District of Columbia Sentencing and Criminal Code Revision Commission

Transcription

1 District of Columbia Sentencing and Criminal Code Revision Commission 441 Fourth Street, NW, Suite 830 South, Washington, D.C (202) Fax (202) Hon. Frederick H. Weisberg, Chairperson Barbara S. Tombs-Souvey Executive Director Donald Braman, Esq. Hon. Harold L. Cushenberry Ronald Gainer, Esq. Laura E. Hankins, Esq. Adele V. Harrell, Ph.D. Cedric Hendricks, Esq. Hon. Ramsey Johnson Patricia Riley, Esq. Michele Roberts, Esq. David Rosenthal, Esq. Julie E. Samuels Jennifer Seltzer-Stitt Anne Seymour Earl J. Silbert, Esq. Non-voting members: Maria Amato, Esq. Alfred Durham Thomas R. Kane, Ph.D. Hon. Phil Mendelson Stephen J. Husk March 8, 2011 The Honorable Phil Mendelson Chairman, Committee on Public Safety and the Judiciary Council of the District of Columbia 1350 Pennsylvania Avenue, N.W. Washington, D.C Dear Chairman Mendelson: Presented below are the D.C. Sentencing and Criminal Code Revision Commission s responses to your Performance Oversight Hearing Memo of February 11, If upon review of the agencies responses, you have any questions or desire any additional information please do not hesitate to contact me directly. 1. Please provide, in table format, a current list of Commission members, the authority for their appointment, and the expiration date for their term. In addition, include a list of any vacancies and the appointment authority for that vacancy.

2 D.C. Sentencing and Criminal Code Revision Commission March 8, 2011 Page 2 of 9 Member Term Expiration Date Authority for Appointment Hon. Frederick H. Weisberg No Term Limit DC Code (a)(1)(a) Donald Braman, Esq. 7/2/2011 DC Code (a)(1)(j) Hon. Harold L. Cushenberry No Term Limit DC Code (a)(1)(a) Ronald Gainer, Esq. 7/2/2011 DC Code (a)(1)(j) Laura E. Hankins, Esq. No Term Limit DC Code (a)(1)(d) Adele Harrell, Ph.D. 7/2/2011 DC Code (a)(1)(j) Cedric Hendricks No Term Limit DC Code (a)(1)(f) Hon. Ramsey Johnson No Term Limit DC Code (a)(1)(a) Patricia Riley, Esq. No Term Limit DC Code (a)(1)(c) Michele Roberts, Esq. 12/31/2013 DC Code (a)(1)(g) David Rosenthal, Esq. No Term Limit DC Code (a)(1)(e) Julie Samuels 12/31/2013 DC Code (a)(1)(h) Jennifer Seltzer-Stitt 7/2/2011 DC Code (a)(1)(i) Anne Seymour 4/13/ 2011 DC Code (a)(1)(i) Earl J. Silbert, Esq. 12/31/2013 DC Code (a)(1)(g) Maria Amato, Esq.* No Term Limit DC Code (a)(2)(a) Michael Anzallo* No Term Limit DC Code (a)(2)(b) Cranston J. Mitchell* No Term Limit DC Code (a)(2)(d) Thomas R. Kane, Ph.D.* No Term Limit DC Code (a)(2)(c) Hon. Phil Mendelson * No Term Limit DC Code (a)(2)(e) *There are no vacancies on the Commission at this time. 2. Please list any staff vacancies and provide the date on which each position became vacant. Also identify what impact any vacancy has on the ability of the Commission to fulfill its core mission. The agency currently has one FTE staff vacancy which became vacant on January 14, This position had previously been designated as a Clerical Assistant position which was utilized to assist with data entry prior to the electronic transfer of court sentencing data. The position has since been re-classified to a Paralegal Specialist position to assist with the Criminal Code Revision project. If this position remains unfilled, there will be a direct impact on the progress of the legislatively mandated Code Revision project since currently the agency does not have any FTE positions allocated to the project. To date the project has been severely understaffed with only a part-time project director, the limited services of the agency s staff attorney, when her workload allowed, and unpaid interns. By designating a FTE position to this project, the agency s intent was to develop and recommend an array of code reform measures by the project deadline of September 30, Even with the

3 D.C. Sentencing and Criminal Code Revision Commission March 8, 2011 Page 3 of 9 assistance of interns, the project requires oversight on a continual basis to ensure that reforms are identified and reviewed in a deliberate, systematic manner. Of even greater concern, is that the project director position for the Code Revision Project, a part-time term position held by Kenneth Cowgill, is not included in the FY 2012 budget. If this position is not reinstated, the Criminal Code Revision project will come to a complete halt; the experience and expertise of Mr. Cowgill has enabled this project to reach the point where recommendations are now being submitted to the Council for review and implementation. 3. Please describe every grant the Commission has applied for or is considering applying for in FY The Commission continually monitors all grant solicitations from the Department of Justice, National Institute of Justice, Bureau of Justice Assistance and other grant sources. Over the past year 22 grant solicitations have been reviewed by the agency, however, none of the solicitations have identified activities or areas of funding that would be appropriate for a Criminal Code Revision project. The focus of the grant solicitations over the past twelve months has primarily centered on forensic science, victimization, terrorism and capital punishment. The Commission will continue to monitor and identify grant solicitations that would be appropriate for funding the District s Criminal Code Revision Project. 4. At previous oversight hearings the Commission has stated it was looking to use unpaid interns to aid in the Criminal Code Revision project. What efforts have been made to solicit help from law schools, etc.? How many interns helped, and when, during FY 2010? Are interns currently aiding in this project? The Commission has consistently utilized interns during the summer months to assist with the Criminal Code Revision project and other priority issues within the agency. Last summer the agency employed two interns to input criminal history information and conduct data quality checking in preparation for the implementation of the SGS Web application. Given the limited space available within the Commission s office and the urgency to prepare for the historic data transfer, the use of interns for this specific project was given priority. Since the criminal code database had been completed and is operational, the staff assigned to the Criminal Code Revision project developed the various drafts of the fine proportionally proposal. The basic research had been completed for the proposal and the benefits of using interns during the past summer would have been marginal. The agency has sent a representative to Job Fairs hosted by two local law schools over the past two months and has received more responses for summer internships than the agency can accommodate. Currently we are interviewing students for the internships. A

