1. Proposed Recommendations for Guidelines Revisions November 6, 2013

2. 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. 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. 5 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. Online Solicitation of a Child (§ 18.2-374.3) and Child Pornography (§§ 18.2-374.1 & 18.2-374.1:1)

6. 6 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. Online Solicitation of a Child (§ 18.2-374.3) and Child Pornography (§§ 18.2-374.1 & 18.2-374.1:1)

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

8. 8 Online Solicitation Offenses § 18.2-374.3 Statutory Penalty Mandatory Minimum Propose sex act by communications system Child age < 15 1-10 years Propose sex act by communications system Child age < 15, Offender 7+ years older 5-30 years5 years Propose sex act by communications system Child age < 15, Offender 7+ years older 2 nd or subsequent conviction 10-40 years10 years Propose sex act by communications system Child age 15+, Offender 7+ years older 1-10 years Propose sex act by communications system Child age 15+, Offender 7+ years older 2 nd or subsequent conviction 1-20 years1 year Procure minor for obscene material by communications system 1-5 years Procure minor for prostitution, sodomy, or pornography by communications system 1-10 years

9. 9 Compliance with Sentencing Guidelines for Online Solicitation of a Child (§ 18.2-374.3) FY2009 – FY2013 (Preliminary) Number of Cases = 321

10. 10 Actual Practice Recommended under Current Sentencing Guidelines Probation or Incarceration Up to 6 Months 35.5%55.8% Incarceration More than 6 months (Range includes prison) 64.5%44.2% Current guidelines are not closely aligned to the actual prison incarceration rate Actual versus Recommended Prison Incarceration Rates for Online Solicitation of a Child (§ 18.2-374.3) FY2009 – FY2013 (Preliminary)

11. 11 Received Probation or Jail up to 6 Months Received Incarceration More than 6 Months Total Recommended for Probation or Incarceration Up to 6 months 59.8%40.2%100.0% Recommended for Incarceration More than 6 months 4.9%95.1%100.0% Dispositional Compliance with Sentencing Guidelines for Online Solicitation of a Child (§ 18.2-374.3) FY2009 – FY2013 (Preliminary)

12. Proposed 12 These offenses carry mandatory prison sentences of at least 1 year and will be automatically recommended for Section C 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

13. Current guidelines are not closely aligned to the actual prison incarceration rate 13 Actual versus Recommended Prison Incarceration Rates for Online Solicitation of a Minor (§ 18.2-374.3) FY2009 – FY2013 (Preliminary) Actual Practice Recommended under Current Sentencing Guidelines Probation or Incarceration Up to 6 Months 35.5%55.8% Incarceration More than 6 months (Range includes prison) 64.5%44.2% Recommended under Proposed Sentencing Guidelines* Proposed guidelines are closely aligned to the actual prison incarceration rate 62.8% 37.2% * Worksheets with scoring errors were excluded from the analysis.

14. 14 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

15. Proposed 15 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

16. 16 Section B Actual Practice Recommended under Current Sentencing Guidelines Probation 58.9%81.3% Incarceration 1 Day to 6 Months 41.1%18.7% For cases scored on Section B, proposed guidelines more closely reflect the jail incarceration rate Actual versus Recommended Jail Incarceration Rates for Online Solicitation of a Minor (§ 18.2-374.3) FY2009 – FY2013 (Preliminary) Recommended under Proposed Sentencing Guidelines* 59.5% 40.5% 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.

17. 17 Proposed Split Primary Offense Group O and increase points for certain offenses Category I Category II Other 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 (1 st & 2 nd or subsequent) 1 count ……………………………..…………………………… 148 …………… 74 …………... 37

18. 18 Proposed Split Additional Offense factor and increase points for certain offenses  Additional Offenses Primary offense OTHER THAN Primary offense Online Solicitation § 18.2-374.3 Online 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

19. 19 Proposed Split Victim Injury factor and increase points for certain offenses  Victim Injury Primary offense OTHER THAN Primary offense Online Solicitation § 18.2-374.3 Online 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

20. 20 Actual versus Recommended Prison Sentences for Online Solicitation of a Minor (§ 18.2-374.3) FY2009 – FY2013 (Preliminary) Actual Practice Recommended under Current Sentencing Guidelines Mean Sentence 8.14 years7.67 years Median Sentence 5.0 years Recommended under Proposed Sentencing Guidelines* 7.75 years 5.0 years 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.

