MEETING OF THE VIRGINIA CRIMINAL SENTENCING COMMISSION

Transcription

1 MEETING OF THE VIRGINIA CRIMINAL SENTENCING COMMISSION April 13, 2015, 10:00 a.m. Richard P. Kern Memorial Conference Room Virginia Supreme Court Building Fifth Floor AGENDA I. Approval of Minutes from Last Commission Meeting Judge Edward L. Hogshire (ret.), Chairman* II. Restorative Justice in Virginia Judy Clarke, Executive Director Virginia Center for Restorative Justice Mark Crowley, Director (ret.) Loudon County Court Service Unit Lawrie Parker, Executive Director Piedmont Dispute Resolution Center III. Senate Finance Committee Survey on Sentencing Guidelines Richard E. Hickman, Jr. Deputy Staff Director, Senate Finance Committee IV. Report on the 2015 General Assembly & Legislative Impact Analysis Meredith Farrar-Owens, Director Joanna Laws, Deputy Director V. Sentencing Guidelines Manual Sales and Paid Seminar Attendance Meredith Farrar-Owens, Director VI. Immediate Sanction Probation Pilot Project Status Update Joanna Laws, Deputy Director VII. Miscellaneous Items Meredith Farrar-Owens, Director * Subject to confirmation by the General Assembly

2 DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT Virginia Criminal Sentencing Commission April 13, 2015 Meeting Minutes Members Present: Judge Edward L. Hogshire (Chairman), Judge Malfourd W. Trumbo (Vice-Chairman), Linda L. Bryant, Judge Bradley B. Cavedo, Linda D. Curtis, H.F. Haymore, Jr., Judge Lisa Bondareff Kemler, Judge Michael Lee Moore, Emily Renda, Judge Charles S. Sharp, Kemba Smith Pradia, Shannon L. Taylor, Esther J. Windmueller, and Judge James S. Yoffy Members Absent: Judge Rossie D. Alston, Jr., Delegate Benjamin L. Cline, and Senator Bryce E. Reeves The meeting commenced at 10:00 a.m. The Commission s new Chairman, Judge Hogshire, welcomed three new members recently appointed to the Commission by Governor McAuliffe. Ms. Kemba Smith Pradia is an author, public speaker, criminal justice advocate, and Founder of the Kemba Smith Foundation. Ms. Emily Renda, a project coordinator at the University of Virginia, has served as a member of the Governor s State Task Force on Combating Campus Sexual Violence. Ms. Shannon Taylor has been Henrico s Commonwealth s Attorney since Agenda I. Approval of Minutes Judge Hogshire asked the Commission members to approve the minutes from the previous meeting, held on November 5, The Commission unanimously approved the minutes without amendment. II. Restorative Justice in Virginia Judge Hogshire introduced Judy Clarke, Executive Director of the Virginia Center for Restorative Justice, who had requested some time on the Commission s agenda in order to ask for assistance in designing a program evaluation plan. Accompanying Ms. Clarke were Mark Crowley (Executive Director of Try This) and Lawrie Parker (Executive Director of Piedmont Dispute Resolution Center). Ms. Parker presented background information about restorative justice. She stated that restorative justice is a theory of justice that focuses on repairing the harm that a criminal offense inflicts on victims (direct and indirect), offenders, and communities. Ms. Parker described restorative justice as a holistic approach, a philosophy of conflict resolution, which addresses the needs of all individuals impacted by a criminal offense. She said that restorative justice aims to involve all key stakeholders in the justice process, to balance the needs of all stakeholders, to hold the offender accountable for his or her actions, to ensure victim satisfaction, and to benefit the community and repair the overall harm caused by the criminal offense. Ms. Parker noted that clients of restorative justice-based programs can include violent or non-violent juvenile and adult offenders, victims (direct and indirect),

3 community members, and anyone else impacted by the criminal offense. The process can be victim or offender initiated and can take place at any point in the criminal justice system (i.e., at the pre-trial stage, before or after sentencing, during incarceration, or during community release). Consequently, restorative justice practices can transcend a number of different agencies and entities, including juvenile and criminal courts, police departments, correctional facilities, as well as primary, secondary and higher education institutions. Examples of restorative justice approaches include pretrial diversion, victim/community impact statements, restitution, peacemaking/sentencing circles, community service, family/group conferencing, community restorative boards, prisoner re-entry programs, victim impact panels and classes, and victim offender dialogue/mediation. Ms. Parker then discussed the degree to which these types of programs have been evaluated. Evaluations have varied widely, from single program evaluations to rigorous, randomized controlled trials. She stated that evaluations have produced remarkably consistent outcomes. Evaluations of restorative justice initiatives have found reductions in recidivism for offenders convicted of both violent and property crimes compared to offenders going through the traditional justice process. Ms. Parker said that the evidence suggests that victims benefit, on average, from face-to-face conferences. Ms. Parker noted that restorative justice-based programs have been operating in Virginia since the 1980s, but that more consistent, rigorous evaluations need to be conducted. She concluded by saying that the traditional approach to justice in Virginia can, at a minimum, be supplemented by some innovative, evidence-based restorative justice approaches. Ms. Clarke informed the Commission members that a Restorative Justice Work Group has been formed. The first meeting of the Work Group will be held on April 15, 2015, at the Department of Criminal Justice Services. The purpose of the Work Group is to improve public safety by empowering communities to participate in the criminal justice process through the use of evidence-based restorative justice practices. Ms. Clarke emphasized that one of the missions of the group is to research and develop a restorative justice model for implementation throughout the Commonwealth in schools, juvenile courts and detention centers, and jails and prisons. She briefly described the various restorative justice efforts currently in Virginia. Once developed, the model will include metrics to measure outcomes of the program. Ms. Clarke invited Ms. Farrar- Owens to participate on the Work Group, if her schedule allowed. She asked if the Commission s staff could offer research assistance. She concluded by saying that she would appreciate the Commission s support of this initiative. Judge Trumbo commented that the Commission s work does not involve setting or taking positions on criminal justice policy; the Commission is a research agency that provides data and analysis to policymakers. Judge Trumbo expressed concern about the staff s ability to take on additional work at this time, given the number of requests the staff has been receiving, without additional funding. He concluded by saying that he would hate to jeopardize the Commission s underlying mission. Ms. Farrar-Owens stated that she could help in a limited capacity by advising the Restorative Justice Work Group regarding the selection of outcomes measures and program evaluation design only. Judge Hogshire 2

