Proposed Recommendations for Guidelines Revisions

2 Proposed Recommendations  At its September meeting, the Commission considered proposals for possible revisions to the sentencing guidelines.  The Commission voted to table two recommendations pending further analysis by staff.  Staff have conducted additional analysis for the Commission’s review.

Proposed Recommendation 3: False Statement on Firearm Consent Form

4 False Statement on a Firearm Consent Form, § :2(K)  Issue This offense was added to the guidelines effective July 1, During the first year of implementation, compliance for Making a False Statement on a Firearm Consent Form was 67%, with mitigation comprising nearly all of the departures (30%). Most commonly cited reasons for mitigation are: minimal circumstances of the case, plea agreement, lack of serious prior record, and recommendation of Commonwealth’s attorney. Many of the offenders whose sentences were mitigated had only one count of the offense, no additional offenses, and no victim injury; many had a prior record that included a previous incarceration, but no legal restraint was scored.

5 Recommended Disposition Probation/ No Incarceration Incarceration 1 day - 6 mos. Incarceration over 6 months Probation/ No Incarceration 79.3%20.7%0% Incarceration over 6 months 36.8%26.3%36.8% False Statement on a Firearm Consent Form, § :2(K) Actual Disposition 29 cases 38 cases

6 Proposed Recommendation 3 – Original 3

7 By revising the primary offense score for Making a False Statement on a Firearm Consent Form on Section A of the Weapons Guidelines from 4 points to 3 points, compliance can be improved slightly. Proposed Recommendation 3 – Original Current Guidelines Original Proposal Compliance67%70% Mitigation30%24% Aggravation3%6% FY2007 (66 cases)

8 Virginia Form

9 Federal Form

10 Denial of Firearm Purchases The State Police maintains files on all firearm transaction requests and the results of the state and federal criminal history searches, as well as searches for protective orders, outstanding warrants, and adjudications of mental deficiency. Records are kept for approximately 12 months and then destroyed. Commission staff requested copies of these records for persons convicted of making a false statement in order to gain a better understanding of the these cases.

11 Basis of Firearm Transaction Denial Note: Firearm transaction records were available for 61 of the 70 offenders examined. Multiple reasons may be cited in each case. For 10 of these offenders, an out-of-state felony conviction was noted. For 8 of these offenders, a juvenile adjudication for a felony offense was noted.

12 Basis of Firearm Transaction Denial and Guidelines Compliance Note: Firearm transaction records were available for 61 of the 70 offenders examined. Multiple reasons may be cited in each case. Felony Conviction or Juvenile Adjudication (N=30) Domestic Violence Conviction (N=20) Protective Order (N=8) Felony Indictment, Warrant or Mental Health (N=6) Compliance60%70%75%100% Mitigation40%25%12.5%0% Aggravation0%5%12.5%0%

13 Basis of Firearm Transaction Denial and Guidelines Compliance Note: Firearm transaction records were available for 61 of the 70 offenders examined. Multiple reasons may be cited in each case. No Prior Felony Person Crime (N=22) Prior Felony Person Crime (N=8) Compliance55%75% Mitigation45%25% Aggravation0% Offenders with a Prior Felony Conviction or Juvenile Adjudication

14 Time Since Prior Felony Conviction or Juvenile Adjudication Note: Firearm transaction records were available for 61 of the 70 offenders examined. Multiple reasons may be cited in each case. Prior Felony Conviction or Juvenile Adjudication within Last 4 Years (N=16) Prior Felony Conviction or Juvenile Adjudication More than 4 Years Ago (N=14) Compliance75%43% Mitigation25%57% Aggravation0%

15 Proposed Recommendation 3 – Revised Revise the Weapons Sentencing Guidelines by decreasing the points assigned to the primary offense factor on Section A (from 4 points to 1) and by adding a factor to increase the score (by 3 points) for offenders with: - a prior adult or juvenile felony conviction for a crime against the person - a conviction for any other felony within the last five years - a prior domestic assault misdemeanor conviction - an outstanding protective order For offenders meeting any of the above conditions, the revision will have no impact on guidelines recommendation. For the remaining offenders, the guidelines will be less likely to recommend a term of incarceration of more than six months.

SCORE THE FOLLOWING ONLY IF PRIMARY OFFENSE AT CONVICTION IS FALSE STATEMENT ON A FIREARM CONSENT FORM (§ :2(K)) Basis of False Statement on Consent Form (listed below) Prior felony conviction for crime against person Other prior felony conviction within 4 years of current offense Prior domestic assault misdemeanor conviction Subject to protective order at time of offense If YES, add 3 NEW FACTOR 1

17  By revising the guidelines for Making a False Statement on a Firearm Consent Form as described, compliance can be improved slightly and a better balance between mitigation and aggravation can be achieved. Proposed Recommendation 3 – Revised Current Guidelines Original Proposal Revised Proposal Compliance67%70% Mitigation30%24%17% Aggravation3%6%13%

Proposed Recommendation 4: Involuntary Manslaughter

19 Involuntary Manslaughter (§ & § (A))  Issue Combined, the compliance for Involuntary Manslaughter and Involuntary Vehicular Manslaughter is 52%, with nearly all of the departure sentences above the guidelines. Most commonly cited reasons for aggravation are: aggravating circumstances/flagrancy of offense, extreme violence/victim injury, guidelines recommendation is too low, offender has drug/alcohol problems In nearly two-thirds of the aggravating departure cases, the offender had been recommended for probation or up to six months in jail but was sentenced to serve more than six months of incarceration.

20 Compliance in Cases of Involuntary Manslaughter and Involuntary Vehicular Manslaughter FY2003 – FY cases Involuntary Manslaughter (§ & § (A))

21 Recommended Disposition Probation/ Incarceration up to 6 months Incarceration over 6 months Probation/ Incarceration up to 6 months 38.2%61.8% Incarceration over 6 months 7.4%92.6% Involuntary Manslaughter (§ & § (A)) 102 cases 122 cases Actual Disposition

22 Proposed Recommendation 4 – Original 3 2 nd count

23  By increasing the points for the primary offense on Section A of the Murder/Homicide Guidelines from 1 point to 3 points (for 1 count) and from 3 to 8 points (for 2 counts), the guidelines would better reflect recent judicial practice. Proposed Recommendation 4 – Original Current Guidelines Proposed Change Compliance52%62% Mitigation7% Aggravation41%31%

24 Recommended Disposition ComplianceMitigationAggravation Probation/ Incarceration up to 6 months 38.2%0%61.8% Incarceration over 6 months 63.9%10.7%25.4% Involuntary Manslaughter (§ & § (A)) 102 cases 122 cases

25 Proposed Recommendation 4 – Revised Revise the Murder/Homicide Sentencing Guidelines applicable to Involuntary Manslaughter by: - increasing the points for the primary offense on Section A from 1 point to 3 points (for 1 count) and from 3 to 8 points (for 2 counts), and - increasing the points for the primary offense on Section C (adding 3 points for the Other Category, and making corresponding increases for Category I and Category II). As a result of these changes, offenders convicted of involuntary manslaughter will be more likely to receive a recommendation for more than six months of incarceration. In addition, offenders convicted of involuntary manslaughter will receive a longer sentence recommendation on Section C.

26 Proposed Recommendation 4 – Revised 88 X 44 X 22 X

27  By revising the guidelines for Involuntary Manslaughter in the manner described, compliance can be improved and the rate of aggravation can be reduced, better reflecting recent judicial practice. Proposed Recommendation 4 – Revised Current Guidelines Original Proposal Revised Proposal Compliance52%62%64% Mitigation7% 8% Aggravation41%31%28%