UNDERSTANDING AND USING PENNSYLVANIA SENTENCING DATA. Pennsylvania Commission on Sentencing. June 14, 2017

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1 Pennsylvania Commission on Sentencing State College Location: 204 East Calder Way, Suite 400, State College, PA Mail: PO Box 1200 State College, PA Phone: Fax: UNDERSTANDING AND USING PENNSYLVANIA SENTENCING DATA June 14, 2017 URL: Rep. Frank Dermody Chair Sen. Mary Jo White Vice Chair Mark H. Bergstrom Executive Director

2 Pennsylvania Commission on Sentencing TABLE OF CONTENTS OVERVIEW OF THE COMMISSION AND THE SENTENCING GUIDELINES... 1 Purpose of the Commission... 1 Sentencing in Pennsylvania... 1 THE DATA... 4 Sentencing Data: What It Does and Does Not Contain... 4 Sentencing Data Collection... 4 Terminology : S1DES : Slight variation in the Sent File during these years : Microsoft Excel : SENTRY Present: Sentencing Guideline Software (SGS) and SGS Web... 7 SPECIAL TOPICS... 8 Concurrent / Consecutive Sentences... 8 The Law... 8 The Data : S1DES : Microsoft Excel : SENTRY Present: Sentencing Guideline Software (SGS) and SGS Web... 8

3 Pennsylvania Commission on Sentencing Page 1 OVERVIEW OF THE COMMISSION AND THE SENTENCING GUIDELINES Purpose of the Commission The Pennsylvania Commission on Sentencing is a legislative agency of the Commonwealth of Pennsylvania associated with The Pennsylvania State University. It was created in 1978 to address problems of unwarranted disparity and undue leniency in judicial sentencing. The Commission s primary responsibility is to develop sentencing guidelines that must be considered by all judges in sentencing felony and misdemeanor offenses. The Commission s enabling legislation can be found in Title 42 of the Pennsylvania Consolidated Statutes Annotated (42 Pa.C.S.A ). Sentencing in Pennsylvania The following is provided as an overview to promote understanding of Pennsylvania sentencing data. It is not intended as a primer for understanding sentencing laws and practices in the Commonwealth. Details pertaining to Pennsylvania s statutory maximum and minimum sentences, mandatory sentences, enhancements to sentences, other sentencing-related laws or guidelines, etc., may be found in the Commission s Sentencing Guideline Implementation Manuals. For additional discussion of each year s data and details pertaining to that individual year, also see the Commission s data codebooks and data-related appendices for a given sentencing year as well as the Annual Reports ( Under the provisions of the Pennsylvania Sentencing Guidelines, all offenses are classified on the basis of the seriousness of the current offense (Offense Gravity Score, or OGS) and the seriousness and extent of the offender s prior record (Prior Record Score, or PRS). For each combination of OGS and PRS, three levels of recommended guideline ranges are prescribed: 1) the standard range (for use under normal circumstances); 2) the aggravated range (for use when the judge determines that there are aggravating circumstances); and 3) the mitigated range (for use when the judge determines that there are mitigating circumstances). An enhanced range of sentences is prescribed if the offender possessed a deadly weapon while committing the offense, involved youths in drug trafficking, or trafficked in drugs within 1000 feet of a school. Pennsylvania incarceration sentences are stated in terms of a minimum sentence and a maximum sentence. The minimum indicates the amount of time the offender typically serves before being considered for parole. The maximum indicates the total amount of supervision time. Historically, individuals sentenced in Pennsylvania are not eligible for parole before the expiration of their minimum sentence and could remain incarcerated until the expiration of their maximum sentence; however, individuals sentenced to a state facility on or after November 24, 2008 may be released prior to their minimum sentence provided that they meet eligibility requirements.

