge to in-corporate sex offender risk assessmentinto the sentencing decision while pro-viding the judge with flexibility toevaluate the circumstances of each case.Findings from the most recent year ofavailable sex offender risk assessmentdata (FY2004) are presented on thefollowing page.


During FY2004, there were 413 of-fenders convicted of an offense coveredby the Other Sexual Assault guidelines.The majority (60%) were not assigneda level of risk by the sex offender riskassessment instrument (Figure 26).Approximately 26% of Other SexualAssault guidelines cases resulted in aLevel 3 risk classification, with an ad-ditional 12% assigned to Level 2. Only2% of offenders reached the highestrisk category of Level 1.

Under sex offender risk assessment, theupper end of the guidelines range isextended by 300%, 100% or 50% foroffenders assigned to Level 1, 2 or 3,respectively. Judges have begun to uti-lize these extended ranges when sen-tencing sex offenders. For sexual as-sault offenders reaching Level 1 risk,13% were given sentences within theextended guidelines range (Figure 27).Judges were more likely to use the ex-tended guidelines range in Level 2 riskcases (31%). Judges rarely sentencedLevel 1, 2 or 3 offenders to terms above

the extended guidelines range pro-vided in these cases. However, offend-ers who scored 28 points or less on therisk assessment instrument (who arenot assigned a risk category and receiveno guidelines adjustment) were theleast likely to be sentenced in compli-ance with the guidelines (69%) andthe most likely to receive a sentencethat was an upward departure from theguidelines (19%).

Offenders on the Other Sexual Assaultworksheet who are assigned a risk level(Level 1, 2, or 3) are automatically rec-ommended for a term of incarcerationthat includes a prison sentence. There-fore, some sex offenders who histori-cally were recommended for probationor a short jail term on the guidelinesare now recommended for prison.During FY2004, there were 53 casesaffected by this change in guidelines.In three out of four cases where therecommended disposition changedfrom probation or jail to a term thatincludes prison, judges agreed with therecommendation and imposed an

Figure 26

Sex Offender Risk Levels forOther Sexual Assault Offenses,FY2004

Figure 27

Other Sexual Assault Compliance Rates by Risk Level, FY2004

Level 1 1.9%

Level 2 12.4%

Level 3 25.9%

No Level 59.8%

*Excludes cases missing the sex offender riskassessment portion of the Other Sexual Assaultworksheet.

Compliance Mitigation Traditional Range Adjusted Range Aggravation Number of Cases

Level 1 0% 88% 13% 0% 8

Level 2 14 49 31 6 51

Level 3 15 70 9 6 107

No Level 12 69 — 19 247

Overall 13% 68% 6% 13% 413


effective prison sentence. In the re-maining 25% of affected cases, judgessentenced the offender to probationor to an incarceration period of sixmonths or less.

In FY2004, there were 233 offendersconvicted of offenses covered by theRape guidelines (which include rape,forcible sodomy, and object penetra-tion). Among offenders convicted ofthese crimes, nearly one-half (49%)were not assigned a risk level by theCommission’s risk assessment instru-ment. The proportion of offenders re-ceiving a risk classification and, there-fore, an adjusted guidelines recom-mendation is higher among Rapeoffenders than among Other SexualAssault offenders (51% versus 40%).Nearly 27% of Rape cases resulted ina Level 3 adjustment—a 50% increasein the upper end of the traditionalguidelines range recommendation(Figure 28). An additional 22% re-ceived a Level 2 adjustment (100%

Figure 28

Sex Offender Risk Levels forRape Offenses, FY2004

increase). The most extreme adjust-ment (300%) affected 2% of Rapeguidelines cases.

For the four rape offenders reachingLevel 1 risk group, judges did not usethe extended guidelines range (Figure29). However, 29% of offenders witha Level 2 risk classification, and 14%of offenders with a Level 3 risk classi-fication, were given prison sentenceswithin the adjusted range of the guide-lines. With extended guidelines rangesavailable for higher risk sex offenders,judges did not sentence Level 1, 2 or 3offenders above the expanded guidelinesrange. Offenders within a Level 1 orLevel 2 risk category were sentenced be-low the guidelines recommendation25% of the time. Over one-third (36%)of rape cases with a Level 3 risk hadsentences that fell below the recom-mended guidelines range. Offenderswho did not fall into a category of riskwere sentenced below the recom-mended range of incarceration ap-proximately 28% of the time.

Figure 29

Rape Offense Compliance Rates by Risk Level, FY2004

Level 1 1.7%

Level 2 22.3%

Level 3 26.6%

No Level 49.4%

Compliance Mitigation Traditional Range Adjusted Range Aggravation Number of Cases

Level 1 25% 75% 0% 0% 4

Level 2 25 46 29 0 52

Level 3 36 50 14 0 62

No Level 28 62 — 10 115

Overall 21.5% 61% 8% 8.8% 233

A Decade of Truth-In-Sentencing R 43

Introduction

January 1, 2005, will mark the tenthanniversary of the abolition of paroleand the institution of truth-in-sentenc-ing in the Commonwealth of Virginia.The implementation of truth-in-sen-tencing in Virginia culminated a yearof work by the Governor’s Office andthe legislature. In January 1994, then-Governor George Allen had appointedthe Commission on Parole Abolitionand Sentencing Reform to develop rec-ommendations for revamping thecriminal justice system in the Com-monwealth. On September 19, 1994,the Virginia General Assembly con-vened in a Special Session to deliber-ate upon the recommendations of theGovernor’s Commission. Less thanone month later, on October 13, 1994,Governor George Allen signed HouseBill 5001 and Senate Bill 3001 intolaw. The new laws became effectiveon January 1, 1995.

Virginia entered a new era in 1995.The reform of a decade ago dramati-cally changed the way felons are sen-tenced and serve time in Virginia.Beginning January 1, 1995, the prac-tice of discretionary parole release fromprison was abolished and inmates werelimited to earning no more than 15%off their sentences. Virginia’s felonsnow must serve at least 85% of their

R

The reform of a

decade ago dra-

matically changed

the way felons

are sentenced

and serve time

in Virginia.

A Decade ofTruth-In-Sentencing3

sentences in prison or jail. This typeof system is referred to as “truth-in-sentencing,” since offenders must serveall, or nearly all, of the sentenceshanded down by the court. Judges andcitizens are able to predict actual timeserved in jail or prison under this sys-tem with a high degree of accuracy.This embodies the truth-in-sentenc-ing philosophy.

A critical component of the new sys-tem was the integration of sentencingguidelines for use in felony cases triedin the state’s circuit courts. Originallyadopted by Virginia’s judges severalyears earlier, the voluntary sentencingguidelines were revised to be compat-ible with the new sentencing system.Chief features of the new guidelineswere codified. A new state agencycalled the Virginia Criminal Sentenc-ing Commission was created to imple-ment and oversee the new truth-in-sentencing guidelines, to monitorcriminal justice trends, and to exam-ine key issues at the request ofpolicymakers.

Of the many approaches to truth-in-sentencing taken by states around thenation, Virginia’s approach has provento be one of the most successful andeffective avenues for reform.


R

Goals of Sentencing Reform

The cornerstone of reform in Virginiawas the abolition of discretionary pa-role release and the adoption of truth-in-sentencing. Under parole eligibil-ity laws, inmates served a fraction ofthe sentence handed down by a judgeor a jury before becoming eligible forparole release. A first-time inmate, forexample, became eligible for paroleafter serving one-fourth of his sen-tence. In addition, inmates could earnas much as 30 days in sentence creditsfor every 30 days they served. Half ofthis sentence credit could be appliedtoward the offender’s parole eligibilitydate, further reducing the portion ofthe sentence that needed to be servedbefore a prisoner could be granted pa-role and released. As a result, inmatesoften served as little as one-fifth of thesentence ordered by court.

Under Virginia’s truth-in-sentencingsystem, parole has been eliminated forany felony committed on or after Janu-ary 1, 1995. In conjunction with theabolition of parole, the system bywhich inmates earned sentence cred-its was revamped. In contrast to the30 days an inmate could receive forevery 30 days served under the parolesystem, an offender committed to thestate penitentiary under truth-in-sentencing provisions may not earnmore than 4.5 days for every 30 daysserved (or 15%) off his incarcerationsentence. Although jail and state prisoninmates served under different systemsprior to 1995, all felons sentenced un-

der truth-in-sentencing provisions mustserve at least 85% of the incarcerationsentence whether they serve that timein a local jail or in a state institution.

Abolishing parole and achieving truth-in-sentencing were not the only goalsof the reform legislation. Ensuring thatviolent criminals serve longer terms inprison than in the past was also apriority. The Governor’s Commissionrecommended, and the General As-sembly adopted, modifications to thejudicial sentencing guidelines to increasethe sentences recommended for violentoffenders. The sentencing enhance-ments built into the guidelines prescribeprison sentences for violent offendersthat are significantly longer than his-torical time served by these offenders.Unlike other initiatives, which typicallycategorize an offender based on thecurrent offense alone, sentencing re-form provisions define an offender asviolent based on the totality of hiscriminal career, both the current of-fense and his prior criminal history.

During the development of sentenc-ing reform legislation, much consid-eration was given to balancing thegoals of truth-in-sentencing and longerincarceration terms for violent offend-ers with demand for expensive correc-tional resources. Reform measures werecarefully crafted with consideration ofVirginia’s current and planned prisoncapacity and with an eye towards us-ing that capacity to house the state’smost violent felons. To reserve themost expensive resources for the mostdangerous offenders, reformers under-


scored the importance of making themost efficient use of the state’s remain-ing correctional resources to punish non-violent offenders.

This prioritization of resources led toan additional reform goal: to safelyredirect low-risk nonviolent felonsfrom prison to less costly sanctions. Inits 1994 charge to the newly-createdagency, the General Assembly in-structed the Commission to develop arisk assessment instrument for nonvio-lent offenders, predictive of the rela-tive risk a felon would become a threatto public safety. Such an instrument,based on empirical analysis of actualpatterns of recidivism among Virginia’sfelons, can be used to identify offend-ers who are likely to present the lowestrisk to public safety in the future. TheCommission was to determine if 25%of incarceration-bound offenderscould be safely redirected to alterna-tive punishment options in lieu of tra-ditional jail or prison.

At the same time, reformers sought toestablish a continuum of sanctioningoptions for Virginia’s nonviolent fel-ons, including new alternative punish-ment programs for low-risk offenders.The reform package adopted by theGeneral Assembly and signed by Gov-ernor Allen established a community-based corrections system at the stateand local level. Existing sanctioningoptions were expanded and new pro-grams were authorized to create a net-work of local and state-run commu-nity corrections programs for nonvio-lent offenders. This system was imple-mented to provide judges with addi-tional sentencing options as alterna-

tives to traditional incarceration fornonviolent offenders, enabling themto reserve costly correctional institu-tion beds for Virginia’s violent offend-ers. Although the state already operatedsome community corrections programsat the time truth-in-sentencing laws wereenacted, a more comprehensive systemwas enabled through this legislation.

Governor Allen’s Commission andVirginia’s legislature recognized theunique role of sentencing guidelines inachieving and sustaining truth-in-sen-tencing reform in the Commonwealth.To further the goals of sentencing re-form, formal integration of sentenc-ing guidelines into reform provisionswas a key objective. For the first time,the blueprint of Virginia’s truth-in-sen-tencing guidelines was laid out in stat-ute and the process mandated. TheVirginia Criminal Sentencing Com-mission was created to implement andoversee the discretionary sentencingguidelines. The Commission held itsfirst meeting on December 12, 1994.

Inherent in Virginia’s truth-in-sentenc-ing reform is the goal of reducing un-warranted disparity in the punishmentof offenders in Virginia. Sentencingguidelines provide a set of rational andconsistent sentencing standards. Useof guidelines can reduce disparity notattributable to the circumstances of theoffense or the defendant’s criminalhistory. Rational and consistent sen-tencing practices foster public confi-dence in the criminal justice system,the ultimate goal of Virginia’s truth-in-sentencing reform.


R

Virginia’s Truth-in-Sentencing Guidelines

The design and the process for usingVirginia’s truth-in-sentencing guide-lines are laid out in § 17.1-805 of theCode of Virginia. These guidelineswere derived from historical sentenc-ing practices of circuit court judges,adjusted to reflect patterns of actual termserved in prison. Special “enhance-ments” are mandated by § 17.1-805 toincrease sentence recommendations forviolent offenders. These mandated pre-scriptive, or normative, adjustmentsare made for offenders convicted ofviolent crimes and offenders with acriminal record that includes a con-viction or juvenile adjudication for aviolent felony offense. The guidelinesrecommend terms for nonviolent of-fenders roughly equal to the terms theyserved historically, prior to the aboli-tion of parole. For violent offenders,however, the guidelines recommendterms significantly longer than thoseserved under parole laws (two to sixtimes longer, depending on theoffender’s current offense and the se-riousness of his prior criminal record).The guidelines indicate the actual timeto be served in jail or prison, with theoffender only eligible for limited sen-tence credits.

The truth-in-sentencing guidelines pro-cess is mandatory. The guidelines mustbe completed and reviewed in everyfelony case for which guidelines exist.

Compliance with the guidelines remainsdiscretionary, but if a judge departs fromthe guidelines, he or she must state inwriting the reason for the departure.

Today, offender risk assessment is anintegral component of Virginia’s sen-tencing guidelines system. In 1994,the truth-in-sentencing reform legis-lation charged the Commission withstudying the feasibility of using anempirically-based risk assessment in-strument to redirect 25% of the low-est risk, incarceration-bound, drug andproperty offenders to alternative (non-prison) sanctions. After extensivestudy, a risk assessment tool was pi-loted from 1997 to 2001, when anindependent evaluation was com-pleted by the National Center for StateCourts (NCSC). In 2001, the Com-mission conducted a validation studyof the original risk assessment in-strument to test and refine the instru-ment. In July 2002, the nonviolentrisk assessment instrument was im-plemented statewide. At the requestof the 2003 General Assembly, theCommission re-examined the risk in-strument and began to recommendadditional low-risk offenders foralternative punishment options. Thischange took effect July 1, 2004.


R

Sentencing ReformPerformance Measure:Sentencing Guidelines

Compliance

Judicial compliance with the truth-in-sentencing guidelines is voluntary. Ajudge may depart from the guidelinesrecommendation and sentence an of-fender either to a punishment moresevere or less stringent than called forby the guidelines. The overall com-pliance rate summarizes the extent towhich Virginia’s judges concur withrecommendations provided by thesentencing guidelines, both in type ofdisposition and in length of incarcera-tion. For fiscal year (FY) 2004, thecompliance rate was its highest ever,approaching 81% (Figure 30). Thishigh rate of concurrence with theguidelines indicates that the guidelinesserve as a useful tool for judges whensentencing felony offenders.

The rate at which judges sentence of-fenders to sanctions more severe thanthe guidelines recommendation,known as the “aggravation” rate, was9.7% for FY2004. The “mitigation”rate, or the rate at which judges sen-tence offenders to sanctions consideredless severe than the guidelines recom-mendation, was 9.6% for the fiscalyear. When judges do depart from the

recommended range, half of the de-partures result in sentences above theguidelines and half result in sentencesbelow the guidelines. The departurepattern is balanced. This suggests that,overall, the recommendations pro-vided by the guidelines are very repre-sentative of the types of cases thatjudges see most often in their court-rooms. General acceptance of the guide-lines has been crucial in the successfultransition from sentencing in a systemin which time served was governed bydiscretionary parole release to a truth-in-sentencing system in which felonsmust serve nearly all of the incarcera-tion time ordered by the court.

Figure 30

Sentencing Guidelines Compliance, FY2004

Compliance 80.7%

Aggravation 9.7%

Mitigation 9.6%Aggravation 50%

Mitigation 50%


Circuit Compliance Mitigation Aggravation # of Cases

1 Chesapeake 89.0% 4.7% 6.3% 801

2 Virginia Beach 82.2 8.8 9.0 1,534

3 Portsmouth 78.2 10.1 11.7 719

4 Norfolk 80.1 15.7 4.2 1,559

5 Suffolk Area 83.5 8.2 8.3 527

6 Sussex Area 73.2 12.3 14.5 400

7 Newport News 89.6 5.0 5.4 797

8 Hampton 81.3 10.6 8.1 454

9 Williamsburg Area 79.3 7.3 13.4 454

10 South Boston Area 85.0 7.8 7.2 525

11 Petersburg Area 84.8 7.4 7.8 409

12 Chesterfield Area 80.3 6.5 13.2 851

13 Richmond City 81.3 9.5 9.2 1,104

14 Henrico 82.7 11.0 6.3 1,107

15 Fredericksburg Area 71.6 11.1 17.3 1,193

16 Charlottesville Area 81.1 6.6 12.3 595

17 Arlington Area 78.3 7.4 14.3 618

18 Alexandria 81.7 9.5 8.8 432

19 Fairfax 79.4 10.0 10.6 1,237

20 Loudoun Area 89.2 5.0 5.8 379

21 Martinsville Area 74.6 12.3 13.1 343

22 Danville Area 74.5 7.2 18.3 655

23 Roanoke Area 77.4 13.3 9.3 541

24 Lynchburg Area 73.7 16.4 9.9 768

25 Staunton Area 82.6 9.8 7.6 694

26 Harrisonburg/Winchester Area 78.6 11.7 9.7 745

27 Radford Area 86.0 7.9 6.1 688

28 Bristol Area 83.0 11.0 6.0 419

29 Buchanan Area 67.9 8.0 24.1 324

30 Lee Area 84.3 9.4 6.3 192

31 Prince William Area 85.6 8.0 6.4 612

Figure 31

Guidelines Compliance by Circuit, FY2004


Compliance rates and departure pat-terns have varied across Virginia’s 31judicial circuits; however, patterns donot indicate an extreme variation inconcurrence with the guidelines (Fig-ure 31). In FY2004, nearly two-thirds(61%) of the state’s 31 circuits exhib-ited compliance rates at or above 80%,while just over one-third (35%) re-ported compliance rates between 70%and 79%. Only one circuit had a com-pliance rate below 70%.

Since January 1, 1995, more than200,000 felony cases have been sen-tenced under truth-in-sentencing laws.Compliance with the guidelines, nearly75% when truth-in-sentencing wasfirst implemented, has climbed nearlyevery year over the last decade (Figure32). For calendar year (CY) 2004(through November 16) the compli-ance rate has exceeded 81%. This in-creasing trend is likely due to severalfactors. Over the years, judges havebecome more accustomed to theguidelines and sentencing under no-parole provisions. Since 1995, theCommission has recommended, andthe General Assembly has approved,modifications to refine the guidelinesfor some offenses, to bring recommen-dations more in sync with judicialthinking. Pursuant to legislative man-date, the Commission in 2002 imple-mented a risk assessment instrumentdesigned to identify low-risk incarcera-tion-bound drug and property offend-ers who pose little risk to public safety.

Figure 32

Guidelines Compliance Trend, CY1996-2004

This tool provides additional informa-tion for judges to consider when sen-tencing these offenders.

The high rate of concurrence with thesentencing guidelines is a testimonialto Virginia’s circuit court judges.Judges seamlessly made the transitionfrom sentencing under the parole sys-tem to sentencing under truth-in-sen-tencing, with its 85% time-served re-quirement. Without a successful tran-sition, growth of Virginia’s prisonpopulation would have acceleratedrapidly. The success of voluntaryguidelines in Virginia is a testament tothe experience and expertise ofVirginia’s judiciary.

70%

73%

76%

79%

82%

2004*20032002200120001999199819971996

*Data for 2004 represent cases received and automated through November 16, 2004.


RSentencing Reform

Performance Measure:Unwarranted Disparity

There is sufficient empirical evidenceto demonstrate that, overall, Virginia’ssentencing guidelines have alleviatedunwarranted sentencing disparity inthe Commonwealth. Virginia’s guide-lines, despite their discretionary na-ture, have served to reduce disparityover the long term. Virginia’s sentenc-ing guidelines contain factors to ac-count for the type of offense and thenumber of charges resulting in con-viction, the circumstances of the of-fense (such as victim injury andweapon use), the legal status of theoffender at the time the offense wascommitted, and the number and seri-ousness of the convictions in theoffender’s prior record. Prior to theimplementation of Virginia’s first sen-tencing guidelines system in 1991,

judicial sentencing practices were moredivergent than they have become un-der the truth-in-sentencing guidelines.Before guidelines were developed,approximately half of the sentencevariation could be explained by guide-lines factors (Figure 33). The remain-ing sentence variation could not beexplained by guideline factors, butwere related to other factors such asoffender gender, race, drug use history,alcohol and drug use at time of offense,the offender’s relationship with the vic-tim, employment, education history,the particular judicial circuit and thejudge’s identity. By 2002, judicial sen-tencing patterns had changed signifi-cantly. A larger share of the sentencevariation can be explained by guide-line factors. Guideline factors nowaccount for 69% of sentence variation.

This decrease in unwarranted sentenc-ing disparity is noteworthy. There arelikely several reasons to explain whythe guidelines have not further re-duced disparity. Unlike some other

Figure 33

Impact of Sentencing Guidelines on Disparity Reduction

Examples of non-guideline factors include: offender gender, race, drug usehistory, alcohol and drug use at time of offense, relationship with the victim,employment, education history, circuit and judicial identity.

Sentence Length Decisions Pre-Guidelines Post-Guidelines

Guideline Factors 49% 69%

Non-Guideline Factors 51% 31%


Rstates or the federal judicial system,which have presumptive sentencingguidelines, compliance with the guide-lines has always been discretionary inVirginia. Furthermore, a judge cansentence anywhere in the recom-mended range and be considered incompliance with guidelines. This al-lows the judge to use discretion in eachparticular case when choosing what heor she feels to be the most appropriatesentence for the offender. Althoughcompliance with the guidelines is high(nearly 81%), variation in sentencingmay still exist within the broad rangeof sentences recommended by theguidelines. The guidelines, while ac-counting for numerous offense andprior record details, cannot account forall legal factors that a judge may con-sider when formulating a sentencingdecision. In addition, the distributionof offenses and various punishmentoptions vary considerably across theCommonwealth. Certain jurisdictionsmay see atypical cases not reflected instatewide averages. Furthermore, theavailability of alternative or community-based programs differs from locality tolocality. Differences in programmingoptions can affect sentencing deci-sions, particularly in localities whereviable alternative sanctions are morereadily available.

Sentencing ReformPerformance Measure:

Percent of Sentence Served

Since 1995, the Commission has care-fully monitored the impact of truth-in-sentencing reforms on the state’scriminal justice system. One of thegoals of the reform was to reduce dras-tically the gap between the sentencepronounced in the courtroom and thetime actually served by a convictedfelon. Prior to 1995, extensive goodconduct credits combined with thegranting of parole resulted in many in-mates serving as little as one-fifth ofthe sentence ordered by the court.Today, under the truth-in-sentencingsystem, each inmate is required to serveat least 85% of his sentence.

The Department of Corrections(DOC) policy for the application ofearned sentence credits specifies fourdifferent rates at which inmates canearn credits: 4.5 days for every 30served (Level 1), three days for every30 served (Level 2), 1.5 days for every30 served (Level 3) and 0 days (Level4). Inmates are automatically placedin Level 2 upon admission into DOC,and an annual review is performed todetermine if the level of earning shouldbe adjusted based on the inmate’s con-duct and program participation in thepreceding 12 months. If an inmateserved his entire sentence earning 4.5days in sentence credits for every 30days served, the prisoner would serve85% of the incarceration term.


Under truth-in-sentencing, with noparole and limited sentence credits,inmates in Virginia’s prisons are serv-ing a much larger proportion of theirsentences in incarceration than theydid under the parole system. For in-stance, offenders convicted of first-de-gree murder under the parole system,on average, served less than one-thirdof the effective sentence (imposed sen-tence less any suspended time). Mostoffenders given a life sentence couldbecome parole eligible after serving be-tween 12 and 15 years. Under the truth-in-sentencing system, first-degree mur-derers typically are serving 91% of theirsentences in prison (Figure 34). A lifesentence under truth-in-sentencing

requires that an offender remain in-carcerated for life unless released con-ditionally under § 53.1-40.01 afterreaching the age of 60 or 65.

Robbers, who on average spent lessthan one-third of their sentences inprison before being released under theparole system, are now serving over90% of the sentences handed downby the court.

Property and drug offenders are alsoserving a larger share of their prisonsentences. Although the averagelength of stay in prison under the pa-role system was less than 30% of thesentence, larceny offenders convictedunder truth-in-sentencing provisionsare serving nearly 89% of their sen-tences. For selling a Schedule I/II druglike cocaine, offenders typically servedonly about one-fifth of their sentenceswhen parole was in effect. Undertruth-in-sentencing, offenders con-victed of selling a Schedule I/II drug,on average, are serving 89% of the sen-tences handed down by judges andjuries in the Commonwealth.

The impact of truth-in-sentencing onthe percentage of sentence served byprison inmates has been to reduce sig-nificantly the gap between the sentenceordered by the court and the time actu-ally served by a convicted felon in prison.

Figure 34

Percentage of Prison Sentence Served-Parole System v. Truth-in-Sentencing System

0% 20% 40% 60% 80% 100%

Malicious Wounding

Larceny

Sale of Marijuana

Sale of Schedule I/II Drug

Burglary

Robbery

Rape/Forcible Sodomy

2nd Degree Murder

Voluntary Manslaughter

1st Degree Murder

85%

Parole system data represent FY1993 prison releases: truth-in-sentencing datais derived from the rate of sentence credits earned among prison inmates as ofDecember 31, 2003.

■ Truth-in-Sentencing ■ Parole System


R


Time Served byViolent Offenders

Eliminating the practice of discretion-ary parole release and restructuringsentence credits created a system oftruth-in-sentencing in the Common-wealth and diminished the gap be-tween sentence length and time served.However, targeting violent felons forlonger prison terms than they hadserved in the past was also a priority ofthe designers of the truth-in-sentenc-ing system. The truth-in-sentencingguidelines were carefully crafted witha system of scoring enhancementsdesigned to yield longer sentence rec-ommendations for offenders with cur-rent or prior convictions for violentcrimes, without increasing the propor-tion of convicted offenders sentencedto the state’s prison system.

When the truth-in-sentencing systemwas implemented in 1995, a prisonsentence was defined as any sentenceover six months. With scoring en-hancements, whenever the truth-in-sentencing guidelines call for an incar-ceration term exceeding six months,the sentences recommended for vio-lent felons are significantly longer thanthe time they typically served in prisonunder the parole system. Offendersconvicted of nonviolent crimes withno history of violence are not subjectto any scoring enhancements and theguidelines recommendations reflect

the average incarceration time servedby offenders convicted of similarcrimes during a period governed byparole laws, prior to the implementa-tion of truth-in-sentencing.

There is considerable evidence that thetruth-in-sentencing system is achiev-ing the goal of longer prison terms forviolent offenders. In the vast majorityof cases, sentences imposed for violentoffenders under truth-in-sentencingprovisions are resulting in substantiallylonger lengths of stay than those seenprior to sentencing reform. In fact, alarge number of violent offenders areserving two, three or four times longerunder truth-in-sentencing than crimi-nals who committed similar offensesdid under the parole system.

The crime of rape illustrates the im-pact of truth-in-sentencing on prisonterms served by violent offenders.Offenders convicted of rape under theparole system were released after serv-ing, typically, five and a half to six anda half years in prison (1988-1992).Having a prior record of violence in-creased the rapist’s median time served(the middle value, where half of thetime served values are higher and halfare lower) by only one year (Figure 35).Under sentencing reform (FY1995-FY2004), rapists with no previousrecord of violence will be servingprison terms with a median nearlytwice the historical time served.


Virginia’s truth-in-sentencing systemhas had an even larger impact onprison terms for violent offenders whohave previous convictions for violentcrimes. Offenders with prior convic-tions for violent felonies receive guide-lines recommendations substantiallylonger than those without a violentprior record, and the size of the in-creased penalty recommendation islinked to the seriousness of the priorcrimes, measured by statutory maxi-mum penalty. The truth-in-sentenc-ing guidelines specify two degrees ofviolent criminal records. A previousconviction for a violent felony with amaximum penalty of less than 40 yearsis a Category II prior record, while apast conviction for a violent felonycarrying a maximum penalty of 40years or more is a Category I record.

In contrast to the parole system, of-fenders with a violent prior record willserve substantially longer terms thanthose without violent priors. Basedon the median, rapists with a less seri-

ous violent record (Category II) arebeing given terms to serve of 18 yearscompared to the 7 years they servedprior to sentencing reform. For thosewith a more serious violent priorrecord (Category I), such as a priorrape, the sentences imposed undertruth-in-sentencing are equivalent totime to be served of nearly 32 years.This is more than four times longerthan the prison term served by theserepeat violent offenders historically.

An examination of prison terms foroffenders convicted of robbery revealsconsiderably longer lengths of stay af-ter sentencing reform. Robbers whocommitted their crimes with firearms,but who had no previous record of vio-lence, typically spent less than threeyears in prison under the parole sys-tem (Figure 36). Even robbers withthe most serious type of violent priorrecord (Category I) only served fouryears in prison, based on the median,prior to the sentencing reform and theintroduction of the truth-in-sentenc-

Prison Time Served: Parole System v. Truth-in-Sentencing System (in years)

No ViolentPrior Record

Category IIViolent Record

Category IViolent Record

5.68.9

6.7

17.8

32

6.7




2.7

7.23.8

11.7

17.2

4.1

Figure 35 • Forcible Rape Figure 36 • Robbery with FirearmCategory I is defined asany prior conviction or

juvenile adjudication for aviolent crime with astatutory maximum

penalty of 40 years ormore. Category II isdefined as any prior

conviction or juvenileadjudication for a violent

crime with a statutorymaximum penalty of less

than 40 years.


ing guidelines. Today, however, of-fenders who commit robbery with afirearm are receiving prison terms thatwill result in a median time to serve ofseven years, even in cases in which theoffender has no prior violent convic-tions. This is more than double thetypical time served by these offendersunder the parole system. For robberswith the more serious violent priorrecord (Category I), such as a priorconviction for robbery, the expectedtime served in prison is now 17 years,or four times the historical time servedfor offenders fitting this profile.

Sentencing patterns for first and sec-ond-degree murder also illustrate theimpact of truth-in-sentencing reforms.Under the parole system, offendersconvicted of first-degree murder whohad no prior convictions for violentcrimes were released typically afterserving 12 years in prison, based onthe time-served median. Under thetruth-in-sentencing system, however,first-degree murderers having no prior

convictions for violent crimes havebeen receiving sentences with a mediantime to serve of 32 years (Figure 37).In these cases, time served in prisonhas almost tripled under truth-in-sen-tencing. First-degree murderers withany violent record, Category I or Cat-egory II, have been sentenced to serve44 to 46 years, compared to the typi-cal time served of 15 years under theparole system.

