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The Official Newsletter of the Virginia Criminal Sentencing Commission

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The Official Newsletter of the Virginia Criminal Sentencing Commission APRIL 2021 Page 1 APRIL 2021 THE GUIDELINE MESSENGER The official newsletter of the Virginia Criminal Sentencing Commission SIGNIFICANT CHANGES TO VIRGINIA’S SENTENCING GUIDELINES EFFECTIVE JULY 1, 2021 IN THIS EDITION Substantial Assistance, Acceptance of Responsibility or Expression of Remorse Significant Changes to Virginia’s Virginia’s Sentencing Guidelines were created to provide sentence recommendations Sentencing Guidelines based on historical practices, using information regarding the nature of the current Effective July 1, 2021 offense(s) and a defendant’s criminal history. The Sentencing Commission closely monitors the guidelines system and, each year, deliberates upon possible modifications Substantial Assistance, Acceptance of to enhance the usefulness of the guidelines as a tool for judges. Revisions to the guidelines Responsibility or Expression of are based on analysis of sentencing data, including judicial explanations of departures. Remorse In 2020, the Commission carefully examined cases in which judges, when departing from the guidelines, cited the defendant’s substantial assistance in the apprehension or NEW Probation Violation Guidelines prosecution of others, the defendant’s acceptance of responsibility for the offense, or the defendant’s expression of remorse for the crimes. Based on this study, the Commission recommended changes to the Sentencing Guidelines, which were subsequently accepted Impact of Recent Legislation on by the 2021 General Assembly. Sentencing Guidelines Effective July 1, 2021, if a judge determines at sentencing that the defendant provided Limits on Probation and Sentences for substantial assistance, accepted responsibility or expressed remorse, the low end of the Technical Violations (House Bill 2038) guidelines recommended range will be adjusted. If the calculated low end of guidelines range is three years or less, the low end of the guidelines range will be reduced to zero. If Restructuring of Penalties for Robbery the calculated low end of the guidelines range is more than three years, the low end of (House Bill 1936) the guidelines range will be reduced by 50%. The midpoint and the high end of the Sentencing Guidelines range will remain unchanged. The changes to the guidelines allow the judge the option to consider the defendant’s substantial assistance, acceptance of responsibility or expression of remorse and still be in concurrence with the guidelines. Recent Legislation Impacting Time Served by Felons The decision to modify the guidelines recommendation based on the defendant’s assistance, acceptance of responsibility or remorse must be made by the judge at • Higher Rates of Earned Sentence sentencing. If the guidelines are prepared using the Commission’s automated Sentencing Credits for Nonviolent Felons Guidelines application (called SWIFT), the modified guidelines range will be calculated (House Bill 5148) – July 1, 2022 automatically and inserted on the back side of the guidelines coversheet. If the judge determines that the defendant meets one of the criteria, the judge simply needs to check the box indicating that determination. The judge may then utilize the modified guidelines Sentencing Guidelines Case Details recommended range shown below the check box. Worksheet Example: Virginia Criminal Sentencing Commission • 100 North Ninth Street • Richmond, VA 23219 • Tel. 804.225.4398 • Fax 804.786.3934 • www.vcsc.virginia.gov APRIL 2021 Page 2 SIGNIFICANT CHANGES TO VIRGINIA’S SENTENCING GUIDELINES EFFECTIVE JULY 1, 2021 NEW Probation Violation Guidelines In 2003, the General Assembly directed the Sentencing When the judge determines a probationer has good rehabilitation Commission to develop guidelines for violations of probation potential, despite the current violation, analysis of the data support supervision for reasons other than a new criminal conviction (i.e., an adjustment to the Probation Violation Guidelines to reduce the “technical” violations). Per the legislative mandate, the low end of the range to zero or “time served.” Commission examined historical sanctioning practices in revocation hearings. Statewide use of the Probation Example: Violation Guidelines began July 1, 2004. While a series of amendments to the Probation Violation Guidelines increased judicial concurrence, the concurrence rate remained relatively low. In 2016, the Commission approved a new study to provide the foundation needed to revise the guidelines used in revocation cases and improve the utility of the guidelines for Virginia’s judges. The large-scale multi-year study Through the course of the study, the Commission noted that the included surveys of judges and other court