4 D.C. Sentencing and Criminal Code Revision Commission March 8, 2011 Page 4 of 9 number of the students have indicated an interest in continuing their internship into the fall semester, which would be of great value since they would be available to work on some of the longer term aspects of the project. It is anticipated that the agency will utilize two to three interns during the upcoming summer months for the Code Revision project. 5. With regard to the web-based sentencing guideline application (DC SGS), please respond to the following: a. What is the current status of this system, and is the Commission able to access the application? The Commission is currently utilizing the SGS Web Application to transfer data from the DC Superior Court. In January 2011, a complete historic sentencing data transfer covering the period from January 16, 2006 to present was completed with the transfer of approximately 15,000 felony cases. To provide ongoing sentencing information, a daily feed was implemented upon the completion of the historic data transfer that provides data on felony cases in which a disposition has been entered or in which a sentence is imposed by the court each day. The combination of the historic data transfer and the daily feeds has provided the data required by the web application and also enabled the development of a comprehensive agency sentencing database on which to conduct analysis and compliance review. b. The Committee has previously inquired into the potential for including additional triggers for data transfer, namely (1) the initial charge, and (2) plea agreements. Have these been incorporated? If not, could the Commission work with stakeholders to incorporate these triggers going forward? How long would this take to incorporate? The Commission has requested that the charge at arrest and charge at indictment be included in the data that will be provided to the agency through the Court s IJIS outbound system. Until the completion of that system in late 2011 or early 2012, the Commission has been extracting those specific data elements manually from Courtview and entering the information into the database. This interim approach allows for comparing arrest, indictment and conviction charges until the IJIS outbound is operational. The electronic data provided from the Court contains the data variable called disposition for each count within a specific case indicating whether the conviction for a count/case was the result of a guilty plea, bench trial, jury trial, or an 11 (e)(1)(c) plea. With the inclusion of this data variable, the Commission is able to identify and analyze convictions resulting from a plea agreement, as well as compare the charge of conviction with the indictment charge.

5 D.C. Sentencing and Criminal Code Revision Commission March 8, 2011 Page 5 of 9 c. What is the status of the Commission s efforts to develop a program to convert raw data from the courts into useful sentencing data (i.e., the work contracted to Enlighten)? The conversion of the raw data from the Courts into a comprehensive data base has been completed and is currently being utilized for sentencing data analysis and research. Once court data is transferred electronically into the server which hosts the SGS Application, a program developed by Enlightened extracts the sentencing data from that server via a SPSS program and transfers the information into the agency working data base for analysis and research. d. What is the status of CSOSA s efforts to develop the criminal history application of this system? To date, the Commission had not been successful in acquiring an electronic transfer of criminal history information directly from CSOSA. The major impediment to success in this effort has been funding priorities within CSOSA. The agency has met regularly over the past year with representatives from CSOSA to explore options for the Commission to obtain criminal history data. In the interim, the Commission has developed an electronic Sentencing Guideline Form using a Microsoft Info Path program to replace the current word document form used by CSOSA to provide a defendant s criminal history to the Commission via . The word document form is completed by CSOSA and once received by the Commission, requires manual data entry of the information into the agency database, resulting in both additional labor and potential errors. With the electronic form, CSOSA enters the information and the form calculates the criminal history score automatically. The data contained on the form can be downloaded into an Excel or Access database which can then be merged with the agency database (matching on case number) and imported into the SGS Application for calculation of the recommended guideline sentence. This new procedure enables the criminal history information to become an actual part of the working database to be used for analysis and evaluation of the voluntary guidelines, as well as enabling full functionality of the web application. The agency will continue to work with CSOSA to try and facilitate the electronic direct transfer of criminal history information and impress upon them the necessity of identifying this activity as a funding priority within their agency. e. What is the current ability, or the planned ability, for the court to access this system? For the public to access this system? Until full electronic transfer of criminal history is achieved, the agency is not in a position to identify potential data sharing possibilities with criminal justice partner