21. 21 CurrentAs Proposed Compliance 59.2% 60.1% Mitigation 8.4% 20.1% Aggravation 32.4% 19.8% Compliance with Sentencing Guidelines for Online Solicitation of a Child (§ 18.2-374.3) FY2009 – FY2013 (Preliminary)

22. 22 Proposed Recommendation 1 Modify the Sentencing Guidelines for Online Solicitation of a Child (§ 18.2-374.3) as proposed

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

24. 24 Child Pornography Offenses – § 18.2-374.1:1 Statutory Penalty Mandatory Minimum Possess child pornography (1st offense)1-5 years Possess child pornography (2nd offense)1-10 years Reproduce, transmit, etc., child pornography (1st offense) 5-20 years Reproduce, transmit, etc., child pornography (2nd offense) 5-20 years5 years

25. 25 Child Pornography Offenses § 18.2-374.1* Statutory Penalties Mandatory Minimums Entice a minor to perform in pornography 1-20 years to 15-40 years depending on child’s age, offender’s age, and previous convictions for same offense Varies Finance child pornography Produce, make child pornography Take part in or film child pornography * This statute encompasses 24 distinct offense/penalty combinations

26. 26 Compliance with Sentencing Guidelines for Child Pornography Offenses FY2009 – FY2013 (Preliminary) Number of Cases = 57 Number of Cases = 362 Production (§ 18.2-374.1) Possession/Reproduction (§ 18.2-374.1:1)

27. 27 Production-Related Offenses Actual Practice Recommended under Current Sentencing Guidelines Probation or Incarceration Up to 6 Months 12.3%19.3% Incarceration More than 6 months (Range includes prison) 87.7%80.7% Current guidelines could be more closely aligned to the actual prison incarceration rate Actual versus Recommended Prison Incarceration Rates for Production, etc., of Child Pornography Offenses (§ 18.2-374.1) FY2009 – FY2013 (Preliminary)

28. 28 Possession/Reproduction Offenses Actual Practice Recommended under Current Sentencing Guidelines Probation or Incarceration Up to 6 Months 33.4%30.9% Incarceration More than 6 months (Range includes prison) 66.6%69.1% Current guidelines could be more closely aligned to the actual prison incarceration rate Actual versus Recommended Prison Incarceration Rates for Possession/Reproduction of Child Pornography Offenses (§ 18.2-374.1:1) FY2009 – FY2013 (Preliminary)

29. Proposed 29 Offenders convicted of production offenses are more likely to be recommended for Section C. Offenders convicted of 1 st 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. 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 X 6 X 5

30. Proposed 30 Split Additional Offense factor and increase points for certain offenses  Additional Offenses Primary offense OTHER THAN Primary offense Production or Possession of Child Porn Production 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

31. 31 Production-Related Offenses Actual Practice Recommended under Proposed Sentencing Guidelines* Probation or Incarceration Up to 6 Months 12.3%15.8% Incarceration More than 6 months (Range includes prison) 87.7%84.2% Proposed guidelines are more closely aligned to the actual prison incarceration rate Actual versus Recommended Prison Incarceration Rates for Production, etc., of Child Pornography Offenses (§ 18.2-374.1) FY2009 – FY2013 (Preliminary) * Worksheets with scoring errors were excluded from the analysis.

32. 32 Possession/Reproduction Offenses Actual Practice Recommended under Proposed Sentencing Guidelines* Probation or Incarceration Up to 6 Months 33.4%32.3% Incarceration More than 6 months (Range includes prison) 66.6%67.7% Proposed guidelines are more closely aligned to the actual prison incarceration rate Actual versus Recommended Prison Incarceration Rates for Possession/Reproduction of Child Pornography Offenses (§ 18.2-374.1:1) FY2009 – FY2013 (Preliminary) * Worksheets with scoring errors were excluded from the analysis.

