Proposed Recommendations for Guidelines Revisions

1. Proposed Recommendations for Guidelines Revisions

2. Proposals for Guidelines Revisions • Best fit for the data • Steps • Review existing worksheet, compliance patterns and departure reasons • Test revised scoring scenarios • Project judicial concurrence with proposal • Score cases using guidelines data and/or pre-sentence report information • Use current Recommendation Tables • Maximize compliance and balance departures, if possible

3. Proposed Recommendation 1:Felony Vandalism

4. Felony Vandalism, § 18.2-137(B,ii) • Issue • Currently, felony vandalism (damage to property of $1,000 or more) under § 18.2-137(B,ii) is not covered by the sentencing guidelines. • According to the Pre/Post-Sentence Investigation (PSI) database and the Supreme Court’s Court Automated Information System (CAIS), there were 439 cases of felony vandalism between FY2003 and FY2007.

5. Felony Vandalism, § 18.2-137(B,ii) FY2003 - FY2007 (439 cases)

6. Proposed Recommendation 1 – Section A M. Damage/destroy any property or monument>=$1000 (1 count) ........................... 2

7. Proposed Recommendation 1 – Section A • Legally Restrained at Time of Offense • Primary offense other than felony vandalism- Primary offense felony vandalism- • Damage to property $1,000 or more Damage to property $1,000 or more • None ………………….…………………………... 0 Any legal restraint………………… 1 • Other than post-incarceration supervision ...2 • Post-Incarceration supervision ……………… 5 SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY OFFENSE IS FELONY VANDALISM DAMAGE TO PROPERTY $1,000 OR MORE • Prior Vandalism Convictions/Adjudications Misdemeanor vandalism ........................................................................... 1 Felony vandalism...…………...................................................................... 2 Both felony and misdemeanor vandalism ............................................... 3

8. Proposed Recommendation 1 – Section B • Primary Offense Additional Counts • Primary offense other than felony vandalism- Primary offense felony vandalism- • Damage to property $1,000 or moreDamage to property $1,000 or more • Years 5 - 9 ...................................... 2 Years 5 - 9 ....................................... 1 • 10 - 19 …................................3 10 - 19 …................................2 • 20 - 29 ................................... 4 20 - 29 ................................... 3 • 30 - 39 ................................... 5 30 - 39 ................................... 4 • 40 or more ............................6 40 or more ............................ 5 M. Damage/destroy any property or monument>=$1000 (1 count) ........................... 8

9. Proposed Recommendation 1 – Section B SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY OFFENSE IS FELONY VANDALISM DAMAGE TO PROPERTY $1,000 OR MORE • Prior Incarceration IF YES, add 1

10. Proposed Recommendation 1 – Section C Category ICategory IIOther M. Damage/destroy any property or monument>=$1000 (1 count) ….. 32 ……….. 16 …..... 8

11. Proposed Recommendation 1 FY2003 - FY2007 (439 cases)

12. Proposed Recommendation 1 Revise the Miscellaneous Sentencing Guidelines to add the crime of felony vandalism (§ 18.2-137(B,ii)) as proposed.

13. Proposed Recommendation 2:Distribution of a Schedule III Drug (Not Anabolic Steroid)

14. Distribution of a Schedule III Drug (Not Anabolic Steroid), § 18.2-248(E1) • Issue • Currently, distribution of a Schedule III drug (not anabolic steroid) under § 18.2-248(E1) is not covered by the sentencing guidelines. • The offense was elevated from a Class 1 misdemeanor to a Class 5 felony by the 2005 General Assembly. • According to the Pre/Post-Sentence Investigation (PSI) database, there were 66 cases where this crime was the most serious offense between FY2006 and FY2008. • Prosecutors have requested that the offense be added to the guidelines.

15. Distribution of a Schedule III Drug (Not Anabolic Steroid), § 18.2-248(E1) FY2006 - FY2008 (66 cases)

16. Proposed Recommendation 2 • Distribute, etc. a Schedule III drug-not anabolic steroid (1 count) ..................... 8

17. Proposed Recommendation 2 D. Distribute, etc. a Schedule III drug-not anabolic steroid (1 count) ..................... 6

18. Proposed Recommendation 2 Category ICategory IIOther H. Distribute, etc. a Schedule III drug-not anabolic steroid (1 count) …. 64 ……. 32 ……. 16

19. Proposed Recommendation 2 FY2006 - FY2008 (66 cases)

20. Proposed Recommendation 2 Revise the Drug/Other Guidelines to add the distribution of a Schedule III drug-not anabolic steroid (§18.2-248(E1)) as proposed.

21. Proposed Recommendation 3:Child Abuse/Neglect with Serious Injury

22. Child Abuse/Neglect with Serious Injury, § 18.2-371.1 (A) • Issue • Between FY2003 and FY2007, overall compliance for Child Abuse/Neglect with Serious Injury was 43.7%, with an aggravation rate of 42.7%. • Analysis has revealed that numerous cases of non-guidelines child abuse offenses were scored out on these guidelines when they should not have been. These cases are excluded from the figures above. • The Commission recommended, and the General Assembly did not reject, revisions to the guidelines for this offense, effective July 1, 2008. • The revisions were projected to improve compliance, albeit modestly. The Commission directed staff to continue examining this offense in hopes that the guidelines could be further improved.

