Virginia Criminal Sentencing Commission Report on 2015 General Assembly

1. VIRGINIA CRIMINAL SENTENCING COMMISSION Report on the2015 General Assembly April 13, 2015

2. General Assembly Statistics Number of Introduced Bills by Year The General Assembly convenes for long sessions in even-numbered years (60 days) and short sessions in odd-numbered years (45 days). Typically, more bills are referred to a Courts of Justice Committee than any other House or Senate committee.

3. Sentencing Commission Session-Related Activities Sentencing Commission staff: • Prepare fiscal impact statements, as required by § 30-19.1:4; • Monitor legislation that may have an impact on penalties, sentencing, time served, sex offender registration, as well as legislation proposing criminal justice studies; • Observe the judicial interview process; • Respond to legislators’ requests for supplemental information; and • Provide technical assistance to other agencies.

4. Fiscal Impact Statements

5. Fiscal Impact Statements §30-19.1:4 • The Sentencing Commission must prepare a fiscal impact statement for any bill that would result in a net increase in the population of offenders housed in state adult correctional facilities (prisons). • Law became effective July 1, 2000. • Effective July 1, 2002, the impact statement must: • Include an analysis of the impact on local and regional jails as well as state and local community corrections programs; and • Detail any necessary adjustments to the sentencing guidelines.

6. Fiscal Impact Statements §30-19.1:4 The requirement for an impact statement includes, but is not limited to, proposals that: • Add new crimes for which imprisonment is authorized; • Increase the periods of imprisonment authorized for existing crimes; • Raise the classification of a crime from a misdemeanor to a felony; • Impose mandatory terms of imprisonment; or • Modify the law governing release of prisoners.

7. Fiscal Impact Statements §30-19.1:4 • The Sentencing Commission must estimate the increase in annual operating costs for prison facilities that would result if the proposal is enacted. • A six-year projection is required. • The highest single-year increase in operating costs is identified. • This amount must be printed on the face of the bill. • If the Sentencing Commission does not have sufficient information to project the impact, § 30-19.1:4 states that the words "Cannot be determined" must be printed on the face of the bill.

8. Fiscal Impact Statements §30-19.1:4 • For each law enacted that results in a net increase in the prison population, a one-year appropriation must be made. • Appropriation is equal to the highest single-year increase in operating costs during the six years following enactment. • Appropriations made pursuant to § 30-19.1:4 are deposited into the Corrections Special Reserve Fund. • Moneys in this fund may only be expended for capital expenses, including the cost of planning required to initiate capital outlay projects.

9. Fiscal Impact Statements §30-19.1:4 • The Department of Juvenile Justice (DJJ) prepares a fiscal impact estimate for any bill that would result in a net increase in the juvenile population committed to the state. • DJJ provides this information to the Sentencing Commission and a combined statement is submitted to the General Assembly.

10. Fiscal Impact Statements Additional Provisions in Appropriations Act Item 47 of Chapter 2 of the 2014 Acts of Assembly (Special Session I) For any fiscal impact statement prepared by the Virginia Criminal Sentencing Commission pursuant to § 30-19.1:4, Code of Virginia, for which the commission does not have sufficient information to project the impact, the commission shall assign a minimum fiscal impact of $50,000 to the bill and this amount shall be printed on the face of each such bill, but shall not be codified. The provisions of § 30-19.1:4, paragraph H. shall be applicable to any such bill. In 2009, the Appropriations Act passed by the General Assembly included a new requirement pertaining to fiscal impact statements. This requirement remained in the budget adopted by the 2014 General Assembly.

11. Example

12. Calculation of Fiscal Impact • Sentencing Commission staff analyze available data to determine (or estimate) the number of offenders likely to be affected by the legislation and the impact on sentences and/or time served for those offenders. • The data are used in a computer simulation model to estimate the net increase in the prison population likely to result from the proposal during the six years following enactment.

13. Calculation of Fiscal Impact • Per § 30-19.1:4, the highest single-year population increase over the next six years is identified; • That number is multiplied by the cost of holding a prison inmate for a year (operating costs, excluding capital costs). • For FY2014, the annual operating cost per prison inmate was $30,397. • This figure is provided each year by the Department of Planning and Budget.