4 asked if any of the Commission members wished to be involved with the Restorative Justice Work Group. Ms. Smith Pradia volunteered to attend the Group s upcoming meeting. Judge Kemler asked if this type of assistance is consistent with the Commission s mission. Ms. Farrar-Owens stated that, over the years, Commission staff have provided advice and guidance to other agencies and organizations regarding research and evaluation design. Judge Hogshire asked Ms. Farrar-Owens to keep the members apprised as to the work involved for staff. III. Senate Finance Committee Survey on Sentencing Guidelines Judge Hogshire introduced Dick Hickman, the Senate Finance Committee s Deputy Staff Director, to present the results of his report on Virginia s truth-in-sentencing system. Mr. Hickman began by summarizing the sentencing reform legislation that took effect on January 1, The legislation abolished parole for felonies committed on or after that date and reduced good time credits such that felons serve at least 85% of the sentence ordered by the court. In addition, the legislation created the Sentencing Commission and directed the Commission to develop voluntary sentencing guidelines that were compatible with the new system; the new guidelines were to include enhancements to increase prison time served for violent offenders, as well as an empirically-based risk assessment instrument to identify low-risk nonviolent felons for diversion from prison to alternative sanctions. Mr. Hickman had assessed the implementation of sentencing reform in Virginia, as measured against the policy goals and objectives articulated in 1994, and concluded that the goals and objectives had been achieved to a great extent. Mr. Hickman described Virginia s pre-1995 parole system and the impetus for reform in the Commonwealth. He noted that a great deal of attention was given by policymakers to balancing the goals of reform with the costs of prisons and jails. Mr. Hickman presented information indicating that Virginia s felons are serving at least 85%, and for some offenders upwards of 90%, of the court s sentence. The enhancements built into the sentencing guidelines have resulted in significantly longer prison terms for violent offenders, compared to terms served by similar offenders under the parole system. A recent report by the Pew Center on the States revealed that, between 1990 and 2009, Virginia had increased prison lengths-of-stay more than the national average. However, growth in Virginia s incarceration rate has slowed, as has the inmate population. Virginia s crime rates have declined and, in 2013, Virginia had the third lowest violent crime rate in the nation (compared to 14 th lowest in 1994 and 2004). While 14 states experienced a greater drop in crime rates between 1994 and 2010, seven of those states had experienced a larger increase in their incarceration rates than had Virginia. Of the remaining seven states, Virginia, by far, had the lowest violent crime rate. Virginia s recidivism rate (as measured by a return to prison within three years) has also declined since fiscal year Mr. Hickman presented information on the reductions in Virginia s prison capacity in recent years and costs associated with building prisons and housing inmates. Mr. Hickman discussed the nonviolent offender risk assessment instrument, integrated into the guidelines for fraud, larceny and drug offenders. He stated 3

5 that, as a result of Virginia s sentencing reforms, a higher percentage of prison beds today are occupied by violent offenders instead of nonviolent offenders. Contrasting Virginia s system from the federal system, Mr. Hickman noted that judicial compliance with Virginia s guidelines has been relatively high (78% to 80%). He stated that the National Center for State Courts considers Virginia s system to be a national model. However, the Commission s implementation of sentencing guidelines for probation violations has been difficult, and compliance with those guidelines has been lower than with the guidelines for felony offenses. Mr. Hickman then presented the results of a series of surveys conducted in 2014 to determine the opinions of key stakeholders as to the effectiveness of Virginia s sentencing guidelines. Surveys were distributed to circuit court judges, Chief Probation Officers, Commonwealth s Attorneys, Chief Public Defenders, and a sample of private criminal defense attorneys. The key findings were: Most of the respondents believed that sentencing disparities have been reduced in Virginia; Almost 60% of judges agree the lengths of sentences for violent and repeat offenders are appropriate; Commonwealth s Attorneys were more likely to believe sentences are too lenient, while public defenders were more likely to believe sentences are too harsh (which, according to Mr. Hickman, suggests that the guidelines are set at about the right level); More than half of judges and Chief Probation Officers believe the risk assessment instrument for nonviolent offenders has been helpful in diverting low-risk offenders; A large number of respondents believe alternatives to incarceration are not sufficient in their localities; and Respondents were very complimentary to Commission staff regarding the sentencing guidelines training provided; however, some judges expressed a desire for additional training. In completing his report, Mr. Hickman concluded that Virginia is a national leader in sentencing guidelines and risk assessment. He stated that Virginia s sentencing reform is working as intended. IV. Report on the 2015 General Assembly Session & Legislative Impact Analysis Ms. Meredith Farrar-Owens, the Commission s staff director, began the presentation by reminding the Commission members that the General Assembly convenes for long sessions in even-numbered years (60 days) and short sessions in odd-numbered years (45 days). For the 2015 General Assembly session, 2,776 bills were introduced; this was the highest number of bills introduced during a short session since She then listed the staff s main session-related activities. Commission staff: 4