4 Pennsylvania Commission on Sentencing Page 2 However, all sentencing guideline ranges refer to minimum incarceration sentences under Pennsylvania law. The ranges are stated in months. If either the aggravated or mitigated range is chosen, the judge is required to state and encouraged to write the aggravating or mitigating reasons which were found. Sentences in the standard, aggravated or mitigated range are considered to be within the guidelines. Whenever a sentence is imposed outside of the recommended guideline ranges, the judge must provide a written statement of the reasons for departing from the guidelines. Beginning with the 5 th Edition Sentencing Guidelines (see Applicable Guidelines chart below), the court is required to submit a Guideline Sentence Form to the Commission on Sentencing within 30 days of sentencing. Prior to the 5 th Edition (1997) Sentencing Guidelines, it was a 20-day requirement. Sentencing data include offenses sentenced under different sets of sentencing guidelines. For example, the 3 rd Edition, Revised (1991) Sentencing Guidelines pertain to all offenses committed on or after August 9, 1991, up until the time that the 4 th Edition (1994) guidelines became effective. The 1994 sentencing guidelines became effective for all offenses committed on or after August 12, 1994 until the 5 th Edition (1997) guidelines became effective, and so on. Table 1. Effective Dates of Sentencing Guideline Editions Date of Offense (on or after ) Applicable Guidelines 07/22/1982 1st Edition 06/03/1983 1st Edition, Amendment 1 01/02/1986 1st Edition, Amendment 2 06/05/1986 2nd Edition 10/07/1987 SESSOMS DECISION - Invalidated all previous guidelines 04/25/1988 3rd Edition 1988 Guidelines 08/09/1991 3rd Edition, Revised 1991 Guidelines 12/20/1991 3rd Edition, Revised, Amend Guideline Revisions 08/12/1994 4th Edition 1994 Guidelines 06/13/1997 5th Edition 1997 Guidelines 06/03/2005 6th Edition 2005 Guidelines 12/05/2008 6th Edition, Revised 2008 Guidelines 12/28/ th Edition 2012 Guidelines 09/27/ th Edition, Amendment 1 09/26/ th Edition, Amendment 2 09/25/ th Edition, Amendment 3 Several differences among the editions of sentencing guidelines are relevant for analytic purposes. Some of the key differences among recent editions of the sentencing guidelines are summarized below.

5 Pennsylvania Commission on Sentencing Page 3 Table 2. Selected Differences in Recent Sentencing Guideline Editions Area of difference Offenses included on Guideline Form 3rd Edition, Revised (1991 Guidelines) All offenses within a Transaction 4th Edition (1994 Guidelines) All offenses within a Judicial Proceeding 5th Edition (1997 Guidelines) All offenses within a Judicial Proceeding 6th Edition (2005 Guidelines) All offenses within a Judicial Proceeding 7th Edition (2012 Guidelines) All offenses within a Judicial Proceeding Offense Gravity Score (OGS) for Non-Drug Offenses * OGS for Drug Offenses Prior Record Score (PRS) Lapsing Provision for Some Prior Juvenile Offenses Sentencing Levels Deadly Weapon Enhancement DUIs Alpha Score A-N, (A is most Serious) 0-6 (Note: PRS of 6 in the 1991 guidelines is not equal to PRS of RFEL in subsequent editions.) Does not apply Does not apply 12 months added to lower boundary of standard range and 24 months added to upper boundary of the standard range Not covered under these guidelines , 6=RFEL (Repeat Felony Offender) 8=REVOC (Repeat Violent Offender Category) Less serious juvenile offenses lapse for prior record purposes if the offender was 28 or older at the time of the current offense. Level determines which sentencing options are available, including Restorative Sanctions, Intermediate Punishment, and Incarceration. OGS 1-4 adds 3-6 months OGS 5-8 adds 6-12 months OGS 9-13 adds 9-18 months Not covered under these guidelines EXCEPT when there is serious bodily injury (SBI) , 0-5, 6=RFEL (Repeat Felony 6=RFEL (Repeat Felony Offender) Offender) 8=REVOC (Repeat Violent 8=REVOC (Repeat Violent Offender Category) Offender Category) Less serious juvenile offenses lapse for prior record purposes if the offender was 28 or older at the time of the current offense. Level determines which sentencing options are available, including Restorative Sanctions, Intermediate Punishment, and Incarceration. Deadly Weapon Possessed or Deadly Weapon Used (see appropriate matrix) Covered under these guidelines Less serious juvenile offenses lapse for prior record purposes if the offender was 28 or older at the time of the current offense. Level determines which sentencing options are available, including Restorative Sanctions, Intermediate Punishment, and Incarceration. Deadly Weapon Possessed or Deadly Weapon Used (see appropriate matrix) Covered under these guidelines 1-14* 0-5, 6=RFEL (Repeat Felony Offender) 8=REVOC (Repeat Violent Offender Category) Less serious juvenile offenses lapse for prior record purposes if the offender was 28 or older at the time of the current offense. Level determines which sentencing options are available, including Restorative Sanctions, Intermediate Punishment, and Incarceration. Deadly Weapon Possessed or Deadly Weapon Used (see appropriate matrix) Covered under these guidelines