14. Fiscal Impact Statement Example

15. Calculation of Fiscal Impact SB 1170 / HB 1884 Bill Summary Currently, the penalty for assault and battery of a family or household member is a Class 1 misdemeanor. Under § 18.2-57.2, the penalty for a third conviction within 20 years is increased to a Class 6 felony. The proposal elevates the penalty for a second conviction within 20 years from a Class 1 misdemeanor to a Class 6 felony.

16. Calculation of Fiscal Impact SB 1170 / HB 1884 Analysis Step 1:Using the two most recent fiscal years of data (FY2013-FY2014), staff identified individuals who were convicted of a misdemeanor for assault and battery of a family or household member under § 18.2-57.2 (as the primary/most serious offense) in court databases. Result: 12,703 offenders were identified

17. Calculation of Fiscal Impact SB 1170 / HB 1884 Analysis Step 2:Of the 12,703 offenders, staff identified those who had previously been convicted of one misdemeanor under § 18.2-57.2 using available court data (CY2005-FY2014). • Only included prior convictions if they met the criteria in the proposal. • Excluded offenders who would likely already qualify for the existing felony due to prior convictions. Result: 1,822 of the 12,703 offenders met the above criteria • Occurred prior to current offense date • Committed on separate date • 2+ prior misdemeanor convictions under § 18.2-57.2 • Prior felonyconviction under § 18.2-57.2

18. Calculation of Fiscal Impact SB 1170 / HB 1884 Analysis Step 3:To gauge the impact of the proposed change on future sentencing practices, it was assumed that offenders affected by the proposal would be sentenced similarly to offenders currently convicted of the Class 6 felony for a third offense.

19. Calculation of Fiscal Impact SB 1170 / HB 1884 Analysis Step 3, cont.:Using historical sentences to estimate future sentences: • Random samples of the felony sentences were selected and applied to the cases affected by the proposal. • Repeated 100 times in the simulation model. The average of the results was used for the fiscal impact statement. • Other factors were incorporated: • Phased in the impact of the proposal (effective July 1, 2015) to account for case processing time. • Assumed growth in commitments to prison based on the inmate forecasts approved by the Secretary of Public Safety and Homeland Security’s Committee on Inmate Forecasting. • Used the average rate at which state-responsible (prison) inmates were earning sentence credits to estimate release dates for offenders. • While misdemeanants who are sentenced to a local-responsible (jail) term must serve at least 50% of their sentence, felons must serve at least 85%.

20. Calculation of Fiscal Impact SB 1170 / HB 1884 Results of Analysis

21. Impact Analyses Completed for 2006 - 2015 Sessions of the General Assembly Number of Impact Analyses by Year Multiple analyses may be performed on each bill, depending on the number of amended and substitute versions that are proposed or adopted.

22. Number of Bills Received for 2012 - 2015 Sessions of the General Assembly by Month Number of Bills Received by Month

23. 2015 General Assembly Types of Legislative Changes 265 Impact Analyses Completed Percentages do not add to 100%, since proposed legislation can involve multiple types of changes. Multiple analyses may be performed on each bill, depending on the number of amended and substitute versions that are proposed or adopted.

24. Most Common Types of Offenses in Proposed Legislation • Firearms (47 analyses) • Human Trafficking (37 analyses) • Ethics/Disclosure (32 analyses) • Driving While Intoxicated/Motor Vehicles (19 analyses) • Cigarette Trafficking (15 analyses) • Murder/Homicide (13 analyses) • Sex Offenders and Offenses (12 analyses) • Drugs (11 analyses)

25. Joint Legislative Audit and Review Commission (JLARC) Review of Fiscal Impact Statements • Legislators can request that JLARC review the Sentencing Commission’s fiscal impact statements. • The number of such requests has ranged from 0 to 2 per year. • During the 2015 Session, JLARC was asked to review 2 of the Commission’s fiscal impact statements. • House Bill 1427 – Death caused by Schedule I or II controlled substance • House Bill 1533 – Obscene sexual display in a public place (third offense)

26. Joint Legislative Audit and Review Commission (JLARC) Review of House Bill 1427 Bill Summary The proposal would allow offenders who manufacture, etc., a Schedule I or II drug to be convicted of felony homicide (punishable by up to 40 years imprisonment) if the recipient’s use of the drug was a proximate cause of the death, regardless of the timing or location of the death. Since the proposal would serve to overrule the decision of the Court of Appeals in Woodard v. Commonwealth (2013), the proposal would allow felony prosecutions and convictions for such acts to resume.