6 Prepare fiscal impact statements, as required by :4; Monitor legislation that may have an impact on penalties, sentencing, time served, sex offender registration, as well as legislation proposing criminal justice studies; Observe the judicial interview process; Respond to legislators requests for supplemental information; and Provide technical assistance to other agencies. Ms. Farrar-Owens then asked Ms. Joanna Laws, Deputy Director, to review the fiscal impact statements prepared for the 2015 Session. Ms. Laws first described the requirements pertaining to fiscal impact statements. She reviewed the provisions of :4, which became effective in The Commission is required to prepare a fiscal impact statement for any bill that would result in a net increase in the state prison population. This includes proposals to add new crimes to the Code of Virginia, increase statutory penalties, create or increase mandatory minimum sentences, or modify laws governing the release of prisoners. Effective July 1, 2002, the impact statement must include an analysis of the impact on local and regional jails, as well as state and local community corrections programs. In preparing the impact statement, the Commission must note any adjustments to the sentencing guidelines that would be necessary if the legislation were adopted. To prepare the impact statement, the Commission must estimate the increase in annual operating costs for state adult correctional facilities that would result if the proposal were to be enacted. Pursuant to :4, a six-year projection is required. The highest single-year increase in operating costs is identified. This amount must be printed on the face of the bill. Per :4, for each law enacted that results in a net increase in the prison population, a one-year appropriation must be made. The appropriation is equal to the highest single-year increase in operating costs during the six years following enactment. Appropriations made per :4 are deposited into the Corrections Special Reserve Fund. Ms. Laws further explained that the 2009 General Assembly had changed one of the requirements for fiscal impacts statements. The change was made through language inserted into the budget ( :4 itself was not amended). It states that, for any fiscal impact statement for which the Commission does not have sufficient information to project the impact, the Commission must assign a minimum fiscal impact of $50,000. This requirement has remained in each budget adopted by the General Assembly in succeeding years. Ms. Laws then provided details as to the process for developing the impact estimates. The impact figure is calculated by estimating the net increase in the prison population likely to result from the proposal during the six years following enactment and identifying the largest single-year impact; that figure is multiplied by the cost of holding a prison inmate for a year (operating costs, not to include capital costs). The cost figure is provided each year by the Department of Planning and Budget and, for FY2014, the annual operating cost per prison inmate was $30,397. Additional impact analyses may be conducted when requested by the House Appropriations staff, Senate Finance staff, Department of Planning and Budget, or Secretary of Public Safety. 5

7 Ms. Bryant asked if a reverse correctional impact could be done to estimate cost savings that might be generated by a particular proposal. Mr. Hickman commented that that type of analysis has been completed in certain instances. Ms. Farrar-Owens provided an example by describing analysis completed by the Commission and the Department of Corrections to research potential prison bed savings that might accrue as a result of legislation to increase Virginia s felony larceny threshold of $200. She offered to provide members with the analysis should there be interest in it. Ms. Laws presented an overview of the number and kinds of legislative impact statements prepared for the 2015 General Assembly. Staff produced 265 impact statements, a number higher than in the previous year. The most frequent types of proposals involved the expansion or clarification of an existing statute (69.8%), the definition of a new crime (47.2%), and raising a crime from a misdemeanor to a felony (23.0%). Ms. Laws displayed a slide to show the diversity of topic areas among fiscal impact statements prepared. For the 2015 Session, the most common topic area was firearms. As indicated by Ms. Laws, legislators can ask the Joint Legislative Audit and Review Committee (JLARC) to conduct an independent review of any fiscal impact statement prepared by the Commission. The number of such requests has ranged from zero to two per year. During the 2015 Session, JLARC was asked to review two of the Commission s fiscal impact statements. Ms. Laws described each bill (House Bill 1427, related to death caused by a Schedule I or II controlled substance, and House Bill 1533, related to obscene sexual display in a public place - third offense) and discussed the JLARC reviews (which are available on the JLARC website). Ms. Farrar-Owens said that Commission staff disagreed with JLARC s conclusions and, ultimately, the JLARC reviews did not serve to clarify the issues discussed by legislators. In the end, the Senate Finance Committee agreed with the Commission s conclusions. Ms. Meredith Farrar-Owens reviewed several pieces of legislation she believed would be of interest to Commission members. She noted that her presentation was not intended to be comprehensive, but would serve to highlight several bills related to the Commission, sentencing guidelines, criminal penalties, or time to be served by convicted felons. Due to the lateness of the hour, Ms. Farrar-Owens did not discuss all of the bills included in the handout materials. Ms. Farrar-Owens first described House Bill 1928 (patroned by Delegate Robert Bell). The legislation expands existing requirements for submission of DNA to the state s DNA data bank to include offenders convicted of specified misdemeanors (violation of a protective order, stalking, infected sexual battery, unauthorized use of animal, aircraft, vehicle or boat valued at less than $200, entering property of another for purpose of damaging it; indecent exposure, obscene sexual display; resisting arrest). At the request of the patron, Commission staff conducted an analysis of misdemeanor offenses that was used by legislators during their deliberations. The provisions of the bill will become effective July 1, Ms. Farrar-Owens next discussed House Bill 2049 (patroned by Delegate Robert Bell). The legislation provides that if, pursuant to a preliminary hearing, a district court certifies felony offenses to be tried in a circuit court, the court shall also certify any ancillary 6