33. 33 No changes proposed for Section B

34. 34 Proposed Increase points for 2 counts of certain production-related offenses Category I Category II Other 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 Score attempts and conspiracies for production – related offenses the same as completed acts

35. 35 Proposed Reduce points for possession offenses only Category I Category II Other 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

36. 36 Actual versus Recommended Prison Sentences for Production, etc., of Child Pornography Offenses (§ 18.2-374.1) FY2009 – FY2013 (Preliminary) Actual Practice Recommended under Current Sentencing Guidelines Mean Sentence 13.0 years10.4 years Median Sentence 6.5 years6.6 years Recommended under Proposed Sentencing Guidelines* 10.8 years 7.1 years 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.

37. 37 Actual versus Recommended Prison Sentences for Possession of Child Pornography Offenses (§ 18.2-374.1:1) FY2009 – FY2013 (Preliminary) 1 count Actual Practice Recommended under Current Sentencing Guidelines Mean Sentence 2.3 years3.2 years Median Sentence 1.7 years2.5 years Recommended under Proposed Sentencing Guidelines* 2.3 years 1.9 years 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.

38. 38 CurrentProposed Compliance 64.9% 66.7% Mitigation 10.5% 15.8% Aggravation 24.5% 17.5% Compliance with Sentencing Guidelines for Child Pornography Offenses FY2009 – FY2013 (Preliminary) Production (§ 18.2-374.1) Possession/Reproduction (§ 18.2-374.1:1) CurrentProposed Compliance 64.1% 66.3% Mitigation 22.9% 18.8% Aggravation 13.0% 14.9%

39. 39 Proposed Recommendation 2 Modify the Sentencing Guidelines for Child Pornography (§§ 18.2-374.1 & 18.2-374.1:1) as proposed

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

41. 41 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 Other Sexual Assault Sentencing Guidelines

42. 42 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 Other Sexual Assault Sentencing Guidelines

43. 43

44. 44 Proposed Recommendation 3 Split obscenity offenses from the Other Sexual Assault Guidelines into a new offense group as proposed

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

46. 46 Compliance with Sentencing Guidelines for Aggravated Malicious Wounding (§ 18.2-51.2) FY2009 – FY2013 (Preliminary) * Worksheets with scoring errors were excluded from the analysis Number of Sentencing Events = 327*

47. 47 DispositionPercent Median Sentence No Incarceration1.2%N/A Incarceration Up to 6 Months.3%6 Months Incarceration More than 6 Months 98.5%13.1 Years * Worksheets with scoring errors were excluded from the analysis Aggravated Malicious Wounding (§ 18.2-51.2) FY2009 – FY2013 (Preliminary) 327 Sentencing Events*

48. Proposed 48 All offenders convicted of this offense will be recommended for Section C (prison sentence) 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

49. Proposed 49 Increase the points for Aggravated Malicious Wounding on Section C of the Assault guidelines Increase points on Section C for aggravated malicious injury Category I Category II Other F. Aggravated malicious injury (1 count) …………………………… 321 ………….. 214 …….… 107

50. 50 Actual versus Recommended Prison Sentences for Aggravated Malicious Wounding (§ 18.2-51.2) FY2009 – FY2013 (Preliminary) Actual Practice Recommended under Current Sentencing Guidelines Mean Sentence 18.0 years13.8 years Median Sentence 13.3 years11.0 years Recommended under Proposed Sentencing Guidelines* 16.0 years 12.6 years 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.

51. 51 CurrentAs Proposed Compliance59.6%61.5% Mitigation7.0%15.0% Aggravation33.3%23.5% Compliance with Sentencing Guidelines for Aggravated Malicious Wounding (§ 18.2-51.2) FY2009 – FY2013 (Preliminary)

52. 52 Proposed Recommendation 4 Modify the Sentencing Guidelines for Aggravated Malicious Wounding (§ 18.2-51.2) as proposed

53. Proposed Recommendation 5: Modify the Sentencing Guidelines for Burglary in Cases Involving an Additional Offense of Aggravated Malicious Wounding

54. 54 In 2012, the Commission recommended adding a factor to the Burglary worksheets for cases involving completed burglary with a deadly weapon and an additional offense of: ─Attempted/Conspired 1 st degree murder or ─Attempted/Conspired/Completed 2 nd degree murder, felony murder, or malicious wounding The recommendation, submitted in the Commission’s 2012 Annual Report, was accepted by the 2013 General Assembly. Completed Burglary with a Deadly Weapon