27. Joint Legislative Audit and Review Commission (JLARC) Review of House Bill 1427 VCSC Determination • By expanding the applicability of felony homicide beyond what is currently allowed by law, the proposal will likely increase the future state-responsible (prison) bed space needs of the Commonwealth. • Existing data sources do not provide sufficient detail to estimate the number of new felony convictions, or longer sentences, that would result from enactment of the proposal. Therefore, the impact on prison bed space needs cannot be determined.

28. Joint Legislative Audit and Review Commission (JLARC) Review of House Bill 1427 JLARC Conclusion “HB 1427 provides that a person who unlawfully sells, gives, or distributes a Schedule I or II controlled substance to another person resulting in the death of the other person is guilty of second degree murder. HB 1427 would amend the law for such crimes to be consistent with the application of the law prior to a 2013 Virginia Court of Appeals ruling. The cost to the Department of Corrections for such convictions is, therefore, expected to be similar to the cost prior to the 2013 ruling. However, convictions that have occurred since the 2013 ruling have likely been less costly because they probably did not result in a second degree murder conviction.”

29. Joint Legislative Audit and Review Commission (JLARC) Review of House Bill 1533 Bill Summary Currently, the penalty for sexual battery, attempted sexual battery, consensual intercourse or sodomy with a child, indecent exposure, or peeping is a Class 1 misdemeanor. Under § 18.2-67.5:1, the penalty for a third conviction for any of these offenses (or any combination of the offenses) within 10 years is increased to a Class 6 felony. The proposal adds the act of engaging in an obscene sexual display in violation of § 18.2-387.1 to the list of misdemeanors for which a third offense within 10 years is elevated to a Class 6 felony.

30. Joint Legislative Audit and Review Commission (JLARC) Review of House Bill 1533 VCSC Analysis • Identified offenders in FY2013 and FY2014 data who were convicted of a misdemeanor under § 18.2-387.1 for obscene sexual display (as the primary, or most serious, offense). Result: 138 offenders identified • Matched cases to CY2005-FY2014 data to identify which of these offenders had 2 prior misdemeanor convictions for obscene sexual display or an offense currently listed in § 18.2-67.5:1. Result: 8 of the 138 offenders met this criteria

31. Joint Legislative Audit and Review Commission (JLARC) Review of House Bill 1533 VCSC Analysis, cont. • Historical sentences for offenders convicted of a felony under § 18.2-67.5:1 (as the primary offense) were used to estimate the future sentencing outcomes for affected offenders.

32. Joint Legislative Audit and Review Commission (JLARC) Review of House Bill 1533 Results of VCSC Analysis

33. Joint Legislative Audit and Review Commission (JLARC) Review of House Bill 1533 JLARC Conclusion “JLARC staff generally agree with the costs to state adult correctional facilities estimated by the Virginia Criminal Sentencing Commission for the Fiscal Impact Statement (FIS) for HB 1533. However, the FIS does not reflect temporary savings that could occur at the Virginia Center for Behavioral Rehabilitation (VCBR) as a result of the proposed change in law. JLARC staff found that cost savings at VCBR would likely occur because some VCBR residents would serve longer felony sentences rather than misdemeanor sentences for future sex offenses committed while in the facility. VCBR would realize a cost savings for each additional day that a resident is housed at an adult correctional facility rather than in VCBR. The cost savings at VCBR would likely be equal to or greater than the additional costs experienced by adult correctional facilities from FY 2017 to FY 2020.”

34. Additional Analyses • Additional analyses may be conducted at the request of: • House Appropriations staff • Senate Finance staff • Department of Planning and Budget staff • Office of the Secretary of Public Safety and Homeland Security • For example, analysis may be requested for a proposal that would reduce the prison population (in which case, § 30-19.1:4 would not require the Commission to prepare a fiscal impact statement).