8 misdemeanor offense for trial in circuit court, if the accused and the attorney for the Commonwealth consent to such certification. The bill, which was intended to simplify the process used in many courts, will become effective July 1, Ms. Farrar-Owens quickly reviewed House Bill 2070 (patroned by Delegate C. Todd Gilbert) related to gifts and reporting requirements on disclosure statements filed by lobbyists, legislators, and state and local officials. The provisions of this bill will become effective January 1, Ms. Farrar-Owens then presented bills introduced during the 2015 Session that did not pass but, nonetheless, may be of interest to members. House Bill 1630 would have created the Problem-Solving Court Act, modeled after the Drug Treatment Court Act, to authorize the establishment of problem-solving courts as specialized court dockets, offering judicial monitoring of intensive treatment and supervision of offenders who have special conditions related to military service, mental illness, or societal re-entry. The bill was left in the House Courts of Justice Committee. House Bill 1972 would have required that pre-sentence investigation (PSI) reports include an estimate of the operating costs associated with the imprisonment of the defendant in a state adult correctional facility, as well as any alternative sanctions available to the sentencing court. In addition, the bill would have required the Commission to maintain in its database the estimated operating cost of every sentence imposed by circuit court judges. The bill was left in the House Courts of Justice Committee. House Bill 1975 and House Bill 1996 would have increased Virginia s felony larceny threshold from $200 to $500 (House Bill 1975) or $1,500 (House Bill 1996). Ms. Farrar-Owens concluded by summarizing House Joint Resolution 622 (patroned by Delegate Charniele L. Herring). The Resolution would have established a joint legislative subcommittee to study alternative sentencing for the possession of certain drugs; the Resolution specified that the Commission would provide technical assistance to the subcommittee. This legislation was left in the House Committee on Rules. V. Sentencing Guidelines Manual Sales and Paid Seminar Attendance At its previous meeting (November 5, 2014), the Commission discussed the desirability and the feasibility of providing guidelines manuals and training to court-appointed attorneys free of charge. Currently, the Commission provides free manuals and training only to government employees, such as Commonwealth s attorneys, probation officers and public defenders. The Commission charges private attorneys, including courtappointed attorneys, for manuals and training seminars. The Commission had asked staff to provide additional information at the April 2015 meeting. Ms. Windmueller stated that this issue was of particular interest to her. As the hour was late, she felt that the topic should be taken up at the Commission s next meeting. She noted that the Commission s automation project will play a role in the discussion and the automation project could be a step closer to completion by the date of the next meeting. She requested that the topic be carried over to the June 8 meeting. 7

9 Judge Hogshire asked Ms. Farrar-Owens to briefly discuss the topic for the new members. Ms. Farrar-Owens gave an overview of the sentencing guidelines automation project. The Supreme Court s Department of Judicial Information Technology (DJIT) is designing a web-based application for automating the sentencing guidelines process. The application will allow users to complete the guidelines and save guidelines information, and it will allow the circuit court clerks to submit the guidelines to the Commission electronically. The Commission began pilot testing the application in the Norfolk Probation Office and the Henrico Commonwealth Attorney s Office. When the application is fully implemented, it will include access to the guidelines manual. It is expected that use of the application will allow the Commission to reduce manual printing costs. The Commission transferred $16,000 out of its FY2014 budget to DJIT to support the application s development and will transfer $8,000 a year for maintenance of the system. Should additional components be added, additional costs will be incurred. Ms. Farrar-Owens reported that staff had explored options that would enable to Commission to provide guidelines manuals and training to court-appointed attorneys free of charge. These options included: grants, scholarships, and support from other agencies. Grant opportunities did not appear to be a good fit for the Commission, outside scholarships would be very limited, and support from other agencies was unlikely. She noted that it may be possible to partner with the Indigent Defense Commission (the agency responsible for certifying court-appointed attorneys) to provide some free training opportunities to attorneys who perform court-appointed work. Ms. Farrar-Owens suggested that the Commission could consider offering scholarships for court-appointed attorneys who meet certain criteria. The Virginia Association of Criminal Defense Lawyers scholarship application form was mentioned as an example that the Commission could follow. Judge Trumbo made a motion to defer this topic to the next meeting, which was seconded. With no further discussion, the Commission voted 14-0 in favor. VI. Immediate Sanction Probation Pilot Program Status Update The members opted to move this agenda item to the June 8 meeting. VII. Miscellaneous Items Ms. Farrar-Owens reminded the members of the dates for the remaining Commission meetings for the year. The Commission is scheduled to meet on June 8, September 14 and November 4. With no further business on the agenda, the Commission adjourned at 12:25 p.m. 8