First-degree murder is the only guide-lines offense where it is possible to re-ceive a sentence recommendation oflife. For all the other offenses the rec-ommendation is in years and months.For this analysis, a sentence of life wascalculated based on the offender’s lifeexpectancy as defined by the Centerfor Disease Control. For example, a 35year-old offender is expected to live onaverage another 43.5 years; therefore,a life sentence is calculated as 43.5years for this individual. A 20 year oldis expected to live an additional 57.7years and life is calculated as such.




12.4

31.9

14.1

43.845.6

14.7




4.9

16.1

6.6

22.424.6

7.2

Figure 37 • First-Degree Murder

Figure 38 • Second-Degree Murder

■ Parole System■ Truth-In-Sentencing

These figures present values ofactual incarceration time servedunder parole laws (1988-1992)and expected time to be servedunder truth-in-sentencingprovisions for cases sentencedFY1995 through FY2004. Timeserved values are represented bythe median (the middle value,where half the time served valuesare higher and half are lower).Truth-in-sentencing data includeonly cases recommended for, andsentenced to, incarceration ofmore than six months.


Under the former parole system anoffender sentenced to life was eligiblefor parole after serving between 12 and15 years. Under the no-parole systema sentence of life or a lengthy sentencein years has essentially the same effect––life in prison.

The crime of second-degree murderalso provides an example of the im-pact of Virginia’s truth-in-sentencingsystem on lengthening prison stays forviolent offenders. Second-degree mur-derers historically served five to sevenyears under the parole system. Withthe implementation of truth-in-sen-tencing, offenders convicted of second-degree murder who have no record ofviolence have received sentences pro-ducing a median time to be served ofover 16 years (Figure 38). For second-degree murderers with prior convic-tions for violent crimes the impact oftruth-in-sentencing is even more pro-nounced. Under truth-in-sentencing,these offenders are serving a medianbetween 22 and 25 years, or more than3 times the historical time served.


Violent Recidivism

Targeting violent offenders for longerterms of incarceration serves to inca-pacitate offenders for a greater portionof what is often referred to by criminolo-gists as the “crime prone age years.”Many criminologists consider theages of 15 to 24 to be the years duringwhich a person is at greatest risk forbecoming involved in criminal activ-ity, particularly violent criminal behav-ior. For example, of all individualsarrested for the crime of robbery in2003, nearly two-thirds (60%) werebetween the ages of 15 and 24 (Figure39). The peak age for robbery arresteeswas 18 years. As individuals age, therisk of being arrested for robbery de-clines significantly. Less than 17% ofrobbery arrestees are age 35 or older.

Virginia’s truth-in-sentencing reformhas achieved longer prison terms forviolent offenders. A large share ofthese offenders are young and at great-est risk for returning to a criminallifestyle when released, were it not forlonger prison stays. Longer terms in-capacitate at-risk offenders throughyears during which they would bemost likely to engage in crime. Byachieving longer lengths of stay forviolent offenders, sentencing reformshould result in fewer repeat violentoffenders returning through the circuitcourts of the Commonwealth.

R

Truth-in-sentencing reform has achieved

longer prison terms for violent offenders

which has resulted in fewer repeat violent

offenders returning through the circuit courts

of the Commonwealth.


Whenever the sentencing guidelinesrecommend a prison term, the guide-lines preparer must categorize theoffender’s prior record as violent ornonviolent. According to guidelinesdata, the percent of violent offendersconvicted in circuit court who have aprior conviction for a violent felonyoffense has declined since 1996. In1996, more than 28% of violent of-fenders had a violent felony record. By2004, this figure had dropped to 24%.

The impact of truth-in-sentencing re-form on violent recidivism has notbeen fully realized as yet. Violent of-fenders typically served several years inprison, even under the old parole sys-tem. As many violent offenders sen-tenced under truth-in-sentencingwould still be incarcerated if parolelaws were in effect today, the full im-pact of longer lengths of stay undertruth-in-sentencing has not been fullyachieved. Over the next few years,when more violent offenders have sur-passed the typical time they wouldhave served under the parole system,the incapacitation effect will be morefully realized.

Year Percent

1996 28.4%

1997 26.3

1998 27.6

1999 26.4

2000 26.9

2001 25.7

2002 25.5

2003 25.3

2004 24.4

Source: Virginia Sentencing Guidelines database

Figure 39

Age Distribution of Robbery Arrestees in Virginia, 2003

Figure 40

Percentage of Violent Recidivists Convictedin Virginia’s Circuit Courts

0

30

60

90

120

150

656055504540353025201510

ArrestsPeak Age: 18

Age

Source: Crime in Virginia, Virginia Department of State Police



Alternative Punishment forNonviolent Offenders

In 2002, the Commission incorpo-rated risk assessment for nonviolentoffenders into Virginia’s sentencingguidelines. Risk assessment applies infelony drug, fraud and larceny cases.Between July 1, 2003, and June 30,2004, more than two-thirds of allguidelines received by the Commis-sion were for these nonviolent of-fenses. However, only 42% (6,141)of the cases involved an offender whomet all of the Commission’s risk as-sessment eligibility criteria. Of the6,141 cases with eligible offenders inFY2004, 38% were recommended foran alternative sanction by the risk as-sessment instrument. During thesame period, 35% of these offendersreceived some form of punishmentother than the traditional incarcera-tion recommended by the guidelines.The most common alternatives givento these low-risk offenders were pro-bation supervision or a short jail term(in lieu of prison). For example, a largeshare of offenders found to be low-riskthrough the risk assessment process aregiven a short jail sentence to be fol-lowed by probation in the communityinstead of the prison term recom-mended by the standard guidelines.

R RSentencing Reform

Performance Measure:Percent of Violent Offenders

Housed in Prison

As noted above, Virginia’s reform hasresulted in longer terms for violent of-fenders. With the Commission’s riskassessment program and the availabil-ity of alternative sanction options forjudges to utilize, many nonviolent of-fenders are punished without tradi-tional prison incarceration. This ap-proach to reform was expected to al-ter the composition of the state’s prisonpopulation. Over time, violent of-fenders will queue up in the systemdue to longer lengths of stay than un-der the previous system. At the sametime, nonviolent offenders sentencedto prison, by design, are serving aboutthe same amount of time on averageas they did under the parole system.In addition, a portion of nonviolentoffenders receive alternative sanction-ing in lieu of prison.

The composition of the prison popu-lation is undergoing a dramatic shift.An important element of Virginia’s re-form, violent offenders are no longerdesignated by their current offensesonly. Instead, an offender is definedas violent based on the totality of hiscriminal career, including prior con-victions and juvenile adjudications.Section 17.1-805 of the Code of Vir-ginia defines violent offenses for thepurposes of the truth-in-sentencingguidelines. The definition includesoffenders convicted of burglary of adwelling and burglary while armedwith a deadly weapon. The definitionalso includes offenders who have beenconvicted of any burglary in the past.


Using this broader definition of a vio-lent offender, the prison populationnow is composed of a larger percent-age of violent offenders than a decadeago. On June 30, 1994, approximately69% of the state-responsible (prison)population classified by the Depart-ment of Corrections (DOC) wereviolent offenders (Figure 41). At thattime, nearly one of three inmates wasin prison for a nonviolent crime andhad no prior conviction for an offensedefined as violent. By May 30, 2004,the percent of the prison populationdefined as violent had increased toabout 74%. If burglaries are not in-cluded as violent offenses, the propor-tion of violent offenders comprisingVirginia’s prison system has increasedfrom 59% to nearly 69%.

A clear shift has begun. Because vio-lent offenders are serving significantlylonger terms under truth-in-sentenc-ing provisions than under the parolesystem and time served by nonviolentoffenders has been held relatively con-stant, the proportion of the prisonpopulation composed of violent of-fenders relative to nonviolent offend-ers will continue to grow. The im-pact of Virginia’s reform on the com-position of Virginia’s prison popula-tion will take many years to reach itsfull impact. Only one in five felonssentenced in Virginia’s circuit courtsis defined as violent under the sen-tencing guidelines, based on a currentor previous conviction for a violentfelony. Until 2002, when risk assess-

Figure 41

Percent of Violent Offenders in Virginia’s Prison System

ment of nonviolent offenders beganstatewide, Virginia’s sentencing guide-lines were not designed to alter thehistorical proportion of offenders givenprison sentences. As violent offenderscontinue to serve longer terms and riskassessment identifies low-risk non-violent offenders for alternative pun-ishment options, the proportion ofviolent offenders housed in Virginia’sprison system will continue to increase.

Note: Analysis compares state-responsible (prison) inmates classified by theDepartment of Corrections as of June 30, 1994, to those as of May 30, 2004.

Sources: Virginia Department of Corrections' Felon Analysis and SimulationTracking (FAST), Inmate Record System (IRS), and Pre/Post-SentenceInvestigation (PSI) report system

74.4%69.1%

25.6%30.9%

68.5%58.8%

31.5%41.2%

Violent Offenders

Nonviolent Offenders

Violent Offenders

Nonviolent Offenders

Excluding burglaries as violent offenses:

■ 2004 ■ 1994



Controlled Prison Growth

During the development of sentenc-ing reform legislation, balancing thegoals of truth-in-sentencing and longerincarceration terms for violent offend-ers with demand for expensive correc-tional resources was considered to becrucial. Under the truth-in-sentenc-ing system, the sentencing guidelinesrecommend prison terms for violent of-fenders that are up to six times longerthan those served prior to sentencingreform, while recommendations fornonviolent offenders are roughlyequivalent to the time actually servedby nonviolent offenders under theparole system. Moreover, the truth-in-sentencing guidelines were formu-lated not to increase the proportionsand types of offenders sentenced toprison. At the same time, reform leg-islation established a network of localand state-run community correctionsprograms for nonviolent offenders. Inother words, reform measures werecarefully crafted with consideration ofVirginia’s current and planned prisoncapacity and with an eye towards us-ing that capacity to house the state’smost violent felons.

RSentencing reform and the abolitionof parole did not have the dramaticimpact on the prison population thatsome critics had once feared when thereforms were first enacted. Despitedramatic increases in the inmate popu-lation in the late 1980s and early1990s, with several years of double-digit growth, the number of state pris-oners grew at a slower rate beginningin 1996. Some critics of sentencingreform had been concerned that sig-nificantly longer prison terms for vio-lent offenders, a major component ofsentencing reform, might result in tre-mendous increases in the state’s inmatepopulation. Although the prisonpopulation grew a total of 154% from1985 to 1995, growth slowed to a to-tal of 31% between 1995 and 2004.As a result, the forecast for state pris-oners developed in 2004 projects av-erage annual growth of 3.2% over thenext five years. This forecast calls for2,531 fewer prison beds by 2009 thanlast year’s forecast. This slower thananticipated growth is attributable to acomplex array of factors, which mayinclude incapacitation of violent of-fenders, declining crime rates, fewerprison admissions than projected, andstatewide application of risk assess-ment to redirect nonviolent offendersto nonprison sanctions.


R


Crime Rates

On the heels of rising crime rates inthe late 1970s, crime in Virginia andnationally stabilized and declined some-what during the early 1980s. This re-prieve did not last long. A dramaticturnaround began in 1986, and crimerates rose steeply into the early 1990s.

From the highs of the early 1990s,however, Virginia’s crime rate hasdropped during the last decade (Fig-ure 42). With the exception of a slightincrease in 2001, the downturn is thelongest sustained period of decline inthe crime rate in more than 35 years.In 2002, the total index crime rate waslower than at any point since before1970. Since 1994, the overall crimerate has dropped more than 22%.

Similarly, the violent crime rate grewsteeply beginning in the late 1980s,after more than a decade of relative sta-bility. The rate of violent crime peakedin 1992-1993. Beginning in 1994, vio-lent crime rates in Virginia began todrop (Figure 43). Steeper drops beganin 1996. Violent crime today is at itslowest since 1978. Between 1994 and2002, the violent crime rate declinednearly 20%. Last year (2003), the num-ber of murders reported (409) was 28%lower than the number reported in 1994(570). Similarly, robberies reported topolice dropped 23% (from 8,608 to6,588) from 1994 to 2003. Aggravatedassaults dropped by 10% during thissame period (from 12,414 to 11,200).

Figure 42

Index Crimes in Virginia (per 100,000 residents), 1970-2002

While the sentencing reforms passedin 1994 appear to be fulfilling manyof the intended goals (truth-in-sen-tencing, longer incarceration terms forviolent offenders and expansion of al-ternative sanctions for nonviolent of-fenders), the impact of the reforms oncrime in Virginia is difficult to ascer-tain. One way for Virginia’s truth-in-sentencing to have an impact on crimein the state is by having a deterrenceeffect. If sentencing reform has had

Figure 43

Violent Index Crimes in Virginia (per 100,000 residents), 1970-2002

Index crimes are: murder, nonnegligent manslaughter, rape, robbery, aggravated assault,burglary, larceny, motor vehicle theft and arson.Source: Virginia Department of Criminal Justice Services, Criminal Justice Research Center

2,000

3,000

4,000

5,000

2000199519901985198019751970

250

300

350

400

2000199519901985198019751970

Violent index crimes are: murder, nonnegligent manslaughter, rape, robbery and aggravated assault.Source: Virginia Department of Criminal Justice Services, Criminal Justice Research Center


an effect on crime, some persons whowould otherwise have broken the lawmay be deterred from committingcrime, or at least certain types of crime,because of the knowledge of the toughpenalties associated with the truth-in-sentencing system. Criminologicalliterature refers to two types of deter-rence: specific deterrence and generaldeterrence. Specific deterrence relatesto an individual who has committed acrime and the degree to which thethreat or actual application of punish-ment will deter him from engaging incrime again. General deterrence is thedegree to which knowledge of crimi-nal penalties deters members of thegeneral population, not just those con-victed of crimes, from engaging incriminal behavior. General deterrenceeffects are difficult to assess since it isvery hard to measure the depth ofknowledge people have of criminalpunishments, and what, if any, impactthis knowledge has in preventing themfrom committing crime.

Virginia’s truth-in-sentencing system,and its tougher penalties for violentoffenders, also could have an impacton crime through incapacitation ef-fects. The designers of sentencing re-form targeted violent offenders, par-ticularly repeat violent offenders, forsignificantly longer terms in prisonthan those typically served under theparole system. By incarcerating vio-lent offenders longer than in the past,any new crimes they might have com-mitted, had they been released into thecommunity earlier, are prevented. Asa result of this incapacitation of of-fenders, people who are incarceratedare not at liberty to commit crimesagainst the general public. Unfortu-nately, the incapacitation effect of thetruth-in-sentencing system on crimealso is difficult to measure.

While reported crime has declined inVirginia, crime has also been declin-ing nationally, with most states wit-nessing downward trends in crimerates similar to those Virginia has ex-perienced. Some of these states haveabolished parole and toughened theirpunishments for violent offenders,while others have adopted other crimefighting strategies. It is not possibleto determine what Virginia’s crimerates would have been in the absenceof truth-in-sentencing reforms.Clearly, however, lower crime ratesbenefit all Virginians and the reformsof a decade ago are compatible withthe ends of public safety for the citi-zens of the Commonwealth.


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Other Sentencing Initiatives

Created by the reform act, the Com-mission has overseen Virginia’s sen-tencing guidelines system since 1995.One of the Commission’s originalcharges under truth-in-sentencing re-form was to develop and implement arisk assessment instrument applicableto nonviolent offenders. After pilottesting and independent evaluation,this risk assessment tool became effec-tive statewide in July 2002. The non-violent offender risk assessment pro-gram has been discussed extensively inthis chapter. The General Assemblyhas developed other sentencing initia-tives to complement the truth-in-sen-tencing reforms enacted in 1994. TheCommission has been charged withimplementing these new initiatives.

The 2000 General Assembly directedthe Commission to develop a risk as-sessment instrument applicable toVirginia’s felony sex offenders for in-corporation into the sentencing guide-lines (Senate Joint Resolution 333).This risk tool was to identify sex of-fenders who likely pose the greatest riskto public safety. The Commission con-ducted an extensive study of felony sexoffenders convicted in Virginia’s cir-cuit courts and developed an empiri-cal risk assessment tool based on of-fender risk, measured as a new arrestfor a sex offense or other crime againstthe person. In 2001, the Commissionimplemented a risk assessment tool ap-plicable in felony sex offense cases.That instrument is designed to iden-

tify those offenders who, as a group,represent the greatest risk for commit-ting a new sex offense or other crimeagainst the person once released backinto the community. The guidelines forsex offenders are adjusted to ensure thata prison term is recommended in everycase involving an offender identified ashigh-risk. In addition, the recom-mended sentence range is revised forhigh-risk offenders. In these cases, theupper end of the range is extended by50% to 300% depending on the levelof risk. The guidelines midpoint andthe lower end of the range are unaf-fected by risk assessment.

In 2003, the General Assembly di-rected the Commission to develop,with due regard for public safety, dis-cretionary sentencing guidelines forfelony offenders who are determinedby the court to be in violation of pro-bation or post-release supervision forreasons other than a new criminal con-viction (Chapter 1042 of the Acts ofAssembly 2003). These offenders arealso known as “technical violators.” Indetermining the guidelines, the Com-mission was to examine historical ju-dicial sanctioning patterns for suchcases. Additionally, the Commissionwas to determine recidivism rates andpatterns for these offenders and evalu-ate the feasibility of integrating a riskassessment instrument into the guide-lines for violators not convicted of anew crime. In 2003, almost two-thirds of probation violators failed su-pervision without being cited for anew conviction. That year, nearly4,800 such cases were handled inVirginia’s circuit courts.


In response to the legislative directive,the Commission designed and imple-mented a two-phase research plan.The first phase of the study, develop-ing historically-based sentencingguidelines, was completed in 2003.The General Assembly approved theuse of these new guidelines beginningJuly 1, 2004. The second phase, ana-lyzing recidivism and evaluating thefeasibility of developing a risk assess-ment tool, is now complete. TheCommission’s proposals for integrat-ing probation violator risk assessmentare contained in the Recommenda-tions chapter of this report.

Summary

Virginia’s comprehensive felony sen-tencing reform legislation marks itstenth anniversary on January 1, 2005.By all measures, this sweeping over-haul of the felony sanctioning systemhas, to date, been a resounding andunequivocal success.

Truth-in-sentencing has been achievedand approximately 90% of imposedincarceration time is actually beingserved. Sentences for violent felonsare significantly longer than those his-torically served and are arguablyamong the longest in the nation.

Since its inception, approximately200,000 felons have been sentencedunder no-parole. Of those, about40,000 were violent felons who re-ceived prison terms dramaticallylonger than those historically served.Clearly, many violent felons who likelywould have been back on the streetsunder Virginia’s old sentencing systemhave remained in prison and are un-able to commit new crimes.

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Violent crime and serious property crime rates

have decreased since the adoption of sentencing

reform. Ten years after the enactment of sentenc-

ing reform legislation, evidence shows that the

system is achieving what its designers intended.

Justice Edmund Pendleton, first president ofthe Virginia Supreme Court, 1779-1803


Virginia’s prison population growthhas now stabilized and become morepredictable and manageable. Since1996, our prison population has growna total of only 25%, an annualized rateof growth of only 3%. Furthermore,the recently approved prison popula-tion forecast projects a growth rate ofonly 3.2% over the next five years.

Contributing greatly to the diminisheddemand for expensive prison beds hasbeen the welcome expansion of newintermediate punishment/treatmentprograms designed for felons. Someof these intermediate sanction pro-grams have already been integratedinto the sentencing guidelines recom-mendations. Judges have embracedthese new sentencing options that aredesigned for non-violent offenderswho pose minimal risk to public safety.Consequently, Virginia’s expensiveprison beds have been prioritized tohouse violent felons and those whopose a significant risk of recidivism.

Violent crime and serious propertycrime rates have decreased since theadoption of sentencing reforms. Theissue of whether the drop in crime ratesis largely attributable to the sentenc-ing reforms or some other combina-tion of events and/or initiatives is com-plex. Also, since 1994, Virginia hasadopted other crime fighting initiativessuch as the sex offender registry andthe Virginia Exile Program, which re-quires mandatory prison terms for cer-tain firearm-related crimes.

Thus, ten years after the enactment ofthe sentencing reform legislation inVirginia, there is substantial evidencethat the system is achieving what itsdesigners intended.

Probation Violation Study R 67

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ProbationViolator Study4

Introduction

In 2003, the General Assembly di-rected the Sentencing Commission todevelop, with due regard for publicsafety, discretionary sentencing guide-lines for application in cases involvingfelony offenders who were determinedby the court to be in violation of pro-bation or post-release supervision forreasons other than a new criminal con-viction (Chapter 1042 of the Acts ofAssembly 2003). These offenders areoften referred to as “technical viola-tors.” In determining the guidelines,the Commission was to examine his-torical judicial sanctioning patterns inrevocation hearings for such cases.Additionally, the Commission was di-rected to determine recidivism ratesand patterns for these offenders andevaluate the feasibility of integrating arisk assessment instrument into theguidelines for violators not convictedof a new crime.

The first phase of the study, develop-ing historically-based sentencingguidelines was completed in 2003.The Commission recommended, andthe General Assembly approved, state-wide implementation beginningJuly 1, 2004. The second phase of thisstudy, analyzing recidivism andevaluating the feasibility of develop-ing a risk assessment tool for these vio-lators, is now complete. This chapterof the Sentencing Commission’s An-nual Report describes the Commis-sion’s study and presents the results ofthe risk assessment phase of this im-portant project.

The Commission

recommended,

and the General

Assembly approved,

statewide use of

probation violation

sentencing guide-

lines beginning

July 1, 2004.

Virginia is the first state in the nation to

incorporate empirically-based offender

risk assessment in sentencing guidelines.

Madison County Courthouse


Phase 1:Probation Violation

Sentencing Guidelines

Charged with developing sentencingguidelines for offenders who violate theconditions of community supervisionbut are not convicted of a new crime,the Commission designed and imple-mented a research plan to examine his-torical sanctioning practices in revo-cation cases of this kind. The Com-mission reviewed the sources of dataavailable for the study. The most com-plete resource regarding revocations ofcommunity supervision in Virginia isthe Commission’s Community Cor-rections Revocations Data System, alsoknown as the Sentencing RevocationReport (SRR) database. First imple-mented in 1997 with assistance fromthe Department of Corrections(DOC), the SRR is a simple form de-signed to capture the reasons for, andthe outcomes of, community supervi-sion violation hearings. The probationofficer (or Commonwealth’s attorney)completes the first part of the form,which includes identifying informa-tion and check boxes indicating thereasons why a show cause or revoca-tion hearing has been requested. Thecheck boxes are based on the list of tenconditions for community supervisionestablished for every offender, but spe-cial supervision conditions specific tothe individual offender can also be re-corded. Following the violation hear-ing, the judge completes the remain-der of the form with the revocationdecision and any sanction ordered inthe case. The completed form is sub-mitted to the Commission, where the

information is automated. A revisedSRR form was developed and imple-mented in 2004 to serve as a compan-ion to the new probation violation sen-tencing guidelines.

The SRR database, however, providesonly general information about therevocation case and the reasons whyan offender was brought back to court.While indicating which conditions ofsupervision in general were violated,detailed information regarding theoffender’s behavior while under super-vision is not recorded on the SRRform. With no other standardized datasource available, manual data collec-tion from offender files was necessaryfor the Commission’s study. To pro-vide the kind of rich contextual detailabout the offender’s behavior duringthe supervision period, the Commis-sion examined offender probation filesand extracted detailed informationfrom the violation letter or letters con-tained in the offender’s record. A vio-lation letter is prepared by the proba-tion officer and submitted to the courteach time the officer requests a showcause or revocation hearing. These let-ters describe violation behaviors anddocument dates of specific violations.The Commission designed a specialform to record information from theprobation officers’ violation letters(Figure 44). The information recordedon the special form was automated andadded to the automated records alreadymaintained by the Commission. Thissupplemental information proved in-valuable to the Commission for thestudy of this offender population.

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To further supplement informationabout offenders who violate, the Com-mission requested the criminal historyrecord (“rap sheet”) for each offenderin the study sample. The rap sheet al-lowed the Commission to supplementautomated information relating to theoffender’s criminal history prior to theoffense for which he was placed onsupervision. In addition, the rap sheetsenabled the Commission to identifyarrests and convictions that occurredduring the probation period.

For additional information on the of-fender and the offense for which hewas placed on community supervision,the Commission utilized Pre/Post-Sen-tence Investigation (PSI) data pro-vided by DOC. Completed by DOC’sCommunity Corrections division formost felony sentencing events in Vir-ginia, the report contains a wealth of

information regarding the circum-stances of the crime (e.g., use of aweapon, victim injury, the offender’srole in the offense, his relationship tothe victim, if he resisted arrest, thequantity of drugs involved, etc.), hisprior adult record, his juvenile record,family and marital information, edu-cation, military service, employmenthistory, history of alcohol and druguse, as well as any substance abuse ormental health treatment experiences.The Commission also included datafrom its own Sentencing Guidelines(SG) database to the automated filedeveloped for each offender in thestudy sample.

For the first phase of the study, theCommission drew a sample of 600cases from its Community CorrectionsRevocation Data System, or Sentenc-ing Revocation Report (SRR) data-base. Sample cases were drawn fromrevocations occurring from fiscal year

Figure 44

Supplemental Data Collection Form


(FY) 1997 through FY2001. Thestudy was designed to focus on sanc-tioning practices under the truth-in-sentencing/no-parole system, in placesince 1995. Prior to drawing thesample, the Commission excluded of-fenders who were on probation orother forms of community supervisionfor an offense committed prior to1995, since these offenders remainparole eligible (even for incarcerationtime re-imposed as a result of a revo-cation). Next, offenders on probationor other supervision for a misdemeanoroffense were excluded from the sam-pling process. Because of the relativelysmall number of cases, all violators onprobation for a violent felony were se-lected for the study. The Commissiontook this step to ensure that offendersconvicted of violent crimes were morefully represented in the study, as a largeshare of violent felons subject to truth-in-sentencing provisions remain incar-cerated and have not yet been releasedto supervision in the community.Once a sample of 600 cases was se-lected, the supplemental data collec-tion began; however, 72 cases weredropped from the study during thedata collection process, as some casefiles did not contain sufficient infor-mation and additional parole-eligibleoffenders were identified. The finalsample for the Commission study con-tained 528 cases, a sample largeenough to satisfy the Commission’sstrict statistical standards.

The analytical approach laid out by theCommission is not unlike that used fordeveloping Virginia’s historically-basedsentencing guidelines. To developguidelines for supervision violators,judicial decision-making was concep-tualized as a two-step process. In thefirst step of this conceptual framework,the judge decides whether or not toincarcerate the offender. The seconddecision is dependent upon the out-come of the first. If the first step re-sults in a decision to incarcerate, thejudge must then determine the lengthof the incarceration term the offenderis to be given. The factors consideredin making the first decision are notnecessarily the same as the factors con-sidered in the second decision. More-over, the degree to which a factorweighs in a judge’s decision making, orits importance relative to other factors,may differ for the two types of sanction-ing decisions. Structuring the analysisbased on this two-step framework allowsresearchers to examine sentencing prac-tices in a more detailed fashion.

In the development of sentencingguidelines, the Commission employsa number of quality control tech-niques. Two researchers conductanalysis on each step in the judicialdecision-making process, working in-dependently of one another. This tac-tic reduces the likelihood of errors,spurious findings, or results biased bythe style of an individual analyst. Oncethe independent analysis is complete,the reconciliation process begins. Inthe reconciliation process, the research-ers team up to evaluate the differencesin their independently-developed


models and conduct statistical tests todetermine which model best meets theCommission’s objectives. The result-ing model is then converted into aguidelines worksheet. With this pro-cess complete, the results are then re-viewed by another analyst as an addi-tional error check.

There are three major statistical tech-niques utilized in sentencing guidelinesanalysis. For the decision of whetherto incarcerate the offender (the incar-ceration/no incarceration decision),two statistical techniques known aslogistic regression and discriminantanalysis are used. Logistic regressionis a statistical technique that can pre-dict a choice from two options. It isused to identify factors that best dis-criminate between two outcomes orgroups (e.g., offenders sentenced toincarceration and offenders not sen-tenced to incarceration). A secondtechnique, discriminant functionanalysis, is applied in order to estab-lish the relative importance, or weight,for each factor identified by the logis-tic regression analysis. The incarcera-tion/no incarceration (Section A)worksheet of the probation violationsentencing guidelines was developedbased on the results of this process.

For the sentence length decision, atechnique called ordinary least squares(OLS) regression is applied. Ordinaryleast squares regression can be used toestimate outcomes that fall along a con-tinuum, such as the sentence length de-cision. This technique is used to iden-tify factors (e.g., failing to meet with theprobation officer, failing a drug test, orabsconding) that influence a response

measure (e.g., sentence length). Re-sults are calculated by minimizing themodel’s prediction error. The effect ofeach variable on the outcome can beeasily interpreted. The results of thisstatistical application served as the ba-sis for the sentence length (Section C)worksheet of the new guidelines.

Using this methodology, the Commis-sion developed empirically-based sen-tencing guidelines worksheets for vio-lators that reflect judges’ historicalpractices. In the case of offenderswhose community supervision is re-voked, incarceration is the result of ajudge re-imposing previously sus-pended jail or prison time. For theviolators in this study, 73% receivedan active term of incarceration of somekind, while 27% received some typeof non-incarceration sanction for therevocation. Factors gathered throughsupplemental data were utilized to de-velop a guidelines model capable ofexplaining, at least in part, determi-nants of judicial decisions on whetheran offender should be incarcerated.

The relative importance of the signifi-cant factors in the probation violatorincarceration/no incarceration modelare shown in Figure 45. In the modelare a variety of factors that influence ajudge’s decision to incarcerate or not.There are two extralegal factors in thismodel: circuit and the offender’s race.Circuit/region in the state is by far themost influential factor in determiningwhether or not a violator receives anactive term of incarceration. Circuit/region is more than twice as impor-tant as any other factor. This resultsuggests that, all other factors being


equal, there is significant disparity insanctioning these violators across Vir-ginia’s circuits. Although less influen-tial in this model, offender’s race is alsostatistically significant. The Commis-sion’s study found that, holding otherfactors constant, white violators aremore likely to be incarcerated thannonwhite offenders. Neither of the ex-tralegal factors are included on theguidelines worksheet.

The legal factors found in the incar-ceration/no incarceration model reflectthe offender’s original offense and theoffender’s behavior while under super-vision. The most important legal factorin explaining the incarceration deci-sion is whether or not the offender hadabsconded from supervision. Offend-ers who absconded are much morelikely to receive a jail or prison termthan those who did not. Nearly asimportant in the incarceration deci-sion, however, is the offender’s contin-ued use of drugs. This is followed

closely by the type of the original of-fense (categorized as person, property,drug, felony traffic, weapon or other).Offenders originally convicted of thirdor fourth driving while intoxicated(DWI) offenses, habitual traffic of-fenses, weapons-related crimes, or anycrime against a person are more likelyto be incarcerated than other offend-ers following a violation. In additionto the supervision condition prohibit-ing drug use, the Commission foundthat offenders who violated other su-pervision conditions are also morelikely to be sentenced to incarceration.