6 D.C. Sentencing and Criminal Code Revision Commission March 8, 2011 Page 6 of 9 agencies. Given that CSOSA is a federal criminal justice agency and the Commission is a District agency adds another layer of complexity to data sharing and the required clearances, procedures, and protocols. The data used by the Commission for both the SGS Web application and the agency database is obtain from either the Court or CSOSA through Memoranda of Understanding that states the explicitly the purposes for which the data can be used, since the Commission is not the owner of the data but rather a user. The Court s use of this data would not be anticipated since they serve as the source of the data and would have access to this information on their internal data system. The Commission has no plans at this time for public access to agency data due to the criteria set forth in our MOU s and the sensitivity of the data, which includes defendant s names, social security numbers, judge information and other personal data. The Commission does expect to post various types of sentencing analysis on its webpage for public viewing but does not anticipate public access to its database. 6. Has the Commission been granted access to JUSTIS? If not, why not and when? The Commission is actively involved with the IWG (Internal Working Group) of JUSTIS and the Case Initiation Project which involves data sharing among criminal justice agencies from arrest through sentencing. Currently the project is focusing on IJIS inbound data, which includes arrest and case filing data being transferred to the court. It is projected that IJIS inbound will be completed by the end of June 2011, at which time IJIS outbound will be developed to provide court and sentencing data to the Commission. IJIS outbound is projected to be completed by September 30, The Commission has been working very closely with CJCC and JUSTIS to ensure the data required or requested by the Commission is available and that the necessary changes to the current schema providing data to the SGS web application are identified and addressed to ensure the continued transfer of sentencing data from the court. 7. Please list all Issues Papers prepared by the Commission during FY 2010 and FY 2011 to date, and provide copies of any papers as an attachment. 2010: An Examination of the Sentencing of Adults for Unauthorized Use of a Motor Vehicle in the District of Columbia A Comparison of Felony Sentences for Drug Offenses in the District of Columbia in 1999 and : An Examination of Fine Proportionality in the District of Columbia

7 D.C. Sentencing and Criminal Code Revision Commission March 8, 2011 Page 7 of 9 An Overview of Adult Sentencing for Felony Assaults in the District of Columbia (In Progress) 8. The Commission s January 26, 2010 Project Proposal lists several proposals for pursuing the Criminal Code Revision prescribed by statute. a. Please provide an update on which proposal the Commission is currently pursuing, and describe in detail what additional resources (i.e., staffing, additional time, etc.) are necessary to complete the project under this proposal. The Commission has begun work on Proposal #1 Penalty Proportionality by developing and submitting to the Council the proposed Fine Proportionality Act of However, without funding for the additional attorneys required to undertake Step 2 of this specific proposal, which includes examining the proportionality of prison terms, limited progress has been made to date on this task. Even though the Commission recognizes that this task is a critical aspect of Criminal Code Reform, with only one part-time attorney designated to the project, completing a proportionality of prison term analysis by the project completion date of September 30, 2012, is unlikely. Given the significant project staffing issue, the Commission established a Criminal Code Reform Committee to try and identify portions of code reform that could be accomplished as a benefit the District. The Committee decided to combine Proposal #1 (Penalty Proportionality) with Proposal #3 (Code Clean-up) and undertake a more focused approach to code reform that is based on areas of perceived need that were identified by criminal justice practitioners. Although this hybrid approach of combining Proposal #1 and #3 will not result in the comprehensive code reform that would occur with the adoption of some version of the Model Penal Code, it will still produce a set of recommended revisions that will improve the clarity, consistency, and structure of the District s current criminal code. In undertaking Proposal #3, the revisions will focus on the following: a. Revision of specific criminal statutes such as the Theft and White Collar Crime Act of 1982 and related offenses, assaults and homicide. This approach would focus on outdated statutes which could be revised to address the problems practitioners have encountered in relation to clarity and consistency. b. Enactment of Title 22 c. Code Clean-up including format, style, language and consistency. d. Identification of unconstitutional statues and common law offenses that could be codified.

8 D.C. Sentencing and Criminal Code Revision Commission March 8, 2011 Page 8 of 9 b. If a revised proposal has been prepared, please provide this to the Committee as an attachment, and provide (not as an attachment) the information requested in # 8(a). No formal revised proposal has been prepared since the approach taken by the Commission combines two proposals identified in the January 26, 2010 Project Proposal document. c. Please provide a current timetable for the Commission s completion of work on criminal code reform. The Commission will prioritize the tasks described above and the nature of the deliverables will be driven in part by the skill set of the interns used by the agency this coming summer and fall. The projected timeline for the completion of the project outlined below assumes a staff of one full time paralegal specialist and a part-time project director dedicated to the Code Revision Project. Summer 2011 a. Code clean-up focused on consistency in style, language, format and clarity. Tiles 22 (general crimes) and Title 48 (drug offenses) will be revised first. The numerous other criminal statutes scattered throughout the criminal code will be revised as time permits. b. Revisions of the Theft and White Collar Crime Act of c. Identification of statues held unconstitutional and common law offenses suitable for codification. Fall 2011 a. Adoption of Title 22 as the enacted title of the District of Columbia Code. b. Revision of the penalty enhancement provisions. c. Revision of the assault statutes During this time frame, proposals produced by the staff over the spring and summer will be presented to the Commission for review, revision and approval. Upon approval of the Commission, recommendations will be forwarded to the Council and Mayor. Winter