10 MEETING OF THE VIRGINIA CRIMINAL SENTENCING COMMISSION June 8, 2015, 10:00 a.m. Richard P. Kern Memorial Conference Room Virginia Supreme Court Building Fifth Floor AGENDA I. Approval of Minutes from Last Commission Meeting Judge Edward L. Hogshire (Ret.), Chairman II. Sentencing Guidelines Manual Sales and Paid Seminar Attendance Meredith Farrar-Owens, Director III. Immediate Sanction Probation Pilot Project Status Update Joanna Laws, Deputy Director IV. Larceny and Fraud Study Status Update Meredith Farrar-Owens, Director V. Sentencing Guidelines Compliance & Probation Violation Guidelines FY2015 Preliminary Jody Fridley, Training/Data Quality Manager VI. Sentencing Guidelines Training Update Kim Storni, Training Associate VII. Miscellaneous Items Meredith Farrar-Owens, Director

11 Virginia Criminal Sentencing Commission June 8, 2015 Meeting Minutes Members Present: Judge Edward L. Hogshire (Chairman), Judge Rossie D. Alston, Jr (by telephone), Sam Fischel (representing Linda L. Bryant), Judge Bradley B. Cavedo, Delegate Benjamin L. Cline, Linda D. Curtis, H.F. Haymore, Jr., Judge Lisa Bondareff Kemler, Judge Michael Lee Moore, Kemba Smith Pradia, Shannon L. Taylor, Esther J. Windmueller, and Judge James S. Yoffy Members Absent: Judge Malfourd W. Trumbo (Vice-Chairman), Senator Bryce E. Reeves, Emily Renda and Judge Charles S. Sharp The meeting commenced at 10:00 a.m. Agenda I. Approval of Minutes Judge Hogshire asked the Commission members to approve the minutes from the previous meeting, held on April 13, The Commission unanimously approved the minutes without amendment. II. Sentencing Guidelines Manual Sales and Paid Seminar Attendance At previous meetings (April 13, 2015, and November 5, 2014), the Commission discussed the desirability and the feasibility of providing guidelines manuals and training to court-appointed attorneys free of charge. The Commission provides free manuals and training only to government employees, such as Commonwealth s attorneys, probation officers and public defenders. The Commission charges private attorneys, including court-appointed attorneys, for manuals ($150 for complete manual; $40 to $80 for update pages only) and training seminars ($60 to $125). The Commission had asked staff to provide additional information at the April 2015 meeting. Due to time limitations at that meeting, the topic was carried over until the June meeting to allow for fuller discussion of the issue. Ms. Farrar-Owens, the Commission s staff director, presented information to members on the revenues and expenses associated with manual sales and training during fiscal year (FY) 2013 and FY2014. She also gave an overview of the sentencing guidelines automation project. The Supreme Court s Department of Judicial Information Technology (DJIT) is designing a web-based application for automating the sentencing guidelines process. The application will allow users to complete the guidelines and save guidelines information, and it will allow the circuit court clerks to submit the guidelines to the Commission electronically. The Commission began pilot testing the application in

12 the Norfolk Probation Office and the Henrico Commonwealth Attorney s Office. When the application is fully implemented, it will include access to the guidelines manual. Users will be required to have log-ins and passwords to access the system. It is expected that use of the application will allow the Commission to reduce manual printing costs, mailing costs and possibly other costs, such as data entry. The Commission transferred $16,000 out of its FY2014 budget to DJIT to support the application s development and will transfer $8,000 a year for maintenance of the system. Should additional components be added, additional costs will be incurred. Ms. Farrar-Owens reported that staff, as directed by the Commission, had explored options that might enable the Commission to provide guidelines manuals and training to court-appointed attorneys free of charge. These options included: grants, support from non-profit foundations, scholarships provided by other organizations, and partnerships with other agencies or organizations for training purposes. Grant opportunities did not appear to be a good fit for the Commission for this type of initiative, outside scholarships would be very limited, and support from other agencies was unlikely. She stated that it may be possible to partner with the Indigent Defense Commission (the agency responsible for certifying court-appointed attorneys) to provide some free training opportunities to attorneys who perform court-appointed work. According to the Indigent Defense Commission, there were 1,853 attorneys certified to perform felony courtappointed work as of February 27, According to the Office of the Executive Secretary, 1,539 attorneys/firms were reimbursed for felony cases in FY2014. In FY2014, 336 defense attorneys purchased a guidelines manual (or update pages) and 126 paid to attend a guidelines seminar. Ms. Farrar-Owens suggested that the Commission might consider offering scholarships for court-appointed attorneys who meet certain criteria. The Virginia Association of Criminal Defense Lawyers scholarship application form was mentioned as an example that the Commission could follow. She presented a proposed scholarship form for the members to review. Ms. Windmueller commented that many private criminal defense attorneys take on courtappointed defense work and that some, especially young lawyers, struggle to earn a living. While the fees charged by the Commission to private defense attorneys are nominal and attendance at the classes qualifies for mandatory continuing legal education (MCLE) credit hours, she nonetheless felt that the Commission should strongly consider waiving the training fees for members of the private bar who do court-appointed work. She felt that the scholarship was a great idea. Delegate Cline stated that a scholarship should be based on need and how much of an attorney s practice involves courtappointed work. Ms. Curtis felt that the number of attorneys attending training and purchasing manuals was low and a little alarming. Judge Cavedo mentioned that he was concerned about using taxpayers funds instead of private funds to fund the scholarships. Ms. Taylor felt it that was a competency issue and wondered if the Virginia State Bar could assist in addressing it. Judge Yoffy felt that the Indigent Defense Commission, as the agency responsible for the competency of court-appointed attorneys, should address the issue. 2