6 Pennsylvania Commission on Sentencing Page 4 THE DATA Sentencing Data: What It Does and Does Not Contain The sentencing data reflect all Pennsylvania felony and misdemeanor offenses that were sentenced in Common Pleas Courts during a given calendar year AND which were reported to the Commission on Sentencing. This includes adults, individuals age 18 and older, and juveniles, younger than age 18, who were certified to be tried as adults. While it does not contain a verbatim account of the entire sentencing proceeding, the information collected includes offender information and court case identification; offense of conviction; record of previous convictions; sentence recommendations, including applicable sentencing enhancements and/or mandatory provisions; type of disposition; and the sentence imposed, including any reasons provided. Sentencing guidelines do not apply to sentences imposed for the following: accelerated rehabilitative disposition (ARD); disposition in lieu of trial; direct or indirect contempt of court; violations of protection from abuse orders; revocation of probation, intermediate punishment or parole; therefore, this information is not collected by the Commission. Information on summary offenses is also not collected by the Commission. Furthermore, not all sentences are reported to the Commission, including the following: Philadelphia Municipal Court sentences are not reported to the Commission. These may include DUI (driving under the influence) offenses as well as other misdemeanor offenses. Offenses sentenced by magisterial district judges are not reported to the Commission. These typically include DUI offenses or other misdemeanor offenses. Murder 1 and Murder 2 offenses, which are subject to life or death mandatory sentences, do not fall under the sentencing guidelines and are not required to be reported to the Commission. The Commission encourages reporting of the Murder 1 and Murder 2 offenses; many are reported and are included in the data collection. Murder 1 and Murder 2 do not have an OGS and conformity to the guidelines is not computed. The Commission does not currently have an audit system to determine the extent of non-reporting. Not all sentences are reported but there is no way to know what percentage of cases is missing, or whether they are missing in any systematic way. However, steps have been taken to ensure that information submitted to the Commission is as accurate and complete as possible by employing both internal and external verification processes. The external verification process began with 1998 sentencing data. Sentencing Data Collection In addition to changes to the sentencing guidelines, Pennsylvania sentencing data has gone through major changes in data collection to keep pace with technological advancements. Over the years, the

7 Pennsylvania Commission on Sentencing Page 5 Commission has shifted from a manual paper data entry system to a web based data entry system which has improved the quality of the sentencing data. To date there have been four different eras of sentencing data collection, each resulting in unique file layouts, as described below. First, however, some terminology needs to be defined. Terminology Criminal Incident offense(s) committed by an offender on a specific date; also referred to as transaction. A criminal incident may contain a single offense or multiple offenses. Judicial Proceeding offense(s) committed by an offender that are sentenced on a given date. A judicial proceeding may contain a single criminal incident or multiple incidents. Most Serious Offense offense with the highest Offense Gravity Score (OGS). The most serious offense may be within a criminal incident (based on date of offense), within a judicial proceeding (based on date of sentence), or among all offenses an offender committed within a given year. Most Serious Sentence sentence sanction that is the most restrictive and, in cases of multiple sentences that are equally restrictive, the one with the longest length (typically determined by comparing minimum sentence lengths). State incarceration sentences are assumed to be more serious than county incarceration sentences, regardless of length. A single offense may have multiple sentences (e.g., county jail followed by probation). Each offense has its own most serious sentence. Furthermore, each judicial proceeding, each criminal incident and each offender has its or his/her own most serious sentence. Note: The Commission s Annual Reports are based upon the most serious offense per criminal incident. For that most serious offense in the criminal incident, only the most serious sentence per offense is reported. For further details about concurrent vs. consecutive sentences, see the Special Topics section at the end of this document : S1DES Data from were entered using a DOS-based data entry program (referred to as S1DES in the documentation). Paper sentencing guidelines forms were manually entered by Commission staff during these years. Up to and including the 3 rd Edition, Revised (1991) guidelines, each paper sentencing guideline form came with a preprinted Commission Identification Number (CID) which identified a unique transaction. All offenses within a transaction were entered on a single form (using one CID). In some instances, guideline forms were submitted with multiple transactions on a single form and these forms were entered as separate transactions, but the same CID was used for each transaction. In other instances, single transactions were entered using multiple forms and were corrected by commission staff using the first CID. With the 4 th Edition (1994) guidelines, the Commission switched from a transaction based data collection system to an offender based data collection system based on a judicial proceeding. When possible, the Commission would try to correct data reporting errors pertaining to the CID. A maximum of four offenses per transaction were entered in these data years in a horizontal file format and the most serious offense per transaction was the first offense to be reported on the sentencing guideline form. In these data years DUIs were entered into a separate dataset. (If the DUI