9 D.C. Sentencing and Criminal Code Revision Commission March 8, 2011 Page 9 of 9 Work will continue on developing proposals focused on specific areas of code revision to be presented to the Commission for approval and submission. It will be necessary during this time frame to re-asses revision activities and determine priorities to be completed by the project end date of September 30, The Commission will also identify future priorities that should be addressed including imprisonment term proportionality for felonies and classification of misdemeanor offenses. 9. Please identify any specific areas of the sentencing guidelines that the Commission has identified as in need of attention since the previous performance oversight hearing. The Commission continually monitors and reviews the application of the District s Voluntary Sentencing Guidelines. Over the past year, the Commission identified several areas of the guidelines that required modification. A summary is presented below: 1. To ensure proportionality in ranking a new offense, Possession of Liquid PCP the Drug Grid was modified by adding a 4 th drug offense group, re-organizing drug offense groups, and modifying guideline sentencing options on the Drug Grid. 2. The rule for scoring prior misdemeanor offenses for the purpose of calculating criminal history was modified to clarify the universe of misdemeanor convictions that contribute to the calculation and include misdemeanors prosecuted by the office of the Attorney General of the District of Columbia. 3. Eight new offenses were ranked: Engaging in Animal Fighting, Telephone Solicitation Fraud, Obstructing Service of a Drug Search Warrant, Selling, Transferring, Distributing Firearm, Destructive Device or Ammunition to Persons Under 18, Possession of Liquid PCP, Introducing/Possession of Contraband in Prison (Class A Materials), Unauthorized Use of a Motor Vehicle (During or to Facilitate a COV and with Serious Bodily Injury) and Conspiracy to Commit a Crime of Violence. 4. Technical revisions were made to the guidelines to conform to enacted legislation including the threshold increase from $250 to $1000 for all theft offenses.

10 An Examination of the Sentencing of Adults for Unauthorized Use of a Motor Vehicle in the District of Columbia 2010 Issues Paper Number 1 DISTRICT OF COLUMBIA SENTENCING AND CRIMINAL CODE REVISION COMMISSION 441 FOURTH STREET, NW, SUITE 830 SOUTH WASHINGTON, DC PHONE: (202) FACSIMILE: (202) WEBSITE:

11 MEMBERSHIP OF THE DISTRICT OF COLUMBIA SENTENCING AND CRIMINAL CODE REVISION COMMISSION The Honorable Frederick H. Weisberg Chairman, Associate Judge Superior Court of the District of Columbia The Honorable Harold L. Cushenberry Superior Court of the District of Columbia Donald Braman, Ph.D. George Washington University School of Law Ronald Gainer, Esq. Attorney, Private Practice Laura E. Hankins, Esq. Public Defender Service for the District of Columbia Patricia Riley, Esq. U.S. Attorney s Office David Rosenthal, Esq. Office of the Attorney General for the District of Columbia Anne Seymour Citizen Member Maria Amato** D.C. Department of Corrections Stephen J. Husk** United States Parole Commission The Honorable J. Ramsey Johnson Superior Court of the District of Columbia Brian Frost, Ph.D. American University Adele V. Harrell, Ph.D. Urban Institute, Justice Policy Center Cedric Hendricks, Esq. Court Services & Offender Supervision Agency Michele Roberts, Esq. Attorney, Private Practice Jennifer Seltzer-Stitt Citizen Member Earl J. Silbert, Esq. Attorney, Private Practice Alfred Durham** D.C. Metropolitan Police Department Thomas R. Kane, PhD** Federal Bureau of Prisons The Honorable Phil Mendelson** Council of the District of Columbia ** Non-voting Member

12 STAFF OF THE DISTRICT OF COLUMBIA SENTENCING AND CRIMINAL CODE REVISION COMMISSION Barbara Tombs Executive Director Kenneth Cowgill, Esq. Attorney Advisor Courtni Y. Burleson, Esq. Staff Attorney Chan Chanhatasilpa, Ph.D. Research Analyst Mia Hebb Staff Assistant The Sentencing and Criminal Code Revision Commission would like to acknowledge the contributions to this report of Adele Harrell, the District of Columbia Superior Court and the Court Services and Offender Supervision Agency.

13 In 2009, 146 defendants were sentenced in D.C. Superior Court on a conviction of Unauthorized Use of a Motor Vehicle (UUV). i This offense is one of the top ten most frequently sentenced felonies in the past five years. It represents a potential threat to public safety due to possible links to violent crimes (e.g. use of the vehicle during the commission of other crimes) and loss of life and destruction of property during high speed police chases that can occur with the commission of this offense. This paper draws on sentencing data from the District of Columbia Superior Court and criminal history and demographic information from the Court Services and Offender Supervision Agency (CSOSA) to examine the characteristics of UUV offenders and the sentencing of UUV offenses in the District of Columbia. WHAT IS UUV? D.C. Code defines Unauthorized Use of a Motor Vehicle as follows: A person commits the offense of Unauthorized Use of a Motor Vehicle if, without the consent of the owner, the person takes, uses, or operates a motor vehicle, or causes a motor vehicle to be taken, used, or operated, for his or her own profit, use, or purpose. In the District of Columbia, UUV may be charged as a separate count from the property offenses of first or second degree theft or from the crimes against persons offenses of robbery or carjacking ii UUV AND OTHER OFFENSES Figure 1 shows that 353 UUV felony counts were charged by indictment in 2009 and that 195 resulted in convictions during Of these, 146 were convictions of UUV and 49 were convictions of the lesser included misdemeanor offense of Attempt UUV. The majority (139 or 95.2%) of the 146 convictions for UUV were the result of a guilty plea while 7 or 4.8% were sentenced after a jury trial. Of these 139 convictions by plea, UUV was the most serious charge in 125 convictions. iii The majority (60%) of these UUV convictions were not accompanied by a conviction for any other offense, while the remaining 40% were accompanied by convictions for other offenses (See Figure 2). In general, as shown in Figure 2, the convictions accompanying UUV convictions did not involve more serious or violent offenses. Figure 2 shows that only 5 (3.4%) of the accompanying convictions were for violent offenses three convictions for Robbery and two convictions for Assault with a Deadly Weapon. 1