13 Judge Hogshire asked if the Commission could provide all new court-appointed attorneys with manuals and training. Ms. Windmueller said that option would probably cost the Commission more money. She suggested having a relatively small amount of money set aside for attorneys to attend training for free if they meet the criteria set by the Commission. Ms. Farrar-Owens said that the Commission has some savings accumulated due to staff vacancies, making it feasible to set aside an amount for scholarships or waivers. Judge Kemler questioned how the Commission would advertise this opportunity. Ms. Farrar-Owens said the staff had not yet explored that, but it certainly would be posted on the Commission s website. Judge Yoffy asked members the amount they believed should be set aside for this purpose. Ms. Windmueller suggested setting the amount at $3,000 for the first year, after which the Commission could reassess the amount based on actual experience. Ms. Farrar-Owens asked if any of the members would like to review the scholarship applications. Judge Kemler and Ms. Windmueller volunteered to serve as contacts for staff on this initiative. Delegate Cline asked if there were any provisions that would restrict the Commission s decision to offer scholarships/waivers. Ms. Farrar-Owens said she was not aware of any but that she would confer with others to verify her assessment. Ms. Windmueller recommended renaming the scholarship form to a Fee Waiver application. She made a motion to allocate $3,000 to fund the program for the first year, which would be re-evaluated the following year. The motion was seconded. With no further discussion, the Commission voted 13-0 in favor. Delegate Cline wished to include in the proposal that the staff try to find matching funds. Judge Hogshire indicated that the Commission should look for an organization with which to partner, but felt that it was not necessary to add that to the current motion. Judge Hogshire asked Ms. Farrar- Owens to contact the Indigent Defense Commission to discuss the possibility of partnering with that agency for training and to report back possibly in September. III. Immediate Sanction Probation Pilot Project Status Update For the benefit of the new Commission members, Ms. Laws, the Commission s Deputy Director, gave a brief overview of the Immediate Sanction Probation pilot program, including the 2012 legislative directive, the success of the model program in Hawaii (known as HOPE), the eligibility criteria for participation in Virginia s pilot program, and the sanctions given for program violations. Ms. Laws noted the four pilot sites: Henrico County, the City of Lynchburg, Harrisonburg/Rockingham County, and Arlington/Falls Church. Ms. Laws then presented a status report on the pilot project. As of June 4, 2015, a total of 109 offenders in the four pilot sites were participating in the Immediate Sanction Probation program (31 in Henrico, 26 in Lynchburg, 39 in Harrisonburg, and 13 in Arlington). A total of 56 participants had been removed from the program; only 12 of those removed had received a prison sentence, while 23 of those removed had been given a jail term (including jail-based treatment services) or had been sent to a Detention or Diversion Center program. Another seven had moved out of the jurisdiction and had to be administratively removed from the program for that reason. 3

14 Ms. Laws displayed data showing that 62% of the probationers placed in the program had four or more technical violations prior to placement. Although all of the participants had a record of technical violations prior to being placed in the program, one-quarter of participants have not had any subsequent violations since they began the program. Overall, half of the expedited hearings had been conducted by the court within three days following the commission of a violation. The average time between violation and arrest had been one day and the average time between arrest and the hearing had been two days. Ms. Laws commented that the pilot sites have been able to achieve the swiftness aspect of the program model, as well as the certainty. All program violations had been met with a jail sanction, as designed. For the first violation in the program, the average sanction being given by judges was four days. For the second and third violations, the average sanction was seven days and ten days, respectively. Ms. Laws reported that, of the 31 probationers who had completed the pilot program, 26 had been violation free for 12 months and all but two had been removed from supervised probation upon program graduation. Ms. Laws noted that the 2015 General Assembly extended the pilot period until July 1, 2016, to give the two newest pilot sites, Arlington/Falls Church and Harrisonburg/ Rockingham, sufficient time to test the program. Ms. Laws then reviewed a proposed analysis. The plan would focus on individuals who had been placed in the program by June 30, In order to assess the pilot program s effects, staff will develop a carefully-matched comparison group of probationers and track both the participant and comparison groups to examine recidivism rates and patterns. Delegate Cline asked which pilot sites have decided to scale back due to the July 1, 2016, sunset date. Ms. Laws said that Henrico had decided not to add any new participants to the program after June 30 of this year, while Rockingham had elected to continue accepting new participants. Arlington had not yet notified the Commission of its decision and staff had not yet met with stakeholders in Lynchburg. Judge Moore made a motion to approve the proposed analysis plan, which was seconded. With no further discussion, the Commission voted 12-0 in favor. IV. Larceny and Fraud Study Status Update At a prior meeting, Commission members had approved a special study of felony larceny and fraud offenses. The purpose of the study is to examine the relationship between the value of money or property stolen in larceny and fraud cases and judges sentencing decisions. Based on the results of the analysis, the Commission could recommend adding a factor to the larceny and/or fraud guidelines to account for value. Ms. Farrar-Owens provided background information regarding the Commission s previous work in this area, including the embezzlement study and a study of larceny and fraud offenses completed in For these studies, staff collected information on factors of interest not contained in the automated data. Through analysis of the data, sentencing models with new factors were tested. In 1998, based on the 4