8 Pennsylvania Commission on Sentencing Page 6 was the most serious charge it was only entered into the DUI data set. If the DUI was not the most serious charge it was also entered into both the non-dui dataset and the DUI data set.) Sent File: The variables pertaining to each of the four offenses have identical names with a number at the end of the variable name to distinguish between them (e.g., OFF1, OFF2, OFF3, OFF4 and SENT1, SENT2, SENT3, SENT4, etc.). OFF1 refers to the specific title and section for the first offense and SENT1 refers to the type of sentence for the first offense and so on. MSent File: Only the information for the most serious offense per transaction appears in this file. The details of the Prior Record Score (PRS) are not included in this file; only the final PRS is included. DUI File: DUI offenses only are included : Slight variation in the Sent File during these years. Sent File: The variables pertaining to each of the four offenses have identical names, with a number at the end of the variable name to distinguish between them (e.g., OFF1, OFF2, OFF3, OFF4 and SENT1, SENT2, SENT3, SENT4, etc.). For each record, after the four offenses, the variables for the most serious offense in the transaction (taken from one of the four preceding offenses) is repeated with the variable names labeled without a number: OFF, SENT, etc. The final PRS AND the details of the PRS are included in this file. 1995: Microsoft Excel The year 1995 was a transition year from the previous years data-entry program (S1DES) to the subsequent data-entry program (titled SENTRY) and therefore, an abbreviated data set was entered using Microsoft Excel. Commission staff manually entered paper guideline forms for this data year. Only the first, or most serious offense per transaction, was entered and only abbreviated sentencing information was collected from the sentencing guideline form for that offense (some variables included in other years were not entered for 1995). There are two data files which correspond to the two sets of guidelines that were in effect [3rd Edition, Revised (1991) and 4th Edition (1994)]. In 1995, DUIs were entered into a separate data set : SENTRY From , the Commission entered all offenses in a judicial proceeding. Paper sentencing guideline forms were manually entered by the Commission staff during these data years, using a system based in SAS software (SENTRY) data years contain offenses committed under editions of the guidelines that had significant differences. With the 5th Edition Guidelines (1997), the Commission identification number (CID) preprinted on these forms refers to a judicial proceeding, not a transaction. To make the data comparable to the offenses committed under the 3rd Edition, Rev. (1991) and 4th Edition (1994) guidelines, an approximation to transaction a quasi-transaction flag Microsoft Excel is a registered trademark with Microsoft ( SAS is a registered trademark with SAS Institute (

