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Proposed Recommendations for Guidelines Revisions November 6, 2013

Proposed Recommendations for Guidelines Revisions November 6, 2013. Proposals for New Guidelines Offenses. Proposals reflect the best fit for the historical data. Proposals are designed to closely match the historical rate of incarceration in prison and jail.

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Proposed Recommendations for Guidelines Revisions November 6, 2013

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  1. Proposed Recommendations for Guidelines RevisionsNovember 6, 2013

  2. Proposals for New Guidelines Offenses • Proposals reflect the best fit for the historical data. • Proposals are designed to closely match the historical rate of incarceration in prison and jail. • Current guidelines worksheets serve as the base for scoring historical cases, but the points assigned to those factors may be adjusted and new factors may be added.

  3. Proposals for Revisions to Existing Guidelines • Proposals are designed to maximize compliance and balance mitigation and aggravation rates to the extent possible. • Current guidelines worksheets serve as the base for scoring historical cases, but the points assigned to those factors may be adjusted and new factors may be added.

  4. Background Information for Recommendations 1 and 2

  5. Online Solicitation of a Child (§ 18.2-374.3) andChild Pornography (§§ 18.2-374.1 & 18.2-374.1:1) • In 2006, the Commission recommended adding online solicitation of a child and child pornography offenses to the sentencing guidelines. • The recommendation, submitted in the Commission’s 2006 Annual Report, was accepted by the 2007 General Assembly. • However, the 2007 General Assembly enacted legislation elevating penalties and adding mandatory minimum sentences for certain online solicitation and child pornography crimes.

  6. Online Solicitation of a Child (§ 18.2-374.3) andChild Pornography (§§ 18.2-374.1 & 18.2-374.1:1) • The guidelines that became effective on July 1, 2007, were implemented as approved and, therefore, did not account for the new penalty structures. • Five years of sentencing data are now available for cases falling under the new penalty structures.

  7. Proposed Recommendation 1:Modify the Sentencing Guidelines for Online Solicitation of a Child (§ 18.2-374.3)

  8. Compliance with Sentencing Guidelines forOnline Solicitation of a Child (§ 18.2-374.3) FY2009 – FY2013 (Preliminary) Number of Cases = 321

  9. Actual versus Recommended Prison Incarceration Rates forOnline Solicitation of a Child (§ 18.2-374.3) FY2009 – FY2013 (Preliminary) Current guidelines are not closely aligned to the actual prison incarceration rate

  10. Dispositional Compliance with Sentencing Guidelines forOnline Solicitation of a Child (§ 18.2-374.3) FY2009 – FY2013 (Preliminary)

  11. Proposed Split Primary Offense Group M and increase points for certain offenses M. Online solicitation Procure minor for obscene material Procure minor for prostitution, sodomy or pornography Propose sex act with child age 15+, offender 7+ years older (1 count) …………….................. 6 N. Online solicitation Propose sex act with child under age 15, offender NOT 7+ years older (1 count) ……..……..8 O. Online solicitation Propose sex act with child under age 15, offender 7+ years older (1st/2nd or subsequent) Propose sex act with child age 15+, offender 7+ years older (2nd or subsequent) ……..…...9 These offenses carry mandatory prison sentences of at least 1 year and will be automatically recommended for Section C

  12. Actual versus Recommended Prison Incarceration Rates forOnline Solicitation of a Minor (§ 18.2-374.3) FY2009 – FY2013 (Preliminary) Recommended under Proposed Sentencing Guidelines* 37.2% 62.8% Proposed guidelines are closely aligned to the actual prison incarceration rate Current guidelines are not closely aligned to the actual prison incarceration rate * Worksheets with scoring errors were excluded from the analysis.

  13. Proposed Split Primary Offense Group F and increase points for certain offenses F. Online solicitation Procure minor for obscene material Procure minor for prostitution, sodomy or pornography (1 count) ……………........................1 G. Online solicitation Propose sex act with child under age 15 (1 count) .……..…………………………………..…….. 6 H. Online solicitation Propose sex act with child age 15+, offender 7+ years older (1 count) ……..….......................2 When scored on Section B, these cases will always result in a jail recommendation

  14. Proposed Add a new factor to Section B of the Other Sexual Assault guidelines • SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY OFFENSE IS • ONLINE SOLICITATION (§ 18.2-374.3) • Victim Injury (Threatened, Emotional, Physical or Life Threatening) If YES, add 5 When scored on Section B, online solicitation cases involving victim injury will always result in a jail recommendation

  15. Actual versus Recommended Jail Incarceration Rates forOnline Solicitation of a Minor (§ 18.2-374.3) FY2009 – FY2013 (Preliminary) For cases scored on Section B, proposed guidelines more closely reflect the jail incarceration rate This stage of the analysis only includes offenders who were recommended for and received a sanction of probation or incarceration up to six months. * Worksheets with scoring errors were excluded from the analysis.