14 The most common accompanying charges were Receiving Stolen Property, Destruction of Property over $200, Fleeing Law Enforcement Officer and First Degree Theft. The offenses of Destruction of Property and Fleeing Law Enforcement Officer seem to indicate that some UUV incidents do indeed result in police chases and possibly property damage if a collision occurs in the process. iv WHO ARE THE UUV OFFENDERS? UUV offenders are younger than average when compared to offenders convicted of other crimes in D.C. in The median age of adult offenders at the time of the offense was 22 years while the mean age of offenders was 25 years. Notably, this median age for UUV offenders was ten years younger than the age of all felony offenders sentenced (Table 1; See Chapter 3 in 2010 Annual Report). Table 1: Offender Demographics, Criminal History, and Criminal Justice Supervision (N=146) Race Black 95.9% Hispanic 1.4% Unknown 2.7% Gender Male 97.3% Female 2.7% Criminal History Scores 0 to.5 pts. (A) 39.0%.75 to 1.75 pts. (B) 26.0% 2 to 3.75 pts (C) 18.5% 4 to 5.75 pts. (D) 7.5% 6+ pts. (E) 8.9% Age Median 22 years Mean 25 years Residence DC 84.2% MD 11.0% VA 2.7% PA 1.4% Other 0.7% Criminal Justice Supervision at Time of Offense None 49.3% Probation 31.5% Supervised Release 9.6% Pretrial Release 4.8% Parole 2.1% Escape 0.7% Other 2.1% Over 15% of the UUV offenders in 2009 were not DC residents and included residents of neighboring states of Maryland, Virginia, and Pennsylvania. One offender had a listed address of Las Vegas, Nevada. Slightly over half (51.7%) of the UUV offenders were under some form of criminal justice supervision at the time of the commission of the offense. v One question for further consideration is how the UUV conviction affected the terms of their supervision. Most (79%) of the UUV offenders had prior convictions, although most did not have extensive criminal histories. Table 1 shows the criminal history scores for UUV felony offenders. The criminal history score is calculated by adding points representing prior adult convictions and some prior juvenile adjudications. Points are weighted based on the seriousness of the offense. Criminal History scores range from zero points to six or more points and are grouped for purposes of the Voluntary Sentencing Guidelines into five categories of increasing seriousness (A through E). Nearly two-thirds of the UUV felony offenders were in Categories A and B, the lowest criminal history categories. The UUV offenders with a prior criminal history had a total of 332 prior convictions. In Figure 3, these prior convictions are grouped into four categories of severity: 2

15 Most Serious Felonies represents the most serious violent offenses such as First Degree Murder, Voluntary Manslaughter, First and Second Degree Sex Abuse, Carjacking, and Armed Robbery. Moderately Serious Felonies includes less serious violent offenses such as Assault with a Deadly Weapon, Aggravated Assault, Robbery, and armed drug felonies. Least Serious Felonies contains nonviolent offenses such as Carrying a Pistol Without a License, Unauthorized Use of a Motor Vehicle, Attempted Burglary, First Degree Theft, Forgery, Receiving Stolen Property, and Drug Distribution and Possession With Intent to Distribute. Misdemeanors Figure 3 show that the large majority (91.9%) of the 332 prior convictions were misdemeanors or relatively minor felonies. Only 8.1% of the prior convictions involved serious or violent felonies. Furthermore, 14 or 9.6% of offenders sentenced for UUV had prior juvenile adjudications that were scored, also mostly for non-violent offenses. Of the 47 prior juvenile adjudications for the offenders sentenced to UUV, the majority were for offenses that would be misdemeanors if committed by an adult. HOW IS UUV SENTENCED? In 2004, the District of Columbia implemented the Voluntary Sentencing Guidelines. Their purpose is to ensure consistency and proportionality in sentencing. The Guidelines focus on two of the primary considerations at sentencing: the offense of conviction and criminal history of the offender. UUV is ranked in a group with lower level felony offenses that include Carrying a Pistol without a License, Attempted Burglary, First Degree Theft, Forgery, and Destruction of Property over $200. The recommended prison sentences for this group of offenses across the five criminal history categories are: Category A: 6 to 24 months (Prison, Short Split vi and Probation Sentence Permissible) Category B: 10 to 28 months (Prison, Short Split and Probation Sentence Permissible) Category C: 14 to 32 months (Prison and Short Split Sentence Permissible) Category D: 18 to 36 months (Prison Sentence Only) Category E: 22 or more months (Prison Sentence Only) 3