55. 55 Completed Burglary with a Deadly Weapon Beginning in 2013, a new factor was added to Section A of the Burglary/Dwelling and Burglary/Other guidelines This factor ensures that all offenders convicted of this combination of offenses will be recommended for Section C (prison sentence)

56. 56 Completed Burglary with a Deadly Weapon This factor increases the recommended prison sentence for offenders convicted of this combination of offenses Beginning in 2013, a new factor was added to Section C of the Burglary/Dwelling and Burglary/Other guidelines

57. 57 Because there were no cases in five years of data involving completed burglary with a deadly weapon with an additional offense of aggravated malicious wounding, this scenario was not covered by the 2013 modifications Since this presents a face validity issue, staff have continued to monitor the data to determine if this factor could be expanded to include aggravated malicious wounding ─ Two cases involving completed burglary with a deadly weapon and aggravated malicious wounding are now available due to the updated FY2012 and FY2013 data Completed Burglary with a Deadly Weapon

58. 58 DispositionPercent Median Sentence No Incarceration0%N/A Incarceration Up to 6 Months 0%N/A Incarceration More than 6 Months 100%38.5 Years Completed Burglary with a Deadly Weapon (§§ 18.2-89, 18.2-90, 18.2-91, 18.2-92, 18.2-93) with Additional Offense of Aggravated Malicious Wounding FY2009 – FY2013 (Preliminary) 2 Sentencing Events

59. Proposed 59 Include Aggravated Malicious Wounding in the following factor on Section A of the Burglary guidelines Additional Offense with VCC Prefix of “MUR” ……………………………………………………………………….. 10 Additional Offense of Malicious or Aggravated Malicious Wounding (§ 18.2-51 or § 18.2-51.2) ………….…. 10 All others ……………………………………………………………………………………………………………………….. 0

60. Proposed 60 Include Aggravated Malicious Wounding in the following factor on Section C of the Burglary guidelines Additional Offense with VCC Prefix of “MUR” ………………………………………………………………………… 140 Additional Offense of Completed Aggravated Malicious Wounding (§ 18.2-51.2 )…………………………….... 55 Additional Offense of Completed Malicious Wounding (§ 18.2-51) ………………………………………………… 35 Additional Offense of Attempted/Conspired Malicious or Aggravated Malicious Wounding …………………… 8

61. 61 Compliance with Sentencing Guidelines for Completed Burglary with a Deadly Weapon (§§ 18.2-89, 18.2-90, 18.2-91, 18.2-92, 18.2-93) with Additional Offense of Aggravated Malicious Wounding FY2009 – FY2013 (Preliminary) CurrentAs Proposed Compliance 50% 100% Mitigation 0% Aggravation 50% 0%

62. 62 Proposed Recommendation 5 Modify the Burglary Sentencing Guidelines as proposed

63. Proposed Recommendation 6: Modify the Sentencing Guidelines for Daytime Burglary of a Dwelling without a Deadly Weapon (§ 18.2-91)

64. Historical time served from 1988-1992 (which served as the base recommendation for the new guidelines) was increased or “enhanced” by 100%, 300%, or 500% for offenders with current or prior violent felony convictions. Level of Guidelines Enhancement Current Offense/ No Violent Priors Less Serious Violent Priors More Serious Violent Priors In the 1994 reform legislation, violent offenders, as defined in § 17.1-805, were targeted for longer terms of incarceration 64 Burglary of a dwelling, statutory burglary of a dwelling and any burglary committed while armed with a deadly weapon were defined as violent for the purposes of current offense enhancements. These enhancements are built into the current guidelines.