  16. Proposed Split Primary Offense Group O and increase points for certain offenses Category ICategory IIOther O. Online Solicitation All online solicitation except as listed below (1 count) ………… 68 …………… 34 …………… 17 P. Online Solicitation Propose sex act with child under age 15, offender 7+ years older (1st & 2nd or subsequent) 1 count ……………………………..……………………………148 …………… 74 …………... 37

  17. Proposed • Split Additional Offense factor and increase points for certain offenses • Additional Offenses Primary offense OTHER THANPrimary offense Online Solicitation § 18.2-374.3Online Solicitation § 18.2-374.3 Maximum Penalty Points Maximum Penalty Points Years: Less than 1 .......................... 0 Years: Less than 1 ............................ 0 1 ...….................................... 1 1 ...…...................................... 1 2 …….................................... 2 2 ……...................................... 2 3 …….................................... 3 3 ……...................................... 3 4 ............................……….... 4 4 .............................…………. 4 • 5 ............................………… 5 5 .............................…………. 8 • 10 ..............................……… 10 10 ..........................……..…… 12 • 20 ..............................……… 19 20 .............................………... 15 • 30 ............................….……. 29 30 ............................………… 18 • 40 or more................………. 39 40 or more...............………… 22

  18. Proposed • Split Victim Injury factor and increase points for certain offenses • Victim Injury Primary offense OTHER THANPrimary offense Online Solicitation § 18.2-374.3Online Solicitation § 18.2-374.3 Points Points Threatened or emotional ……...... 6 Threatened or emotional ……..... 14 Physical or life threatening …….. 9 Physical or life threatening ……. 15

  19. Actual versus Recommended Prison Sentences forOnline Solicitation of a Minor (§ 18.2-374.3) FY2009 – FY2013 (Preliminary) For cases scored on Section C, the proposed guidelines reflect actual sentencing practices This stage of the analysis only includes offenders who were recommended for and received incarceration of more than six months. * Worksheets with scoring errors were excluded from the analysis.

  20. Compliance with Sentencing Guidelines forOnline Solicitation of a Child (§ 18.2-374.3) FY2009 – FY2013 (Preliminary)

  21. Proposed Recommendation 1 Modify the Sentencing Guidelines for Online Solicitation of a Child (§ 18.2-374.3) as proposed

  22. Proposed Recommendation 2:Modify the Sentencing Guidelines for Child Pornography (§§ 18.2-374.1 & 18.2-374.1:1)

  23. * This statute encompasses 24 distinct offense/penalty combinations

  24. Compliance with Sentencing Guidelines forChild Pornography OffensesFY2009 – FY2013 (Preliminary) Production (§ 18.2-374.1) Possession/Reproduction (§ 18.2-374.1:1) Number of Cases = 57 Number of Cases = 362

  25. Actual versus Recommended Prison Incarceration Rates forProduction, etc., of Child Pornography Offenses (§ 18.2-374.1) FY2009 – FY2013 (Preliminary) Current guidelines could be more closely aligned to the actual prison incarceration rate

  26. Actual versus Recommended Prison Incarceration Rates forPossession/Reproduction of Child Pornography Offenses (§ 18.2-374.1:1) FY2009 – FY2013 (Preliminary) Current guidelines could be more closely aligned to the actual prison incarceration rate

  27. Revise Points for Primary Offense Groups I and J I. Production, publication, sale or financing child pornography (1 count) …………………………….. 5 J. Possess child porn (1st offense) (1 count) …………………………………………………………………6 K. Possess child porn (2nd offense) (1 count) ………………………………………………………………..9 L. Reproduce, transmit, etc., child porn (1 count) ……………………………………………………………5 Proposed 6 X 5 X Offenders convicted of production offenses are more likely to be recommended for Section C. Offenders convicted of 1st offense possession will no longer be recommended for Section C if they have fewer than four points scored on the remainder of the work sheet.

  28. Proposed • Split Additional Offense factor and increase points for certain offenses • Additional Offenses Primary offense OTHER THANPrimary offense • Production or Possession of Child PornProduction or Possession of Child Porn § 18.2-374.1 or § 18.2-374.1:1(A,B)§ 18.2-374.1 or § 18.2-374.1:1(A,B) Maximum Penalty Points Maximum Penalty Points Years: 5 – 26 ................................... 1 Years: 5 – 26 ................................... 2 27 – 52 …………………........ 2 27 – 52 …………………........ 3 53 or more ........................... 3 53 or more ........................... 4

  29. Actual versus Recommended Prison Incarceration Rates forProduction, etc., of Child Pornography Offenses (§ 18.2-374.1) FY2009 – FY2013 (Preliminary) Proposed guidelines are more closely aligned to the actual prison incarceration rate * Worksheets with scoring errors were excluded from the analysis.