16 Over half of the convictions for felony UUV in 2009 were sentenced to prison; 17.2% were sentenced to short split sentences, and 25.3% received probation sentences (See Figure 4). The median sentence length imposed on prison sentences was 12 months, while the mean sentence was 14 months. vii Compared to two similarly ranked offenses, this sentence was shorter than the median sentence of 14 months for First Degree Theft and longer than the median sentence of 10 months for Carrying a Pistol without License. It was similar to the median sentence of 12 months for drug offenses. Judges complied with the recommended sentencing guidelines in more than 90% of the cases (132 of 146 sentences as shown in Figure 5). Of the 14 non-compliant sentences, 11 were less severe than those recommended by the Guidelines and four were more severe than those recommended by the Guidelines. While this represents a very high level of agreement between sentences imposed and sentences recommended, it is beyond the scope of this report to analyze departures fully to understand why the recommended Guidelines sentences were not imposed. UUV IN SUMMARY The analyses conducted in this paper revealed some notable findings about the offense of Unauthorized Use of a Motor Vehicle. Demographic and criminal history information showed that UUV offenders are younger than the average felony offender in D.C. and tend to have relatively minor criminal histories, mostly consisting of non-violent crimes. Sentencing data revealed that when the conviction of UUV was accompanied by other crimes, the other crimes were generally non-violent offenses such as Receiving Stolen Property, Destruction of Property, and Fleeing Law Enforcement. Lastly, when imposing a sentence for UUV, judges almost always complied with the corresponding Voluntary Sentencing Guidelines recommendations. i The unit of analysis for this paper is any convicted felony count for UUV. A felony count is part of a case. A case can be comprised of a single count or multiple counts. For example, a case can contain two or more counts of UUV. Each of these counts would be included in the analysis. It is possible for an individual offender to be sentenced more than once on separate counts during calendar year 2009, which would result in that individual being counted twice in the data used for this report. ii Because the definition of UUV includes when a person takes, uses, or operates a motor vehicle, UUV could be charged along with a charge of theft or instead of it. iii The most serious charge was selected primarily based on the seriousness of the offense as ranked by the Voluntary Sentencing Guidelines and secondly on the severity of the sentence. In cases where UUV was determined to be the most serious charge, it was selected because it was ranked as a more serious offense compared to the other charges or, in cases where the seriousness of the charges were similar, it received the more severe sentence. iv Some destruction of property could be the result of damage to the vehicle that occurs when the offender breaks into the car or could be damage to the stolen vehicle or other property that results from the operator s handling of the vehicle in situations prior to a police chase. v The data did not allow for the distinction between adult supervision and juvenile supervision to be made. vi In a short split sentence, the judge imposes a sentence within the applicable prison range, suspends execution of all but six months or less of the prison sentence, and imposes a period of probation to follow the offender s release from prison. vii The median is often the preferred measure of a statistical average because the mean is sensitive to extreme values. In the case of the sentence length, the mean sentence is longer than the median sentence due to the skewing of some outlying longer sentences. 4

17 An Examination of Fine Proportionality in the District of Columbia 2011 Issues Paper Number 1 DISTRICT OF COLUMBIA SENTENCING AND CRIMINAL CODE REVISION COMMISSION 441 FOURTH STREET, NW, SUITE 830 SOUTH WASHINGTON, DC PHONE: (202) FACSIMILE: (202) WEBSITE:

18 MEMBERSHIP OF THE DISTRICT OF COLUMBIA SENTENCING AND CRIMINAL CODE REVISION COMMISSION The Honorable Frederick H. Weisberg Chairman, Associate Judge Superior Court of the District of Columbia The Honorable Harold L. Cushenberry Superior Court of the District of Columbia Donald Braman, Ph.D. George Washington University School of Law Laura E. Hankins, Esq. Public Defender Service for the District of Columbia Cedric Hendricks, Esq. Court Services & Offender Supervision Agency Michele Roberts, Esq. Attorney, Private Practice Julie E. Samuels Urban Institute, Justice Policy Center Anne Seymour Citizen Member Maria Amato** D.C. Department of Corrections Stephen J. Husk** United States Parole Commission The Honorable J. Ramsey Johnson Superior Court of the District of Columbia Ronald Gainer, Esq. Attorney, Private Practice Adele V. Harrell, Ph.D. Urban Institute, Justice Policy Center Patricia Riley, Esq. U.S. Attorney s Office David Rosenthal, Esq. Office of Attorney General, District of Columbia Jennifer Seltzer-Stitt Citizen Member Earl J. Silbert, Esq. Attorney, Private Practice Michael Anzallo** D.C. Metropolitan Police Department Thomas R. Kane, Ph.D.** Federal Bureau of Prisons The Honorable Phil Mendelson** Council of the District of Columbia ** Non-voting Member COMMISSION STAFF Barbara Tombs-Souvey Executive Director Megan E. Collins Research Analyst Thurman Sanders IV Data Management Specialist Kenneth Cowgill, Esq. Attorney Advisor Courtni Y. Burleson, Esq. Staff Attorney Mia Hebb Staff Assistant