While absconding was found to be themost influential legal factor to explainincarceration sentences, the period oftime the offender had absconded alsoplays a significant role. The numberof capias/revocation hearing requestssubmitted by the probation officer tothe judge during the offender’s currentsupervision period, regardless of out-come, also increases the likelihood ofincarceration. Although the guidelinestarget only violators that have not beenconvicted of a new crime during thecurrent supervision period, a portionof the offenders had been rearrestedwhile under supervision. The num-ber of new arrests for felony crimes ishighly correlated with the likelihoodof receiving incarceration.

Finally, although less influential thanother factors, an offender’s failure toreport to, or unsuccessful dischargefrom, certain programs affects judges’incarceration decisions. These includeprograms of a rehabilitative or puni-tive nature that the offender was in-

Figure 45

Relative Importance of Significant Factors in Incarceration/No Incarceration Decisions

Circuit/region

Race of offender

Offender absconded (yes/no)

Offender violated supervision condition-used drugs

Original offense type

Type of supervision condition violated

Previous capias/revocation requestsmade by probation officer

New felony arrest

Failed to report to or unsuccessfullydischarged from certain programs

Time absconded


structed to attend and complete. Forexample, this factor encompasses em-ployment programs, residential pro-grams, day reporting, and communityservice programs. Residential programsinclude, but are not limited to, TheCommonwealth’s Detention or Diver-sion Center programs and youth pro-grams. Programs that are specificallyfor drug, alcohol, or substance abuseare excluded from this factor.

The incarceration/no incarceration(Section A) worksheet first developedfrom this sentencing model appears inFigure 46. At the top of the worksheetare instructions that this worksheetshould only be filled out if the viola-tor has not been convicted of any fed-eral, state or local law or ordinance vio-lations prior to sentencing for the re-vocation. Guidelines do not apply to

cases of revocation resulting from a newcriminal conviction. Instructions at thebottom of the worksheet tell the preparerwhether the violator is recommended foran active term of incarceration. Viola-tors scoring 31 points or more are rec-ommended for incarceration, while vio-lators with a score up to 30 points arerecommended for a non-incarcerationsanction. The 30-point threshold se-lected by the Commission is tied to theactual rate of incarceration for theseoffenders found in the Commission’sstudy of judicial sentencing practices.For offenders recommended for incar-ceration, the sentence length (SectionC) worksheet must be completed.

The Commission modeled sentencelength for offenders who served a pe-riod of incarceration as a result of therevocation of their community super-vision. Figure 47 shows the relativeimportance of the significant factorsFigure 46

Probation Violation Sentencing Guide-lines Incarceration/No Incarceration(Section A) Worksheet

Figure 47

Relative Importance of Significant Factors in SentenceLength Decisions

Circuit/region

Unsuccessful discharge - Detention Center

New arrests for person crimes

New arrest for nonperson crimes

Failed drug test (not marijuana)

Time absconded

Violate sex offender conditions

Fail to report - drug treatment


Previous revocations

Gender of offender

Time until first noncompliance incident


in the sentence length decision. Aswith the incarceration/no incarcera-tion model, numerous factors are re-lated to judges’ sentence length deci-sions. Like the incarceration/no in-carceration decision, analysis revealedsignificant disparity across circuits inpunishing violators. Once again, cir-cuit/region was by far the most impor-tant determinant of sentence lengthdecisions. Another extralegal factor,the offender’s gender, was also statisti-cally significant, although it was theleast influential factor in the model.Holding other factors constant, theCommission found that, among vio-lators sentenced to incarceration, maleviolators receive longer periods of in-carceration than female violators.

The most influential legal factor inexplaining the sentence length decisionwas the number of times the offenderhad been arrested for a crime against aperson during the supervision period.The greater the number of these newarrests, the longer the period of incar-ceration the violator is sentenced toserve. Nearly as important in the sen-tence length decision is the period oftime the offender was supervised be-fore his first incident of noncompli-ance. A second arrest factor correlatedwith sentence length decisions, al-though to a lesser degree than the first,is number of new arrests for any crimeother than a crime against a person.

As in the decision to incarcerate, theoffender’s continued drug use influ-ences the sentence length decision.Holding other factors constant, viola-tors who test positive for using aSchedule I/II or other drug receive

longer sentences than violators whoremain drug free. However, analysisrevealed that, on average, testing posi-tive for marijuana use did not contrib-ute to a longer sentence. Therefore,marijuana is not included in this factor.

The period of time an offender hasabsconded from supervision also playsa significant role in sentence lengthdecisions, as it did in the incarcerationdecision. In addition, the sentencelength model contains a factor specifi-cally relating to sex offenders super-vised in the community. For sex of-fenders, judges often impose specialconditions for supervision. TheCommission’s analysis revealed thatwhen a sex offender violates a no-con-tact provision with the victim, entersa prohibited area such as a school, orhas contact with a minor when pro-hibited from doing so, he is likely toreceive a lengthy period of incarcera-tion when his supervision is revoked.Failure to comply with a judge’s orderto complete a Detention Center pro-gram also results in longer terms ofincarceration. Moreover, violators whofail to report to a drug treatment pro-gram ordered as a condition of super-vision received longer terms when re-voked from supervision. Additionally,sentence length is affected by the typeof the original offense. In the sentencelength model, violators originally con-victed of a crime against a person, or aweapon-related offense, were givenlengthier sentences of incarceration.The sentences associated with drug,property, DWI, and habitual trafficoffenders are typically shorter. Finally,the number of prior failures of commu-


nity supervision, as measured by revo-cation, was found to be highly corre-lated with longer sentence lengths.

The legal factors in the sentence lengthmodel were assembled on the sentencelength (Section C) worksheet (Figure48). At the bottom of this worksheet,the score is totaled and the preparer isinstructed to refer to the sentencelength (Section C) recommendationtable (Figure 49). The first columncontains the score ranges and the sec-ond column presents the recom-mended sentence range associatedwith each score. A sentence recom-mendation of 12 months or less is con-sidered a local-responsible (jail) sen-tence; a sentence recommendation ofone year or more is defined as a state-

responsible (prison) sentence. TheCommission selected ranges of pun-ishment that reflect historical patternsof sentencing for violators who havenot been convicted of a new crime.

The Commission completed this phaseof the study in 2003. After carefulconsideration of the findings, theCommission concluded that the pro-bation violation sentencing guidelinescould be a useful tool for circuit courtjudges in the Commonwealth. In its2003 Annual Report, the Commis-sion proposed statewide implementa-tion of the new guidelines, and the2004 General Assembly approved theCommission’s recommendation. State-wide use began on July 1, 2004.

Figure 48

Probation Violation SentencingGuidelines Sentence Length(Section C) Worksheet

Score Recommended Sentence Range

Up to 33 ............ 1 Day up to 3 Months

34 - 41 ............... More than 3 Months up to 6 Months

42 - 43 ............... More than 6 Months up to 12 Months

44 - 48 ............... 1 Year up to 1 Year 3 Months

49 - 51 ............... More than 1 Year 3 Months up to 1 Year 6 Months

52 - 55 ............... More than 1 Year 6 Months up to 2 Years

56 - 62 ............... More than 2 Years up to 3 Years



75 – 85 .............. More than 5 Years up to 6 Years

86 + ............ More than 6 Years

Figure 49

Sentence Length (Section C) Recommendation Table


Phase 2:Probation ViolatorRisk Assessment

With Phase 1 complete, the Commis-sion in 2004 turned to Phase 2: pro-bation violator risk assessment. Spe-cifically, the General Assembly re-quested that “(t)he Commission shallalso determine recidivism rates andpatterns for these offenders and evalu-ate the feasibility of integrating a riskassessment instrument into these dis-cretionary sentencing guidelines.”

Criminal risk assessment estimates anindividual’s likelihood of repeat crimi-nal behavior and classifies offenders interms of their relative risk of such be-havior. In practice, risk assessment istypically an informal process in thecriminal justice system (e.g., prosecu-tors when charging, judges at sentenc-ing, probation officers in developingsupervision plans). Empirically-basedrisk assessment, however, is a formalprocess using knowledge gainedthrough observation of actual behav-ior within groups of individuals. InVirginia, risk assessment has becomean increasingly formal process. At sen-tencing, for example, judges are pro-vided with a risk assessment for offend-ers convicted of sexual assault, rape, lar-ceny, fraud or drug offenses. These riskassessment instruments were devel-oped by the Commission and imple-mented as part of the statewide guide-

Rlines system in 2001 (rape and sexualassault) and 2002 (drug, fraud and lar-ceny). Other forms of risk assessmentinstruments are also used by the Depart-ment of Corrections’ Division of Com-munity Corrections, the Department ofJuvenile Justice, and the Parole Board.

Effectively, risk assessment means de-veloping profiles or composites basedon overall group outcomes. Groupsare defined by having a number of fac-tors in common that are statisticallyrelevant to predicting the likelihood ofrepeat offending. Those groups exhib-iting a high degree of re-offending arelabeled high risk. This methodologi-cal approach to studying criminal be-havior is an outgrowth from life-tableanalysis used by demographers andactuaries and the approach has beenused by many scientific disciplines.

A useful analogy can be drawn frommedicine. In medical studies, individu-als grouped by specific characteristics arestudied in an attempt to identify thecorrelates of the development or progres-sion of certain diseases. The risk pro-files for medical purposes, however, donot always fit every individual. For ex-ample, research demonstrates a strongstatistical link between smoking andthe development of lung cancer. None-theless, some non-smokers develop lungcancer. Similarly, not every offender thatfits the lower-risk profile will refrain fromcriminal activity. No risk assessment re-search can ever predict with 100% ac-curacy. The goal, rather, is to producean instrument that is broadly accurateand provides useful additional infor-


mation to decision makers. The stan-dard used to gauge the success of riskclassification is not perfect prediction;the standard should be the degree towhich decisions made with a risk as-sessment tool are improved comparedto decisions made without the tool.

Offender recidivism, however, can bemeasured in several ways. For instance,recidivism can be defined as any newoffense, a new felony offense, a new of-fense for a specific type of crime (e.g., anew sex offense), or any number of otherbehaviors. The true rate at which of-fenders commit new crimes will likelynever be known, since not all crimescome to the attention of the criminaljustice system. Recidivism, therefore, isnearly always measured in terms of acriminal justice response to an act thathas been detected by law enforcement.Probation revocation, re-arrest, reconvic-tion and recommitment to prison are allexamples of recidivism measures.

In risk assessment research, the charac-teristics, criminal histories and patternsof recidivism among offenders are care-fully analyzed. Factors proven statisti-cally significant (i.e., those with knownlevel of success) in predicting recidivismcan be assembled on a risk assessmentworksheet, with scores determined bythe relative importance of the factors inthe statistical model. The instrumentthen can be applied to an individual of-fender to assess his or her relative risk offuture criminality. Behavior of the indi-vidual is not predicted. Rather, this typeof statistical risk tool predicts anindividual’s membership in a subgroup

that is correlated with future offending.Individual factors do not place an of-fender in a high-risk group. Instead, thecombination of certain factors deter-mines the risk group of the offenders.

To investigate rates and patterns of re-cidivism among violators returned tocourt for reasons other than a newcriminal conviction, the Commissionutilized data collected for the develop-ment of historically-based guidelinesin Phase 1. To ensure that sufficientcases would be available for the subse-quent analyses, the Commission added420 cases to its original sample of pro-bation violation cases. For these 420new cases, Commission staff reviewedprobation files to collect supplemen-tal information on the offender’s be-havior while under supervision, as wasdone for the cases in the Commission’soriginal sample. The data collectionprocess was completed for 302 of the420 new cases. As with the Phase 1data collection, some cases were ex-cluded because there was not sufficientdetail available, the offender was foundto be parole-eligible, the case was theresult of a revocation of the offender’sfirst offender status (under § 18.2-251), the violator was convicted of anew crime, the original offense was amisdemeanor, or the offender was notfound by the court to be in violationof supervision. For these reasons, 118cases were dropped from the studyduring the Phase 2 supplemental datacollection process. The resulting num-ber of completed cases was well withinthe Commission’s anticipated level ofattrition. Combining Phase 1 andPhase 2 data resulted in 830 cases forthe risk assessment phase of the study.


The Commission applied a “reweight-ing” process to ensure that the studysample reflected the entire populationof violators, not cited for a new convic-tion, whose supervision was revoked.

In risk assessment phase, criminal his-tory “rap sheets” were used to identifycriminal activity that occurred subse-quent to the probation violation, dur-ing the study’s follow-up period. Ar-rests and convictions were recordedfrom rap sheets for all of the 830 casesin the recidivism analysis.

The Commission carefully consideredhow recidivism and the length of fol-low-up should be defined for the riskassessment study requested. A varietyof recidivism measures and follow-upperiods have been used in criminologi-cal studies of recidivism. Indeed, inthe Commission’s own risk assessmentwork, both the measure of recidivismand the length of follow-up have beentailored to specific goals. In the non-violent risk assessment studies, theoriginal legislative goal was to divert upto 25% of nonviolent offenders whootherwise would have been sentenced toprison. The Commission defined reci-divism as any new arrest leading to aconviction within three years of releasefrom confinement. By contrast, for thesex-offender risk assessment study, thegoal was to identify those most likely tobe sexual predators and to incapacitatethose offenders for a substantial lengthof time. Recidivism, then, was definedas a new arrest for a sex crime or othercrime against a person (misdemeanor orfelony) with a minimum follow-upperiod of five years. Selection of thismeasure reflected the Commission’s con-

cerns regarding public safety, the diffi-culties encountered in prosecuting andobtaining a conviction in sex offensecases, and the longer periods duringwhich sex offenders tend to recidivate.

In the current study, the goal is, again,to identify low-risk offenders whocould be safely recommended for sanc-tions other than traditional incarcera-tion in jail or prison. Persons comingbefore a judge for a revocation hear-ing have demonstrated problems inadjusting to the conditions of super-vision in the community. Therefore,the Commission elected to measurerecidivism as an arrest for a new crime.Other measures, such as reconviction,were also collected. For this study, theCommission selected a minimum fol-low-up period of 18 months. A con-cern when using a follow-up period asshort as 18 months is whether the timeperiod is long enough to capture the re-cidivist behavior. The follow-up pe-riod was of particular concern becauseresearchers often utilize a follow-upperiod longer than 18 months. Thetime period was selected as a compro-mise between the desire for a longerfollow-up period, if possible, and limi-tations in the availability of data, par-ticularly for violent offenders sen-tenced under truth-in-sentencing pro-visions (who did not begin to appearin the Commission’s Community Cor-rections Revocation database in signifi-cant numbers until the end of the studyperiod, thus restricting the follow-upperiod). However, data from Phase 1 ofthis project indicate that the majority ofoffenders who violate do so within 18months of release to the community.


Recidivism Analysis

With supplemental sample selection anddata collection complete, the Commis-sion began its analysis. The analyticalapproach used by the Commission ismuch like that used for developingVirginia’s nonviolent offender risk as-sessment instrument, implementedstatewide in 2002. To develop a riskassessment instrument for supervisionviolators not convicted of a new crime,the Commission utilized the probationviolation sentencing guidelines devel-oped in Phase 1 to determine whichviolators would be recommended foractive incarceration in prison or jail.Only cases recommended for incar-ceration by the guidelines were ana-lyzed for risk assessment.

The same quality control process ap-plied in Phase 1 was utilized in Phase2 of the project. As in Phase 1, tworesearchers worked independently ofone another conducting analyses us-ing competing analytical methods.This assures that the statistical methodthat most effectively identifies risk willbe the basis of the risk assessment in-strument. Once the independentanalysis is finished, a reconciliation andcomparison process is completed.

Multiple statistical techniques wereapplied to examine patterns of recidi-vism. Two of these were also utilizedin Phase 1 and described earlier in thischapter. The first, logistic regression,was utilized in Phase 1 to model thefactors most correlated with judges’ in-

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carceration decisions. In Phase 2, thistechnique, which identifies factors thatbest discriminate between two out-comes or groups, was used to differ-entiate recidivists from non-recidivists.Logistic regression requires that thefollow-up period be the same for alloffenders in the study. Therefore, onlycases that had a minimum of an 18-month follow-up period could be in-cluded in this type of analysis. A totalof 637 violators, who were recom-mended for incarceration on the guide-lines and had a full 18 months of fol-low-up after release, were used for lo-gistic regression analysis. Of the casesanalyzed using this method, 39% ofthe offenders had been arrested for anew crime within 18 months of releasefor their probation revocation (31%had a new crime arrest within 18months that resulted in a conviction).

When using logistic regression, an ana-lyst can easily determine which factorsare statistically significant. Interpret-ing the effect of each factor relative tothe other factors in the model, how-ever, is complex. This is because lo-gistic regression results are presentedin terms of the log of the odds of aparticular outcome (e.g., the odds ofwinning the state lottery). Thus, thedrawback of logistic regression is thatit cannot determine the relative impor-tance, or weight, of the factors in themodel, which is necessary to convertthe model to scores on a guidelinesworksheet. Logistic regression, there-fore, is used in conjunction with dis-criminant function analysis. Thediscriminant function procedure dis-criminates between groups by group-


ing cases in such a way that the differ-ences between the groups are maxi-mized while the differences within theoutcome groups are minimized. Interms of categorizing cases by type ofoutcome, models generated throughlogistic regression and discriminantfunction analysis provide strikinglysimilar results. Using the Commis-sion’s approach, logistic regression isused to identify those factors associ-ated with recidivists. Then, the dis-criminant function procedure is ap-plied to those factors to establish therelative importance, or weight, for eachfactor in the sentencing model.

The combined analytical results fromlogistic regression and discriminantfunction analysis were used to create arisk assessment model. This result wascompared to a second model devel-oped using another statistical tech-nique called survival analysis. Survivalanalysis assesses the characteristics ofindividuals after various time intervals.

For this study, survival analysis was uti-lized to determine which factors wereassociated with recidivists following re-lease into the community. Because sur-vival analysis allows for varying periodsof follow-up time, more cases (here 755)could be included in the analysis usingthis technique. Of those analyzed us-ing survival analysis, 51% had a newcrime arrest and 37% had a new crimearrest resulting in a conviction.

In the reconciliation process, the re-searchers team up to evaluate the differ-ences in their independently-developedmodels and conduct statistical tests todetermine the best model. The result-ing model is then converted into a riskassessment worksheet. Once complete,the results are then reviewed by anotheranalyst as an additional error check.

The first type of analysis, logistic re-gression combined with discriminantfunction analysis, proved to be themost accurate in predicting recidivismamong supervision violators. Thismodel correctly identified 74% of theoffenders who, in fact, remained ar-rest-free when they returned to super-vision following the violation.

Analysis revealed eight factors to beuseful in predicting recidivism amongthis population. The relative impor-tance of the significant factors in theviolator risk assessment is shown inFigure 50.

Figure 50

Relative Importance of Significant Factors in Probation Violator Recidivism

Mental health problems resulting in treatment or commitment

Age at revocation

Absconded from supervision, moved w/out permission,failed to follow instructions

Substance abuse while on supervision

Original felony or prior record offense was crime against person

New arrests for crimes against person

Previous capias/revocation requests

Number of codefendants in original felony offense


The Commission’s examination re-vealed that violators whose mentalhealth problems have resulted in sometype of mental health treatment orcommitment in the past did not per-form as well as other offenders whenthey returned to community supervi-sion. In the Commission’s analysis,this factor was found to be the mostcorrelated with subsequent supervisionfailure. These offenders demonstratea significantly higher level of risk ofrecidivism, perhaps due to an inabil-ity to recognize or address ongoingmental health issues while in the com-munity. Offenders who had been in-voluntarily committed for mentalhealth treatment sometime in the pastwere the least likely to complete su-pervision following a violation. Of-fenders who had undergone outpatienttreatment only were at somewhat lessrisk for recidivism. Offenders who, inthe past, had committed themselvesvoluntarily for mental health treatmentrecidivated at somewhat lower ratesthan other offenders with a history ofmental health treatment.

Traditionally in criminological researchon recidivism, younger offenders areat higher risk of repeat offending. Thisstudy of Virginia’s probation violatorsproduced similar results. Here, theoffender’s age at the time of the revo-cation hearing was the second mostimportant factor in predicting recidi-vism. The Commission found that vio-lators under the age of 30 recidivated atthe highest rates relative to other offend-ers, while violators over the age of 48had the lowest rates of recidivism.

Offenders who absconded from super-vision, those who changed residenceswithout informing the probation of-ficer, and those who were returned tocourt for failing to follow the instruc-tions of the probation officer weremore likely to be rearrested than otheroffenders, based on the Commission’sanalysis. Although not as a strong apredictor as mental health problemsand age, this factor links certain viola-tion behaviors, like absconding, withthe probability of future arrest for anew crime.

The Commission found that proba-tioners who abuse alcohol or use drugswhile under supervision are less suc-cessful, and more likely to be rear-rested, once they return to the com-munity following a probation violationor revocation. Violators who eitheradmitted to, or had a positive drugscreen for, using cocaine exhibited thehighest recidivism rates among sub-stance abusers. Use of drugs other thancocaine put the offender at an elevatedrisk for rearrest, but the recidivism rateswere lower for these offenders than forcocaine-users. Offenders with docu-mented alcohol abuse while under su-pervision also recidivated at higherrates than offenders who were not sub-stance abusers. The identification ofthe offender’s alcohol abuse may bebased on incidents reported by lawenforcement, the family, or employers,observations of the probation officer,positive tests or admission by the of-fender himself.


The Commission’s analysis revealedthat offenders who were on probationfor a felony person crime and thosewho had a prior conviction for a crimeagainst the person were more likely torecidivate than other offenders in thestudy. Similarly, offenders who hadbeen arrested for, but not convicted of,a new person crime while under su-pervision went on to recidivate athigher rates than other offenders whenreturned to the community followingthe violation hearing. Only arrests areconsidered in this factor because vio-lators who are convicted of new crimeswhile on supervision are not eligiblefor probation violation guidelines orrisk assessment evaluation with theproposed tool.

The number of capias/revocation hear-ing requests previously submitted bythe probation officer to the judge dur-ing the supervision period also provedto be indicative of recidivism risk. Aprior capias/revocation request sug-

gests the offender has had ongoingproblems adjusting to supervision.Violators with two or more prior ca-pias/revocation requests filed againstthem were considerably more likely tobe rearrested upon return to supervi-sion than other offenders.

Offenders whose original felony of-fense or offenses involved one or morecodefendants recidivated at higherrates in the Commission’s study. Thatthe number of codefendants is associ-ated with risk may relate to theoffender’s level of social connectionwith other criminals. As most offend-ers return to the same communitywhere they were originally convicted,the presence of this factor may indi-cate that an offender, convicted withothers, has an association with a crimi-nal network in that community. Ac-cording to the study findings, such aviolator is at greater risk to return tocriminal activity when he resumes hiscommunity supervision.

With the reform legislation, existing sanctioning options

were expanded and new programs created to develop a

network of local and state community corrections programs.


Proposed RiskAssessment Instrument

The factors proven statistically signifi-cant in predicting recidivism were as-sembled on a risk assessment work-sheet, with scores determined by therelative importance of the factors in thestatistical model. After careful consid-eration, the Commission adopted anadjustment to the risk assessment scaledeveloped from the statistical model.One factor, which targets offenderswho absconded from supervision,those who moved without informingthe probation officer, and those whowere returned to court for failing tofollow the instructions of the proba-tion officer, was modified. In the origi-nal statistical model, this factor in-cluded offenders returned to court forfailing to follow instructions of theprobation officer. Due to concern thatthe term “failing to follow instructions”is ambiguous, difficult to define, andmay lead to subjective and inconsis-tent scoring, the Commission electedto remove this element from the fac-tor. With this change, only offenderswho absconded from supervision ormoved without informing their super-vising officer will be scored on this fac-tor. All of the factors in the risk as-sessment model remain statistically sig-nificant with this adjustment. Theprobation violator risk assessment in-strument approved by the Commis-sion is shown in Figure 51.

In combination, these factors are usedto calculate a score that is associated withrisk of recidivism. Offenders with low

Rscores share characteristics with offend-ers from the study sample who, propor-tionately, recidivated less often thanthose with higher scores. In this way,the instrument is predictive of offenderrisk. Behavior of the individual is notpredicted. Rather, this type of statisti-cal risk tool predicts an individual’smembership in a subgroup that is cor-related with future offending.

At the top of the worksheet are instruc-tions that this worksheet should befilled out only if the violator has beenrecommended for incarceration on theprobation violation sentencing guide-lines. Risk assessment does not applyto offenders who were recommendedfor a non-incarceration sanction. In-structions at the bottom of the

Figure 51

Proposed Violator Risk Assessment Instrument


worksheet tell the preparer whether theviolator is recommended for an alter-native sanction based on the risk as-sessment score.

The Commission next considered therisk assessment threshold. This is themaximum number of points an of-fender can score and be recommendedfor an alternative sanction option. Forthe nonviolent offender risk assess-ment initiative, the General Assemblydirected the Commission to recom-mend up to 25% of nonviolent prop-erty and drug offenders for alternativepunishment. For probation violatorrisk assessment, no target figure wasmandated by the legislature. In mak-ing the decision about recommendingviolators for alternative sanctions, theCommission considered the levels ofrecidivism associated across a widerange of risk scores.

The Commission found that at thelower point levels, violators are some-what homogeneous; that is, there areonly slight variations in their levels ofrecidivism when returned to the com-munity. However, applying the pro-posed risk assessment instrument,there is a point at which recidivismrates begin to rise steadily as the riskscore increases (Figure 52). The Com-mission concluded that offenders scor-ing 53 points or more on the proposedrisk scale are, overall, at greater risk ofrecidivism and, therefore, inappropriatecandidates for alternative sanctions inlieu of incarceration in prison or jail. TheCommission placed the threshold, ormaximum score, at 52 points. Underthe Commission’s proposal, violatorsscoring 52 points or less on the risk as-sessment instrument will be recom-mended for an alternative sanction in-stead of the prison or jail confinementrecommended by the probation viola-tion sentencing guidelines. For offend-ers scoring 53 points or more, the rec-ommendation for incarceration providedby the probation violation sentencingguidelines remains unchanged.

Applying the threshold chosen by theCommission, 56% of violators (re-turned to court for reasons other thana new conviction) will be recommendedfor alternative punishment options in-stead of a traditional prison or jail term.According to the Commission’s data, lessthan 17% of the offenders recom-mended for an alternative sanction bythe risk instrument were identified asrecidivists. In contrast, the recidivismrate was nearly 44% among offendersnot recommended for an alternativesanction by the risk tool.

Figure 52

Cumulative Recidivism Rate by Risk Assessment Score

Risk Score

Cum

ulat

ive

Rec

idiv

ism

New Arrest

New Conviction

Threshold selected by Commission: 52 points


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Proposals for IntegratingProbation ViolatorRisk Assessment

Discussion of the probation violatorrisk assessment study was a significantcomponent of the Commission’sagenda during 2004. The Commis-sion’s objective was to develop a reli-able and valid predictive scale based onindependent empirical research and todetermine if the resulting instrumentcould be a useful tool for judges in sen-tencing violators who come before thecircuit court. The Commission con-cluded that the risk assessment instru-ment would be a useful tool for thejudiciary in Virginia. Therefore, theCommission approved the risk assess-ment instrument, with the single ad-justment discussed above, and adopteda proposal to integrate the tool intothe new probation violation sentenc-ing guidelines. This proposal is de-scribed in detail in the Recommenda-tion section of this report (Recom-mendation 2).

As noted above, a significant share ofthe violators who will be evaluatedunder the proposed risk assessment in-strument will likely be deemed to be alow risk to public safety. Many of theprobation violators will be identifiedas being a good risk for placement in asanction alternative other than a tra-ditional jail or prison. Unfortunately,it is the feeling of the Commission thatjudges in Virginia do not have an ad-equate range of alternative sanctions

available to them to address this par-ticular offender population. There isno question that the probation viola-tors need to be held accountable fortheir misconduct. However, the Com-mission believes that public safetywould not be compromised if sentenc-ing options, much less costly thantraditional incarceration, were more con-sistently applied to some of these felons.

The efficient utilization of our limitedcorrectional resources is part of thepuzzle that contributes to Virginia’songoing successes with the truth-in-sentencing reforms adopted back in1994. Virginia’s sentencing reformswere carefully crafted with consider-ation of current and planned prisoncapacity and with an eye towards us-ing that capacity to house the state’smost violent felons. Virginia abolishedparole and adopted new sentencingguidelines ten years ago. Felons todayare, on average, serving over 90% oftheir incarceration sentences and vio-lent offenders, in particular, are beingincapacitated in prison for terms dra-matically longer than any ever recordedin Virginia history. Consequently, vio-lent felons are queuing up in our prisonsystem and now comprise a muchlarger share of the incarcerated popu-lation than prior to the adoption ofthe reforms. Virginia’s crime rate hasbeen dropping over the last decadedue, in part, to the incapacitation ef-fect of holding certain violence-pronefelons in prison longer.


In order to ensure that we continue toprioritize limited prison resources forincapacitating our most dangerous of-fenders, it is critically important tomake available other sanctioning op-tions for punishing the lower risk pro-bation violators discussed in this chap-ter. In adopting the landmark 1994no-parole legislation, the General As-sembly recognized the long-term needto prioritize correctional resources anddirected the Commission to developa risk assessment instrument for thoseconvicted of nonviolent felonies andidentify if 25% of otherwise incar-ceration-bound offenders could besafely redirected to alternative punish-ment options. Today, risk assessmentfor nonviolent offenders is integratedinto the sentencing guidelines system

and is proving to be very successful inachieving its goals. The success of therisk assessment initiative is tied tomany factors, among which is theavailability of intermediate sentenc-ing options for offenders identified tobe good candidates. In order for thenew proposed risk assessment instru-ment for probation violators to beequally successful, new sentencingalternatives for this specific populationof felons will need to be created,funded and made available to the cir-cuit court judges.

In adopting the landmark 1994 no-parole legislation, the

General Assembly recognized the long-term need to prioritize

correctional resources. The success of the risk assessment

initiative is tied to many factors, among which is the

availability of intermediate sentencing options.

Methamphetamine Crime in Virginia R 87

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MethamphetamineCrime in Virginia5 Unlike other drugs

such as cocaine

that are plant

derived, metham-

phetamine is a

man-made drug

that can be pro-

duced from a few

over-the-counter

and low-cost

ingredients.