35. Legislation Passed by the 2015 General Assembly

36. HB 1493 Enticing another into a dwelling house to commit certain felonies Introduced by: Jackson H. Miller SUMMARY AS PASSED: The legislation adds § 18.2-50.3 and provides that a person who commits specified crimes, including murder, rape, robbery, and forcible sodomy, after enticing, etc., the victim to enter a dwelling is guilty of a separate and distinct Class 6 felony. VCSC FISCAL IMPACT: Cannot be determined ($50,000) STATUS: 03/23/15 Signed by Governor: Acts of Assembly Chapter 392 BUDGET AMENDMENT: Yes http://lis.virginia.gov/cgi-bin/legp604.exe?ses=151&typ=bil&val=hb1493&submit=GO

37. HB 1564 Adding drugs to Schedule I of the Drug Control Act Introduced by: T. Scott Garrett SUMMARY AS PASSED: The legislation amends the Drug Control Act to add three chemical compounds to the list of Schedule I controlled substances, in accordance with the action taken by the Board of Pharmacy pursuant to § 54.1-3443. This bill is identical to Senate Bill 1380 (Obenshain). BACKGROUND: In 2014, the General Assembly passed legislation giving the Board of Pharmacy authority to amend its regulations to add substances to Schedule I or II of the Drug Control Act via an expedited regulatory process. Per § 54.1-3443, the Board must notify the General Assembly of any new compounds added to Schedule I or II controlled substances. The compounds will be de-scheduled after 18 months unless General Assembly adopts legislation to amend the Drug Control Act. The Board of Pharmacy added the three compounds specified in the legislation to Schedule I of the Drug Control Act, effective February 11, 2015. http://lis.virginia.gov/cgi-bin/legp604.exe?ses=151&typ=bil&val=hb1564&submit=GO

38. HB 1564 (continued) Adding drugs to Schedule I of the Drug Control Act Introduced by: T. Scott Garrett VCSC FISCAL IMPACT: $0 STATUS: 03/27/15 Governor's recommendation received by House (corrects chemical reference for a drug) BUDGET AMENDMENT: Not required

39. HB 1702 Transfer of firearms by licensed dealer; criminal history record check Introduced by: Bill R. DeSteph, Jr. SUMMARY AS PASSED: The legislation allows firearms dealers who are selling, etc., a firearm that is not part of their inventory to require prospective purchasers to consent to have the dealer obtain criminal history record information prior to completing the transfer. Currently, § 18.2-308.2:2 specifies mandatory procedures for dealers who sell, rent, trade, or transfer firearms from their inventories. Under § 18.2-308.2:2(K), a prospective purchaser who makes a materially false statement on the background check consent form is guilty of a Class 5 felony. VCSC FISCAL IMPACT: Cannot be determined ($50,000) STATUS: 03/27/15 Governor's recommendation received by House (to add voluntary record checks at gun shows) BUDGET AMENDMENT: Yes http://lis.virginia.gov/cgi-bin/legp604.exe?ses=151&typ=bil&val=HB1702&submit=GO

40. HB 1839 Scheduling of certain controlled substances Introduced by: Roxann L. Robinson SUMMARY AS PASSED: The legislation removes hydrocodone combination products from Schedule III of the Drug Control Act. Except for compounds and mixtures listed in other schedules, hydrocodone is classified as a Schedule II substance. Thus, hydrocodone combination products would be reclassified as Schedule II controlled substances, which carry higher criminal penalties. The legislation also adds three drugs as Schedule IV substances. The legislation conforms Virginia’s Drug Control Act to federal law. VCSC FISCAL IMPACT: Cannot be determined ($50,000) STATUS: 03/17/15 Signed by Governor: Acts of Assembly Chapter 303 BUDGET AMENDMENT: Yes http://lis.virginia.gov/cgi-bin/legp604.exe?ses=151&typ=bil&val=hb1839&submit=GO