stakeholders, data information and level of detail provided to circuit court judges from multiple criminal justice data systems, supplemental data regarding violations varies considerably across, and even within, collected by staff, and rigorous statistical analysis of the most probation districts. For example, information related to the length comprehensive dataset on probation violations and revocation of time absconded, treatment programs attempted or completed outcomes ever compiled in Virginia. Based on this study, the by the probationer, and specific sex offender conditions violated Commission recommended a thorough overhaul of the Probation have been identified by judges as important in sentencing but are Violation Guidelines, a recommendation that was accepted by the not consistently available in the Major Violation Reports submitted 2021 General Assembly. A detailed discussion of the Commission’s to the court. To address this, the Commission has added new study and findings can be found in the 2020 Annual Report. documentation fields to the Sentencing Revocation Report and the Probation Violation Guidelines to ensure judicial access to Perhaps most significantly, the Commission concluded that the important case information is standardized statewide. Further, Probation Violation Guidelines could be expanded to cover beginning July 1, 2021, only probation officers will be authorized to violations stemming from new felony and misdemeanor complete the Probation Violation Guidelines, which must be convictions (rather than just technical violations). Moreover, the submitted with an updated criminal history check. Probation Violation Guidelines were improved by replacing the current instrument with multiple instruments based on the type Further modifications to the Probation Violation Guidelines were of violation (predictive accuracy was improved using distinct necessary in order to make them compatible with the require- instruments). In an extensive survey, circuit judges identified the ments of House Bill 2038, adopted by the 2021 General Assembly. original offense type, sex offender violations, prior revocations, The provisions of House Bill 2038 are discussed in the next section. felony convictions, and patterns of similar behavior as factors that weighed most heavily in their revocation sentencing decisions. The revised Probation Violation Guidelines will take effect on Data analysis revealed these factors to be significantly correlated July 1, 2021. Prior to implementation, the Commission will provide with sentencing outcomes for probation violations. training to individuals who prepare the Probation Violation Guidelines for the court. As always, judicial concurrence with the The Commission conducted a second analysis to examine the guidelines remains discretionary. The Commission will closely reasons cited by judges for departing from the current Probation monitor judicial response to the new guidelines and will Violation Guidelines. This analysis revealed that the judge’s recommend further adjustments, if necessary, based on judicial assessment of the probationer’s rehabilitation potential (good or practice after the changes take effect. poor) was often important in the sentencing decision. Based on these empirical findings, the Commission concluded that a new factor could be added to the Probation Violation Guidelines to To view the new Sentencing Revocation Report account for a probationer’s rehabilitation potential. This factor is and the Probation Violation Guidelines, see not scored by the guidelines preparer. Rather, this factor is based http://www.vcsc.virginia.gov/training/SRR.pdf on judicial determination at the revocation hearing. Virginia Criminal Sentencing Commission • 100 North Ninth Street • Richmond, VA 23219 • Tel. 804.225.4398 • Fax 804.786.3934 • www.vcsc.virginia.gov APRIL 2021 Page 3 IMPACT OF RECENT LEGISLATION ON SENTENCING GUIDELINES Limits on Probation and Sentences for Technical Violations (House Bill 2038) House Bill 2038, passed by the General Assembly in 2021, House Bill 2038 specifies that multiple technical violations arising specifies limits for periods of probation and supervised probation, from a single course of conduct or considered at the same as well as sentences for technical violations. Under the legislation: revocation hearing shall not be considered separate technical violations for the purposes of sentencing. The court, at sentencing, may fix the period of probation only up to the statutory maximum of the offense; the limitation When finding the defendant in violation, the court may revoke the does not apply to the extent that an additional period of suspension and impose a sentence in accordance with the probation is necessary for the defendant to participate in a provisions of the bill (see below). The court may again suspend all court-ordered program
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