Introduction

A derivative of amphetamine, meth-amphetamine is a potent psycho-stimulant that affects the central ner-vous system. Unlike other drugs suchas cocaine that are plant derived, meth-amphetamine is a man-made drug thatcan be produced from a few over-the-counter and low-cost ingredients.Methamphetamine can be ingestedorally, snorted, smoked or injected in-travenously. In its powder form, meth-amphetamine resembles granulatedcrystals. Larger crystalline pieces thatare clear in color are often known as“ice.” Because of the potential forphysical and psychological abuse anddependency and its limited medicalapplications, methamphetamine islisted as a Schedule II narcotic underthe Controlled Substances Act, TitleII, of the Comprehensive Drug AbusePrevention and Control Act of 1970.In the United States, the use of meth-amphetamine is most prevalent in theWest but its popularity has spread tomany areas in the Midwest as well.Pockets in the Southeast also have re-ported rising numbers of metham-phetamine users, such as in Atlantaand Miami (Community Epidemiol-ogy Work Group 2003).

Concerned over the potential impactof methamphetamine-related crime inthe Commonwealth, the 2001 Vir-

ginia General Assembly directed theVirginia Criminal Sentencing Com-mission to examine the state’s felonysentencing guidelines for metham-phetamine offenses (Chapters 352 and375 of The Acts of the Assembly 2001).The legislation specifically requestedthe Commission to focus on the quan-tity of methamphetamine seized inthese cases.

In its 2001 study, the Commissionfound that the number of cases involv-ing methamphetamine had been in-creasing in Virginia since the early1990s but remained a small fractionof the drug cases in the state and fed-eral courts in the Commonwealth.The Commission’s analysis revealedsentencing in the state’s circuit courtswas not driven primarily by the quan-tity of methamphetamine but ratherby the offender’s prior criminal record,particularly if the offender had a priorconviction for a violent offense (An-nual Report 2001). The Commissioncarefully examined the sentencingguidelines, including the factors thataccount for the offender’s criminalrecord and the built-in enhancementsthat dramatically increase the sentencerecommendation for offenders with acriminal history of violent offenses. Inaddition, the Commission consideredthe prevalence of methamphetaminein Virginia, the existing statutory pen-alties and the current mandatory pen-


alties applicable in methamphetaminecases. With little evidence to suggestthat judges were basing sentences onthe amount of methamphetamineseized, the Commission concludedthat Virginia’s historically-based sen-tencing guidelines should not be ad-justed to account for drug quantity inmethamphetamine cases. Therefore,the Commission did not make anyrecommendations for revisions to theguidelines as a result of the 2001 study.

For many legislators and other publicofficials in Virginia, methamphet-amine crime has remained an issue ofconcern in the years since theCommission’s last study. In three ofthe last four years, the General Assem-bly has considered, although notadopted, legislation to revise the sen-tencing guidelines for methamphet-amine cases involving the largest quan-tities. In response to this continuedconcern over methamphetamine, theCommission this year conducted asecond detailed study on this specificdrug. This chapter of the Com-mission’s 2004 Annual Report presentsa wide array of information on meth-amphetamine. It provides the mostrecent data available on use of thedrug, lab seizures, arrests and convic-tions in the state. Also included is asummary of legislation adopted inother states related to methamphet-amine, its manufacture and distribu-tion. In conjunction with this neweststudy, the Commission once againanalyzed the impact of drug quantityon sentencing outcome, and the re-sults are documented later in the chap-ter. Finally, the Commission’s delib-erations on this matter are described.

Drug Use in Virginia

According to a national survey, illegaluse of controlled substances in Virginiais slightly lower than the national av-erage. Each year, the U.S. Departmentof Health and Human Services, Sub-stance Abuse and Mental Health Ser-vices Administration (SAMHSA) con-ducts the National Household Surveyon Drug Abuse. Begun in 1971, itprovides information on the use of il-licit drugs, alcohol and tobacco by thecivilian, non-institutionalized popula-tion. Over a 12-month period, morethan 70,000 people age 12 and olderfrom every state participate in the sur-vey. Based on 2001 survey results,5.5% of Virginians used an illicit drugduring the month preceding the sur-vey, compared to 6.7% of all U.S. resi-dents (Wright 2003). In Virginia,2.6% had recently used a drug otherthan marijuana, while 2.9% of allAmericans had.

Recent data on public drug treatmentservices in Virginia indicate that theseservices are sought most often formarijuana, cocaine and heroin use.The Virginia Department of MentalHealth, Mental Retardation and Sub-stance Abuse Services (DMHMRSAS)compiles data from Community Ser-vices Boards (CSBs) around the Com-monwealth. Community ServicesBoards are agencies established and ad-ministered by localities. The local CSB

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serves as the single point of entry intopublicly-funded mental health, mentalretardation and substance abuse services.CSBs are key operational partners withDMHMRSAS. DMHMRSAS con-tracts with, funds, monitors, licenses,regulates and provides consultation tolocal CSBs. A portion of CSB clientsare referred from the criminal justicesystem, as many offenders are orderedby the court to undergo a substanceabuse evaluation or complete a treat-ment program. Of the more than36,000 individuals seeking treatment

Drug Type Number

Marijuana 9,671Cocaine/crack 8,048Heroin 4,512Non-prescription methadone 92Other opiates/synthetics 1,503PCP 137Other hallucinogens 93Methamphetamine 330Other amphetamines 81Other stimulants 75Benzodiazepines 246Other tranquilizers 23Barbituates 28Other sedatives/hypnotics 85Inhalants 52Over-the-counter 58Unknown/None Reported 11,283

Total 36317

Source: www.dmhmrsas.state.va.us/documents/OSAS-UnduplicatedConsumersbyDrug.htm

Figure 53

Virginia Community Services Board (CSB) Substance AbuseService Consumers by Primary Drug Type, 2003

for substance abuse (excluding alcohol)from CSBs in 2003, nearly 9,700 re-ported marijuana as the primary drugused (Department of Mental Health,Mental Retardation and SubstanceAbuse Services 2004). More than8,000 treatment seekers cited cocaineuse, while another 4,500 indicated thatuse of heroin was the reason they wereentering treatment. During the sameyear, 330 treatment seekers reportedmethamphetamine as the primarydrug of choice.


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Methamphetamine UseAmong Arrestees

National data reveal that methamphet-amine use among arrested personsremains highest in the western UnitedStates. Eastern states continue to re-port low levels of methamphetamineuse among arrestees. The ArresteeDrug Abuse Monitoring (ADAM)program, sponsored by the NationalInstitute of Justice (NIJ), is designedto measure drug use among the ar-rested population. Each year, this pro-gram assesses the prevalence of druguse among a representative sample ofpersons at the time of arrest. ADAMreports drug use and other character-istics of arrestees in 39 U.S. citiesthrough interviews and drug testingin holding facilities. There are twofundamental components of theADAM program: a questionnaire ad-ministered to the arrestee by a trainedinterviewer and drug testing collectedthrough a urine specimen. All ADAMsites test for a core panel of five drugs(cocaine, marijuana, opiates, metham-phetamine and phencyclidine (PCP))selected by the National Institute onDrug Abuse. No locality in Virginiacurrently participates in the ADAMprogram. Several eastern cities areADAM sites, however. These are:Albany, Atlanta, Charlotte, Fort Lau-derdale, Miami, New York City, Phila-delphia, and Washington DC. Addi-tional southern sites include Birming-ham and New Orleans.

Methamphetamine prevalence varieswidely among ADAM sites. Perhapsmore than any other drug, it showsclear regional variation. Among adultmale arrestees, methamphetamine useis concentrated mainly in the westernand southwestern United States (Fig-ure 54). In 2003, 15 of the 21 west-ern and southwestern ADAM sites re-ported double-digit rates of positivemethamphetamine use among adultmale arrestees. In fact, every westernADAM site except Anchorage andSeattle recorded methamphetaminerates of 25% or more. In Honolulu,40% of adult males arrested testedpositive for the drug.

In the Midwest, the 2003 results aremixed. In four of the seven Midwestcities participating in the ADAM pro-gram, methamphetamine use amongarrested men was less than 4%. In theother three Midwest localities (DesMoines, Omaha and Woodbury,Iowa), methamphetamine use was sub-stantially higher, with positive testsranging from 14% to 28%.

In the Northeast, Southeast andSouth, a total of 11 sites, methamphet-amine use among arrested males re-mains low. Seven of these sites re-ported less than 1% positive metham-phetamine results. The sites withhigher methamphetamine positivetests (Atlanta, Tampa, Birminghamand New Orleans) reported rates be-tween 1% and 3%. These rates, whilethe highest in the east, were signifi-cantly lower than those reported in thewestern and southwestern regions.


Figure 54

Arrestee Drug Abuse Monitoring (ADAM) Program 2003 Test Results for Adult Male Arrestees

* The five drugs are cocaine, marijuana, opiates, methamphetamine and phencyclidine (PCP).Source: Drug and Alcohol Use and Related Matters among Arrestees, U.S. Department of Justice, Office of Justice Programs, National Institute of Justice (2003)

Percent of Arrestees Testing Positive for:

Any of 5 Drugs* Cocaine Marijuana Opiates Methamphetamine

NortheastAlbany, NY 72.3% 34.5% 53.7% 4.3% 0.0%Boston, MA 80.3 31.8 51.3 17.3 0.0New York, NY 69.7 35.7 43.1 15.0 0.0Philadelphia, PA 67.0 30.3 45.8 11.5 0.6Washington, DC 65.6 26.5 37.4 9.8 0.7

SoutheastAtlanta, GA 72.4 49.8 41.8 3.0 2.0Charlotte, NC 65.9 35.2 46.9 2.0 0.6Miami, FL 63.2 47.1 40.7 2.5 0.4Tampa, FL 60.1 30.1 45.2 3.8 1.6

SouthBirmingham, AL 66.1 34.3 44.6 8.3 1.2New Orleans, LA 78.4 47.6 50.8 14.0 2.6

MidwestChicago, IL 86.0 50.6 53.2 24.9 1.4Cleveland, OH 74.5 39.0 48.9 5.4 0.3Des Moines, IA 68.7 12.1 48.7 2.8 27.9Indianapolis, IN 64.6 35.3 44.8 5.1 1.9Minneapolis, MN 64.7 28.4 48.3 5.8 3.3Omaha, NE 71.0 20.5 50.8 5.0 21.4Woodbury, IA 41.6 2.6 34.1 1.6 14.3

SouthwestAlbuquerque, NM 66.6 35.0 41.6 11.2 10.1Dallas, TX 62.3 32.7 39.1 6.9 5.8Denver, CO 66.4 38.3 42.3 6.8 4.7Houston, TX 61.7 22.6 47.5 5.7 2.1Las Vegas, NV 65.3 21.9 34.4 6.4 28.6Oklahoma City, OK 70.9 24.6 54.9 3.0 12.3Phoenix, AZ 74.1 23.4 40.9 4.4 38.3Rio Arriba, NM 77.2 37.8 50.0 28.4 2.8Salt Lake City, UT 56.2 15.4 31.7 7.7 25.6San Antonio, TX 59.6 30.5 41.9 9.1 3.5Tucson, AZ 73.3 42.5 44.1 4.2 16.0Tulsa, OK 69.8 20.4 51.6 5.0 17.4

WestAnchorage, AK 66.3 25.4 52.0 7.4 0.7Honolulu, HI 62.9 11.6 30.9 4.6 40.3Los Angeles, CA 68.6 23.5 40.7 2.0 28.7Portland, OR 71.5 29.7 38.4 15.0 25.4Sacramento, CA 78.9 21.6 49.2 6.9 37.6San Diego, CA 66.8 10.3 41.0 5.1 36.2San Jose, CA 62.8 12.9 35.4 3.1 36.9Seattle, WA 67.3 36.6 37.2 6.8 12.1Spokane, WA 69.5 14.8 43.6 8.4 32.1


RAlthough methamphetamine use con-tinued to demonstrate considerableregional variation in 2003, overallrates of drug use did not present re-gional differences. The rate at whicharrested men tested positive for anyof the five core drugs varied from lo-cality to locality, from 56% in SaltLake City to 86% in Chicago(Woodbury, Iowa, reported a rate ofless than 42%, but this was a signifi-cant departure from all other sites).Despite these city-to-city fluctuations,there were no discernable regional pat-terns in overall drug use among adultmale arrestees.

Other drugs were far more popularthan methamphetamine in most sites.Overall, in 2003, cocaine was moreprevalent than methamphetamine in26 of the 39 ADAM testing areas, in-cluding all localities in the Northeast,Southeast and South. In these areas,use of opiates, such as heroin, wasalso higher among arrested men thanmethamphetamine. In all but twosites, marijuana was the most populardrug used. The ADAM system con-tinues to show that, in the easternUnited States, use of methamphet-amine among the arrested populationremains low.

Use of MethamphetamineAmong Felony Offenders

in Virginia

While drug use is high among offend-ers convicted of felony crimes inVirginia, few felons admit to usingmethamphetamine or any other am-phetamine drug. For most felonyoffenders sentenced in Virginia’s cir-cuit courts, the Department of Cor-rections’ Community Correctionsdivision is required to prepare a pre-or post-sentence investigation (PSI)report. The report contains a wealthof information about the defendantand the crime. The PSI captures in-formation regarding the crimes forwhich the offender is convicted, thecircumstances of the crime (e.g., useof a weapon, victim injury, the offen-der’s role in the offense, etc.), his priorcriminal record, family and maritalinformation, education, employmenthistory, mental health treatment expe-riences, as well as history of alcohol anddrug use and substance abuse treatment.

PSI data on the level of drug useamong felons and the specific types ofdrugs used by this population arebased on information reported by theoffender to the probation officer dur-ing the PSI interview. An offender canadmit to using multiple drugs. Wellover half of offenders admit to havingused drugs when they are interviewedby the probation officer (Figure 55).In 1998, nearly 58% of felons admit-ted drug use. In 2002, admitted druguse among felons was 56%.


The drug used most among convictedfelons in both 1998 and 2002 wasmarijuana, with nearly half of felonsadmitting to using it. Other thanmarijuana, cocaine has been the drugmost commonly used among felons.In 1998, well over one-third respondedthat they had used cocaine or crack.The percent admitting the use of co-caine changed little in 2002.

Use of other drugs has been less com-mon among this offender population.In 1998 and 2002, fewer than one inten offenders reported using heroin.Even fewer convicted felons admittedto taking hallucinogenic drugs. Am-phetamine use (in any form, includ-ing methamphetamine) was reportedby less than 6% of convicted felons in2002. This is a marginal increase over1998, when 4% of felons told the pro-bation officer they had used an am-phetamine or methamphetamine.Drug use patterns among the popula-tion of convicted felons changed littlebetween 1998 and 2002.

Data on another criminal populationalso suggests that methamphetamineis used by a relatively small portion offelony offenders. In 2003, the Gen-eral Assembly directed the Commis-sion to study probation violators re-turned to court for reasons other thana new criminal conviction. These of-fenders are often referred to as “tech-nical violators.” The Commission wascharged with developing sentencing

Figure 55

Drug Use Admitted by Convicted Felons, 1998 and 2002

guidelines and a risk assessment instru-ment for this group of supervision vio-lators. The Commission embarkedupon an extensive data collection ef-fort in order to learn more aboutVirginia’s probation violators. Thiseffort, which included reviewing of-fenders’ probation files, provided richdetail about violators, their behaviorwhile under supervision and the spe-cific reasons why probation officersbrought offenders back to court forrevocation hearings. Drug use was ofparticular interest to the Commission.

The Commission found that continueddrug use was the single most commonreason for offenders on supervision tobe returned to court. During its case-by-case file review, the Commissionrecorded the specific types of drugsused by a violator, revealed either by aurine screen conducted by the pro-bation officer or by admission of the

Note: Data is based on offender self-report. Offenders can admit to using multiple drugs.Source: Pre/Post-Sentence Investigation (PSI) database, 1998 and 2002

■ 1998 ■ 2002

Offenders admitting drug use

Marijuana

Cocaine

Heroin

Other Opiate

Amphetamine/Methamphetamine

Barbituate

Hallucinogen

57.6% / 55.9%

48% / 48.9%

36.1% / 33.6%

9.5% / 8.9%

1.3% / 2.4%

4.4% / 5.7%

2.4% / 2.4%

6.4% / 6.8%

Type of drug use admitted:


offender. Among violators not con-victed of a new crime, cocaine was themost common drug used. More thanone in three (35%) of these violatorstested positive or admitted to using thedrug. Marijuana use was also preva-lent among supervision violators, withone in four (25%) testing or admit-ting to using it. Use of other types ofdrugs was much less frequent. For ex-ample, less than 5% of violators usedheroin while under supervision. Simi-larly, use of methamphetamine was de-tected for a very small number of vio-lators. Approximately .5% of viola-tors examined tested positive for oradmitted using methamphetamine.These data indicate that use of meth-amphetamine is not prevalent amongthis population of Virginia’s felons.

R

Figure 56

Drug Use by Supervision Violators Not Convicted of a New Crime

Drug Arrests in Virginia

According to the Virginia State Police,the number of arrests in the Common-wealth for drug law violations relatedto methamphetamine or other am-phetamine derivative more thandoubled between 2000 and 2003.Other types of drugs, however, accountfor the vast majority of narcotics arrestsin the state. All law enforcement agen-cies in the state are required to reportcrimes and arrests to the State Police,which functions as the central reposi-tory. For drug arrests, the type of drugis also reported to the State Police, if it isknown or can be identified at the timethe arrest is made. The State Policeaggregates and tabulates the crime andarrest data and each year publishes areport entitled Crime in Virginia.

Between 2000 and 2003, drug arrestsrelated to marijuana were the mostcommon, accounting for well over halfof drug arrests every year (Figure 57).Beginning in 2000, Virginia law en-forcement made approximately13,500 to 14,500 arrests annually formarijuana violations. Excluding mari-juana, crack cocaine was the drug mostfrequently reported by law enforce-ment. Arrests involving crack cocaineranged from 3,500 to 4,200 per yearbetween 2000 and 2003. Fewer ar-rests were made for cocaine in other

Note: Offender can test positive for or admit to using multiple drugs.Source: Probation Violation Study database, 1997-2001

35.3%

24.5%

.2%

.2%

.5%

.4%

4.1%

4.7%

Cocaine

Marijuana

Heroin

Other Opiate

Methamphetamine

Other Amphetamine

Barbituate

Hallucinogen


Amphetamines/ Year Marijuana Crack Cocaine Heroin Methamphetamines Other Unknown TOTAL

2000 13,559 3,532 1,766 635 203 1,304 2,182 23,1812001 14,248 3,939 1,793 663 194 1,664 2,363 24,8642002 14,312 4,183 2,177 738 332 1,104 2,398 25,2442003 14,576 4,139 2,412 664 470 1,222 2,539 26,022

Source: Virginia State Police Crime in Virginia reports, 2000 through 2003

forms. Since 2000, cocaine arrests(other than crack) have numberedfrom 1,700 to just over 2,400 eachyear. Together, marijuana, crack andother forms of cocaine have accountedfor more than 80% of drug arrestsin Virginia.

Other drugs are reported to the StatePolice in significantly lower numbers.From 2000 to 2003, approximately600 to 750 heroin arrests were re-corded by law enforcement each year.Arrests for methamphetamine are in-cluded with other amphetamines in

State Police reports. Together, meth-amphetamine and other forms of am-phetamines accounted for 470 arrestsin 2003, up from 203 in 2000. Thisrepresents a 131% increase in the num-ber of methamphetamine arrests in theCommonwealth over the four yearperiod. While the number of arrestsincreased from 2000 to 2003 for nearlyall controlled substances, arrests asso-ciated with methamphetamine havebeen growing faster than any othertype of drug. Despite this rise, meth-amphetamine arrests accounted for lessthan 2% of all drug arrests in 2003.

Figure 57

Drug Arrests in Virginia, 2000-2003


R

MethamphetamineLab Seizures

Methamphetamine can be producedfrom a few over-the-counter and low-cost ingredients. As with other manu-factured drugs, methamphetamineproduction facilities are typicallyknown as laboratories, or “labs.” Dataon clandestine laboratory seizures inthe states are maintained by the DrugEnforcement Agency (DEA). TheDEA’s El Paso (TX) Intelligence Cen-ter (EPIC) was established in 1974 andconcentrates primarily on drug move-ment and immigration violations.Because these criminal activities areseldom limited to one geographic area,EPIC’s focus has broadened to includeall of the United States and the West-ern Hemisphere. In a continuing ef-fort to stay abreast of changing trends,EPIC has developed the NationalClandestine Laboratory Seizure Sys-tem (CLSS). This database containsdetailed information regarding thenumber, type, and location of the labsseized, and the number of children af-fected, broken down by state.

As of October 28, 2004, CLSS datashow Virginia with a total of 63 meth-amphetamine lab seizures during thefirst ten months of 2004, for a rate of6.3 seizures per month, compared with30 seizures for all of 2003, a rate of 2.5seizures per month (Figure 58). Thisranks Virginia 32nd among the states inmethamphetamine lab seizures to datefor 2004, compared to a ranking of 38th

for 2003. Although Virginia’s numbers

are comparatively small, the numberof methamphetamine lab seizures hasmore than doubled last year’s totalduring the first ten months of 2004.

Two of Virginia’s neighbors recordedhigher numbers of methamphetaminelabs. Tennessee has the largest num-ber of methamphetamine lab seizuresof any neighboring state. During thefirst ten months of 2004, 898 labs wereshut down in Tennessee, for a rate of89.8 seizures per month, compared to925 seizures for all of 2003, a rate of77.1 seizures per month. This placesTennessee second in the nation so farfor 2004, behind only Missouri, com-pared to seventh in 2003. If seizurescontinue at the same rate during theremaining two months of 2004, Ten-nessee will easily surpass last year’s to-tal number of meth lab seizures. Alarge majority of the recent lab seizuresin Virginia have taken place in the farsouthwestern part of the state, alongthe Interstate 81 corridor and relativelyclose to Tennessee.

North Carolina’s lab numbers arelarger than Virginia’s, but not nearlyas large as those from Tennessee.North Carolina had 238 methamphet-amine lab seizures during the first tenmonths of 2004, for a rate of 23.8 sei-zures per month, compared to only168 seizures for all of 2003, a rate of14 seizures per month. North Caro-lina ranks 15th in the nation so far for2004, compared to 24th in 2003.However, the methamphetamineproblem still seems to be virtually non-existent in the state of Maryland,which has had just one lab seizure in2004 and only two in 2003.


Figure 58

Methamphetamine Lab Seizures, 2003 and 2004

2004 Lab Seizures 2003 Lab SeizuresState (through 10/28/04) 2004 Rank (through 12/31/03) 2003 Rank

Missouri 1,791 1 2,886 1Tennessee 898 2 925 7Iowa 863 3 1,246 3Illinois 753 4 744 9Indiana 635 5 967 6Arkansas 615 6 767 8Washington 563 7 1,044 4California 543 8 1,303 2Kentucky 468 9 488 12Kansas 466 10 634 11Oklahoma 464 11 1,012 5Texas 370 12 676 10Oregon 310 13 419 13Alabama 284 14 339 15North Carolina 238 15 168 24Florida 232 16 239 22Michigan 197 17 266 18Georgia 168 18 250 20Ohio 165 19 126 27Mississippi 161 20 333 16North Dakota 144 21 252 19Minnesota 134 22 309 17South Carolina 133 23 64 34Colorado 129 24 348 14Nebraska 112 25 250 20West Virginia 97 26 73 33New Mexico 94 27 195 23Pennsylvania 87 28 62 35Louisiana 85 29 92 29Arizona 75 30 139 25Nevada 66 31 131 26Virginia 63 32 30 38Utah 58 33 84 31Wisconsin 53 34 101 28Alaska 50 35 40 36Montana 44 36 74 32Idaho 37 37 91 30South Dakota 24 38 40 36New York 22 39 18 40Wyoming 13 40 26 39Hawaii 7 41 3 41Delaware 3 42 2 42Maine 3 42 0 48New Hampshire 2 44 1 44District of Columbia 1 45 0 48Massachusetts 1 45 1 44Maryland 1 45 2 42Vermont 1 45 0 48Connecticut 0 49 1 44New Jersey 0 49 0 48Rhode Island 0 49 1 44

Source: Drug Enforcement Agency (DEA)El Paso Intelligence Center (EPIC)/NationalClandestine Laboratory Seizure System(CLSS), 10/28/04


Tennessee, North Carolina, and Mary-land are of special interest because theyshare a common border with Virginia,and because they are three of ninestates previously selected for compari-son with Virginia in a 2001 study pre-pared for the Virginia Department ofCriminal Justice Services (DCJS). Thestudy compared crime rates in Virginiato the corresponding rates in these“comparison states” (VisualResearch,Inc. 2001). The states selected weresimilar to Virginia on key characteris-tics expected to affect crime rates, in-cluding:

• A 1999 population of over4 million residents,

• U. S. Bureau of the Census indi-cators such as population residingin metropolitan centers, generalrevenue per capita, and prisonersper 100,000 population,

• Two measures of citizen andgovernment philosophy corre-sponding to ideology scores ona liberal-conservative scale.

The other states selected for compari-son with Virginia were Georgia, NewJersey, Massachusetts, Minnesota,Wisconsin, and Washington. Thenumber of labs seized in Georgia in2003 was comparable to North Caro-lina, but Georgia’s lab seizures aredown somewhat in 2004. Georgia had168 methamphetamine lab seizures dur-ing the first ten months of 2004, for arate of 16.8 seizures per month, com-pared to 250 seizures for all of 2003, arate of 20.8 seizures per month. This

places Georgia 18th in the nation so farfor 2004, compared to 20th in 2003.Like Maryland, New Jersey and Mas-sachusetts had negligible numbers oflab seizures in 2003 and 2004.

Washington, the only west coast statein the comparison group, has had anincreasingly serious methamphetamineproblem since the mid-1990s, but re-cent figures suggest a reversal of thetrend. Washington had 563 lab sei-zures during the first ten months of2004, for a rate of 56.3 seizures permonth, compared to 1,044 seizures forall of 2003, a rate of 87 seizures permonth. This places Washington sev-enth in the nation so far for 2004,down from fourth in 2003. Themonthly seizure rate is down approxi-mately 35% in 2004. This declinecoincides with the recent introductionof legislation to address Washington’smethamphetamine problem. In addi-tion to restrictions on the sale or trans-fer of products containing pseu-doephedrine, Washington has childendangerment laws and cleanup andremediation standards specifically ad-dressing the dangers posed by meth-amphetamine labs.

Minnesota and Wisconsin have alsohad recent success in reducing the rateof meth lab seizures in their states.Minnesota had 134 methamphet-amine lab seizures during the first tenmonths of 2004, compared to 309 sei-zures for all of 2003. This places Min-nesota 22nd in the nation so far for2004, down from 17th in 2003. Themonthly seizure rate for 2004 isroughly half the rate from the previ-


ous year. State officials intend to seekeven tougher legislation in the 2005Minnesota legislative session (Bakst2004). Wisconsin had 53 metham-phetamine lab seizures during the firstten months of 2004, compared to 101seizures for all of 2003. Wisconsinranks 34th in the nation so far for 2004,down from 28th in 2003.

Clearly the western and midwesternstates having a well-established metham-phetamine problem are taking varioussteps to combat it. Some are seeing themonthly rate of lab seizures decline, al-though in other states the numbers re-main high. Tennessee also has a highnumber of methamphetamine lab sei-zures, and their monthly seizure rate isstill increasing. The southeastern stateswhere methamphetamine is an emerg-ing drug, including Virginia, have muchsmaller numbers of lab seizures, but theirnumbers and rates are increasing in2004, except for Georgia.

The Virginia State Police have pro-vided detailed information character-izing 49 methamphetamine lab sei-zures in Virginia during 2004 through

August 4, 2004. An overwhelmingmajority of these seizures, (43 or 88%)have occurred in the southwest cornerof the state. Most of these 43 lab sei-zures have occurred in a four-countyarea; 11 in Smyth County, 10 in Wash-ington County, 6 in Wythe County, and6 combined in Pulaski County andPulaski City. Interstate 81 runs south-west to northeast through the center ofthis area, offering easy access to manyretail outlets where precursor chemicalscan be purchased. Of the remaining sei-zures in this area, three occurred inMontgomery County, two in GraysonCounty, and one each in Bristol City,Carroll County, Giles County, LeeCounty, and Wise County.

State Police data also show that 59%of the lab seizures were in rural loca-tions and the preferred sites weremobile homes, houses, and increas-ingly, motor vehicles. The red phos-phorus method of production wasused in 88% of the labs. Offendersfaced state charges in 59% of the labseizures and federal charges in 16%;for 25% of the cases jurisdiction wasreported as “pending.”

Since January 1, 1995, more than 200,000 felony cases have

been sentenced under the truth-in-sentencing laws. For

2004, the compliance rate was the highest ever recorded

in the Commonwealth, approximately 81%


R

MethamphetamineConvictions in Virginia

In order to conduct a thorough exami-nation of methamphetamine cases inVirginia, the Commission collected con-viction data from both the state and fed-eral judicial systems. Because a portionof criminal cases are processed throughthe federal judicial system, includingfederal data provides a more completepicture of the pervasiveness of and trendsin methamphetamine convictions in theCommonwealth. Conviction data inboth the state and federal systems ex-perience a lag before complete data areavailable for a given year. Federal dataare complete through 2002. In the fed-eral system, not only are sentencingguidelines mandated by law, but an ac-companying pre-sentence report is re-quired in every case. In narcotics cases,the report identifies the specific type ofdrug involved in the offense. Federalconviction data are available through theUnited States Sentencing Commission.

In contrast, in the state’s judicial sys-tem, the preparation of sentencingguidelines is required in every felonycase for which guidelines exist, but apre-sentence report is not. An of-fender can waive preparation of thesentencing report, in which case thejudge is provided with only the guide-lines at sentencing. In most felonycases, if a pre-sentence report is waived,a post-sentence report will be com-pleted and submitted after sentencing.Submission of a post-sentence reportcan occur many months, or even years,after the date of sentencing. In somefelony cases, no report will ever be pre-

pared. Typically, these are cases inwhich the offender will never come tothe attention of the Department ofCorrection (i.e., there is no prison timeto be served and there is no period ofsupervised probation that the offenderis required to satisfy). With signifi-cant reporting lags and no reports insome cases, the PSI system is an in-complete accounting of convictions inthe state’s circuit courts. Virginia’s sen-tencing guidelines, which cover 95%of felony convictions in circuit courts(including nearly all drug offenses), aremore complete and more up-to-date. However, the state’s sentencingguidelines do not systematically iden-tify the specific type of drug or drugsin each case.