41. HB 1928 DNA submission upon conviction of certain misdemeanors Introduced by: Robert B. Bell SUMMARY AS PASSED: The legislation expands existing requirements for submission of DNA to the state’s DNA data bank to include offenders convicted of specified misdemeanors (violation of a protective order; stalking; infected sexual battery; unauthorized use of animal, aircraft, vehicle, or boat valued at less than $200; entering property of another for purpose of damaging it; indecent exposure; obscene sexual display; resisting arrest). The new provisions apply only to persons convicted on or after July 1, 2015. This bill is identical to SB 1187 (Obenshain). BACKGROUND: Under current law, a sample is taken for DNA analysis from adults convicted of a felony or one of five misdemeanor sex offenses (sexual battery; attempted sexual battery; sexual abuse of a 13-14 year old child; peeping; and penetrating the mouth of a child under 13 with the tongue). http://lis.virginia.gov/cgi-bin/legp604.exe?ses=151&typ=bil&val=hb1928&submit=GO

42. HB 1928 (continued) DNA submission upon conviction of certain misdemeanors Introduced by: Robert B. Bell VCSC FISCAL IMPACT: Not required STATUS: 03/16/15 Signed by Governor: Acts of Assembly Chapter 209 BUDGET AMENDMENT: $101,200 in FY2016 for the estimated cost of DNA sample testing http://lis.virginia.gov/cgi-bin/legp604.exe?ses=151&typ=bil&val=hb1928&submit=GO

43. HB 2040 Punishment for prostitution, pandering, etc. Introduced by: Robert B. Bell SUMMARY AS PASSED: The legislation amends § 18.2-355 to increase the penalty for pandering of a minor for prostitution from a Class 4 to a Class 3 felony. VCSC FISCAL IMPACT: Cannot be determined ($50,000) STATUS: 03/23/15 Signed by Governor: Acts of Assembly Chapter 395 BUDGET AMENDMENT: Yes http://lis.virginia.gov/cgi-bin/legp604.exe?ses=151&typ=bil&val=hb2040&submit=GO

44. SB 1188 Commercial sex trafficking; penalties. Introduced by: Mark D. Obenshain SUMMARY AS PASSED: The legislation creates new felonies for trafficking of persons for commercial sexual activity. Any person who solicits, invites, recruits, encourages, or causes a person to engage in prostitution, with the intent of receiving some of the earnings therefrom, is guilty of a Class 5 felony. If force, intimidation, or deception is used, it is a Class 4 felony. If the offender is an adult and the victim is a minor, it is a Class 3 felony. The legislation also increases penalties for two existing prostitution crimes if the offense involved a minor. The new crimes are added to the definition of a violent felony for the purposes of the sentencing guidelines, predicate criminal acts for street gangs, the Virginia Racketeer Influence and Corrupt Organization Act, and other provisions. This bill is identical to HB 1964 (Hugo). VCSC FISCAL IMPACT: Cannot be determined ($50,000) STATUS: 03/27/15 Signed by Governor: Acts of Assembly Chapter 691 BUDGET AMENDMENT: Yes http://lis.virginia.gov/cgi-bin/legp604.exe?ses=151&typ=bil&val=sb1188&submit=GO

45. HB 2049 Preliminary hearing; certification of ancillary misdemeanor offenses Introduced by: Robert B. Bell SUMMARY AS PASSED: The legislation provides that if, pursuant to a preliminary hearing, a district court certifies felony offenses to be tried in a circuit court, the court shall also certify any ancillary misdemeanor offense for trial in circuit court if the accused and the attorney for the Commonwealth consent to such certification. VCSC FISCAL IMPACT: Not required STATUS: 03/23/15 Signed by Governor: Acts of Assembly Chapter 548 BUDGET AMENDMENT: Not required http://lis.virginia.gov/cgi-bin/legp604.exe?ses=151&typ=bil&val=HB2049&submit=GO