15 analysis, the Commission recommended adding a value factor to the guidelines for embezzlement, and the recommendation was accepted by the General Assembly. However, the larceny and fraud study suggested that adding new factors (found to be statistically significant in the analysis) resulted in sentencing models that were only marginally better than the existing guidelines model. The best models involved both dollar amount and a combination of restitution and/or victim type. Adding such factors would have added a layer of complexity for users when scoring. The Commission took no action as a result of the study. Ms. Farrar-Owens turned to the methodology for the current larceny and fraud study. Staff drew a sample of 1,500 larceny and fraud cases from FY2011-FY2013 sentencing guidelines data. A large sample was preferred, as some cases will be eliminated in subsequent stages of analysis. The sample was drawn based on a stratified random sampling technique to under-sample grand larceny cases and over-sample other types of larcenies. Ms. Farrar-Owens noted that this ensures an adequate representation of offenses other than grand larceny in the sample. Similar to the previous study, supplemental data collection will be necessary in order to gather important case details that are not found in the state s criminal justice databases. She displayed a list suggested by staff, which included the following elements: dollar value of money or property stolen, the type(s) of items, any damage to items, whether or not insurance covered the loss, location of the offense, duration of the offense, number of victims, type of victim(s), the offender s relationship to victim, whether or not money or items were recovered, and whether or not restitution was paid prior to sentencing. Data sources include the Pre-Sentence/Post-Sentence Investigation (PSI) report. However, only 42% of the cases in the sample had a PSI report. She stated that staff had been exploring other automated sources of data that might be useful for the study, in hopes of reducing staff travel to Commonwealth s Attorneys Offices, Probation Offices, and Clerks Offices to review files. She described the Officer of the Court Remote Access (OCRA) System. OCRA enables remote viewing of scanned court documents. Ms. Farrar-Owens reported that 79% of the sampled cases had either a PSI or occurred in a jurisdiction using OCRA. She displayed a map of Virginia showing how the remaining 319 cases were distributed across jurisdictions in the Commonwealth. Ms. Farrar-Owens concluded by presenting the current work plan. If supplemental data collection proceeded without major setbacks, staff expected to complete the analysis by September 2015 and the results would be presented to Commission members in the fall. V. Sentencing Guidelines Compliance & Probation Violation Guidelines FY2015 Preliminary Mr. Jody Fridley, Manager of the Training/Data Quality Unit, presented a preliminary compliance report for FY2015 to date. A total of 12,377 guidelines worksheets had been submitted to the Commission and automated as of May 22,

16 For that time period, judicial concurrence with the guidelines was 80.4%. Departures from the guidelines were nearly evenly split between aggravations (9.3%) and mitigations (10.3%). Mr. Fridley pointed out the high rate of dispositional compliance (defined as the degree to which judges agree with the type of sanction recommended by the guidelines). For example, when a longer jail sentence or a prison term was recommended by the guidelines, the judges concurred with that type of disposition 86.6% of the time. Durational compliance (defined as the rate at which judges sentence offenders to terms of incarceration that fall within the recommended guidelines range) was also high for the fiscal year to date, at 81.7%. Mr. Fridley provided information on the departure reasons most frequently cited by judges. In mitigation cases, judges most often reported the decision to sentence an offender in accordance with a plea agreement as the reason for departing from the guidelines (cited in 24% of the mitigation departures). Plea agreement was also the most common reason reported in aggravation cases (cited in 19% of the aggravations). Mr. Fridley commented that the findings were consistent with those from previous years. Mr. Fridley then presented compliance rates across the 31 judicial circuits. The highest compliance rate, 88.9%, was found in Circuit 11 (Petersburg area). He also noted that Circuit 13 in Richmond had the lowest compliance rate, at 65.9%. Showing compliance by offense group, Fraud and Drug/Other had the highest rates (84%). The Kidnapping offense group recorded the lowest compliance rate in FY2015 to date (56%) and the highest rate of aggravation of all offense groups (29%). The Robbery offense group recorded the highest rate of mitigation during FY2015 (26%). Mr. Fridley gave an overview of the Commission s nonviolent offender risk assessment instrument, used in conjunction with the guidelines for fraud, larceny and drug offenses. The purpose of this instrument is to identify offenders who are statistically less likely to recidivate so that judges may consider them for alternative sanctions in lieu of prison or jail incarceration. Pursuant to a directive from the General Assembly, the Commission implemented the risk assessment instrument statewide in Because it had been a number of years since the risk assessment instrument was last examined, the Commission, in 2010, directed staff to begin a new recidivism study to evaluate the instrument and potentially update it based on more recent felony cases from Virginia s circuit courts. This complex, multi-stage project was completed in The Commission recommended that the existing risk assessment instrument be replaced with the instruments developed using the results of the new study of felony recidivism. The General Assembly accepted the recommendation and the new instruments were implemented at the beginning of FY2014. Based on the results of the most recent study, the existing risk assessment instrument was replaced by an instrument unique to each offense group (larceny, fraud offenders and drug offenders). Of the 3,634 cases analyzed for FY2015, nearly 50% of the eligible offenders were recommended for an alternative sanction; of those, 34% received an alternative. Mr. Fridley noted that staff would continue to monitor the use of the new risk assessment tools. Delegate Cline asked if the staff could provide a trend line for compliance, mitigation and aggravation for the past ten years. Mr. Fridley said he would present that information in an upcoming meeting. 6