The PSI is designed to capture up totwo drug types in each case. The num-ber of cases in which drug type is leftblank or is missing on the PSI has in-creased from less than 8% to nearly12% between 1998 and 2002. Withincreased missing data, fewer cases in-volving specific drugs can be identi-fied. In addition, review of offensenarratives from PSI reports revealedthat probation officers sometimesmisidentify other drugs as metham-phetamine. For example, probation of-ficers sometimes incorrectly recordedecstasy (methylenedioxy-metham-phetamine or MDMA) and Ritalin(methylphenidate) as methamphet-amine (also known as MDA) due tothe similarity in their chemical names.According to the Division of ForensicScience of the Virginia Department ofCriminal Justice Services, these drugs


are chemically distinct from metham-phetamine. By reviewing the offensenarrative for each PSI report recordedas methamphetamine, the Commis-sion was able to correct these inaccu-racies. Despite these limitations, thePSI system is the only source for drug-specific conviction data from circuitcourts in Virginia.

According to available PSI data, thenumber of methamphetamine casessentenced in the state’s circuit courtshas increased over the last decade (Fig-ure 59). For the purposes of this re-port, a case includes all convictionshandled together in the same sentenc-ing hearing. In 1992, there were 20cases reported for manufacturing, dis-tributing, selling, possessing with in-tent to sell, selling for accommodation,and possessing (without intent to sell)methamphetamine. In 1998, thenumber of methamphetamine casesspiked to 145. Although the numberof cases in state courts dropped thefollowing year, the upward trend inmethamphetamine cases resumed in2000. In 2001, the number of meth-amphetamine cases rose to 140, withanother 129 cases in 2002. In 2003,available PSI data include 166 meth-amphetamine cases. It should be notedthat these figures are subject to changeas additional post-sentence reports aresubmitted over time. While the fig-ures for prior years may increaseslightly as post-sentence reports are

received, the figures for 2001, 2002and 2003 should be considered incom-plete and subject to greater increasesas additional PSI reports are submit-ted. Data for these years, particularly2003, underestimate the actual num-ber of cases in circuit court.

Figure 59

Methamphetamine Cases in Virginia’s Circuit Courts, 1992 - 2003

* Data are incomplete. While the figures for prior years may increase slightly as post-sentence investigation(PSI) reports are submitted over time, figures for 2001, 2002 and 2003 should be considered incompleteand subject to greater increases as additional PSI reports are received.

Note: A case includes all convictions that are handled together in the same sentencing hearing.Source: Pre/Post-Sentence Investigation (PSI) Report Database

200320022001200019991998199719961995199419931992

20 2343

6778 74

145

99

122140*

129*

166*Number of Cases


Of all the methamphetamine convic-tions in state courts, most are cases inwhich the offender was convicted ofpossessing methamphetamine withoutthe intent to sell or distribute the drug.From 1992 through 2003, nearly 56%involve simple possession (Figure 60).Possession, defined by § 18.2-250 ofthe Code of Virginia, carries a statu-tory penalty range of 1 to 10 years in-carceration. Another 4% of metham-phetamine offenders were convicted ofsale for accommodation only, an of-fense that carries the same statutorypenalty as simple possession. Duringthis period, 38% of the cases involvedthe manufacture, distribution, or sale,of (or possession with intent to sell)methamphetamine. These crimes,which are defined by § 18.2-248(C),carry a statutory penalty of 5 to 40 years.

Methamphetamine convictions arenot evenly distributed around theCommonwealth. There is distinctgeographic variation. Moreover, aclear regional shift has taken place overthe last decade. The 137 localities thatcomprise Virginia’s circuit court sys-tem are grouped into six administra-

Figure 60

Methamphetamine Cases byType of Offense, 1992-2003

tive regions that roughly represent themain geographical areas of the state:Tidewater (Region 1), Northern Vir-ginia (Region 2), Central Virginia (Re-gion 3), Southwest Virginia (Region4), Southside Virginia (Region 5), andthe Shenandoah Valley/Piedmont (Re-gion 6). The boundaries for the judi-cial administrative regions are estab-lished by the Supreme Court of Vir-ginia. Figure 61 displays a map of theVirginia’s judicial regions.

Regional patterns in circuit courtmethamphetamine cases changed sig-nificantly between 1993 and 2003. Adecade ago, the largest share of the meth-amphetamine cases in state courts oc-curred in Central Virginia (Region 3).In 1993, this region accounted for 44%of the cases (Figure 62). By 2003,Central Virginia contributed only 2%of the cases involving methamphet-amine. As the share of cases from Cen-tral Virginia declined, dramatic increaseswere occurring elsewhere in the Com-monwealth. Accounting for only 13%of methamphetamine cases in 1993,the Shenandoah Valley/Piedmont areaof the state (Region 6) produced overhalf of the state’s methamphetamine

Source: Pre/Post-Sentence Investigation(PSI) Report Database

Figure 61

Supreme Court of Virginia Judicial RegionsRegion 2Northern Virginia

Region 3Central Virginia

Region 1Tidewater

Region 6Shenandoah Valley/Piedmont

Region 4Southwest Virginia

Region 5Southside Virginia

Possession(no intent to sell) 55.8%

Manufacture/Sell/Distribute/Possesswith Intent toSell 38%

Sale for Accomodation 3.9%

Other 1.9%


cases in 2003. According to available2003 data, 59% of the state’s meth-amphetamine cases came through oneof the three circuit courts that com-pose Region 6 (Circuits 16, 25 and26). In that year, circuit courts inSouthwest Virginia (Region 4) con-tributed an additional 12% of themethamphetamine cases. As describedpreviously, most of the methamphet-amine labs seized in the Common-wealth were located in the southwestcorner of the state. Together, Regions4, 5 and 6 accounted for 81% of meth-amphetamine cases resolved in circuitcourts in 2003.

Among convictions for manufactur-ing, distributing, selling, and possess-ing with intent to sell methamphet-amine, the majority of cases handledin the state’s circuit courts involve rela-tively small amounts of the drug. Drugquantity is not known for all metham-phetamine cases. Between 1992 and2003, there were 420 cases involvingmanufacturing or sales-related offenses(this includes distribution and posses-sion with intent to sell). Drug quan-tity was not recorded in 51 of thosecases. Of the cases from 1992 through2003 with a known drug quantity, themean seizure was 25.3 grams (Figure63). However, the mean may not berepresentative of the typical case, as afew large seizures can inflate the aver-age. The median is often used to rep-resent the typical case. The mediandefines the middle value, where halfthe cases have higher values and halfthe cases have lower values. The me-dian seizure during this period was2.85 grams. Approximately one-thirdof the sales cases involved one gram or

Judicial Region 1993 1998 2003

Tidewater (1) 17.4% 11.7% 6.7%Northern Virginia (2) 4.3 11.7 10.3Central Virginia (3) 43.6 13.1 2.4Southwest Virginia (4) 4.3 13.8 11.5Southside Virginia (5) 17.4 12.5 10.3Shenandoah Valley/ Piedmont (6) 13.0 37.2 58.8

TOTAL 100.0% 100.0% 100.0%

Source: Pre/Post-Sentence Investigation (PSI) Report Database

Figure 62

Methamphetamine Cases in Virginia Circuit Courts by Judicial Region

less of methamphetamine. Few cir-cuit court cases (13%) have resultedin a seizure of more than 28.35 grams(1 ounce) of this drug.

Examining quantity by judicial regionsuggests geographical differences inthe size of methamphetamine seizuresfor cases handled in Virginia’s circuitcourts. In Northern Virginia (Re-gion 2), Central Virginia (Region 3)and the Shenandoah Valley/Piedmont

Note: Analysis includes manufacture, distribution, sale and possession with intent to sell methamphetamine.Source: Pre/Post-Sentence Investigation (PSI) Report Database

Figure 63

Quantity of Methamphetamine in Manufacture/Sales Casesin Virginia’s Circuit Courts, 1992-2003

0%

0.1%

0.2%

0.3%

595040302010Trace

Grams


area (Region 6), the mean seizure ofmethamphetamine was greater than inthe remaining three regions (Figure 64).However, the number of cases fromNorthern Virginia and Central Virginiawas comparatively small (only 17 and29, respectively). The data suggest therehave been some number of relativelylarge “busts,” which raises the mean con-siderably, especially if there are a smallnumber of cases. The median quantityof methamphetamine indicates that thetypical size bust is greatest in the Tide-

water area (Region 1) and the Shen-andoah Valley/Piedmont region, wherejust over four grams are seized whenthe typical offender is apprehended.

Not all felony crimes in Virginia re-sult in convictions in one of the state’scircuit courts. Some felony cases aretaken into the federal judicial system.The characteristics of cases processedthrough federal courts in Virginia aredifferent than those handled in statecourts. As in the state courts, the num-ber of methamphetamine cases in fed-eral courts in Virginia was higher af-ter 1998 than before that year. How-ever, the number of Virginia’s meth-amphetamine cases that end up in fed-eral court has fluctuated considerably,much more than state court cases. In1998, methamphetamine convictionsin federal court rose sharply to 64, butdropped back to 34 the following year(Figure 65). In 2000, cases rose again,up to 78. This was followed by an-other drop in 2001. In 2002, the lat-est federal data available, there were64 methamphetamine convictions infederal courts in the Commonwealth,the same as in 1998.

Mean MedianJudicial Region (in grams) (in grams) Cases

Tidewater (1) 11.2 4.2 30Northern Virginia (2) 39.8 3.5 17Central Virginia (3) 35.7 2.7 29Southwest Virginia (4) 15.0 1.3 65Southside Virginia (5) 16.5 3.7 52Shenandoah Valley/ Piedmont (6) 31.1 4.1 176

TOTAL 369

Note: Analysis includes manufacture, distribution, sale and possession with intent to sellmethamphetamine. Data exclude 51 cases for which quantity was not recorded.Source: Pre/Post-Sentence Investigation (PSI) Report Database

Figure 64

Quantity of Methamphetamine in Manufacture/Sales Casesin Virginia’s Circuit Courts by Judicial Region, 1992-2003

Figure 65

Methamphetamine Cases in Federal Courts in Virginia, 1992 - 2002

20022001200019991998199719961995199419931992

19

8 6 6

19 19

64

34

78

42

Number of Cases

64


There are two federal judicial districtsin Virginia (Figure 66). In 2001 and2002, the Western district of Virginiaaccounted for more than three in ev-ery four methamphetamine convic-tions in federal courts (Figure 67).This is a shift from the previous threeyears, during which the Eastern dis-trict of Virginia contributed the larg-est share of methamphetamine cases.The fluctuation in the overall numberof cases in federal courts since 1998 islargely due to changes in the numberof Eastern district cases. Western dis-trict cases have fluctuated less, with 34,34, and 47 cases in 2000, 2001 and2002, respectively.

Nearly all federal cases involve traffick-ing of methamphetamine. Only asmall portion of federal cases result inconvictions for possession (no intentto sell). This contrasts with state data,in which 38% of the cases involvedtrafficking, including manufacture,and other sales-related crimes. For aportion of federal cases, specific drugquantity is not provided. Instead,quantity data is supplied in the formof a range. The cases taken into thefederal courts involve larger drug quan-tities than those left in state courts. Infederal courts, approximately 41% ofthe 2001 and 2002 methamphetaminecases involved over 1,500 grams of the

Year Eastern Western

1992 10.5% 89.5%1993 37.5 62.51994 100.0 0.01995 100.0 0.01996 21.1 78.91997 21.1 78.91998 65.6 34.41999 67.6 32.42000 56.4 43.62001 19.0 81.02002 26.6 73.4

Source: United States Sentencing Commission

Figure 67

Methamphetamine Cases in Federal Courts in Virginia by Judicial Region

Figure 66

Federal Judicial Districts

Eastern DistrictWestern District


drug (Figure 68). In contrast, only onecase in the state’s circuit courts couldbe identified as involving that amountof drug. On average, larger quantitycases are entering the federal courtsthrough the Western district of Vir-ginia than the Eastern. During 2001and 2002, two-thirds of the cases inthe Western district involved over 500grams. In the Eastern district, less thanhalf of the cases fell into that category.On the other hand, cases associatedwith smaller quantities of metham-phetamine (less than 200 grams) weremore common in the Eastern districtthan in the Western district. This trenddeparts from previous data. Between1992 and 1999, larger quantity cases,on average, were reported in the East-ern district of Virginia.

Figure 68

Quantity of Drug in Methamphetamine Trafficking Cases

In Federal Courts in Virginia

Year Eastern Western Overall

Less than 50g 8.3% 13.9% 12.5%

50g to 199g 37.5 11.1 17.7

200g to 349g 8.3 2.8 4.2

350g to 500g 0 6.9 5.2

501g to 1,500g 12.5 22.2 19.8

1,501g to 5,000g 16.7 22.2 20.8

More than 5,000g 16.7 20.8 19.8

Cases 24 72 96

Note: Analysis excludes possession cases. Data does not include seventrafficking cases for which quantity range was not recorded.Source: United States Sentencing Commission

Relative Prevalenceof Methamphetamine

According to state and federal data,methamphetamine convictions haveincreased in the Commonwealth overthe last decade. The number of meth-amphetamine cases in both state andfederal courts in Virginia has been sub-stantially higher since 1998 than inearlier years. Although methamphet-amine is more prevalent in Virginiatoday, it remains much less pervasivethan other Schedule I or II drugs state-wide. Despite a decline during the lastdecade, the majority of Schedule I orII drug cases in Virginia’s circuit courtsstatewide still are associated with co-caine. In 1993, more than 92% ofSchedule I or II drug cases in circuitcourts were related to cocaine (Figure69). Ten years later, more than 80%of state cases were cocaine-related. Al-though cocaine cases declined over theperiod, eight of every ten Schedule Ior II drug cases statewide involve co-caine in some form. Heroin cases alsooutnumber methamphetamine casesin state courts by more than two toone. In fact, of all Schedule I and IIdrugs, the largest percentage increasein the last ten years has been in heroincases, which rose from 4% of cases in1993 to 11% in 2003. Methamphet-amine cases, which were negligible in1993, accounted for approximately5% of the Schedule I or II drugs in2003. These data are based on Pre/Post-Sentence Investigation (PSI) re-ports, which record up to two drugtypes in each case.

R


There are distinct regional patterns inthe prevalence of methamphetaminein relation to other Schedule I and IIdrugs. In four of the six judicial re-gions in the Commonwealth, cocainewas reported in the majority of Sched-ule I and II drug cases in 2003. Infact, in Tidewater (Region 1), North-ern Virginia (Region 2), Central Vir-ginia (Region 3) and Southside Vir-ginia (Region 5), cocaine was cited in75% to 92% of the circuit court cases(Figure 70). In these four regions, atleast 10% of cases involved heroin.Few cases in these regions were associ-ated with methamphetamine. Ecstasyaccounted for a small fraction ofSchedule I and II drug cases in thesefour regions, although it was morecommon in Northern Virginia, where7% of cases involved that drug.

In Southwest Virginia (Region 4) andthe Shenandoah Valley/Piedmont (Re-gion 6) areas of the state, however, thepattern is clearly different. In thesetwo regions, approximately one in ev-ery four Schedule I or II drug cases incircuit court in 2003 involved meth-amphetamine. In Southwest Virginia,24% of the cases cited methamphet-

amine, while in the Shenandoah Val-ley/Piedmont this figure reached 29%.These two regions had a lower percent-age of heroin cases than the other fourregions and comparable rates of ecstasycases. Nonetheless, cocaine remainedthe most common drug in SouthwestVirginia and in the Shenandoah Val-ley/Piedmont regions, with over halfthe cases recorded as cocaine. In theSouthwest, 51% of the 2003 cases wereassociated with cocaine. In the Valley,this figure was slightly higher (59%).

Figure 69

Schedule I and II Drug Cases in Virginia’s Circuit Courts by Drug Type(s) Reported

Figure 70

Schedule I & II Drug Cases in Virginia’s Circuit Courts by Judicial Region, 2003

Judicial Region Cocaine Heroin Methamphetamine Ecstasy

Tidewater (1) 82.5% 16.6% 0.9% 2.5%

Northern Virginia (2) 75.4 10.6 2.5 7.1

Central Virginia (3) 87.9 10.4 0.7 1.7

Southwest Virginia (4) 51.3 3.8 24.4 1.3

Southside Virginia (5) 92.3 10.9 4.1 1.0

Shenandoah Valley/ Piedmont (6) 59.1 6.3 29.1 1.9

Note: Up to two drug types can be reported in each case. Data include most commonSchedule I or II drugs as reported in 2003.Source: Pre/Post-Sentence Investigation (PSI) Report Database

Note: Up to two drug types canbe reported in each case. Datainclude most common Schedule Ior II drugs as reported in 2003.

Source: Pre/Post-SentenceInvestigation (PSI) ReportDatabase

Ecstasy

Methamphetamine

Heroin

Cocaine

3%0%

4.8%.4%

11.1%4.3%

80.2%92.3%

■ 2003 ■ 1993


Virginia SentencingGuidelines forDrug Offenses

When parole was abolished by legisla-tive act in 1994, the Virginia GeneralAssembly directed the Commission todevelop and oversee a system of sen-tencing guidelines compatible withVirginia’s new sanctioning system.Among the many goals of sentencingreform, the General Assembly soughtto establish truth-in-sentencing in Vir-ginia and to target violent offendersfor longer prison stays. Under truth-in-sentencing, offenders serve all ornearly all of sentences imposed in thecourtroom. Felony offenders in Vir-ginia now serve at least 85% of theirprison or jail sentences.

Virginia’s sentencing guidelines wereformulated to target violent offendersfor incarceration terms longer thanthose served under the parole system.Any offender with a current or priorconviction for a violent felony is sub-ject to enhanced penalty recommen-dations under the truth-in-sentencingguidelines. Offenders convicted ofviolent crimes and those with priorconvictions for violent felonies are sub-ject to guidelines recommendationsup to six times longer than the his-torical time served in prison by thoseoffenders. Only offenders who havenever been convicted of a violentcrime are recommended by the guide-lines to serve terms roughly equiva-lent to the average time served histori-cally by similar offenders prior to theabolition of parole.

RData from the federal judicial systemalso reveal that cocaine, includingcrack, continues to dominate federaldrug cases in the Commonwealth. In2002, a total of 505 of 624 federaldrug cases in Virginia involved cocaineor crack (Figure 71). This is 81% ofthe federal drug caseload. Althoughheroin was the most common Sched-ule I or II drug after cocaine in thestate’s circuit court cases, metham-phetamine was the most commondrug after cocaine among federal con-victions in Virginia. Just over 10% offederal drug cases were related tomethamphetamine. At the federallevel, less than 7% involved heroin.Although federal convictions formethamphetamine were far greaterafter 1998 than before, cocaine andcrack remain the most prevalent drugsin federal courts in Virginia.

Source: United States Sentencing Commission

Figure 71

Drug Cases in Federal Courts in Virginia, 2002

Crack Cocaine Meth. Heroin Other Marijuana

352

153

6441

9 5


For an offender convicted of one countof selling a Schedule I or II drug likemethamphetamine, the guidelinesscore on the primary offense factor onthe prison worksheet (Section C) is 12for an offender who does not have aprior violent conviction (Figure 72).The score on this worksheet equatesto months of imprisonment. If theoffender has a prior conviction for a

Figure 72

Primary Offense Factor on Section C of the Schedule I or II Drug Sentencing Guidelines

violent felony carrying a statutorymaximum penalty of less than 40 years(Category 2 prior record), the guide-lines score for this factor is increasedto 36 months. If the offender has aprior conviction for a violent felonycarrying a statutory maximum penaltyof 40 years or more (Category 1 priorrecord), the guidelines score increasesto 60 months.

◆ Primary Offense

Score▼

Drug/Schedule I/II ◆ Section C Offender Name:

A. Possess Schedule I or II drug - Attempted, conspired or completed:1 count .......................................................................... 20 .......................... 10 ............................ 52 counts ........................................................................ 28 .......................... 14 ............................ 73 counts ........................................................................ 36 .......................... 18 ............................ 9

B. Sell, Distribute, possession with intent, Schedule I or II drugCompleted: 1 count .......................................................................... 60 .......................... 36 .......................... 12

2 counts ........................................................................ 80 .......................... 48 .......................... 163 counts ........................................................................ 95 .......................... 57 .......................... 194 counts ...................................................................... 130 .......................... 78 .......................... 26

Attempted or conspired: 1 count .......................................................................... 48 .......................... 24 .......................... 122 counts ........................................................................ 64 .......................... 32 .......................... 163 counts ........................................................................ 76 .......................... 38 .......................... 194 counts ...................................................................... 104 .......................... 52 .......................... 26

C. Sell, etc. Schedule I or II drug, subsequent offense; third or subsequent offenseCompleted: 1 count ........................................................................ 110 .......................... 66 .......................... 22

2 counts ...................................................................... 310 ........................ 186 .......................... 62Attempted or conspired: 1 count .......................................................................... 88 .......................... 44 .......................... 22

2 counts ...................................................................... 248 ........................ 124 .......................... 62D. Sell, etc. Schedule I or II drug to minor

Attempted, conspired or completed: 1 count .......................................................................... 60 .......................... 30 .......................... 15

E. Accommodation–Sell, etc. Schedule I or II drug - Attempted, conspired or completed:1 count .......................................................................... 32 .......................... 16 ............................ 82 counts ........................................................................ 40 .......................... 20 .......................... 10

F. Sell, etc. imitation Schedule I or II drug - Attempted, conspired or completed:1 count .......................................................................... 12 ............................ 6 ............................ 32 counts ........................................................................ 20 .......................... 10 ............................ 5

Category I Category II Other

Prior Record Classification


In addition to these built-in enhance-ments for violent prior record, theprison worksheet for Schedule I or IIdrug offenses contains other factors toscore prior criminal history (Figure73). The Prior Convictions/Adjudi-cations factor captures the seriousnessof the offender’s prior convictions andadjudications of delinquency as a ju-

Figure 73

Prior Record Factors on Section C of theSchedule I or II Drug Sentencing Guidelines

venile, including nonviolent offenses.The number of prior felony drug, per-son and property convictions and ad-judications are also scored on thisworksheet and serve to increase fur-ther the offender’s prison recommen-dation. An additional point is addedif the offender has a juvenile recordof delinquency.

◆ Prior Juvenile Record If YES, add 1

◆ Prior Felony Property Convictions/Adjudications Number: 1, 2 ................................................................................................................................................................................. 1

3 ..................................................................................................................................................................................... 24 or more ....................................................................................................................................................................... 3

◆ Prior Felony Convictions/Adjudications Against Person Number: 1 ................................................................................................................................................................................... 3

2 ................................................................................................................................................................................... 63 ................................................................................................................................................................................... 94 or more .................................................................................................................................................................... 12

◆ Prior Convictions/Adjudications Assign points to the 5 most recent and serious prior record events and total the points

Number: 1 ..................................................................... 22 ..................................................................... 33 ..................................................................... 5

◆ Prior Felony Drug Convictions/Adjudications

Maximum Penalty: Less than 5 .................................................... 0 (years) 5, 10 ............................................................... 1

20 ................................................................... 2

▼

▼

4 ................................................................................ 75 ................................................................................ 86 or more ................................................................. 10

30 .............................................................................. 340 or more ................................................................. 4

▼

▼

▼


Mandatory Penalties forSchedule I or II Drug Offenses

Although judges can utilize Virginia’ssentencing guidelines as a tool in for-mulating sentencing decisions in mostcases, the Code of Virginia specifies sev-eral mandatory minimum penalties foroffenses involving Schedule I or IIdrugs. These are shown in Figure 74.Several of these mandatory minimumpenalties were passed by the 2000 Gen-eral Assembly as part of the legislativepackage known as the Substance AbuseReduction Effort, or SABRE. Underthe SABRE initiative, the General As-sembly revised the drug kingpin stat-ute and expanded it by adding meth-amphetamine to other drugs alreadycovered by the drug kingpin law. Un-der § 18.2-248(H) of the Code of Vir-ginia, an offender who manufactures,distributes, sells or possesses with in-tent to sell at least 100 grams of puremethamphetamine or at least 200grams of a mixture containing meth-amphetamine is subject to a manda-tory minimum penalty of 20 yearsunless the offender satisfies certainconditions, including cooperating withauthorities in the prosecution of oth-ers. If the offender is operating a con-tinuing criminal enterprise as definedby § 18.2-248(H1), the 20-year man-datory minimum penalty cannot besuspended. Under § 18.2-248(H2),if an offender manufactures, distrib-utes, sells or possesses with intent tosell at least 250 grams of pure meth-amphetamine or at least one kilogram

R

Virginia’s sentencing guidelines applyto most crimes involving a Schedule Ior II drug, including methamphet-amine. Except for cocaine offenses, theguidelines are unaffected by the quan-tity of drug seized. On July 1, 1997,the Commission implemented guide-lines enhancements for offenders whomanufacture, distribute, sell or possesswith intent to sell large amounts ofcocaine, in any of its forms. Cocainewas selected for enhancements becauseat that time, cocaine represented ap-proximately 90% of all Schedule I orII offenses resulting in conviction inVirginia’s circuit courts. Cocaine con-tinues to make up 80% of Schedule Ior II drug convictions in the Com-monwealth, as noted above. The en-hancements to the drug sentencingguidelines increase the sentencing mid-point recommendation by three yearsin cases of cocaine distribution involv-ing 28.35 grams (1 ounce) up to 226.7grams. The midpoint recommenda-tion is increased by five years in co-caine distribution cases in which 226.8grams (1/2 pound) or more was seized.

Prior criminal history plays an impor-tant role in Virginia’s sentencing guide-lines. The structure of the state’s sen-tencing guidelines ensures that offend-ers with a prior criminal record, par-ticularly those with a history of vio-lence, are recommended for longerterms, and in many cases, substantiallylonger terms than first-time and non-violent felons.


of a methamphetamine mixture, amandatory minimum penalty of lifeis applicable. The mandatory life pen-alty can be reduced to 40 years only ifthe offender aids law enforcement.These methamphetamine drug king-pin laws became effective July 1, 2000.

Other mandatory minimum penaltylaws applicable to methamphetaminebecame effective on July 1, 2000. Anoffender who receives a third or sub-sequent conviction for selling a Sched-

Figure 74

Mandatory Minimum Sentencing Laws in Virginia Related to Schedule I or II Drugs

ule I or II drug is now subject to athree-year mandatory minimum sen-tence (§ 18.2-248(C)), as is an of-fender who transports an ounce ormore of a Schedule I or II drug intothe Commonwealth (§ 18.2-248.01).An offender convicted under § 18.2-248.01 for transporting an ounce ormore of a Schedule I or II drug intothe Commonwealth a second timemust serve a minimum of ten years.Beginning July 1, 2000, selling or pos-sessing a Schedule I or II drug while

Offense Statute Mandatory Penalty

Sell, distribute, possess with intent to distribute, or manufacture quantities of Schedule I or II § 18.2-248(H) 20 years drug defined in § 18.2-248(H)

Sell, distribute, possess with intent to distribute, or manufacture quantities of Schedule I or II § 18.2-248(H1)(ii) 20 years drug defined in § 18.2-248(H1) as part of continuing criminal enterprise

Sell, distribute, possess with intent to distribute, or manufacture quantities of Schedule I or II § 18.2-248(H2)(ii) Life drug defined in § 18.2-248(H2) as part of continuing criminal enterprise

Gross $100,000 but less than $250,000 within 12 month period from continuing criminal drug enterprise § 18.2-248(H1)(i) 20 years

Gross $250,000 or more within 12 month period from continuing criminal drug enterprise § 18.2-248(H2)(i) Life

Sell, distribute, possess with intent to distribute, or manufacture (third or subsequent conviction) § 18.2-248(C) 3 years

Transport 1 ounce or more of cocaine or other Schedule I or II drug into Commonwealth § 18.2-248.01 3 years

Transport 1 ounce or more of cocaine or other Schedule I or II drug into Commonwealth § 18.2-248.01 10 years (second or subsequent conviction)

Sell Schedule I or II drug to a minor § 18.2-255(A) 5 years

Distribute Schedule I or II drug on school property § 18.2-255.2 1 year

Possess Schedule I or II drug while possessing a firearm on the person § 18.2-308.4(B) 2 years

Sell, distribute, possess with intent to distribute, or manufacture Schedule I or II drug while possessing a firearm § 18.2-308.4(C) 5 years


Comparing Virginia & FederalSentencing Guidelines

The federal judicial system also utilizessentencing guidelines, which are ad-ministered by United States Sentenc-ing Commission. The federal sentenc-ing guidelines differ from Virginia’sguidelines system in several distinctiveways. First, the federal sentencingguidelines are considered to be pre-sumptive. Federal judges are expectedto comply. Federal judges can departfrom the guidelines recommendationsonly for certain specified circum-stances. Moreover, the range recom-mended by the federal guidelines is rela-tively narrow, further limiting judicialdiscretion. The sentencing guidelinesrange is limited by law such that it can-not be wider than 25% of the mini-mum recommended sentence or sixmonths, whichever is greater. The fed-eral sentencing guidelines are repre-sented by a two-dimensional gridbased on the seriousness of the currentoffense (called “offense level”) and theoverall prior record score of the defen-dant. For offenses involving any con-trolled substance, the current offensescore under federal guidelines is di-rectly linked to the quantity of the drugin the case. The quantity thresholdsare not linked to analysis of sentencingpatterns, but were set at normatively-selected levels. Compared to Virginia’ssentencing guidelines, the federal guide-lines place less emphasis on the defen-dant’s criminal history. Prior criminalrecord, particularly prior violent record,serves to increase the guidelines recom-mendation to a greater degree underVirginia’s guidelines system than thefederal guidelines system.

Rpossessing a firearm was also subjectto a five-year mandatory penalty. Foroffenders possessing a Schedule I or IIdrug, this mandatory penalty was re-duced to two years in situations inwhich the offender carries the firearmabout his person and was eliminatedwhen an offender is found to havepossessed the firearm but not on orabout his person.

These laws defining mandatory penal-ties for offenses involving a Schedule Ior II drug like methamphetamine canprovide prosecutors with useful tools tosecure minimum prison sentences foroffenders who commit these crimes.

Mandatory sentences required by stat-ute take precedence over the discre-tionary sentencing guidelines system.When scoring offenders on the sen-tencing guidelines, users of the guide-lines are instructed to replace any partof the recommended sentence range(low, midpoint, or high) that falls be-low the mandatory minimum requiredby law with the specified mandatoryminimum. This instruction ensuresthat the guidelines comply with anymandatory minimum penalties appli-cable in each case.