9 Pennsylvania Commission on Sentencing Page 7 variable (QTflag) was added to those offenses committed under the 5th Edition (1997) guidelines. The QTflag variable can be used to identify the most serious offense per criminal incident. In previous data years, multiple guidelines were reported in the same data set, but because the 5th Edition (1997) guidelines differ significantly from the 3rd Edition, Revised (1991) and 4th Edition (1994) guidelines, they are reported in separate data sets. The variable GLEPOCH denotes which set of guidelines pertained to the offense. GLEPOCH A refers to the 3rd Edition, Revised (1991) guidelines, B refers to the 4th Edition (1994) guidelines, and C refers to the 5th Edition (1997) guidelines. In these data years the data was also separated into two data sets, a record and offense data set. The record (rec) data set contains information about the offender and the offense (off) data set contains information specific to the offense. The record and offense data sets can be merged together using CID and batch. DUI s are included in the data set with all other offenses Present: Sentencing Guideline Software (SGS) and SGS Web In 1998, the Commission addressed the shortcomings of paper forms by unveiling new Sentencing Guideline Software (SGS). Four years later in 2002, SGS Web was introduced. Available through the statewide Justice Network (JNET), SGS Web allows for online entry of sentencing information by counties. Counties were required to use this new system, rather than paper forms, as of July 1, This web-based reporting system is more efficient due to information leveraged from data already collected by the Administration Office of Pennsylvania Courts. Accuracy is improved due to built-in data validation checks. Each county s President Judge establishes the protocol for the entry of sentencing guidelines information within the county. Multiple offices and/or persons may be responsible for entering and submitting the various modules (offender identification information, offense and sentence) of the program. Information on all offenses in a judicial proceeding are collected in SGS Web. The data sets for these years contain four different flag variables to allow for a more direct comparison of data across years and to make it easier to select the most serious offense of choice: MS_OFFINCI (most serious offense per criminal incident), MS_OFFINJP (most serious offense per judicial proceeding), MS_BODY (most serious offense per offender). All offenses can be analyzed by using no selection criteria. There is also a variable that identifies the most serious sentence per offense (MS_Sanction).

10 Pennsylvania Commission on Sentencing Page 8 SPECIAL TOPICS Concurrent / Consecutive Sentences The Law Prior to January 1, 1997, the Rules of Criminal Procedure (Title 234) pertaining to Imposition of Sentence contained language that created a presumption that certain sentences of imprisonment run concurrently unless the judge stated otherwise. Since that date, the judge is required to state whether sentences of imprisonment run concurrently or consecutively. [The previous Rule 1406 was amended on November 7, 1996 and became effective on January 1, It was subsequently renumbered to Rule 705 in 2001.] The Data Where information on concurrent / consecutive sentences is collected by the Commission, it is collected within a judicial proceeding only. There is no sentencing data collected on concurrent / consecutive sentencing across judicial proceedings, whether in a given year or across years. When working with judicial proceeding minimum and maximum sentence values, please note that these refer to incarceration sentences only : S1DES MINC (total minimum consecutive confinement sentences) and MAXC (total maximum consecutive confinement sentences) variables were collected within a criminal incident. Note: A maximum of four offenses per criminal incident was collected in these data years. 1995: Microsoft Excel No information on consecutive sentences was collected by the Commission : SENTRY Individual incarceration sentence (INCMIN, INCMAX) may be compared against the incarceration sentence for the entire judicial proceeding (JINCMIN, JINCMAX) using the highest offense sequence number (OFFSEQ) for the judicial proceeding. The highest offense sequence number identifies that record which would contain the cumulative sentence for the judicial proceeding. Through this comparison, it can be inferred whether any consecutive sentences for incarceration were given within a judicial proceeding. The INCMIN / INCMAX and JINCMIN / JINCMAX variables are in months Present: Sentencing Guideline Software (SGS) and SGS Web The judicial proceeding incarceration minimum and maximum variables (JP_MIN, JP_MAX) may be used to compare with individual incarceration sentences (INCMIN, INCMAX) to determine the presence of any consecutive sentences within a judicial proceeding. The JP_MIN and JP_MAX variables remain the same for each record in the judicial proceeding. Please note that the INCMIN and INCMAX variables are in months while the JP_MIN and JP_MAX variables are in days. Specific variables have been collected which identify whether or not a given sentence is concurrent or consecutive to another given sentence. For example, the INC_RELATIONSHIP, INC_RELATEDTO, INC_RELATEDOTN, INC_RELATEDCOUNT variables are a series of variables that identify the

11 Pennsylvania Commission on Sentencing Page 9 relationship (concurrent / consecutive) of a specific incarceration offense to another offense [identified by the count number or the offense tracking number (OTN)] of the related offense. Similar variables exist for intermediate punishment and probation sentences. The number of permutations by which sentences within judicial proceedings can be concurrent and/or consecutive have rendered these fields to be useful primarily when the number of cases to be analyzed is very small and can be examined on a case-by-case basis.