  30. Actual versus Recommended Prison Incarceration Rates forPossession/Reproduction of Child Pornography Offenses (§ 18.2-374.1:1) FY2009 – FY2013 (Preliminary) Proposed guidelines are more closely aligned to the actual prison incarceration rate * Worksheets with scoring errors were excluded from the analysis.

  31. No changes proposed for Section B

  32. Proposed Score attempts and conspiracies for production –related offenses the same as completed acts Increase points for 2 counts of certain production-related offenses Category ICategory IIOther J. Entice, etc., minor to perform in porn; take part in child porn (1 count) ……………………………………….… 68 …………… 34 …………. 17 K. Produce child porn; finance child porn 1 count ………………………………………………………..100 …………… 50 …………. 25 2 counts ………………………………………………………216 ………….. 108 …………. 54

  33. Proposed Reduce points for possession offenses only Category ICategory IIOther L. Possess child porn (1st offense) 1 count ………………………………………………………..48 …………….. 24 ………….. 12 M. Possess child porn (2nd or subsequent offense) 1 count ………………………………………………………..76 …………….. 38 ………….. 19 N. Reproduce, transmit, etc., child porn 1 count ……………………………………………………… 100 …………….. 50 ………….. 25

  34. Actual versus Recommended Prison Sentences forProduction, etc., of Child Pornography Offenses (§ 18.2-374.1) FY2009 – FY2013 (Preliminary) For cases scored on Section C, the proposed guidelines reflect actual sentencing practices This stage of the analysis only includes offenders who were recommended for and received incarceration of more than six months. * Worksheets with scoring errors were excluded from the analysis.

  35. Actual versus Recommended Prison Sentences forPossession of Child Pornography Offenses (§ 18.2-374.1:1)FY2009 – FY2013 (Preliminary)1 count For cases scored on Section C, the proposed guidelines better reflect actual sentencing practices This stage of the analysis only includes offenders who were recommended for and received incarceration of more than six months. * Worksheets with scoring errors were excluded from the analysis.

  36. Compliance with Sentencing Guidelines forChild Pornography OffensesFY2009 – FY2013 (Preliminary) Production (§ 18.2-374.1) Possession/Reproduction (§ 18.2-374.1:1)

  37. Proposed Recommendation 2 Modify the Sentencing Guidelines for Child Pornography (§§ 18.2-374.1 & 18.2-374.1:1) as proposed

  38. Proposed Recommendation 3:Split Obscenity Offenses from the Other Sexual Assault Guidelines into a New Offense Group

  39. Other Sexual Assault Sentencing Guidelines • Currently, a large number of offenses are covered by the Other Sexual Assault guidelines • These crimes vary considerably in nature, ranging from indecent liberties, carnal knowledge, aggravated sexual battery, incest, production of child pornography, possession of child pornography and online solicitation of a child

  40. Other Sexual Assault Sentencing Guidelines • Splitting the Other Sexual Assault guidelines into two offense groups will allow for more refined analysis in the future, which could result in improvements to the guidelines for particular offenses • This proposal does not modify the guidelines scores, except as approved by the Commission, and would not otherwise change the sentence recommendations for offenders

  41. Proposed Recommendation 3 Split obscenity offenses from the Other Sexual Assault Guidelines into a new offense group as proposed

  42. Proposed Recommendation 4:Modify the Sentencing Guidelines for Aggravated Malicious Wounding (§ 18.2-51.2)

  43. Compliance with Sentencing Guidelines for Aggravated Malicious Wounding (§ 18.2-51.2) FY2009 – FY2013 (Preliminary) Number of Sentencing Events = 327* * Worksheets with scoring errors were excluded from the analysis

  44. Aggravated Malicious Wounding (§ 18.2-51.2) FY2009 – FY2013 (Preliminary) 327 Sentencing Events* * Worksheets with scoring errors were excluded from the analysis

  45. Proposed Increase the points for attempted or conspired aggravated malicious wounding on Section A of the Assault guidelines G. Any attempted, conspired or completed aggravated malicious injury 1 count ………………………..…………………….……...………….…….. 7 All offenders convicted of this offense will be recommended for Section C (prison sentence)

  46. Proposed Increase the points for Aggravated Malicious Wounding on Section C of the Assault guidelines Increase points on Section C for aggravated malicious injury Category ICategory IIOther F. Aggravated malicious injury (1 count) …………………………… 321 ………….. 214 …….… 107

  47. Actual versus Recommended Prison Sentences forAggravated Malicious Wounding (§ 18.2-51.2)FY2009 – FY2013 (Preliminary) For cases scored on Section C, the proposed guidelines more closely reflect actual sentencing practices This stage of the analysis only includes offenders who were recommended for and received incarceration of more than six months. * Worksheets with scoring errors were excluded from the analysis.

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