19 The D.C. Sentencing and Criminal Code Revision Commission is currently tasked with conducting a comprehensive examination of the District s criminal code and recommending revisions that create a uniform body of criminal law. In expanding the Commission s responsibilities to criminal code reform, the Council of the District of Columbia recognized the necessity of evaluating the District s criminal laws for proportionality, both as to imprisonment terms and fines. 1 As part of its code reform efforts, the Commission has conducted a review of criminal fines in the District of Columbia and found a number of reasons for making changes in a comprehensive fashion for both felonies and most misdemeanors. Proportionality is an important aspect of a jurisdiction s sentencing scheme. The concept of penalty proportionality refers to the penalty for a crime both imprisonment terms and fines being in balance or proportionate to the seriousness of the offense associated with it. The process of ensuring proportionality involves examining the actual laws that describe criminal offenses and that set their penalties so that offenses of like seriousness have like punishments. 2 In many jurisdictions including the District, the penalties for offenses are set one at a time when each criminal statute is enacted. Over time, it is not uncommon for fine provisions to vary widely for offenses of similar seriousness, even more so than imprisonment terms. If fines are not periodically reexamined to address concerns such as inflation, the fine structure may fail to reflect the jurisdiction s current sentencing goals. The Commission s evaluation of criminal fines seeks to remedy these potential unintended consequences and create a more proportional and, thus, more effective fine structure for criminal offenses. The Commission researched the fine structures of other states and the federal system as well as the history of fines in the District. This discussion sets forth the state of criminal fines in the District and offers a proposal for making fines proportionate throughout the criminal code. Criminal Fines in the District of Columbia The use of fines as criminal sanctions dates back many centuries. Fines can serve the same purposes as imprisonment: deterrence, rehabilitation and retribution. While it costs the taxpayers money to imprison a person convicted of a crime, imposing a fine on such a person can offset those costs or be used for other purposes. In the District of Columbia, for example, fines help support the crime victim compensation fund. Most criminal laws in the District of Columbia identify the conduct that is prohibited and a penalty for its violation, specifying the maximum amount of imprisonment and/or maximum fine than can be imposed. The District does not have a system of classifying offenses (e.g., Class A 1 [T]he Commission shall also have as its purpose the preparation of comprehensive recommendations to the Council and the Mayor that:... (3) Assess whether criminal penalties (including fines) for felonies are proportionate to the seriousness of the offense, and, as necessary, revise the penalties so they are proportionate. D.C. Code (b)(3). 2 In developing sentencing guidelines for the District of Columbia, the Commission incorporated principles of proportionality in how imprisonment terms are imposed for felonies. The goal was to reduce disparities in the sentencing of persons who committed similar offenses and who had similar criminal histories. The Commission s criminal code revision responsibilities involve this approach as it relates to the actual penalties assigned to each individual crime in the criminal laws. 1

20 misdemeanors or Class 1 felonies, etc.) and of setting the penalties for violations depending upon those classifications. Instead, there are hundreds of individual statutes each with its own individual imprisonment and fine provisions. Without a broad classification system, over the decades the proliferation of individual criminal laws has resulted in considerable disproportionality, especially related to fines. A useful way to gauge this lack of proportionality for the District s existing fines is to examine the ratio of fine and imprisonment terms for each crime. Some examples are shown in the following table: Offense Maximum Maximum Ratio ($/yr.) Imprisonment Fine Animal Control Act Violations 10 days $300 10,950 False Report to the Police 30 days $300 3,650 Fire Code Violations 90 days $300 1,217 Second Degree Theft 180 days $1,000 2,030 Possession of Liquid PCP 3 years $3,000 1,000 Robbery (Attempt) 3 years $ Blackmail 5 years $1, First Degree Theft 10 years $5, Assault with a Dangerous 10 years None 0 Weapon Assault on Law Enforcement 10 years $10,000 1,000 Officers (with weapon or causing serious injury) Extortion 10 years $10,000 1,000 Robbery 15 years None 0 Sex Abuse in the Second Degree 20 years $200,000 10,000 Carjacking 21 years $5, Burglary I 30 years None 0 Obstructing Justice 30 years $10, Drug Distribution (Schedule I 30 years $500,000 16,666 and Schedule II Narcotics) Kidnapping 30 years None 0 Manslaughter 30 years None 0 Murder I Life None 0 As the table illustrates, District laws have wide ranges in the ratio of fines to imprisonment terms. Very high ratios exist both for some minor crimes as well as for serious offenses such as distribution of the most dangerous drugs. For these serious offenses, the table also shows that certain crimes, Drug Distribution and Sexual Abuse, for example, have large fines while others, including Murder and Kidnapping, have no fine provision at all. While any one of the fine provisions in the District s laws could be defended as appropriate, it is difficult to reconcile them taken as a whole based on principles of proportionality. Lack of proportionality is not the only problem with the District s fine structure. Many laws have fine provisions that were set decades ago. As a result, the mere passage of time has made some fine provisions considerably less severe than they were when enacted. To the 2