17 Mr. Fridley then presented an overview of the Commission s sentencing revocation report (SRR) and compliance with the probation violation guidelines. The SRR is a simple form, implemented in 1997, designed to capture the reasons for, and the outcomes of, community supervision violation hearings. Mr. Fridley showed that Circuit 26 (Harrisonburg area), Circuit 29 (Buchanan area), and Circuit 1 (Chesapeake) had submitted the largest number of SRR reports during FY2015 to date. For the cases received, 51% of the SRR reports involved an offender committing a new offense and 49% involved other types of violations, such as missing an appointment with the probation officer or testing positive for drug use. Mr. Fridley displayed information showing that offenders who commit a new felony while under supervision were much more likely than offenders who commit other types of violations to receive a prison sentence for the probation violation. The Commission s probation violation guidelines apply to offenders found in violation of community supervision for reasons not related to a new crime. These are often called technical violations. According to the SRR data, use of controlled substances was the most commonly cited technical violation. For FY2015, overall compliance with the probation violation guidelines was approximately 54%. While lower than compliance with the sentencing guidelines for felony offenses, compliance with the probation violation guidelines has been higher since modifications were implemented in FY2008 than in years prior to that. Mr. Fridley discussed dispositional compliance. When a jail sentence up to 12 months was recommended by the probation violation guidelines, the judges concurred with that type of disposition 69% of the time. When a prison sentence of one year or more was recommended, judges gave that type of disposition in 54% of the cases. With regard to probation violations, there is considerable variation in sanctioning practices across the Commonwealth. In FY2015, compliance with the probation violation guidelines ranged from 70% in Circuit 2 (Virginia Beach) to 38% in Circuit 18 (Alexandria). In more than one-third of the probation violation cases in which the judge sentenced above or below the recommended guidelines range, a departure reason was not provided. For the mitigation cases in which departure reasons were provided, judges were most likely to cite the use of an alternative sentence/sanction, an agreement with the Commonwealth s attorney, or a procedural issue of some kind. When a departure reason was provided in aggravation cases, judges were most likely to cite the defendant s failure to follow instructions, previous probation violations, or that the offender had absconded. Ms. Smith Pradia asked how many probationers received jail time for violating special conditions relating to financial reasons. Mr. Fridley said he would analyze that data and report back. Ms. Taylor asked if the Commission would receive a report from Chesterfield County, a pilot site chosen for the Post-Conviction Analysis Study. She noted that the project involved the implementation of evidence-based practices. Ms. Farrar-Owens said that she had been asked by the Secretary of Public Safety and Homeland Security to join the one of the committees working on the Evidence-Based Decision Making (EBDM) initiative and that Chesterfield was one of seven Virginia localities receiving technical assistance as part of the initiative. Judge Hogshire said he would like to know the results as well. Ms. Farrar-Owens said she would report back to the Commission on the EBDM effort. 7

18 VI. Sentencing Guidelines Training Update Ms. Kimberly Storni, Training Associate, gave Commission members an update on the 2015 training schedule. The Commission s training staff had planned nine Introduction to Virginia s Sentencing Guidelines seminars, in seven different locations, during July and December. The majority of the participants were expected to be probation officers, followed by Commonwealth s attorneys. The Introduction seminars provide general background information about guidelines and then progress to detailed instruction for scoring the guidelines worksheets. The seminar is designed for the attorney or criminal justice professional who is new to Virginia s sentencing guidelines. The staff also plans to conduct a new advanced training seminar in four locations in the fall (pending approval for 5 hours of CLE, including 1 Ethics CLE). In addition, over the course of the year, staff will provide training to four groups of new probation officers at the Department of Corrections Training Academy. Ms. Storni noted that staff presented at the Judicial Conference held the previous month. VII. Miscellaneous Items Ms. Farrar-Owens reminded members of the dates for the remaining 2015 Commission meetings. The Commission is scheduled to meet on September 21 and November 4. The members agreed to move the September meeting to the Henrico County Government Center due to the UCI Road World Cycling Championships that are taking place in and around the downtown area during September 19-27, Ms. Farrar-Owens reminded members that the General Assembly directed the Commission to review the recommendations in the 2013 Annual Report related to the possession of child pornography. The review is due by December 1 st. Staff will begin work on the analysis in the fall. Ms. Farrar-Owens described a request she had received from a judge at the Judicial Conference. The judge asked if jury cases could be removed from guidelines compliance calculations when the jury returns a sentence that is below the guidelines recommendation, as the judge does not have the power in such cases to bring the sentence into compliance. Mr. Fridley reported that there were fifteen jury cases in which the jury returned a sentence below the guidelines. Ms. Farrar-Owens offered to examine the issue in greater detail, if desired, and there was consensus among members for her to do so. Ms. Farrar-Owens reported that the Governor s Task Force on Sentencing Reform in Tennessee invited her to speak on sentencing reform at one of their meetings. She may be asked back since they were very interested in Virginia s sentencing system. Finally, Ms. Farrar-Owens announced that Susan Gholston would be retiring from the Commission staff later in the month. With no further business on the agenda, the Commission adjourned at 12:10 p.m. 8