Quantity ofMethamphetamine and

Sentencing in Circuit Court

The Commission monitors the sen-tencing guidelines system and, eachyear, deliberates upon possible modi-fications to enhance the usefulness ofthe guidelines as a tool for judges inmaking their sentencing decisions.The Commission studies changes andtrends in judicial sentencing patternsin order to pinpoint specific areaswhere the guidelines may be out ofsync with judicial thinking. This year,the Commission carefully examinedthe relationship between quantity ofmethamphetamine and sentencingoutcome to assess the role quantity hasplayed in judicial decision-making.This analysis focused on the offendersconvicted in circuit courts in the Com-monwealth. The analysis excluded fed-eral cases because the federal sentenc-ing guidelines explicitly account forquantity of drug. Furthermore, thesentence ranges recommended by thefederal sentencing guidelines are rela-tively narrow and the guidelines areconsidered presumptive. For these rea-sons, drug quantity is undoubtedly tiedto sentencing outcome in the federaljudicial system. In contrast, Virginia’ssentencing guidelines are discretionaryand the ranges relatively broad. Therelationship between drug quantityand sentencing outcome in state courtsis not defined by the sentencing guide-

Rlines as it is in the federal sentencingguidelines. By analyzing circuit courtcases, the Commission is able to evalu-ate the role of drug quantity among casesin which judges are free to considerquantity and incorporate it into the sen-tencing decision at their discretion.

For offenders convicted of manufac-turing, selling, distributing or possess-ing with intent to sell methamphet-amine, analysis of sentencing patternsreveals that sentencing in the state’scircuit courts is not driven by quantityof drug. There is no consistent relation-ship between larger quantities of meth-amphetamine in these sale/manufac-ture cases and sentencing outcome.

Figure 75 illustrates the Commission’sfindings. Here, the Commission ex-amined sale/manufacture cases in fourequally sized groups, each represent-ing 25% of the cases. The 25% ofmethamphetamine cases involving thesmallest quantities (.84 grams or less)resulted in sentences with a mean of17 months. The median sentence (ormiddle value, where half the sentencesare lower and half of the sentences arehigher) was eight months for thesecases. For the group of offenderscaught with slightly larger quantities(.85 to 2.85 grams), the mean sentenceincreased to nearly 25 months (mediansentence of 12 months). For the nextgroup of offenders, however, the aver-age sentence was lower, despite the factthat they had been arrested with largerquantities of methamphetamine (2.86to 13.42 grams); the mean sentencefor this group was only 18 months.


The 25% of offenders selling or manu-facturing the largest quantities ofmethamphetamine (13.43 grams ormore) did not receive significantlyhigher sentences on average. For casesinvolving the largest quantities, themean sentence was 25 months. Thisis comparable to the sentences receivedby offenders caught with .85 to 2.85grams of the drug. The median sen-tence increased marginally from 12 to18 months for offenders with largestamounts of methamphetamine. Thisanalysis includes all sale/manufacturecases sentenced under Virginia’s truth-in-sentencing provisions, including of-fenders who are convicted of multiplecounts of selling or manufacturing andthose who had prior felony records.

If the offender does not have a priorfelony record and is convicted of onlyone count of selling or manufacturingmethamphetamine, large drug quan-tity has even less bearing on sentenc-ing outcome. Isolating cases involv-ing one count and offenders with noprior felony record, sentencing pat-terns reveal that offenders with the leastamount of drug (.84 grams or less) re-ceived lower sentences than those of-fenders who sold or manufacturedmore (Figure 76). These low-end casesresulted in a mean sentence of 12months, but the median sentence wasonly one month. For offenders caughtwith larger quantities (.85 grams ormore), mean sentences varied little,from 19 to 22 months, even for thosewho sold the largest amounts of thedrug. Similarly, median sentences fluc-tuated marginally, from 11 months to

Figure 75

Sentence Length in Methamphetamine Sale/ManufactureCases in Virginia’s Circuit Courts (in months)

15 months. For offenders convictedof one count with no prior record, theguidelines recommend a range of 7 to16 months of incarceration, with amidpoint of 12 months. Regardlessof quantity of the drug, median sen-tences for offenders fitting this profiletypically fell within the guidelines rec-ommended range.

Figure 76

Sentence Length in Methamphetamine Sale/ManufactureCases in Virginia’s Circuit Courts (in months)Offenders with no prior felony record convicted of 1 count.

Note: For figures 75 and 76, analysis is based on cases sentenced underVirginia’s truth-in-sentencing/no-parole system from 1995 through 2003.Data include the offenses of manufacture, sale, distribution and possessionwith intent to sell.

17.2

8

24.8

12

18

12

18

25

.84g or less .85g - 2.85g 2.86g - 13.42g 13.43g or more

each category represents 25% of the cases

■ Mean ■ Median

.84g or less .85g - 2.85g 2.86g - 13.42g 13.43g or more

11.6

1

22.4

12

19.4

11

15

21.5

■ Mean ■ Median


Analyzing sentencing at higher quan-tity levels does not provide evidencethat the offenders selling the very larg-est amounts of drugs are receivinglonger sentences in Virginia’s circuitcourts. For example, first-time felonsconvicted of selling or manufacturingless than 28.35 grams (1 ounce) ofmethamphetamine received a meansentence of 19 months (Figure 77).Offenders convicted of selling 100grams or more (the level at whichVirginia’s mandatory minimum pen-alties apply for offenses involving puremethamphetamine) received a sen-tence of 18 months on average (Fig-ure 77). Instead of longer sentencesfor larger quantities of methamphet-amine, the mean sentence for casesinvolving 100 grams or more is actu-ally one month shorter than cases withless than 28.35 grams of the drug. Forthe handful of cases for offenders con-victed of selling or manufacturing226.8 grams (one-half pound) or moreof methamphetamine, the mean sen-tence was even lower, at 11 months.

The analysis yields little evidence thatjudges are basing sentences on quan-tity of methamphetamine seized in acase. The Commission examined drugquantity at numerous levels and foundnone to have a significant impact onjudicial decision-making. The Com-mission also analyzed drug quantity inrelation to the existing sentencingguidelines for drug offenses by usingthe same methodology and statisticaltechniques originally used to developVirginia’s historically-based guidelines.Quantity of methamphetamine wasnot found to be a statistically signifi-cant factor in sentencing decisions.Sanctioning in methamphetaminecases is largely driven by the criminalhistory of the defendant and the num-ber of charges in the case resulting inconviction. The sentencing guide-lines, while not scoring the quantityof methamphetamine, do explicitlyaccount for the number of charges atconviction and the defendant’s com-plete criminal record. The guidelinesmeasure criminal history not only bythe number of prior offenses but alsothe seriousness of those prior offenses,based on statutory maximum penalty.In addition, the guidelines account forpossession of a firearm at the time ofthe offense.

Figure 77

Sentence Length in Methamphetamine Sale/ManufactureCases in Virginia’s Circuit Courts (in months)Offenders with no prior felony record convicted of 1 count.

Note: Analysis is based on cases sentenced under Virginia’s truth-in-sentencing/no-parole system from 1995 through 2003. Data include theoffenses of manufacture, sale, distribution and possession with intent to sell.

less than 28.35g 28.35g - 99.9g 100g or more

18.8

9

22.2

1517.5

15.5

■ Mean ■ Median


Legislative Responsesto Methamphetamine

Around the Nation

In July 2003, Commission staff con-ducted an Internet search of legislationapplicable to methamphetamine of-fenses around the nation. The surveyincluded laws covering not only thepossession, manufacture, distribution,and sale of methamphetamine itself,but also regarding the possession, dis-tribution, and theft of precursor sub-stances used in methamphetamineproduction. Staff also researched statelaws potentially applicable to other is-sues related to methamphetamine pro-duction, including child endanger-ment, environmental hazards and labcleanup costs, and the booby-trappingof clandestine labs.

The survey results, recently updated,have been supplemented by data froma similar study conducted by the Na-tional Alliance for Model State DrugLaws (NAMSDL), and presented atthe National Methamphetamine Leg-islative and Policy Conference on Oc-tober 25-27, 2004, in St. Paul, Min-nesota. The Alliance is a resource forstate officials and legislators, drug andalcohol professionals, law enforcement,community leaders, the recoveringcommunity, and others striving forcomprehensive, effective state drug andalcohol laws, policies, and programs.A successor to the President’s Commis-sion on Model State Drug Laws andfunded by Congressional appropria-tions since federal fiscal year (FY)1995, the Alliance is a 501(c)(3) non-profit, bipartisan organization.

RVirginia classifies methamphetamineas a Schedule II controlled substance.Like many other states, Virginia alsolists the immediate methamphetamineprecursor phenylacetone (also calledP2P, phenyl-2-propanone, benzyl me-thyl ketone, methyl benzyl ketone) asa Schedule II controlled substance (§54.1-3448, Code of Virginia). Thiscorresponds to the “narrow” definition,where the law applies only to a com-pound that immediately precedes thefinal illegal substance. Virginia lawdoes not presently penalize possessionor distribution of a broad range of pre-cursor chemicals such as ephedrine,pseudoephedrine, acetone, ether, tolu-ene, iodine, red phosphorous, or an-hydrous ammonia, which are used inthe manufacture of methamphetamine(Miller 2001).

There are three main methods for pro-ducing methamphetamine: the P2Pmethod, the red phosphorous method,and the lithium or sodium reduction(Nazi) method. The P2P method isless common today, because its mainprecursor chemical (phenyl acetic acid)has been strictly regulated and is hard toobtain. The P2P method takes longerand produces a less pure and less potentform of the drug with worse side effects.Most methamphetamine manufactur-ers now use the latter two methods, inwhich ephedrine or pseudoephedrineis the main precursor chemical (Scott2002). Virginia law may not address thetwo most common methods of meth-amphetamine production.


Under Virginia law, it is a Class 5felony for any person to unlawfullypossess a Schedule II controlled sub-stance (§ 18.2-250(A, a)). This offenseis punishable by a term of imprison-ment from one to ten years. Under§ 18.2-248(C), the manufacture, sale,distribution, or possession with intentto manufacture, sell or distribute aSchedule II controlled substance is afelony punishable by a term of impris-onment from 5 to 40 years and a finenot more than $500,000. Beginningin 2000, §§ 18.2-248(H)(5) and 18.2-248(H1) & (H2) (often referred to asVirginia’s “drug kingpin laws”) may beemployed in cases involving largeramounts of methamphetamine.Manufacturing, selling, etc., of 100grams or more of methamphetamineis subject to a penalty of 20 years tolife with a mandatory minimum of 20years. Additional fines and imprison-ment are applicable for increasedamounts of methamphetamine andthe money made from its sale (for ad-ditional discussion of Virginia’s man-datory minimum sentencing laws seethe section of this chapter entitled“Mandatory Penalties for Schedule Ior II Drug Offenses”).

Other issues related to methamphet-amine production include endanger-ment of children, environmental haz-ards and cleanup costs created by haz-ardous waste byproducts, and thebooby-trapping of clandestine labs.Under § 18.2-371, Contributing tothe Delinquency of a Minor, it is aClass 1 misdemeanor if a parent or

other adult puts a minor in a situa-tion in which there is “a substantialrisk of death, disfigurement or impair-ment of bodily or mental functions.”Recent legislation passed during the2004 General Assembly session di-rectly addresses the child endanger-ment issue. House Bill 1041 amended§§ 16.1-228 and 63.2-100 expandingthe definition of child abuse and ne-glect to include the manufacture, at-tempted manufacture or unlawful saleof a Schedule I or II controlled sub-stance in the presence of a child.House Bill 420, and its companionbill, Senate Bill 429, provided for thedevelopment of multidisciplinaryteams to provide consultation to thelocal social services department dur-ing investigation of methamphetaminecases involving child abuse or neglect.

Chapter 25 of the Code references theVirginia Environmental EmergencyResponse Fund. Specifically, § 10.1-2502states “the agency [Department of En-vironmental Quality] shall promptlyseek reimbursement from any personcausing or contributing to an environ-mental pollution incident for all sumsdisbursed from the Fund for the pro-tection, relief and recovery from lossor damage caused by such person. Inthe event a request for reimbursementis not paid within sixty days of receiptof a written demand, the claim shallbe referred to the Attorney General forcollection. The agency shall be allowedto recover all legal and court costs andother expenses incident to such actionsfor collection.” This would seem to


cover environmental cleanup costs formethamphetamine labs as well. How-ever, according to NAMSDL research,Virginia currently has no statutes, regu-lations, guidelines, or guidance docu-ments that specifically address clandes-tine laboratory cleanup and remediation.

Current Virginia law makes it illegal tomaintain or operate a fortified drughouse as specified under § 18.2-258.02.A fortified drug house is one “substan-tially altered from its original status bymeans of reinforcement with the intentto impede, deter or delay lawful entryby a law-enforcement officer.” A viola-tion is a Class 5 felony with a 10-yearmaximum. No attempt is made, how-ever, to define booby traps or to prescribepenalties for the use of booby traps.

States across the nation have imple-mented a variety of responses to meth-amphetamine crime within their bor-ders. Many western and midwesternstates have laws penalizing the posses-sion and distribution of numerous pre-cursor substances used in the manu-facture of methamphetamine. Thesestates employ a “broad” definition andmay list numerous specific precursors.In particular, ephedrine and pseu-doephedrine are frequently listed asprecursors. Arizona has laws regard-ing the quantity of pseudoephedrinenecessary to trigger a violation, and alsoa law penalizing the possession of equip-ment used in methamphetamine pro-duction. Idaho also has a law regardingthe quantity of precursor chemicals nec-essary to trigger a violation. Other states

have laws that do not specify thresholdquantities, but penalize “possession withintent to manufacture methamphet-amine”. Others (Texas, for example)penalize possession of at least three sub-stances from a list of precursors. Mis-souri and Oklahoma have laws prohib-iting the theft of anhydrous ammonia,an agricultural fertilizer used in thelithium/sodium reduction (Nazi)method of production.

Recent legislative efforts in the stateshave focused on restricting the sale ordistribution of products containingpseudoephedrine. Many individualsworking on methamphetamine-relatedissues feel that this is the most effec-tive way to combat methamphetamineabuse. Readily available from over-the-counter cold medications and easilyobtainable from numerous retail out-lets, ephedrine or pseudoephedrine isthe primary ingredient in virtually ev-ery recipe for methamphetamine pro-duction. At the same time, authori-ties recognize that pseudoephedrinehas legitimate and significant medicalusage, and must remain available tolegitimate consumers and health careprofessionals. State officials are there-fore striving to achieve a balance intheir legislative and policy efforts tolimit access to pseudoephedrine(NAMSDL 2004).

According to data presented byNAMSDL at the St. Paul conference,only 14 states (Alabama, Arizona,Arkansas, California, Illinois, Iowa,Louisiana, Michigan, Missouri, North


Dakota, Oklahoma, Oregon, Utah,and Washington) currently have quan-tity restrictions on the possession, pur-chase, sale or transfer of pseudoephe-drine (Figure 78). Some of these statesrestrict both the number of packages(typically 2 or 3 packages) and the to-tal quantity of pseudoephedrine (of-ten 9 or 12 grams) that can be pur-chased or possessed at any one time.Even these restrictions, however, canbe circumvented by theft or by mul-tiple individuals making purchasesfrom many different retail outlets atmultiple times, a process known as“smurfing”. Exemptions may be al-lowed for specified forms of pediatricproducts, liquid or gelcap formula-tions, and products formulated to ef-fectively prevent the conversion of theactive ingredient (i.e., pseudoephe-drine) into methamphetamine.

Several states are considering legisla-tion similar to that recently adoptedin Oklahoma. That state now classi-fies pseudoephedrine as a Schedule Vcontrolled substance; as a result, medi-cines containing any detectableamount of pseudoephedrine can only

be sold by a licensed pharmacist. Theconsumer must present a photo IDand sign written documentation of thetransaction in order to purchase theproduct. These laws have been cred-ited in reducing the number of meth-amphetamine lab seizures in Okla-homa by 50% to 70% in 2004(Carnevale Associates, LLC 2004).However, as the states have discovered,such legislation is often strongly op-posed by retail merchants associationsand the pharmaceutical industry.

Thefts of anhydrous ammonia fromtanks have presented particular prob-lems in largely agricultural areas of theMidwest. Farmers have found theymust install locks on their tanks orkeep them under surveillance to dis-courage would-be thieves. Craig Kelly,a chemist at the Johns Hopkins Uni-versity Applies Physics Laboratory inLaurel, Maryland, writes that,“Thieves normally pilfer only a fewgallons of anhydrous ammonia buttoo often are the cause of major am-monia spills. Such spills not only re-sult in the loss of thousands of gal-lons of ammonia for the farmer, buthave resulted in the evacuations ofentire towns due to the toxic cloud ofammonia produced” (Pace Publica-tions 2003).

Chemical researchers at several univer-sities are trying to develop additivesto render anhydrous ammonia unus-able in methamphetamine production.The Associated Press has reported thatresearchers at Southern Illinois Uni-versity-Carbondale have developed anadditive which stains the hands of

Figure 78

States With Pseudoephedrine Control Laws

Source: National Alliance for Model State Drug Laws (2004)


thieves, or the body parts of metham-phetamine users who snort or injectthe end product, a fluorescent pink.The visible stain, even if washed off,was still detectable by ultraviolet light24 to 72 hours later. As another ben-efit, the additive, tentatively namedGloTell, helped farmers detect tankleaks. Virginia-based Royster-ClarkInc. is to begin marketing the additivesoon under an exclusive distributionagreement. However, GloTell likelywill add about $9 per ton to the costof anhydrous ammonia, which nowcosts about $240 a ton (Hegeman2004). In addition, researchers at IowaState University and in Maryland areworking to develop additives which,if blended with anhydrous ammonia,render the chemical incapable of gen-erating the reaction needed to producemethamphetamine (Van Haaften2004 and Pace Publications 2003).

Endangerment of children by exposureto methamphetamine production hasbeen identified in other states as a se-rious and expensive problem. Nation-wide, a total of 3,419 children wereendangered by methamphetamineproduction in 2003 (Carnevale Asso-ciates, LLC 2004). According toNAMSDL, children under 18 years ofage are considered to be drug endan-gered if they suffer physical harm orneglect from direct or indirect expo-sure to illegal drugs or alcohol, or livein a dwelling where illegal drugs areused or manufactured. Children re-siding in close proximity to metham-phetamine labs are exposed to manyhazards, including fire, toxic fumes and

chemicals, sexual and physical abuseand neglect, developmental, social, andpsychological delays, bodily injury, andeven death (NAMSDL 2004). In2003, almost 1,300 children were di-rectly exposed to toxic chemicals, 724children were taken into protectivecustody, 44 children were injured, and3 children died. Children of meth-amphetamine-using mothers can beendangered before they are even born.Although little is known about thelong-term health effects of prenatalmethamphetamine exposure, infantsborn under these circumstances havelow birth weight, are irritable, havetrouble eating and digesting foods, andare prone to pre-birth strokes and brainhemorrhages (Carnevale Associates,LLC 2004).

Currently 35 states (including Vir-ginia) and the District of Columbiahave specific statutes or regulationsaddressing drug endangered children(DEC). Arkansas, California, Idaho,Iowa, Missouri, Ohio, Tennessee,Washington, and Wyoming penalizethe use of minors in or exposure ofminors to methamphetamine produc-tion. Specific examples of state lawsinclude an Arizona law (ARS 13-3623)passed in 2000 that creates liabilitywhen a person places a child in a loca-tion where a methamphetamine labexists and a North Dakota law (HB1351) passed in 2003 that makes it afelony to expose children or vulnerableadults to a controlled substance, pre-cursor, or drug paraphernalia (Carne-vale Associates, LLC 2004). A 2002


Tennessee law classifies exposing chil-dren to a methamphetamine lab as “se-vere child abuse,” making it easier forthat state to terminate the parentalrights of parents who commit such anoffense (Pace Publications 2002).

Some states have also mandated in thesentencing process that the presence ofa child during the use, sale, or produc-tion of methamphetamine is an aggra-vating circumstance. In Wyoming, forinstance, a person charged with unlaw-ful clandestine lab operation in thepresence of a child under 18 can re-ceive a sentence up to five years longerand a fine up to $25,000 greater thanwhen a child is not present. Likewise,in California, if a child under 16 ispresent in a seized methamphetaminelab, the offender is sentenced to anadditional two years, and sentenced toan additional five years if the child hassuffered “great bodily injury” (CarnevaleAssociates, LLC 2004). Some states pro-vide for or are considering enhancedpenalties when clandestine labs arefound in certain locations (e.g., hotelrooms, apartments, mini-storage units,other rental properties, or close toschools, child care facilities, long-termcare facilities, or residences of in-homechild care providers).

Methamphetamine lab cleanup is adangerous and rigorous process, dueto the volatile and caustic nature of thechemicals involved in methamphet-amine production. Each pound ofmethamphetamine manufactured yields

five to seven pounds of toxic waste.Cleanup typically costs between $3,500and $5,000, but some labs cost asmuch as $20,000 to clean up(Carnevale Associates, LLC 2004). Ifcleanup is inadequate, future tenantsand property owners may face healthhazards such as respiratory problems,headaches, and rashes from exposureto residual levels of toxic substances.

Currently only seven states (Alaska,Arizona, Arkansas, Colorado, Minne-sota, Tennessee, and Washington) havespecific statutes, regulations, or guide-lines addressing methamphetamine labcleanup (NAMSDL and CarnevaleAssociates, LLC 2004). These stateshave adopted specific legislation orguidelines that outline how to respondto, secure, and clean up methamphet-amine labs. They have also establisheda risk-based decontamination standardspecific to methamphetamine. Severalstate cleanup laws and regulations ad-dress the use of a state-approved envi-ronmental cleanup contractor and/ora certified industrial or environmen-tal hygienist. Only three states, how-ever, have tackled by statute or regula-tion the contractor and employeetraining and certification in detail. InWashington, Oregon, and Arizona,not only does the contractor need tobe certified, but the employees and su-pervisors must all go through a spe-cific training and certification process(NAMSDL 2004). These three statesalso require that prospective buyers ortenants of past methamphetamine labsites be warned of possible environ-mental hazards.


State guidelines do not have the forceof law by themselves, but in some in-stances local governments have passedordinances requiring cleanup contrac-tors to abide by the procedures andcleanup standards that the guidelinesestablish. Localities have also foundthat ordinances declaring metham-phetamine labs a criminal or publichealth nuisance often help facilitate thecleanup of such sites. For example, inJune of 2001, the Albuquerque, NewMexico, City Council passed into lawa new Nuisance Abatement Ordi-nance. This ordinance defines a crimi-nal nuisance as any property, real orpersonal, in or on which criminal ac-tivity occurs, and which endangers thehealth and well being of the public.The ordinance covers 50 crimes, 31 ofwhich are felonies, including the dis-tribution, manufacture, possession, orimitation of a controlled substance. Ifan investigation establishes that crimi-nal activity has occurred, the city workswith the property owner to obtain vol-untary compliance with an abatementplan within 30 days. If an owner failsto cooperate, the case is presented to theCommunity Enforcement and Abate-ment Division for consideration ofcriminal or civil prosecution (Albuquer-que Police Department 2004). Civilaction (using the “preponderance ofevidence” criterion) is often preferredover criminal prosecution, so that thematter can be resolved more quickly.

While states may not provide specificmethamphetamine lab cleanup stan-dards, they often do address the ex-pense of cleanup by seeking liability.Compensation is sought through res-titution (North Carolina) or civil pro-ceedings (Ohio). Numerous states(Arkansas, California, Indiana, Kansas,Kentucky, Ohio, Oregon, and Washing-ton) have enacted legislation to makeoffenders liable for costs associated withthe cleanup of hazardous wastes fromclandestine methamphetamine labs.Washington provides for fines of upto $25,000 for operators of clandes-tine methamphetamine labs, with thefirst $3,000 going to pay for cleanup.

According to the Centers for DiseaseControl (CDC), 51% of all injuries atmethamphetamine labs happen to firstresponders. In addition to the toxicconditions found at many clandestinelabs, first responders may encounterbooby traps designed to protect thelabs or warn of intruders. Types ofbooby traps include guard dogs, ven-omous snakes, concealed holes in thefloor, spring devices with exposed nailsor sharp objects, acid containerspropped over doorways, pipe bombs,grenades, and aluminum foil balls con-taining explosive mixtures (CarnevaleAssociates, LLC 2004). Arizona, Mon-tana, New Jersey, Utah, and Wyomingprovide enhanced penalties if clandes-tine labs are booby-trapped or firearmsare found. New Jersey’s law (§ 2C:35-4.1) includes detailed definitions of a“booby trap” and a “fortified structure”.


R

Commission Deliberations

Each year, the Commission monitorsthe sentencing guidelines system andconsiders possible modifications to en-hance the usefulness of the guidelinesas a tool for Virginia’s circuit courtjudges. The Commission examineschanges and emerging trends in judi-cial sentencing patterns. This is doneto identify specific areas where theguidelines may be out of sync withjudicial thinking.

This year the Commission has closelyexamined the sentencing guidelinesfor methamphetamine offenses. TheCommission believes there is no com-pelling evidence to support revisions tothe sentencing guidelines at this time.While available statistics indicate meth-amphetamine crimes increased duringthe 1990s, both nationally and in Vir-ginia, the Commission found thatmethamphetamine crimes continue torepresent a small share of criminal drugactivity in the Commonwealth. Al-though the numbers of seizures and con-victions involving methamphetaminehave been increasing in Virginia, par-ticularly in the Western area of the state,methamphetamine remains much lessprevalent than other Schedule I or IIdrugs. Cocaine continues to be muchmore pervasive a drug in Virginia thanmethamphetamine. Statewide, convic-tions for heroin offenses also greatlyoutnumber those for methamphet-amine. The Arrestee Drug AbuseMonitoring (ADAM) program con-tinued to show little sign of meth-amphetamine’s spread to arrestees inthe eastern United States.

Overall, the Commission found thatthe quantity of methamphetamine is nota significant factor in the sentencing ofoffenders. Prior record, most notablyviolent prior record, and the number ofcharges resulting in conviction appearto be the most important factors in de-termining the sentencing outcome. Thesentencing guidelines explicitly ac-count for both of these factors. Theguidelines contain built-in midpointenhancements, which dramaticallyincrease the guidelines recommenda-tion for offenders with prior violentfelony convictions or juvenile adjudica-tions, in addition to other factors on theworksheets that increase the sentencingrecommendation based on the num-ber and types of prior convictions inthe offender’s record.

The Commission reviewed the numer-ous mandatory minimum penalties foroffenses involving a Schedule I or IIdrug, including methamphetamine,specified in the Code of Virginia. Manyof these mandatory penalty laws be-came effective as recently as July 1,2000. These mandatory sentencestake precedence over the discretionaryguidelines system.

While concluding there is not convinc-ing evidence to recommend revisions tothe sentencing guidelines at this time,the Commission will continue to moni-tor emerging patterns and trends in thesentencing of methamphetamine cases.The Commission may consider recom-mending revisions to the sentencingguidelines at a future date.


R References

Albuquerque Police Department. 2004. Criminal Nuisance Abatement Unit. Albu-querque, NM: Albuquerque Police Department.

Bakst, Brian. 2004. Pawlenty Issues Plan to Fight Methamphetamine. Duluth, MN:Duluth News Tribune (AP).

Carnevale Associates, LLC. 2004. Drug Endangered Children – Policy Brief.Darnestown, MD: Carnevale Associates, LLC, Research and Policy Analysis Group.

Carnevale Associates, LLC. 2004. State Legislative Actions Targeting Methamphetamine– Information Brief. Darnestown, MD: Carnevale Associates, LLC, Research andPolicy Analysis Group.

Carnevale, John. 2004. Facts About Methamphetamine: Clean-up and First Responders.Darnestown, MD: Carnevale Associates, LLC.

Community Epidemiology Work Group. 2003. Epidemiologic Trends in Drug Abuse,Advance Report. Bethesda, MD: U.S. Department of Health and Human Ser-vices, National Institute on Drug Abuse.

Hegeman, Roxana. 2004. Meth Cooks Caught Pink-Handed. Retrieved November 1,2004 (www.glotell.com/news/article3.htm).

Miller, Milo. 2001. Meth in the Midwest: A Comparison of Legislative Responses. Wash-ington, DC: presented to the Annual Meeting of the Academy of Criminal JusticeSciences, April 5.

The National Alliance for Model State Drug Laws. 2004. An Analysis of Specific Stateand Potentially Applicable Child Endangerment and Related Laws. Alexandria, VA:The National Alliance for Model State Drug Laws.

The National Alliance for Model State Drug Laws. 2004. Restrictions on the Possession,Purchase, Sale or Other Transfer of Pseudoephedrine. Alexandria, VA: The NationalAlliance for Model State Drug Laws.

The National Alliance for Model State Drug Laws. 2004. State Information on Cleanupand Remediation of Clandestine Laboratories. Alexandria, VA: The National Alli-ance for Model State Drug Laws.

National Institute of Justice. 2003. Annual Report 2000: Arrestee Drug Abuse Moni-toring. Washington, DC: U.S. Department of Justice, Office of Justice Programs,National Institute of Justice.


Pace Publications. 2002. Revision in Child Abuse Statute Aims at ‘Meth’ Manu-facturing. Washington, DC: Drug Enforcement Report, Vol. 17, No. 24, p. 5.

Pace Publications. 2003. Scientists Aim to Thwart Use of Ammonia in ‘Meth’ Labs.Washington, DC: Drug Enforcement Report, Vol. 18, No. 9, p. 7.

Scott, Michael. 2002. Clandestine Drug Labs: No. 16 in Problem-Oriented Guides forPolice Series. Washington, DC: U.S. Department of Justice, Office of Commu-nity Oriented Policing Services.

Van Haaften, Martin. 2004. The States’ Experience: Application of Selected StateStatutes. St. Paul, MN: presented to the National Methamphetamine Legislativeand Policy Conference, October 26.

Virginia Department of Mental Health, Mental Retardation and Substance AbuseServices. 2004. Statewide Unduplicated SA Consumers by Drug Type. RetrievedJuly 21, 2004 (www.dmhmrsas.state.va.us/documents/OSAS-UnduplicatedConsumersbyDrug.htm).

Virginia Department of State Police. 2000. Crime in Virginia. Richmond, VA:Virginia Department of State Police.




VisualResearch, Inc. 2001. Crime in Virginia: The 40-Year Picture of Where We AreNow. Midlothian, VA: VisualResearch, Inc.

Wright, Douglas. 2003. State Estimates of Substance Use from the 2001 National House-hold Survey on Drug Abuse: Volume I Findings. Washington, DC: U.S. Depart-ment of Health and Human Services, Substance Abuse and Mental Health Ser-vices Administration, Office of Applied Statistics.

Zhang, Zhiwei. 2004. Drug and Alcohol Use and Related Matters among Arrestees 2003.Washington, DC: U.S. Department of Justice, Office of Justice Programs,National Institute of Justice.

Recommendations R 127

Introduction

The Commission closely monitors thesentencing guidelines system and, eachyear, deliberates upon possible modi-fications to enhance the usefulness ofthe guidelines as a tool for judges inmaking their sentencing decisions.Under § 17.1-806 of the Code of Vir-ginia, any modifications adopted bythe Commission must be presented inits annual report, due to the General As-sembly each December 1. Unless oth-erwise provided by law, the changes rec-ommended by the Commission becomeeffective on the following July 1.