65. 65 DispositionPercent Median Sentence No Incarceration18.8%N/A Incarceration Up to 6 Months 18.4%2.7 months Incarceration More than 6 Months 62.8%2.5 years Daytime Burglary of a Dwelling without a Deadly Weapon (§ 18.2-91) FY2009 – FY2013 (Preliminary) 3,911 Sentencing Events* * Worksheets with scoring errors were excluded from the analysis

66. Proposed 66 Expand the factor for the Type of Additional Offenses on Section A of the Burglary guidelines to apply to all burglary offenses If expanded to apply to all burglary cases, this factor would increase the likelihood that offenders convicted of this combination of offenses will be recommended for Section C (prison sentence)

67. Proposed 67 Proposed Worksheet C Modifications: 1. Slightly decrease the primary offense points for completed daytime burglary of a dwelling without a deadly weapon (§ 18.2-91) C. Dwelling with intent to commit larceny, etc., without deadly weapon Completed: 1 count ……………………………..… 51 ……… 34 ………. 17 Attempted/conspired: 1 count ………………………………. (36) ……. (18) ……… (9)

68. Proposed 68 Proposed Worksheet C Modifications, cont.: 2. Expand the factor for the Type of Additional Offenses on Section C of the Burglary guidelines to apply to all burglary offenses If expanded to apply to all burglary cases, this factor increases the recommended prison sentence for offenders convicted of this combination of offenses

69. 69 Actual versus Recommended Prison Sentences for Daytime Burglary of a Dwelling without a Deadly Weapon (§ 18.2-91) FY2009 – FY2013 (Preliminary) Actual Practice Recommended under Current Sentencing Guidelines Mean Sentence 3.5 years3.6 years Median Sentence 3 years3.6 years Recommended under Proposed Sentencing Guidelines* 3.5 years 3.4 years 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.

70. 70 Compliance with Sentencing Guidelines for Daytime Burglary of a Dwelling without a Deadly Weapon (§ 18.2-91) FY2009 – FY2013 (Preliminary) CurrentAs Proposed Compliance 65.9% 66.7% Mitigation 17.6% 16.6% Aggravation 16.5% 16.7%

71. 71 Proposed Recommendation 6 Modify the Burglary Sentencing Guidelines as proposed

72. Analysis Not Resulting in Proposal: Examining the Interaction Between the Fraud (False Pretense) and Larceny (Grand Larceny) Worksheets

73. Interaction Between the Fraud and Larceny Worksheets Scenario: Cases with convictions for obtaining money by false pretense (§ 18.2-178) and completed grand larceny (§ 18.2-95) Both offenses have a 20-year statutory maximum Grand larceny is usually the primary offense because it scores more points on Section C than false pretense With completed grand larceny scored as the primary offense, the recommendation is a short jail sentence With completed false pretense scored as the primary offense, the recommendation is a prison sentence 73

74. 74

75. Data: 216 cases from SG FY2009-FY2013 (preliminary) with at least 1 count of completed false pretense and at least 1 count of completed grand larceny Alternative model tested: Increase primary offense points for false pretense on Fraud Section C so that false pretense will be the primary offense in cases involving this combination of offenses 75 Interaction Between the Fraud and Larceny Worksheets

76. Alternative model tested: − 8 points (up from 6) for 1 count of false pretense, 9 points (up from 7) for 2 counts − Cases with grand larceny of a firearm (17 points for primary offense) were dropped − When cases had 2 or more counts of grand larceny of property, grand larceny was usually still the primary offense - these cases were also dropped − 133 sentencing events remained for analysis 76 Interaction Between the Fraud and Larceny Worksheets

77. 77 Current Alternative Model Compliance 82.7% 58.6% Mitigation 7.5% 27.8% Aggravation 9.8% 13.5% Compliance with Sentencing Guidelines for Cases involving Grand Larceny and Obtaining Money by False Pretense* FY2009 – FY2013 (Preliminary) * Analysis included cases involving one count of each offense Number of Sentencing Events = 133

78. Compliance Comparison: Current (Larceny) versus Alternative (Fraud) Scoring Methods Scoring the GL/FP cases on the Fraud worksheets leads to an excessive number of cases recommended to Section C (prison recommendation: 79% versus 49%) − This increases the mitigation rate Reason: Fraud Section A threshold for a case being sent to Section C is 11 points; for Larceny, it is 16 points 78

79. Legal restraint on Fraud Section A scores high points relative to the threshold − 4 points for unsupervised probation − 9 points for supervised probation This is not the case for legal restraint on Larceny Section A A high proportion of these cases score points for legal restraint − Of the cases recommended for Section C when scored on the Fraud worksheet, almost one-third score 4 points and another one- third score 9 points 79 Compliance Comparison: Current (Larceny) versus Alternative (Fraud) Scoring Methods