46. HB 2070 Reporting of gifts, etc., by lobbyists, legislators and other officials Introduced by: C. Todd Gilbert SUMMARY AS PASSED: The legislation amends numerous sections of the Code of Virginia to limit gifts and expand reporting requirements on disclosure statements filed by lobbyists, legislators, and state and local officials. The bill has a delayed effective date of January 1, 2016. This bill incorporates HB 1598, HB 1667, HB 1689, HB 1919, HB 1947, and HB 2060 and is identical to SB 1424 (Norment). VCSC FISCAL IMPACT: Cannot be determined ($50,000) STATUS 03/27/15 Governor's recommendation received by House (Numerous line amendments) BUDGET AMENDMENT: Yes http://lis.virginia.gov/cgi-bin/legp604.exe?ses=151&typ=bil&val=hb2070&submit=GO

47. HB 2120 Strangulation when alleged victim is family or household member, admission to bail Introduced by: Benjamin L. Cline SUMMARY AS PASSED: The legislation adds strangulation where the alleged victim is a family or household member to the list of offenses for which a judicial official must presume, subject to rebuttal, that a person charged with such an offense will not show up for trial or that the person will present a risk to public safety if he were to be granted bail. VCSC FISCAL IMPACT: Not required STATUS: 03/23/15 Signed by Governor: Acts of Assembly Chapter 413 BUDGET AMENDMENT: Not required http://lis.virginia.gov/cgi-bin/legp604.exe?ses=151&typ=bil&val=hb2120&submit=GO

48. HB 2385 Providing a wireless telecommunications device to, or possession of such device by, a prisoner or committed juvenile Introduced by: C. Todd Gilbert SUMMARY AS PASSED: Under the legislation, a prisoner or person committed to a juvenile correctional center who possesses a wireless telecommunications device is guilty of a Class 6 felony. A person who provides a wireless tele-communications device to a prisoner or person committed to a juvenile correctional center is also guilty of a Class 6 felony. Current law prohibits only such provision or possession of cellular telephones. VCSC FISCAL IMPACT: Cannot be determined ($50,000) STATUS: 03/26/15 Signed by Governor: Acts of Assembly Chapter 601 BUDGET AMENDMENT: Yes http://lis.virginia.gov/cgi-bin/legp604.exe?ses=151&typ=bil&val=hb2385&submit=GO

49. SB 1056 Child pornography and obscenity offenses; penalties. Introduced by: Janet D. Howell SUMMARY AS PASSED: Child pornography; obscenity; penalties. The legislation adds language to § 18.2-374.1:1(C), relating to reproduction of child pornography and soliciting child pornography to gain entry into a group, to specify that an individual must knowingly commit the offense. This makes subsection (C) consistent with other provisions in the statute. The proposal also removes the phrase “with lascivious intent” from the subsection, such that any knowing display of child pornography may constitute an offense, regardless of the offender’s intent. The bill also amends § 18.2-381 to correct references to existing penalties. VCSC FISCAL IMPACT: Cannot be determined ($50,000) STATUS: 03/23/15 Signed by Governor: Acts of Assembly Chapter 428 BUDGET AMENDMENT: Yes http://lis.virginia.gov/cgi-bin/legp604.exe?ses=151&typ=bil&val=sb1056&submit=GO

50. SB 1056 (continued) Child pornography and obscenity offenses; penalties. Introduced by: Janet D. Howell Be it enacted by the General Assembly of Virginia: 1. That §§ 18.2-374.1:1 and 18.2-381 of the Code of Virginia are amended and reenacted as follows: § 18.2-374.1:1. Possession, reproduction, distribution, solicitation, and facilitation of child pornography; penalty. A. Any person who knowingly possesses child pornography is guilty of a Class 6 felony. B. Any person who commits a second or subsequent violation of subsection A is guilty of a Class 5 felony. C. Any person who knowingly(i) reproduces by any means, including by computer, sells, gives away, distributes, electronically transmits, displayswith lascivious intent, purchases, or possesses with intent to sell, give away, distribute, transmit, or display child pornography with lascivious intent or (ii) commands, entreats, or otherwise attempts to persuade another person to send, submit, transfer or provide to him any child pornography in order to gain entry into a group, association, or assembly of persons engaged in trading or sharing child pornography shall be punished by not less than five years nor more than 20 years in a state correctional facility… http://lis.virginia.gov/cgi-bin/legp604.exe?ses=151&typ=bil&val=sb1056&submit=GO