21 Commission s knowledge, there has been no systemic adjustment in criminal fines in the District of Columbia within memory. The Commission s Recommendation One way to make fine and imprisonment terms proportional is to establish a single law that governs both types of penalties for all offenses, depending on their grade or classification. The groupings are based on the offenses severity in relation to each other and then a maximum prison term and fine are set for each class of offenses. The Model Penal Code 3 and many states take this approach to determining criminal penalties. 4 However, this approach is not compatible with the District s sentencing structure as crimes are not currently classified in this fashion; fines are set forth in each individual law. An approach to creating proportionality within a similar sentencing system containing hundreds of individual fine provisions was adopted for the federal system in 1984 when it enacted 18 U.S. Code This one federal fine statute governs fines for any federal offense, depending on whether it is a felony, any of certain grades of misdemeanors, or an infraction. After studying the fine structures of other jurisdictions as well as the District, the Commission elected to use the approach of the federal fine statute, Section 3571, as a model for making criminal fines proportional in the District s sentencing scheme. The Fine Proportionality Act of 2011 (the Act ) uses the maximum term of imprisonment as a substitute for a classification system. The fine for any offense with a term of imprisonment is then determined according to this single provision, across the board. 5 The Commission s proposed Fine Proportionality Act of 2011 would set maximum fines for any offense with an imprisonment term in the following amounts: If the maximum imprisonment term is: Then the maximum fine would be: 10 days or less $ days or less but more than 10 $ days or less but more than 30 $500 6 months or less but more than 90 days $1,000 1 year or less but more than 6 months $2,500 5 years or less but more than 1 year $12, years or less but more than 5 years $25, years or less but more than 10 years $37, years or less but more than 15 years $50, years or less but more than 20 years $75,000 More than 30 years $125,000 For a Class A Felony resulting in death $250,000 3 The Model Penal Code was developed by the American Law Institute as a standard for legislatures to consider in adopting or amending criminal laws in their local jurisdictions. 4 These states include Alabama, Colorado, Florida, Hawaii and Washington. 5 The Fine Proportionality Act of 2011 is provided at the end of this discussion. The full text of the proposed Act, including the submission letter to the Council and Mayor with relevant appendices, can be viewed at the Commission s website at 3

22 There are several important features of this proposal: Current and Future Legislation: Under the proposed Act, Every law that now has an imprisonment term and no fine will have the fine set forth in this proposed Act. Every law that now has an imprisonment term and a disproportionately low fine will have the higher and proportionate fine set forth in this proposed Act. Every law that now has an imprisonment term and a disproportionately high fine will have the lower and proportionate fine set forth in this proposed Act. Every new or amended law added to the D.C. Code with an imprisonment term will be subject to this provision, and will automatically have a proportionate fine. Imposing a Higher or Lower Fine: A person may be sentenced to the higher or lower fine stated in an individual statute only if that statute specifically refers to the Act and permits it. Corporations: The proposed Act doubles the otherwise applicable fines if the defendant is an organization such as a corporation. 6 Pecuniary Gain or Loss: The proposed Act permits an alternative fine up to twice the pecuniary gain or loss, 7 even if that amount is larger than what the proposed Act otherwise provides. So for an offense with an imprisonment maximum of five years, if the pecuniary loss to a victim or gain to the defendant were $20,000, the applicable fine could be up to $40,000. There are only four D.C. laws that currently provide for a fine in this way. The Commission s proposal would make this approach applicable to every offense that involves a pecuniary gain or loss. Exemptions: The Commission recommends excepting certain statutes from the reach of this proposal. For some offenses, imposing an unusually high fine seems appropriate in the interests of deterring violations and there are offenses with low imprisonment terms that ought to retain these relatively large fines. Many of these recommended crimes are ones designed to deter corporate entities from engaging in prohibited conduct. Laws protecting workers from unfair wage and hour practices are an example. The Benefits of Fine Proportionality in the District of Columbia The adoption of the Fine Proportionality Act of 2011 and its conforming amendments have many useful consequences for the District. The proposed Act will streamline criminal laws so that offenses will more consistently balance penalties with offense severity. In contrast to the current structure, this equilibrium means that the fines throughout the criminal code will be much easier for practitioners and the public to access and, most importantly, reflect rational sentencing policies across crimes. For instance, Carjacking and Second Degree Sexual Abuse, which have the same imprisonment term, will be subject to a similar fine rather than fines that differ by a factor of forty under the current structure. Offenses that currently have no fine, such as Murder, Kidnapping, and Burglary, would be subject to a substantial fine under the proposed Act. 6 This provision is only applicable to offenses with a penalty of six months or more. 7 Pecuniary gain or loss refers to the financial gains or losses associated with the commission of a crime. It may include medical expenses, the value of property damaged, or funds gained from a defendant s criminal activity. 4

23 Another virtue of this proposal is that it would set fines for every criminal offense having an imprisonment term without directly amending any of the hundreds of criminal laws to which it would apply. Therefore, this proposal would make all criminal fines proportional in a single act. New legislation will automatically conform to the District s fine structure, ensuring that fines continue to be proportionate even with the passage of time. However, this approach also gives the Council the authority to make exceptions for particular crimes and set higher or lower fine penalties where other sentencing considerations may outweigh the interests of proportionality. The Fine Proportionality Act of 2011 is consistent with current standards for sentencing offenders in the District of Columbia. If this proposal becomes law, the District s criminal fine provisions will become proportional to the imprisonment terms for the first time in recent history. But additional efforts in code reform remain. The Commission continues its commitment to conducting a detailed review of the criminal statues in the District of Columbia and providing the Council and Mayor with recommendations that, if enacted into law, would be a comprehensive, well-reasoned and meticulously constructed revision of the criminal code. 5