80. 80 Fraud Section A Worksheet Larceny Section A Worksheet

81. 81 By scoring the Grand Larceny/False Pretense cases on the Fraud worksheets, compliance would decrease from 82.7% to 58.6% Therefore, the staff has no recommendation for modifications at this time Analysis Not Resulting in Proposal

82. Analysis Not Resulting in Proposal: Re-evaluating Sentencing Guidelines for Prescription Fraud

83. Re-evaluating Sentencing Guidelines for Prescription Fraud on the Drug/Other Worksheets Issue: Guidelines users requested a review based on an increase in the number of convictions Guidelines for prescription fraud were last revised January 1995 SG FY2009-FY2013 (preliminary) data yielded 1,850 prescription fraud sentencing events for analysis Relatively few of these cases were recommended for prison − Only 152 (8.2%) went to Section C when scored on the Drug/Other Section A worksheet − The vast majority (91.8%) went to Section B 83

84. Compliance/Departure Rates OffenseNumberComplianceMitigationAggravation Obtain by Fraud1,66287.7%2.8%9.6% Utter Forged Prescription 9785.6%2.1%12.4% First Offender Viol.8185.2%1.2%13.6% Other Prescription Fraud 10100.0%0.0% Total1,85087.5%2.6%9.8% 84 In general, compliance is very high in these cases. Some benefit could be gained by achieving a better balance between mitigation and aggravation. Compliance with Sentencing Guidelines for Prescription Fraud FY2009 – FY2013 (Preliminary)

85. 85 Focus: Drug/Other Section B worksheet

86. 86

87. Many scenarios were explored that altered scores on the Drug/Other Section B worksheet for factors such as: − Primary Offense − Primary Offense Remaining Counts − Prior Incarcerations/Commitments − Legally Restrained at Time of Offense In general, a better balance between mitigation and aggravation could only be achieved at the expense of a loss in overall compliance 87 Re-evaluating Sentencing Guidelines for Prescription Fraud on the Drug/Other Worksheets

88. 88 Current Alternative Model Compliance 87.5% 83.9% Mitigation 2.6% 4.0% Aggravation 9.8% 12.1% Compliance with Sentencing Guidelines for Prescription Fraud Cases FY2009 – FY2013 (Preliminary) – Scenario 1 – Scenario 1 scores 1 point for 1-2 counts, 2 points for 3-4 counts, and 3 points for 5 or more counts of the Primary Offense

89. 89 Current Alternative Model Compliance 87.5% 80.1% Mitigation 2.6% 8.4% Aggravation 9.8% 11.5% Scenario 2 scores 1 point for 1-2 counts, 2 points for 3 or more counts of the Primary Offense Points for Legal Restraint are also increased: 3 points for Other Than Supervised, 4 points for Supervised (same as for Sale of Schedule III Drug Cases) Compliance with Sentencing Guidelines for Prescription Fraud Cases FY2009 – FY2013 (Preliminary) – Scenario 2 –

90. 90 Analysis Not Resulting in Proposal Under the various scenarios tested, compliance for Prescription Fraud decreased by 4-10 percentage points Therefore, the staff has no recommendation for modifications at this time

91. Analysis Not Resulting in Proposal: Consider Adding Felony Synthetic Marijuana Offenses to the Drug/Other Guidelines

92. Consider Adding Felony Synthetic Marijuana Offenses to the Drug/Other Guidelines Issue: Guidelines users suggested developing sentencing guidelines for felony synthetic marijuana offenses: ─§ 18.2-248.1:1 (C) - Distribute synthetic cannabinoids ─§ 18.2-248.1:1 (D) - Distribute synthetic cannabinoids to inmate ─§ 18.2-248.1:1 (E) - Manufacture synthetic cannabinoids ─§ 18.2-255(A,i) - Distribute synthetic cannabinoids to minors Effective: March 23, 2011 According to court and jail databases, only 6 offenders have been convicted of a felony involving synthetic marijuana since the law was passed in 2011 Staff will continue to monitor convictions for these offenses and may recommend adding them to the guidelines if a sufficient number of cases exists 92

93. 93 Analysis Not Resulting in Proposal Since only 6 offenders have been convicted of a felony offense involving synthetic marijuana, the staff has no recommendation for these offenses at this time