23. Most Frequently Cited Departure Reasons, FY2003-FY2007 Mitigation (13.6%) Plea Agreement Cooperated with authorities Has made progress in rehabilitation Weak evidence/witness refused to testify Alternative sanction imposed 2 offenders: 1 received teen challenge, 1 sentenced to Diversion Center Aggravation (42.7%) Extreme injury Vulnerable victim Facts of the case Child victim Guidelines recommendation is too low

24. Child Abuse/Neglect with Serious Injury, § 18.2-371.1 (A) Actual Disposition

25. Child Abuse/Neglect with Serious Injury, § 18.2-371.1 (A) • Based on a special study of child abuse cases conducted this year, the high aggravation rate is partially attributable to victim injury, victim vulnerability, and the number of victims. • For Section A, three avenues were explored: • Adjusting victim injury factor • Adding a factor for age of youngest victim • Adding a factor for number of victims • For Section C, several approaches were considered: • Increasing primary offense scores, increasing the victim injury scores, adding a new category of injury, adding a factor for age of youngest victim, and adding a factor for number of victims

26. Proposed Recommendation 3 NEW FACTOR ON SECTION A SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY OFFENSE IS CHILD NEGLECT/ABUSE, SERIOUS INJURY • Age of Youngest Victim at Time of Offense Less than 8 years old .......................................................................................... 10 8 – 11 years old ...................................................................................................... 5 12 years or older .................................................................................................... 2

27. Proposed Recommendation 3 NEW FACTOR ON SECTION C SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY OFFENSE IS CHILD NEGLECT/ABUSE, SERIOUS INJURY • Number of Victims 1 victim ................................................................................................................. 3 2 victims ............................................................................................................... 4 3 or more victims ................................................................................................ 13

28. Proposed Recommendation 3 • By adding a victim age factor on Section A and a factor representing the number of victims on Section C, the guidelines would better approach current judicial practice and would improve the balance between mitigation and aggravation departures.

29. Proposed Recommendation 3 Revise Section A of the Miscellaneous Sentencing Guidelines to increase the likelihood that offenders convicted of Felony Child Abuse/Neglect with Serious Injury are recommended for incarceration of more than 6 months if they abuse younger children. Revise Section C of the Miscellaneous Sentencing Guidelines to increase the length of incarceration recommended based on the number of children abused.

30. Proposed Recommendation 4:Gross, Wanton or Reckless Care of a Child and Cruelty and Injuries to Children

31. Child Abuse Felonies (§§ 18.2-371.1(B) & 40.1-103) • Issue • In November 2007, the Commission recommended adding guidelines for Gross, Wanton or Reckless Care of a Child (§ 18.2-371.1(B)) and Cruelty and Injuries to Children (§ 40.1-103). • The Commission recommended and the General Assembly approved adding guidelines for this offense, which took effect July 1, 2008. • The new guidelines were projected to result in modest compliance rates. The Commission directed staff to continue examining this offense in hopes that the guidelines could be further improved.

32. Child Abuse Felonies (§§ 18.2-371.1(B) & 40.1-103) • Analysis • Further analysis of the data suggests that the guidelines should be revised to account for the recklessness, neglect, or endangerment associated with these offenses. • A new category of victim injury can be created specific to child abuse cases.

33. Proposed Recommendation 4 NEW CATEGORY OF INJURY FOR CHILD ABUSE CASES • Victim Injury • Primary offense VCC prefix other than “FAM”Primary Offense with VCC prefix of “FAM” • Threatened, emotional, or physical .......... 1 Reckless care, neglect, endangerment .... 2 • Serious physical ......................................... 2 Threatened, emotional, or physical .......... 2 • Serious physical ......................................... 5

34. Proposed Recommendation 4 Create a new category of victim injury to account for the recklessness, neglect, or endangerment associated with felony child abuse cases that would score these circum-stances the same as emotional or threatened injury.

35. Proposed Recommendation 5:Other Sexual Assault Worksheet C

36. Child Pornography & Electronic Solicitation (§ 18.2-374.1 et al.) • Issue • In November 2006, the Commission recommended guidelines for child pornography and electronic (online) solicitation. The recommendations were not rejected by the 2007 General Assembly. • However, the 2007 General Assembly also enacted legislation elevating penalties for certain child pornography and online solicitation crimes. For example, the maximum penalties of 5 and 10 years for some offenses were increased to 30 and 40 years. • The guidelines that became effective on July 1, 2007, were implemented as approved by the General Assembly and, therefore, did not account for the new penalty structures.

37. Proposed Recommendation 5 • Primary Offense Additional Counts • Maximum Penalty 5 ............................................ 5 • 10 ........................................ 10 • 20 ........................................ 19 • 30 ........................................ 29 • 40 or more .......................... 39 Points (in years)

38. Proposed Recommendation 5 Expand the factor for Primary Offense Additional Counts on the Other Sexual Assault guidelines to correspond to the higher penalty structures adopted by the 2007 General Assembly.