Several sources of information guide theCommission discussions about modifi-cations to the guidelines system. Com-mission staff meet with circuit courtjudges and Commonwealth’s attorneysat various times throughout the year, andthese meetings provide an importantforum for input from these two groups.In addition, the Commission operates a“hot line” phone system staffed Mon-day through Friday, to assist users withany questions or concerns regarding thepreparation of the guidelines. While thehot line has proven to be an importantresource for guidelines users, it has alsobeen a rich source of input and feedbackfrom criminal justice professionalsaround the Commonwealth. Moreover,the Commission conducts many train-ing sessions over the course of a year and,

R

Unless otherwise

provided by law,

the changes rec-

ommended by

the Commission

become effective

on the following

July 1.

Recommendationsof the Commission6

often, these sessions provide informationuseful to the Commission. Finally, theCommission closely examines compli-ance with the guidelines and departurepatterns in order to pinpoint specificareas where the guidelines may be outof sync with judicial thinking. The opin-ions of the judiciary, as expressed in thereasons they write for departing fromguidelines, are very important in direct-ing the Commission to those areas ofmost concern to judges.

In 2004, the Commission continuedits work on a legislative mandate from2003. The General Assembly directedthe Commission to develop discretion-ary sentencing guidelines and a riskassessment instrument for felony of-fenders who violate conditions of com-munity supervision but are not con-victed of a new crime. Sentencingguidelines for this population of of-fenders were implemented July 1,2004. The Commission has moni-tored the early response to the imple-mentation of these new guidelines.The risk assessment phase is now com-plete. After careful deliberation, theCommission developed two proposalsrelated to this legislative charge.

In all, the Commission has adopted sixrecommendations this year. Each ofthese is described in detail on the pagesthat follow.


R Recommendation 1

Refine the incarceration/no incarceration worksheet (Section A) of the probationviolation sentencing guidelines by adjusting the points offenders receive for certainviolations of community supervision and refine the sentence length (Section C)Recommendation Table to modify the point ranges associated with specific guide-lines sentence ranges.

• Issue

The 2003 General Assembly directed the Commission to develop discretionarysentencing guidelines, based on historical judicial sanctioning practices, for felonyprobation violators returned to court for reasons other than a new conviction,offenders also known as “technical violators” (Chapter 1042 of the Acts of As-sembly 2003). In 2003, the Commission conducted an extensive study of thispopulation of offenders and developed historically-based sentencing guidelinesapplicable in these cases. The Commission recommended, and the General As-sembly approved, statewide implementation beginning July 1, 2004. Early useof the new probation violation guidelines suggests that the guidelines may needfurther refinement to better reflect current judicial thinking in the punishmentof supervision violators.

• Discussion

Since 1995, when sentencing reforms abolished parole, circuit court judges havedealt with a wider array of supervision violation cases, including violations of super-vision following release from incarceration that formerly were handled by Virginia’sParole Board as parole violations. Despite the larger role they now play in overseeingsupervision of offenders in the community, circuit court judges have had to performthese duties without sentencing tools, such as guidelines, available to them.

Pursuant to the 2003 legislative directive, the Commission designed and imple-mented a research plan to examine historical sanctioning practices for violationsof community supervision not involving a new conviction. The analytical ap-proach laid out by the Commission is not unlike that used for developing Virginia’shistorically-based sentencing guidelines for felony offenses, already utilized incircuit courts around the Commonwealth. Based on the results of this empiricalstudy, the Commission produced historically-based discretionary sentencing guide-lines applicable to these offenders.

The Commission encountered many challenges in developing sentencing guide-lines for this population. Lack of standardized data was critical, and extensivemanual data collection from offender files was necessary. Once data collection


was complete, the Commission’s analysis revealed significant variation in the pun-ishment of these violators. Disparate practices across the state made it difficultto identify factors used consistently by judges to base their sentencing decisions.Moreover, much variation simply could not be explained by guidelines factorsor the numerous other legal andextra-legal factors examined bythe Commission.

The variation found by the Com-mission is illustrated by Figure 79,which shows the relative impor-tance of the significant factorsfound in judges’ incarceration de-cisions. Circuit/region in the stateis by far the most influential fac-tor in determining whether or nota violator receives an active term ofincarceration. Circuit/region ismore than twice as important as anyother factor. This result suggeststhat, all other factors being equal,there is significant disparity in sen-tencing these violators across Virginia’s circuits. Divergent practices were alsofound in the sentence length decision. Developing historical-based sentencingguidelines, when past practices have varied so widely, was very difficult. Whilemany statistical tests were performed, application of the guidelines in the court-rooms, ultimately, is the most critical validation test of any sentencing tool.

Approved by the General Assembly, the probation violation guidelines becameeffective statewide on July 1, 2004. Early use of the new probation violationguidelines suggests that the guidelines, and Section A in particular, may needfurther refinement so that the guidelines are more in sync with judicial sanction-ing of supervision violators.

Judicial compliance with probation violation guidelines in the first months ofstatewide use is lower than expected. For the 768 cases received and automatedthrough November 8, 2004, 38% were sentenced within the range recommendedby the new guidelines (Figure 80). Nearly 36% of the violators were given sen-tences more severe than those recommended by the new guidelines. The remain-ing 26% were sentenced below the guidelines recommendation. Complianceand departure patterns in the early months indicate that adjustments to the newguidelines could improve their utility as a benchmark for judges.

Figure 79

Sentencing of Probation Violators Not Convicted of a New Crime:Relative Importance of Significant Factors in Incarceration Decisions

Figure 80

Compliance with ProbationViolation Sentencing Guidelines

Cases Received and Automated July 1,2004, through November 8, 2004

Compliance 38%

Aggravation 36%

Mitigation 26%

Circuit/region

Offender absconded (yes/no)

Offender violated supervision conditions by using drugs


Type of supervision condition violated

Time absconded

Previous capias/revocation requests made by probation officer

Offender race

New felony arrest

Offender failed to report to or was unsuccessfullydischarged from certain programs


The Commission recommends refinement of the incarceration/no incarcerationworksheet (Section A). The worksheet proposed by the Commission is shown inFigure 81. The same factors appear on the current and proposed worksheet. Theproposed changes do not affect the first four factors in any way. The remainingfactors, which are scored based on the particular conditions of community super-vision the offender has violated, have been revised. While the factors to be scoredare the same, the points assigned to these factors have been recalibrated. These modi-fications should result in incarceration recommendations that, overall, better re-flect current judicial practices in the Commonwealth.

Figure 81

Proposed Probation Violation GuidelinesIncarceration/No Incarceration (Section A) Worksheet


Figure 82

Proposed Changes to Probation Violation Guidelines Sentence Length(Section C) Recommendation Table

Additionally, the Commission proposes revising the sentence length (Section C)recommendation table as shown in Figure 82. For violators recommended for anactive term of incarceration, the preparer must complete the sentence length (SectionC) worksheet. Sentence length recommendations begin with a range of one day tothree months in jail; violators scoring the highest points are recommended for aprison term of more than six years. The proposed modifications to the sentencelength range table are modest. These changes are expected to result in increasedjudicial concurrence with the probation violation guidelines.

The Commission carefully considered compliance and departures patterns andjudicial feedback regarding the probation violation guidelines. The Commissionconcluded that sentencing guidelines for violators are a useful tool for circuit courtjudges, but that the guidelines could be improved. The changes proposed by theCommission are designed to enhance the usefulness of these guidelines forVirginia’s circuit court judges as they make difficult sentencing decisions.

Recommended Sentence Range Current Points Range Proposed Points Range

Up to 3 mos. Up to 33 Up to 36

3 mos. to 6 mos. 34 – 41 37 – 42

6 mos. to 12 mos. 42 – 43 43 – 45

1 yr. to 1 yr. 3 mos. 44 – 48 46 – 50

1 yr. 3 mos. to 1 yr. 6 mos. 49 – 51 51 – 52

1 yr. 6 mos. to 2 yrs. 52 – 55 53 – 57

2 yrs. to 3 yrs. 56 – 62 58 – 65

3 yrs. to 4 yrs. 63 – 66 66 – 69

4 yrs. to 5 yrs. 67 – 74 70 – 82

5 yrs. to 6 yrs. 75 – 85 83 – 89

More than 6 yrs. 86 + 90 +


R Recommendation 2

Amend the probation violation sentencing guidelines by incorporating a riskassessment instrument that is designed to identify the violators who pose thelowest risk to public safety from among those recommended by the guide-lines for an active term of incarceration.

• Issue

The 2003 General Assembly directed the Commission to develop discretionarysentencing guidelines, based on historical judicial sanctioning practices, for felonyprobation violators returned to court for reasons other than a new conviction,offenders also known as “technical violators.” Additionally, the Commission wasto determine recidivism rates and patterns for these offenders and evaluate thefeasibility of integrating a risk assessment instrument into the guidelines for vio-lators (Chapter 1042 of the Acts of Assembly 2003). The probation violationsentencing guidelines were implemented statewide on July 1, 2004. The Commis-sion now has completed the risk assessment phase of the study and recommendsthe integration of risk assessment into the guidelines for probation violators.

• Discussion

The purpose of risk assessment is to identify offenders who likely pose the leastrisk to public safety and to recommend those offenders for alternative sanction-ing options in lieu of traditional incarceration in prison or jail. The Commissionclosely examined recidivism patterns among probation violators returned to courtfor reasons other than a conviction for a new crime. In selecting a risk assessmentmodel, the Commission considered the accuracy of prediction, public safety, andthe factors included in the model. The risk assessment model selected by theCommission for integration into the guidelines outperformed the alternativemodels in its ability to identify candidates for diversion who have the lowest ratesof recidivism and, therefore, represent the least risk to public safety. A full dis-cussion of the Commission’s study and its findings can be found in the chapter ofthis report entitled Probation Violator Study.

No risk assessment tool can ever predict a given outcome with 100% accuracy.The goal is to produce an instrument that is broadly accurate and provides usefuladditional information to decision makers.

The risk assessment instrument proposed by the Commission appears in Figure 83.Factors on the refined risk assessment instrument are the result of statistical analysis.The factors reflect the circumstances of the offender’s original crime, his criminalhistory, and the offender’s behavior while under supervision. Individual factors bythemselves do not place an offender in a high-risk group. It is the presence of certaincombinations of factors that determines the risk group of the offender. The Com-mission made one adjustment to the statistical model, and this is discussed below.


Figure 83

Proposed Risk Assessment Instrument for Probation Violators Not Convicted of a New Crime


There are eight factors on the proposed risk assessment instrument.

• Original Felony Offense or Prior Record Offense was a Crime against Person. TheCommission’s analysis revealed that offenders who were on probation for a felonyperson crime and those who had a prior conviction for a crime against the personwere more likely to recidivate than other offenders in the study. These offendersreceive 21 points on the risk assessment instrument.

• Number of Codefendents in the Original Felony Offense(s). Offenders whose origi-nal felony offense or offenses involved one or more codefendants recidivated at higherrates in the Commission’s study. That the number of codefendants is associated withrisk may relate to the offender’s level of social connection with other criminals. Asmost offenders return to the same community where they were originally convicted,the presence of this factor may indicate that an offender, convicted with others, has anassociation with a criminal network in that community. According to the study find-ings, such a violator is at greater risk to return to criminal activity when he resumeshis community supervision. Thus, offenders who had a single codefendant receive 6points on the proposed violator risk assessment instrument, while violators with mul-tiple codefendants receive 22 points.

• Offender’s Age at Revocation. Traditionally in criminological research on recidivism,younger offenders are at higher risk of repeat offending. This study of Virginia’sprobation violators produced similar findings. Offenders who are under the age of 30at the time of revocation hearing receive the highest number of points (42), becausethese young violators demonstrated the greatest risk for recidivism. Offenders whoare 30 to 37 years of age receive fewer points (28), followed by those who are 38 to 48years of age at time of revocation, who are assigned 14 points. The oldest violators,offenders who are over the age of 48, were found to recidivate at considerably lowerrates than other offenders, and therefore, receive no points on this factor.

• Mental Health Problems Resulting in Treatment or Commitment. The Commission’sexamination revealed that violators whose mental health problems have resulted insome type of mental health treatment in the past and those who have been commit-ted previously for mental health treatment did not perform as well as other offenderswhen they returned to community supervision. In the Commission’s analysis, thisfactor was found to be the most correlated with subsequent supervision failure. Thefactor is divided into five categories. Offenders with no prior mental health treat-ment history receive no points on the proposed risk assessment instrument. Offend-ers who committed themselves voluntarily for mental health treatment sometime inthe past receive 22 points. Offenders who have undergone outpatient treatment onlyreceive 27 points. A prior court-ordered mental health commitment results in 30points, while a previous involuntary commitment that was not based on a court orderadds 41 points to the offender’s score. These offenders demonstrate a significantlyhigher level of risk of recidivism, perhaps due to an inability to recognize or addressongoing mental health issues while in the community.

• New Arrests for Crimes against a Person. Offenders who had been arrested for, butnot convicted of, a new person crime while under supervision went on to recidivate athigher rates than other offenders when returned to the community following theviolation hearing. Being arrested for, but not convicted of, a new crime against aperson while on supervision, results in the violator receiving 14 points on the pro-posed risk assessment instrument. Only arrests are considered in this factor becauseviolators who are convicted of new crimes while on supervision are not eligible forprobation violation guidelines or risk assessment evaluation with the proposed tool.


• Previous Capias/Revocation Requests. The number of capias/revocation hearing re-quests previously submitted by the probation officer to the judge during the supervi-sion period also indicates risk. Having had one such request results in the violatorreceiving 11 points on the proposed risk assessment instrument. More than one suchprior request, which suggests the offender has had ongoing problems adjusting tosupervision, yields 14 points on the proposed scale.

• Absconded from Supervision or Moved without Permission. Offenders who abscondedfrom supervision and those who changed residences without informing the probationofficer were subsequently more likely to be rearrested than other offenders, based onthe Commission’s analysis. In the original statistical model, this factor included an-other type of violation: failure to follow instructions of the probation officer. How-ever, because of concern that the term “fail to follow instructions” may be ambiguous,is difficult to define, and may lead to subjective and inconsistent scoring, the Com-mission elected to remove “fail to follow instructions” from this factor. All of thefactors in the risk assessment model remain statistically significant with this adjust-ment. Offenders who absconded or moved without permission receive 19 points onthe proposed violator risk assessment instrument.

• Substance Abuse while on Supervision. The Commission found that offenders whoabuse alcohol or use drugs while under supervision are less successful, and more likelyto be rearrested, once they return to the community following a probation violationor revocation. The identification of the offender’s alcohol abuse may be based onincidents reported by law enforcement, the family, or employers, observations of theprobation officer, positive tests or admission by the offender himself. On the pro-posed risk tool, alcohol-abusing offenders receive one point. Those who either admitto using, or test positive for, drugs other than cocaine or alcohol, are at slightly higherrecidivism risk and receive three points. Finally, those who either admit to using, ortest positive for, cocaine receive 16 points.

In combination, these factors are used to calculate a score that is associated withrisk of recidivism. Offenders with low scores share characteristics with offendersfrom the study sample who, proportionately, recidivated less often than thosewith higher scores. In this way, the instrument is predictive of offender risk.

In its 2003 directive to the Commission, the General Assembly did not identify atarget, or the proportion of violators, to be redirected from jail or prison. How-ever, the legislative charge directed the Commission to give “due regard to publicsafety.” Accordingly, the Commission carefully examined the recidivism pat-terns of the violators. The Commission found that at the lower point levels, theoffenders are somewhat homogeneous; that is, there are only slight variations intheir levels of recidivism. Nevertheless, applying the proposed risk assessmentinstrument, there is a point at which recidivism rates begin to rise steadily as therisk score increases. The Commission concluded that offenders scoring 53 pointsor more on the proposed risk scale are, overall, at substantially greater risk ofrecidivism and, therefore, inappropriate candidates for alternative sanctions inlieu of incarceration in prison or jail. The Commission recommends the thresh-old, or maximum number of points an offender can score to receive a recommen-dation for alternative punishment, be set at 52 points. Under the Commission’s


proposal, violators scoring 52 points or less on the proposed risk assessment instru-ment will be recommended for an alternative sanction instead of the prison or jailconfinement recommended by the probation violation sentencing guidelines.For offenders scoring 53 points or more, the recommendation for incarcerationprovided by the probation violation sentencing guidelines remains unchanged.

Applying the threshold chosen by the Commission, 56% of violators (returnedto court for reasons other than a new conviction) will be recommended for al-ternative punishment options. According to the Commission’s study data, lessthan 17% of the offenders recommended for an alternative sanction were identi-fied as recidivists during the study period. In contrast, the recidivism rate wasnearly 44% among offenders not recommended for an alternative sanction bythe selected risk assessment model.

As noted above, a significant share of the violators who will be evaluated underthe proposed risk assessment instrument will likely be deemed to be a very lowrisk to public safety. Unfortunately, it is the feeling of the Commission thatjudges in Virginia do not have an adequate range of alternative sanctions avail-able to them to address this particular offender population. There is no questionthat the probation violators need to be held accountable for their misconduct.However, the Commission believes that public safety would not be compromisedif sentencing options, much less costly than traditional incarceration, were moreconsistently applied to some of these felons.

In order to ensure that we continue to prioritize limited prison resources forincapacitating our most dangerous offenders, it is critically important to makeavailable other sanctioning options for punishing the lower risk probation viola-tors. In adopting the landmark 1994 no-parole legislation, the General Assem-bly recognized the long-term need to prioritize correctional resources, directingthe Commission to develop a risk assessment instrument for those convicted ofnonviolent felonies and to determine if 25% of incarceration-bound offenderscould be safely redirected to alternative punishment options in lieu of jail orprison. This risk assessment instrument is integrated into the sentencing guide-lines system and is proving to be very successful in achieving its goals. The suc-cess of the risk assessment initiative is tied to many factors, among which is theavailability of intermediate sentencing options for offenders identified to be goodcandidates. In order for the new proposed risk assessment instrument for proba-tion violators to be equally successful, new sentencing alternatives for this spe-cific population of felons will need to be created, funded and made available tothe circuit court judges.


Recommendation 3

Conduct a thorough study of probation violators returned to court becauseof a new criminal conviction

• Issue

The 2003 General Assembly directive specified that the Commission examinesupervision violators returned to court for reasons other than a conviction for anew crime. In 2004, the Commission implemented the probation violation sen-tencing guidelines. The new guidelines, however, do not apply to offenders whohave been found in violation of the conditions of supervision because they havebeen convicted of a new crime. A large share of offenders have their probationrevoked due to a new misdemeanor or felony conviction. Information related tonew-crime violators is limited. Little is known about the circumstances related tothe violation or the behaviors of these offenders while under supervision. Inmany cases, judges will not have sentencing guidelines to consider when formu-lating sentencing decisions.

• Discussion

Since 1991, Virginia’s circuit judges have been provided with historically-basedsentencing guidelines grounded in an analysis of criminal sanctioning practices.Today, sentencing guidelines apply to nearly all felony offenses committed in theCommonwealth. These guidelines are an important tool available to judges toassist them in formulating sentences for convicted felons.

Since 1995, when sentencing reforms abolished parole, circuit court judges havedealt with a wider array of supervision violation cases, including violations ofsupervision following release from incarceration that formerly were handled byVirginia’s Parole Board as parole violations. Despite the larger role they now playin overseeing supervision of offenders in the community, circuit court judgeshave had to perform these duties without any sentencing tools available to them.Beginning July 1, 2004, there are now sentencing guidelines for probation viola-tors returned to court for reasons other than a new conviction. However, no suchtool exists exist for judges when faced with re-imposing suspended time for offend-ers returned to court for violating conditions of community supervision related to anew criminal conviction.

In 2003, nearly 40% of probation violators were convicted of a new crime whileunder community supervision. If the new crime is a felony covered by the sen-tencing guidelines, the probation violation can be scored as an additional offense

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in the case. However, no guidelines will be prepared when the probation viola-tion is handled separately from the new felony conviction, when the new crime isnot covered by the guidelines, or when the new crime is a misdemeanor.

During its study of violators not convicted of a new crime, offenders also knownas “technical violators,” the Commission found significant variation in the pun-ishment of violators and the re-imposition of suspended incarceration time. Thelocality where the offender was under supervision was the single most importantdeterminant of the punishment a violator would receive. Given the disparatepractices in the sanctioning of violators not convicted of a new crime, disparitiesmay also exist in the punishment of new-crime violators. A thorough examina-tion of this population of violators would provide insight into the behaviors ofthis group while under supervision and the judicial sentencing patterns in thesecases. Studying new-crime violators will serve to complement the extensive workthe Commission has recently completed on violators not convicted of newcriminal charges.


Recommendation 4

Modify § 19.2-298.01 of the Code of Virginia to require 1) completion of theSentencing Revocation Report (SRR) in all felony cases involving a violation ofprobation or other form of community supervision, 2) preparation and judi-cial review of the probation violation sentencing guidelines, when applicable,3) written explanation of any departure from those guidelines, and 4) submis-sion of these documents, including disposition in each case, by the clerk of thecircuit court to the Virginia Criminal Sentencing Commission

• Issue

Currently, § 19.2-298.01 of the Code of Virginia outlines specific provisions re-quiring the completion and submission of the sentencing guidelines worksheetsapplicable for felony offenses. This provision became effective January 1, 1995.

Since that time, the Commission has implemented a reporting system for track-ing community supervision violation proceedings in Virginia’s circuit courts. Thissystem provides information that is not available from any other source in theCommonwealth. Implemented in 1997, the report is a simple form known asthe Sentencing Revocation Report (or SRR). In addition, at the direction of theGeneral Assembly, the Commission implemented discretionary sentencing guide-lines applicable to felony offenders who violate the conditions of probation butare not convicted of a new crime. Statewide use of the probation violation sen-tencing guidelines began July 1, 2004. Existing law does not specifically requirecompletion and submission of the SRR or the new guidelines for felony pro-bation violators.

• Discussion

Under current Code, the provisions of § 19.2-298.01 refer to the sentencing guide-lines for felony offenses, established pursuant to § 17.1-800 through § 17.1-806.These provisions require the preparation of the sentencing guidelines worksheetsin all felony cases (other than Class 1 felonies). In addition, the judge is requiredto review and consider the suitability of the guidelines in each case. When ajudge sentences above or below the guidelines, the judge is to provide a writtenexplanation for the departure. Finally, the clerk of the circuit court must submitthe guidelines forms to the Commission.

The requirements pertaining to the sentencing guidelines for felony offenses areexplicitly stated in § 19.2-298.01. Since § 19.2-298.01 was enacted, however, theCommission has developed and implemented two programs, one by mandate of theGeneral Assembly, that are not specifically addressed by this statute.

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Charged under § 17.1-803(7) with monitoring sentencing practices in felonycases, the Commission found that there was little to no information available onviolations of community supervision or how judges were punishing violators.While the Commonwealth maintains a wide array of sentencing information onfelons at the time they are initially sentenced in circuit court, information on there-imposition of suspended incarceration time for felons returned to court forviolation of the conditions of community supervision was, until 1997, largelyunavailable and its impact difficult to assess. In 1997, the Commission teamedwith the Department of Corrections (DOC) to implement a procedure for sys-tematically gathering data on the reasons for, and the outcomes of, communitysupervision violation proceedings in Virginia’s circuit courts. With DOC’s assis-tance, the Commission developed a simple one-page form called the SentencingRevocation Report (SRR) to capture this information. The Commission hasrequested that either a probation officer or Commonwealth’s attorney prepare anSRR for each hearing related to the violation of probation or other form of com-munity supervision. The Commission has also requested that the clerk of thecircuit submit each completed form to the Commission following the violationhearing. However, this process is not mandated by statute.

In 2003, the General Assembly directed the Commission to develop discretion-ary sentencing guidelines for a special population of offenders not previouslycovered by the guidelines. Implemented statewide July 1, 2004, these new guide-lines apply in cases of felony offenders who violate the conditions of probationbut are not convicted of a new crime. The Commission has requested that aCommonwealth’s attorney or probation officer complete the new guidelines foreach violation hearing involving an offender who returned to court for reasonsother than a new criminal conviction. These guidelines are to be attached to theSRR form and given to the court for review. The Commission has asked judgesto review the guidelines, enter the disposition, and provide a reason for departurewhen a sentence outside of the guidelines is given. Once the hearing has takenplace, the Commission has requested the clerk to forward the forms to the Com-mission. This process, however, is not stipulated in the Code of Virginia.

While the Sentencing Revocation Report (SRR) yields crucial criminal justicedata not otherwise available, it is not required by § 19.2-298.01. Nor does§ 19.2-298.01 specifically require the completion and submission of the newprobation violation sentencing guidelines, which were developed and implementedin response to a directive from the 2003 General Assembly. The Commissionproposes expanding § 19.2-298.01 to cover the SRR and probation violationsentencing guidelines under the provisions of this statute.


Recommendation 5

Revise the nonviolent offender risk assessment instrument to exclude offendersbeing sentenced for a crime that carries a mandatory minimum term of incar-ceration from risk assessment evaluation

• Issue

The nonviolent offender risk assessment instrument is designed to identify low-risk property and drug offenders, recommended for incarceration by the sentenc-ing guidelines, for alternative punishment programs in lieu of prison or jail. Ifthe offender is otherwise eligible, the risk assessment instrument is completed,even in cases in which the offender has been convicted of a crime that carries amandatory penalty. In these cases, the court cannot use an alternative sanctionoption, even if one is recommended, because the court must impose the manda-tory minimum term of incarceration required by law. It is unnecessary to com-plete the nonviolent offender risk assessment instrument in these cases.

• Discussion

In 1994, as part of the reform legislation that instituted truth-in-sentencing, theGeneral Assembly required the Commission to study the feasibility of using anempirically-based risk assessment instrument to select 25% of the lowest risk,incarceration-bound, drug and property offenders for placement in alternative(non-prison) sanctions. By 1996, the Commission developed such an instru-ment and implementation of the instrument began in pilot sites in 1997. TheNational Center for State Courts (NCSC), in 2001, completed an independentevaluation of nonviolent risk assessment. That same year, the Commission con-ducted a validation study of the original risk assessment instrument to test andrefine the instrument for possible use statewide. In July 2002, the nonviolentrisk assessment instrument was implemented statewide. By request of the 2003General Assembly, the Commission revised the instrument to identify additionallow-risk offenders for alternatives.

The Risk Assessment Instrument is completed for drug, fraud, and larceny of-fenders who meet the Commission’s eligibility criteria. Offenders who are rec-ommended for probation, offenders who have a current or prior conviction for aviolent felony, and offenders who sell 28.35 grams or more of cocaine are ex-cluded automatically from risk assessment consideration. An offender who scores38 points or less is recommended for an alternative sanction other than tradi-tional incarceration. The specific type of alternative punishment to be used is atthe discretion of the judge. Offenders who score 39 points or more are recom-mended for incarceration based on the standard sentencing guidelines.

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Currently, being convicted of an offense that carries a mandatory term of incar-ceration does not automatically preclude an offender from risk assessment evalu-ation. In fiscal years (FY) 2003 and 2004, 209 risk assessment worksheets werecompleted in cases when the judge had to impose a mandatory minimum sen-tence. In 66 of the cases, risk assessment resulted in a recommendation for analternative punishment. In the other 143 cases, risk assessment did not recom-mend an alternative. However, the judge could not utilize an alternative punish-ment in the 66 cases in which one was recommended because of the mandatoryterm required by law.

Completion of the risk assessment worksheet is unnecessary in cases involving anoffense with a mandatory minimum penalty. Adding this criterion to the exist-ing ineligibility conditions at the top of the risk assessment form will eliminatethe preparation of risk worksheet in cases that require mandatory incarceration.This is illustrated in Figure 84.

Figure 84

Proposed Ineligibility Condition for the Nonviolent Offender Risk Assessment Instrument


Recommendation 6

Perform a thorough reanalysis of the sanctioning practices for offenders con-victed of crimes covered by the Miscellaneous Sentencing Guidelines

• Issue

Overall, the sentencing guidelines cover approximately 95% of felony convic-tions in the Commonwealth each year. For several arson, vandalism and weaponsfelonies, the Commission has assembled enough cases to develop sentencing guide-lines. Although these types of offenses would normally be added to the Miscella-neous Sentencing Guidelines, analysis suggests that historical sentencing patternsfor the specific offenses identified do not fit well within the structure of the cur-rent guidelines.

• Discussion

The arson, vandalism and offense categories are subsumed under the Miscella-neous offense group for the purposes of guidelines. The Miscellaneous Sentenc-ing Guidelines presently cover two arson, one vandalism and six weapons felo-nies. The Commission has identified ten additional arson, vandalism and weap-ons offenses for which there are enough cases to analyze for the development ofsentencing guidelines (Figure 85).

Historical sentencing patterns for these felonies have been examined. Sen-tencing models for these offenses do not fit well within the current structure of

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FY2001-FY2003Statute Crime Penalty Cases

§ 18.2-77(A,ii) Burn occupied dwelling/church 5y - Life 92§ 18.2-77(B) Burn unoccupied dwelling/church 2y - 10y 36§ 18.2-80 Arson of unoccupied building - $200 or more 2y - 10y 29§ 18.2-85 Manufacture/possession of firebomb 1y - 10y 25

§ 18.2-154 Shoot etc. at train/car/etc without malice 1y - 5y 49§ 18.2-137(B,ii) Intentionally damage/destroy property - $1000 or more 1y - 5y 202

§ 18.2-279 Unlawful discharge of firearm in/at occupied bldg 1y - 5y 73§ 18.2-286.1 Discharge firearm from motor vehicle 1y - 10y 26§ 18.2-308 Carry concealed weapon - 2nd conviction 1y - 5y 51§ 18.2-308.2:2(K) False statement on firearm crim. history consent form 1y - 10y 169

Figure 85

Felony Offenses Identified for Addition to the Miscellaneous Sentencing Guidelines


the Miscellaneous Sentencing Guidelines. The Miscellaneous offense group iscomposed of a wide array of offenses such as: felon in possession of a firearm,burning personal property, making bomb threats, failure to appear, perjury, childabuse, maliciously discharging a firearm into an occupied building, and mali-ciously shooting at a train or car.

A complete reanalysis of the Miscellaneous Sentencing Guidelines, including thenewly identified felonies, may provide better results. With such a disparate set ofoffenses aggregated for the purposes of sentencing guidelines, it is important toexamine the crimes to be added, in a holistic fashion, with the offenses alreadycontained in the guidelines. Such a reanalysis may suggest that one or moreoffense categories should be separated from the Miscellaneous group to create anew guidelines offense group. For example, the Commission could separate weap-ons crimes into a distinct category and establish Weapon Sentencing Guidelines,should the results of the analysis support this change. The results of the reanaly-sis are expected to yield guidelines recommendations more finely tuned to judi-cial sentencing practices for these offenses.

Appendices R 145

APPENDICES7


R Appendix 1

Judicial Reasons for Departure from Sentencing GuidelinesRecommendations for Property, Drug and Miscellaneous Offenses

Burglary of Burglary of OtherReasons for Mitigation Dwelling Other Struct. Sch. I/II Drugs Fraud Larceny Misc. Traffic

No reason given 2.2% 2.2% 1.5% 1.8% 1.7% 1.4% 2.4% 1.6%Minimal property or monetary loss 0.1 0.2 0.3 0 0.2 0.1 0 0Minimal circumstances/facts of the case 0.7 0.6 0 0.3 0.5 0.4 0.4 0.5Offender not the leader 0.2 0.2 0.1 0 0 0.1 0.2 0Small amount of drugs involved in the case 0.1 0 0.2 0.1 0 0 0 0Offender and victims are relatives/friends 0.2 0 0 0 0.2 0.1 0.2 0Little or no injury/offender did not intend to harm; victim requested lenient sentence 0.4 0 0 0 0.2 0.1 0 0Offender has no prior record 0.1 0 0 0 0 0 0 0Offender has minimal prior record 0.9 0.2 0.3 0.5 0.3 0.1 0.2 0.1Offender’s criminal record overstates his degree of criminal orientation 0.1 0 0.2 0.4 0.1 0.1 0 0.1Offender cooperated with authorities 1.7 2.1 0.9 0.9 0.6 0.6 0.2 0Offender is mentally or physically impaired 0.1 0.4 0.2 0.1 0.4 0.4 0.4 0.1Offender has emotional or psychiatric problems 0.2 0.2 0.1 0 0.2 0.2 0.2 0Offender has drug or alcohol problems 0 0.2 0.1 0 0 0.1 0.4 0Offender needs counseling 0 0.2 0.1 0 0 0 0 0Offender has good potential for rehabilitation 1.8 2.4 0.7 0.7 2.4 1.1 1.1 0.3Offender shows remorse 0.5 0.6 0 0.1 0.2 0.1 0 0Age of Offender 1.1 0.6 0.2 0.3 0.2 0.1 0 0Jury sentence 0.2 0 0 0 0 0.1 0 0Multiple charges are being treated as one criminal event 0.2 0.4 0.4 0 0.1 0 0 0Sentence recommended by Commonwealth Attorney or probation officer 1.1 0.7 0.2 0 0.6 0.2 0.5 0.3Weak evidence or weak case 0.6 0.9 1.5 0.4 0.3 0.2 0.2 0Plea agreement 2.2 2.2 0 1.4 1.8 1.4 2.4 0.9Sentencing consistency with co-defendant or with similar cases in the jurisdiction 0.2 0.6 0.1 0 0 0.1 0.2 0Time served 0.2 0.9 0.2 0.1 0.3 0.2 0.7 0Offender already sentenced by another court or in previous proceeding for other offenses 0.5 0.7 0 0.3 0.8 0.2 0.5 0.1Offender will likely have his probation revoked 0 0 1.0 0 0 0 0.2 0.1Offender is sentenced to an alternative punishment to incarceration 3.4 1.1 0 0 0.8 0.8 0.4 0Guidelines recommendation is too harsh 0.6 0.7 0.1 0 0.5 0.1 0 0Judge rounded guidelines minimum to nearest whole year 0.4 0.4 0.2 0.3 0.2 0.1 0.2 0.1Other mitigating factors 0.2 0.2 0.2 0 0.2 0.1 0.2 0

Note: Percentages indicate the percent of all guideline offense cases in which the judge cites a particular reason for themitigation (or aggravation) departure. The percentages will not add to the offense’s mitigation (or aggravation) rate sincemore than one departure reason may be cited in each case.

Appendices R 147

Burglary of Burglary of OtherReasons for Aggravation Dwelling Other Struct. Sch. I/II Drugs Fraud Larceny Misc. Traffic

No reason given 2.8% 1.9% 2.1% 1.3% 0.5% 1.3% 3.3% 2.1%Extreme property or monetary loss 0.5 0.6 0 0 0.1 0.5 0 0The offense involved a high degree of planning 0.1 0.9 0 0 0.2 0.2 0.2 0Aggravating circumstances/flagrancy of offense 4.8 1.1 0.3 0.4 0.5 0.9 1.8 0.9Offender used a weapon in commission of the offense 0.1 0.2 0 0.1 0 0 0.5 0Offender was the leader 0.1 0.2 0 0.1 0 0.1 0 0Offender’s true offense behavior was more serious than offenses at conviction 0.6 0.9 0.5 0.1 0.1 0.4 1.3 0.1Extraordinary amount of drugs or purity of drugs involved in the case 0 0 0.3 1.3 0 0 0 0Aggravating circumstances relating to sale of drugs 0 0 0.2 0.7 0 0 0 0Offender immersed in drug culture 0 0 0.1 0.3 0 0 0 0Community drug problem 0 0 0 0.1 0 0 0 0Victim vulnerability 0.7 0 0 0 0.1 0.1 1.1 0Victim request 0.5 0 0 0 0 0.1 0.5 0.1Victim injury 0.4 0 0 0 0 0 2.7 0.3Previous punishment of offender has been ineffective 0.2 0.4 0.2 0.5 0.1 0.3 0.5 0.2Offender was under some form of legal restraint at time of offense 0 0.2 0.5 0.5 0.2 0.2 0.2 0.5Offender’s criminal record understates the degree of his criminal orientation 0.5 0.7 0.7 0.5 0.3 0.8 0.5 1.2Offender has previous conviction(s) or other charges for the same type of offense 0.5 0.9 0.7 1.4 0.3 0.9 0.2 2.9New crime committed after current offense 0.2 0.2 0.4 0.1 0 0.1 0 0Offender failed to cooperate with authorities 0.4 0 0.4 0.1 0.2 0.3 0.5 0.4Offender has mental health problems 0 0 0 0 0 0 0.2 0Offender has drug or alcohol problems 0 0 0.2 0 0 0.2 0.4 0.5Offender has poor rehabilitation potential 0.7 1.1 0.6 0.1 0.1 0.6 0.9 0.7Offender shows no remorse 0.5 0.2 0.1 0 0.1 0.2 0.4 0.2Jury sentence 0.9 0.4 0.2 0 0 0.4 1.1 0.4Sentence recommend by Commonwealth Attorney or probation officer 0.1 0.2 0.1 0 0 0.1 0.4 0Plea agreement 2.3 1.3 1.6 1.3 0.7 1.3 2.4 0.8Community sentiment 0.4 0.2 0.2 0.3 0.1 0.1 0.2 0.0Sentencing consistency with codefendant or with other similar cases in the jurisdiction 0.1 0.2 0.1 0.3 0 0.1 0 0Offender is sentenced to an alternative punishment to incarceration 0.6 0.7 0.9 1.3 0.2 0.6 0.4 0.9Guidelines recommendation is too low 1.5 0.4 0.5 0.5 0.2 0.4 1.6 0.6Mandatory minimum penalty is required in the case 0.1 0.0 0.2 0 0 0.1 0.2 0.1Judge rounded guidelines minimum to nearest whole year 0.2 0.2 0.2 0 0.1 0.1 0.2 0.3Other reason for aggravation 0.2 0.4 0.1 0.3 0.1 0.1 0.4 0


R Appendix 1

Judicial Reasons for Departure from Sentencing GuidelinesRecommendations for Property, Drug and Miscellaneous Offenses


Reasons for Mitigation Assault Homicide Kidnapping Robbery Rape Sex. Assault

No reason given 1.9% 0.8% 1.1% 3.8% 2.6% 1.7%Minimal property or monetary loss 0 0 0 0 0 0Minimal circumstances/facts of the case 0.8 1.6 0 1.4 2.1 1.2Offender was not the leader or active participant in offense 0 1.2 0 2.1 0 0Offender and victim are related or friends 0.5 0 1.1 0.3 1.3 0.2Little or no victim injury/offender did not intend to harm; victim requested lenient sentence 1.8 0.4 3.2 0.8 2.1 1.7Victim was a willing participant or provoked the offense 0.5 0.4 0 0.4 0 0Offender has no prior record 0.2 0 0 0.1 0.9 0Offender has minimal prior criminal record 0.3 0 1.1 1.7 0.9 0.7Offender’s criminal record overstates his degree of criminal orientation 0.2 0.4 0 0.4 0.4 0Offender cooperated with authorities or aided law enforcement 0.3 2.8 2.1 5.2 0 0.7Offender has emotional or psychiatric problems 0.3 0 0 0.8 0.4 0.0Offender is mentally or physically impaired 0.4 0.4 1.1 0.4 0.4 1.2Offender has drug or alcohol problems 0.2 0 0 0.4 0 0.2Offender needs counseling 0 0 0 0 0 0Offender has good potential for rehabilitation 0.9 0.4 0 1.8 3.4 1.7Offender shows remorse 0.3 0.4 1.1 0.3 0 0Age of offender 0.4 0.8 0 2.0 1.7 0.2Multiple charges are being treated as one criminal event 0 0 0 0.3 0 0Guilty plea 0.1 0 0 0 0.4 0Jury sentence 0.2 4.8 0 0.1 3.0 0.5Sentence was recommended by Commonwealth’s attorney or probation officer 0.4 0.4 0 1.7 0.9 0.7Weak evidence or weak case against the offender 0.9 1.6 1.1 1.0 4.3 1.7Plea agreement 2.4 0.8 1.1 2.7 3.4 1.9Sentencing consistency with codefendant or with other similar cases in the jurisdiction 0.1 0.4 0 0.4 0 0Time served 0.3 0 0 0.4 0 0.2Offender already sentenced by another court or in previous proceeding for other offenses 0.3 0 0 1.1 0.4 0.2Offender will likely have his probation revoked 0.1 0 1.1 0.3 0 0Offender is sentenced to an alternative punishment to incarceration 0.5 0 0 2.4 2.1 0Guidelines recommendation is too harsh 0 0 0 0.3 0.4 0Attempt, not a completed act 0 0 0 0 0 0.2Judge rounded guidelines minimum to nearest whole year 0.7 0.4 0 1.0 0 0.5Other reasons for mitigation 0.2 0.4 0 0.3 0.4 0


Appendix 2

Judicial Reasons for Departure from Sentencing GuidelinesRecommendations for Offenses Against the Person

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Appendices R 149

Reasons for Aggravation Assault Homicide Kidnapping Robbery Rape Sex. Assault

No reason given 2.0% 1.6% 4.2% 1.7% 0.4% 1.2%The offense involved a high degree of planning 0.1 0 0 0 0 0.2Aggravating circumstances/flagrancy of offense 1.4 2.4 1.1 2.2 0 1.7Offender used a weapon in commission of the offense 0.5 0 0 0.7 0 0Offender was the leader 0.1 0 0 0.1 0 0Offender’s true offense behavior was more serious than offenses at conviction 0.4 0.8 2.1 0.4 0 0.9Offender is related to or is the caretaker of the victim 0 0.4 0 0 1.3 1.7Offense was an unprovoked attack 0.1 0.8 0 0 0 0Offender knew of victim’s vulnerability 0.8 0.8 2.1 0.1 1.3 2.6The victim(s) wanted a harsh sentence 0.5 0.8 2.1 0.8 0 0.9Extreme violence or severe victim injury 3.1 2.0 4.2 2.0 0.9 0Previous punishment of offender has been ineffective 0.1 0 0 0.6 0 0Offender was under some form of legal restraint at time of offense 0 0 1.1 0.3 0 0Offender has a serious juvenile record 0.1 0 0 0 0 0Offender’s record understates the degree of his criminal orientation 0.5 0.8 1.1 0.4 0.4 0.5Offender has previous conviction(s) or other charges for the same offense 0.8 1.2 0 0.4 0 0.5New crime committed after current offense 0.1 0 1.1 0.1 0 0Offender failed to cooperate with authorities 0.3 0 1.1 0 0 0Offender has drug or alcohol problems 0.1 1.2 0 0.1 0 0Offender has poor rehabilitation potential 0.8 1.2 2.1 0.8 0.4 0.5Offender shows no remorse 0.6 1.6 1.1 0.8 1.3 0Age of offender 0.1 0 0 0 0 0Jury sentence 1.2 5.2 1.1 1.1 0.4 1.7Sentence was recommended by Commonwealth’s attorney or probation officer 0.2 0 1.1 0.1 0 0Plea agreement 1.1 1.6 0 0.4 0 2.4Sentencing consistency with codefendant or with other similar cases in the jurisdiction 0 0 0 0.1 0 0Community sentiment 0.2 0.4 0 0.1 0 0.2Offender is sentenced to an alternative punishment to incarceration 0.2 0 0 0 0 0Guidelines recommendation is too low 0.3 1.6 0 0.7 0.4 1.2Mandatory minimum penalty is required in the case 0.1 0 1.1 0.8 0 0Judge rounded guidelines minimum to nearest whole year 0.2 0 0 0.4 0 0Other reasons for aggravation 0.3 0 0 0.3 0.4 1.2


Appendix 2

Judicial Reasons for Departure from Sentencing GuidelinesRecommendations for Offenses Against the Person

R


1 82.4% 8.8% 8.8% 34

2 62.1 24.1 13.8 58

3 76.7 10.0 13.3 30

4 65.0 22.5 12.5 40

5 77.8 16.7 5.6 18

6 86.4 0 13.6 22

7 85.7 4.8 9.5 21

8 58.8 29.4 11.8 17

9 70.6 5.9 23.5 17

10 66.7 20.0 13.3 30

11 61.5 23.1 15.4 13

12 61.3 16.1 22.6 31

13 60.0 16.0 24.0 25

14 62.1 27.6 10.3 29

15 55.8 23.1 21.2 52

16 69.2 7.7 23.1 26

17 52.4 4.8 42.9 21

18 66.7 8.3 25.0 12

19 72.7 12.1 15.2 33

20 80.0 0 20.0 5

21 61.1 22.2 16.7 18

22 62.2 13.5 24.3 37

23 60.0 10.0 30.0 10

24 64.1 30.8 5.1 39

25 75.0 16.7 8.3 36

26 58.6 24.1 17.2 29

27 84.6 7.7 7.7 39

28 57.1 28.6 14.3 14

29 38.1 14.3 47.6 21

30 71.4 14.3 14.3 14

31 72.2 16.7 11.1 18

Missing 66.7 0 33.3 3

Total 66.9 16.6 16.5 812

BURGLARY-DWELLING

1 90.9% 9.1% 0% 11

2 91.7 5.6 2.8 36

3 55.6 22.2 22.2 9

4 86.4 13.6 0 22

5 85.7 7.1 7.1 14

6 43.8 18.8 37.5 16

7 68.4 21.1 10.5 19

8 81.3 6.3 12.5 16

9 84.6 7.7 7.7 13

10 70.0 30.0 0 20

11 77.8 11.1 11.1 9

12 71.4 9.5 19.0 21

13 75.0 15.0 10.0 20

14 90.9 9.1 0 11

15 59.1 13.6 27.3 44

16 94.1 5.9 0 17

17 55.6 27.8 16.7 18

18 64.3 14.3 21.4 14

19 68.0 16.0 16.0 25

20 100.0 0 0 8

21 66.7 25.0 8.3 12

22 60.0 10.0 30.0 10

23 63.6 27.3 9.1 11

24 77.3 18.2 4.5 22

25 72.2 16.7 11.1 18

26 79.2 12.5 8.3 24

27 86.7 13.3 0 30

28 76.5 17.6 5.9 17

29 53.8 15.4 30.8 13

30 85.7 14.3 0 7

31 42.9 28.6 28.6 7

Missing 50.0 0 50.0 2

Total 73.9 14.6 11.6 536

BURGLARY-OTHER

1 100.0% 0% 0% 11

2 81.6 10.5 7.9 76

3 100.0 0 0 9

4 85.7 14.3 0 42

5 76.9 7.7 15.4 13

6 68.4 21.1 10.5 19

7 81.8 9.1 9.1 11

8 100.0 0 0 15

9 78.6 7.1 14.3 14

10 68.8 12.5 18.8 16

11 83.3 0.0 16.7 6

12 84.4 6.3 9.4 32

13 85.7 11.4 2.9 35

14 92.5 2.5 5.0 40

15 74.4 5.1 20.5 39

16 84.4 6.7 8.9 45

17 86.7 6.7 6.7 15

18 85.7 14.3 0 7

19 85.5 4.3 10.1 69

20 78.6 0 21.4 14

21 88.9 0 11.1 9

22 64.3 7.1 28.6 14

23 72.2 16.7 11.1 18

24 64.0 12.0 24.0 25

25 85.3 2.9 11.8 34

26 80.0 3.3 16.7 30

27 83.3 8.3 8.3 24

28 87.1 9.7 3.2 31

29 55.6 0 44.4 9

30 92.3 7.7 0 13

31 93.3 3.3 3.3 30

Missing 0 0 0 0

Total 82.7 7.3 9.9 765

1 89.6% 2.0% 8.4% 249

2 84.7 8.2 7.1 477

3 78.1 9.6 12.2 384

4 82.8 14.4 2.9 627

5 83.3 5.9 10.8 102

6 67.8 10.7 21.5 121

7 92.5 2.9 4.6 373

8 85.0 7.5 7.5 133

9 86.6 4.7 8.7 127

10 84.4 7.4 8.1 135

11 90.0 2.2 7.8 180

12 80.1 4.0 15.9 226

13 85.1 7.1 7.7 504

14 79.1 11.2 9.8 215

15 69.1 7.3 23.7 262

16 75.2 8.5 16.3 153

17 82.3 7.2 10.5 181

18 82.1 10.3 7.7 117

19 84.4 7.5 8.1 334

20 84.1 6.8 9.1 88

21 82.1 6.0 11.9 84

22 74.9 6.4 18.7 171

23 77.8 7.8 14.4 167

24 77.0 11.2 11.8 187

25 85.5 5.7 8.8 159

26 76.3 13.2 10.5 190

27 84.6 4.9 10.5 162

28 85.8 6.2 8.0 113

29 56.4 9.0 34.6 78

30 89.3 0 10.7 28

31 88.4 6.6 5.1 198

Missing 93.3 0 6.7 15

Total 82.2 7.8 10.0 6540

DRUG-OTHER SCHEDULE I/II DRUGS

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Appendix 3

Sentencing Guidelines Compliance by Judicial Circuit: Property, Drugs, and Miscellaneous Offenses

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Appendices R 151

1 93.7% 4.5% 1.8% 111

2 91.5 5.6 2.8 142

3 76.7 16.7 6.7 30

4 78.9 21.1 0 133

5 88.9 8.3 2.8 72

6 90.6 6.3 3.1 32

7 84.7 10.2 5.1 59

8 87.5 9.4 3.1 32

9 87.5 7.5 5.0 40

10 92.2 4.7 3.1 64

11 88.6 8.6 2.9 35

12 93.1 3.4 3.4 87

13 90.4 2.7 6.8 73

14 87.1 10.7 2.1 140

15 81.0 12.4 6.5 153

16 95.1 3.7 1.2 82

17 83.1 5.6 11.3 71

18 90.5 7.9 1.6 63

19 81.1 14.3 4.6 196

20 94.4 3.7 1.9 54

21 85.4 10.4 4.2 48

22 86.1 9.7 4.2 72

23 77.6 19.6 2.8 107

24 67.7 28.1 4.2 96

25 84.4 11.5 4.1 122

26 87.3 9.7 3.0 134

27 90.0 8.3 1.7 120

28 83.1 15.6 1.3 77

29 75.9 10.3 13.8 58

30 91.7 8.3 0 36

31 93.4 6.6 0 76

Missing 80.0 0 20.0 5

Total 85.9 10.5 3.6 2620

1 91.7% 2.9% 5.3% 206

2 86.1 7.2 6.7 345

3 81.5 9.2 9.2 119

4 83.0 14.5 2.6 352

5 85.7 7.5 6.8 133

6 77.9 2.9 19.1 68

7 91.2 4.9 3.9 102

8 84.3 9.3 6.5 108

9 80.4 6.5 13.0 92

10 89.8 2.3 8.0 88

11 92.9 3.6 3.6 56

12 79.9 6.7 13.4 224

13 83.7 6.6 9.7 196

14 86.6 8.6 4.9 409

15 73.1 7.9 19.0 279

16 82.8 5.4 11.8 93

17 82.2 7.0 10.8 213

18 85.0 3.9 11.0 127

19 80.1 9.8 10.1 306

20 92.8 5.2 2.1 97

21 80.3 16.7 3.0 66

22 76.8 3.3 19.9 151

23 88.7 7.2 4.1 97

24 79.0 16.9 4.0 124

25 82.7 11.8 5.5 127

26 85.5 5.8 8.7 138

27 89.0 6.2 4.8 145

28 86.7 6.0 7.2 83

29 76.9 1.5 21.5 65

30 97.2 2.8 0 36

31 90.1 5.0 5.0 141

Missing 90.0 0 10.0 10

Total 83.9 7.6 8.5 4796

1 84.9% 4.1% 11.0% 73

2 80.7 4.5 14.8 176

3 66.7 0 33.3 27

4 86.6 6.2 7.2 97

5 86.4 6.8 6.8 44

6 95.1 2.4 2.4 41

7 90.8 1.5 7.7 65

8 86.2 6.9 6.9 29

9 70.0 2.9 27.1 70

10 92.9 1.2 6.0 84

11 81.6 7.9 10.5 38

12 90.6 4.2 5.2 96

13 87.2 7.7 5.1 39

14 89.5 5.3 5.3 95

15 82.1 4.6 13.2 151

16 90.4 1.4 8.2 73

17 73.7 5.3 21.1 38

18 90.5 0 9.5 21

19 73.8 5.7 20.5 122

20 91.1 0 8.9 56

21 71.4 14.3 14.3 35

22 86.8 0 13.2 68

23 87.0 1.9 11.1 54

24 88.3 5.0 6.7 120

25 88.4 2.3 9.3 86

26 83.8 10.0 6.3 80

27 91.0 6.0 3.0 67

28 89.2 5.4 5.4 37

29 68.0 4.0 28.0 25

30 82.4 5.9 11.8 17

31 86.7 5.0 8.3 60

Missing100.0 0 0 3

Total 84.8 4.4 10.8 2087

1 75.0% 16.7% 8.3% 12

2 58.8 8.8 32.4 34

3 100.0 0 0 16

4 69.4 13.9 16.7 36

5 90.0 0 10.0 20

6 53.8 38.5 7.7 13

7 95.0 0 5.0 20

8 88.2 5.9 5.9 17

9 77.8 11.1 11.1 9

10 88.9 0 11.1 18

11 75.0 8.3 16.7 12

12 60.9 8.7 30.4 23

13 68.0 8.0 24.0 25

14 83.3 0 16.7 36

15 55.0 22.5 22.5 40

16 75.0 6.3 18.8 16

17 33.3 33.3 33.3 3

18 60.0 0 40.0 5

19 100.0 0 0 12

20 91.7 0 8.3 12

21 76.9 7.7 15.4 13

22 58.1 3.2 38.7 31

23 81.8 9.1 9.1 11

24 77.3 0 22.7 22

25 68.8 12.5 18.8 16

26 73.1 11.5 15.4 26

27 82.4 11.8 5.9 17

28 55.6 44.4 0 9

29 73.3 20.0 6.7 15

30 71.4 28.6 0 7

31 33.3 16.7 50.0 6

Total 73.2 9.6 17.2 552

FRAUD LARCENY TRAFFIC MISCELLANEOUS

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ASSAULT KIDNAPPING HOMICIDE

1 100.0% 0% 0% 2

2 25.0 37.5 37.5 8

3 76.9 15.4 7.7 13

4 72.5 12.5 15.0 40

5 50.0 25.0 25.0 4

6 75.0 0 25.0 4

7 60.0 20.0 20.0 5

8 16.7 16.7 66.7 6

9 71.4 14.3 14.3 7

10 66.7 33.3 0 3

11 100.0 0 0 2

12 83.3 0 16.7 6

13 67.9 14.3 17.9 28

14 77.8 11.1 11.1 9

15 77.8 11.1 11.1 9

16 62.5 12.5 25.0 8

17 50.0 0 50.0 4

18 100.0 0 0 1

19 77.8 11.1 11.1 9

20 75.0 25.0 0 4

21 57.1 14.3 28.6 7

22 66.7 16.7 16.7 6

23 50.0 40.0 10.0 10

24 56.3 25.0 18.8 16

25 50.0 40.0 10.0 10

26 100.0 0 0 5

27 60.0 20.0 20.0 5

28 75.0 0 25.0 4

29 100.0 0 0 1

30 80.0 0 20.0 5

31 72.7 9.1 18.2 11

Total 66.7 15.9 17.5 252

1 50.0% 50.0% 0% 2

2 75.0 0 25.0 8

3 75.0 0 25.0 4

4 100.0 0 0 10

5 71.4 14.3 14.3 7

6 0 0 0 0

7 100.0 0 0 5

8 0 100.0 0 2

9 0 100.0 0 1

10 50.0 50.0 0 2

11 100.0 0 0 1

12 50.0 0 50.0 4

13 100.0 0 0 3

14 50.0 0 50.0 2

15 80.0 0 20.0 5

16 66.7 0 33.3 3

17 42.9 14.3 42.9 7

18 100.0 0 0 1

19 57.1 14.3 28.6 7

20 100.0 0 0 4

21 0 0 100.0 1

22 0 0 0 0

23 100.0 0 0 1

24 33.3 0 66.7 3

25 100.0 0 0 1

26 75.0 0 25.0 4

27 66.7 33.3 0 3

28 0 100.0 0 1

29 66.7 0 33.3 3

30 0 0 0 0

31 0 0 0 0

Total 69.5 10.5 20.0 95

1 87.2% 5.1% 7.7% 39

2 82.5 7.5 10.0 80

3 80.0 15.6 4.4 45

4 74.6 11.9 13.4 67

5 84.5 3.4 12.1 58

6 61.1 27.8 11.1 36

7 83.3 8.3 8.3 60

8 87.1 3.2 9.7 31

9 76.9 15.4 7.7 26

10 85.0 7.5 7.5 40

11 73.1 7.7 19.2 26

12 79.1 7.0 14.0 43

13 80.0 13.3 6.7 75

14 73.8 9.5 16.7 42

15 68.4 19.7 11.8 76

16 68.4 18.4 13.2 38

17 70.0 15.0 15.0 20

18 81.3 9.4 9.4 32

19 75.0 12.5 12.5 56

20 95.2 4.8 0 21

21 58.3 16.7 25.0 24

22 70.0 10.0 20.0 50

23 57.7 30.8 11.5 26

24 64.3 22.9 12.9 70

25 81.1 16.2 2.7 37

26 56.1 14.6 29.3 41

27 72.7 15.9 11.4 44

28 84.2 10.5 5.3 19

29 91.3 8.7 0 23

30 64.7 17.6 17.6 17

31 66.7 7.4 25.9 27

Missing 100.0 0.0 0.0 2

Total 75.4 12.7 11.9 1291

Appendix 4

Sentencing Guidelines Compliance by Judicial Circuit: Offenses Against the Person

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Appendices R 153

1 88.9% 0% 11.1% 9

2 78.3 4.3 17.4 23

3 72.7 18.2 9.1 11

4 68.2 27.3 4.5 22

5 66.7 11.1 22.2 9

6 88.9 11.1 0 9

7 86.7 6.7 6.7 15

8 62.5 25.0 12.5 8

9 46.2 23.1 30.8 13

10 83.3 16.7 0 12

11 100.0 0 0 7

12 77.8 5.6 16.7 18

13 78.6 7.1 14.3 14

14 80.0 20.0 0 10

15 73.9 8.7 17.4 23

16 77.8 7.4 14.8 27

17 83.3 0 16.7 6

18 100.0 0 0 5

19 72.0 0 28.0 25

20 50.0 33.3 16.7 6

21 33.3 33.3 33.3 6

22 61.1 11.1 27.8 18

23 100.0 0 0 6

24 68.8 6.3 25.0 16

25 76.7 16.7 6.7 30

26 60.0 30.0 10.0 20

27 82.4 11.8 5.9 17

28 62.5 25.0 12.5 8

29 85.7 0 14.3 7

30 66.7 16.7 16.7 6

31 82.4 17.6 0 17

Total 74.2 12.5 13.2 423

1 80.0% 20.0% 0% 5

2 62.5 31.3 6.3 16

3 0 0 0 0

4 66.7 20.0 13.3 15

5 71.4 28.6 0 7

6 25.0 75.0 0 4

7 88.2 11.8 0 17

8 80.0 20.0 0 5

9 50.0 33.3 16.7 6

10 40.0 60.0 0 5

11 66.7 33.3 0 6

12 80.0 20.0 0 5

13 63.6 36.4 0 11

14 33.3 66.7 0 9

15 66.7 27.8 5.6 18

16 100.0 0 0 9

17 75.0 0 25.0 4

18 100.0 0 0 3

19 61.1 27.8 11.1 18

20 100.0 0 0 3

21 100.0 0 0 4

22 33.3 66.7 0 6

23 25.0 62.5 12.5 8

24 50.0 37.5 12.5 8

25 83.3 8.3 8.3 12

26 70.0 30.0 0 10

27 100.0 0 0 6

28 66.7 33.3 0 3

29 50.0 50.0 0 2

30 0 100.0 0 2

31 50.0 50.0 0 6

Total 66.1 29.2 4.7 233

1 75.7% 24.3% 0% 37

2 63.6 23.6 12.7 55

3 63.6 18.2 18.2 22

4 51.8 42.9 5.4 56

5 69.2 23.1 7.7 26

6 66.7 33.3 0 15

7 88.0 8.0 4.0 25

8 62.9 25.7 11.4 35

9 89.5 5.3 5.3 19

10 75.0 12.5 12.5 8

11 50.0 50.0 0 18

12 62.9 22.9 14.3 35

13 50.0 33.9 16.1 56

14 66.7 31.7 1.7 60

15 54.8 33.3 11.9 42

16 0 0 100.0 5

17 64.7 0 35.3 17

18 45.8 50.0 4.2 24

19 48.0 36.0 16.0 25

20 71.4 28.6 0 7

21 43.8 6.3 50.0 16

22 71.4 19.0 9.5 21

23 60.0 33.3 6.7 15

24 40.0 40.0 20.0 20

25 66.7 0 33.3 6

26 71.4 28.6 0 14

27 77.8 11.1 11.1 9

28 100.0 0 0 3

29 75.0 0 25.0 4

30 75.0 25.0 0 4

31 66.7 33.3 0 15

Total 61.8 27.3 10.9 714

ROBBERY RAPE SEXUAL ASSAULT

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virginia criminal sentencing commission · to: the honorable leroy rountree hassell, sr., chief...

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