Legislative Impact on State Responsible Bed Space Tama S. Celi, Ph.D. Statistical Analysis & Forecast Manager Virginia Department of Corrections 1
Legislative Impacts on State Responsible Bed Space To be considered State Responsible (SR) by the Commonwealth of Virginia, an offender must be convicted of at least one felony offense and must be sentenced to at least one year of incarceration. SAF Unit reviewed 213 legislative drafts over the past several months that were being considered by the 2015 Virginia General Assembly and could impact SR bed space. 2
Legislative Review Process SAF Unit receives copies of legislative drafts via email. The bill draft is assigned to a staff member who logs the draft and reviews any prior draft that is similar. Determination is made whether the draft: Adds new offenses to the Code of Virginia, Modifies current offenses, or Eliminates current offenses. Templates are used to analyze the draft according to these categories. 3
Legislative Season 2015 213 Legislative Proposals Analyzed* 4 housekeeping (no substantive changes) 146 broadened scope of existing offenses 30 narrowed scope of existing offenses 20 changed Class of existing offenses 77 created new felony offenses 54 created new misdemeanor offenses 16 affected mandatory minimum sentences *One proposal can have multiple categories 4
Proposed Bill Topic Total Reviewed Firearms 45 Sex/Human Trafficking 36 Conflict of Interest 23 DUI/Reckless Driving 15 A&B 11 Cigarettes/Tobacco 11 Drugs 7 Private Police Departments 6 Violent felonies 6 Stalking/Harassment 6 Homicide and Drug Offenses 5 Incapacitated Adults 4 Animal Crimes 4 Definition of "Mentally Retarded" 3 Discrimination/Hate Crime 3 Vehicle conversion 3 Gaming 3 Abortion 2 Court-Appointed Counsel 2 Gang 2 Larceny Threshold 2 Explosives, fireworks 2 Body-worn camera system 1 Communications systems 1 Computer Fraud 1 Foreclosure Procedures 1 Government Data Collection 1 Death Penalty 1 Marriage 1 Professions and Occupations 1 Commercial Driver's License 1 Redistricting 1 Prisoner property restriction 1 Juvenile offender sentence modification 1 Total Reviewed 213 5
Most bills reviewed could have a potential impact on SR bed space but that impact could not be predicted. 6
Creating New Offenses SB943 (2015) Prohibits a person who has been convicted of stalking, assault and battery of a family or household member, or sexual battery from possessing or transporting a firearm. HB1807 (2015) Creates a criminal offense for purchasing cigarettes using a forged business license. SB1215 (2015) Provides that a person who imports, sells, offers for sale, purchases, barters, or possesses with intent to sell any ivory, ivory product, rhinoceros horn, or rhinoceros horn product is guilty of a Class 1 misdemeanor for a first offense and a Class 6 felony for a second or subsequent offense. 7
Creating New Offenses SB1215 (2015) Provides that a person who imports, sells, offers for sale, purchases, barters, or possesses with intent to sell any ivory, ivory product, rhinoceros horn, or rhinoceros horn product is guilty of a Class 1 misdemeanor for a first offense and a Class 6 felony for a second or subsequent offense. Could it have an impact? Can the impact be predicted? Were there past New Court Commitments for the offense(s) impacted? 8
2015 LEGISLATIVE ACTION SUMMARY INFORMATION SHEET This bill is to amend the Code of Virginia by adding in Article 3 of Chapter 12 of Title 18.2 a section numbered 18.2 511.2 and by adding in Chapter 22.2 of Title 19.2 a section numbered 19.2 2 386.36 relating to sale of ivory and rhinoceros horn; forfeiture; penalties. Statute 18.2 511.2 was added where section B would make it Class 1 misdemeanor for the first offense and Class 6 felony for a second or subsequent offense for any person who imports, sells, offers for sale, purchases, barters, or possesses with intent to sell any ivory and rhinoceros horn. Section A adds definitions and according to section C, it should be presumptive evidence of possession with intent to sell when any ivory products is possessed in a retail or wholesale outlet commonly used for the buying and selling of similar products. Section D lists who the prohibitions of subsection B should not apply to. Additionally, statute 19.2 386.36 adds that any ivory products that are imported, sold, offered for sale, purchased, bartered or possessed with intent to sell that are in violation of 18.2 511.2 should be forfeited to the Commonwealth. This proposal creates a new felony and one new misdemeanor and, therefore, could have an impact on SR bed space. However, that impact cannot be determined. Since these are new statutes, there are no new court commitments sentenced between November 2012 and October 2013. 9
Modifying Offense Criteria HB1845 (2015) Provides that a person who uses a computer to communicate obscene language, make an obscene proposal, or threaten an illegal or immoral act with the intent to defraud any person is guilty of harassment by computer, a Class 1 misdemeanor. Under current law, in order to be guilty of harassment by computer, a person must have the intent to coerce, intimidate, or harass any person. SB1424 (2015) Removes the distinction between tangible and intangible gifts and prohibits any state or local officer or employee, member of the General Assembly, and certain candidates from soliciting, accepting, or receiving a single gift with a value exceeding $100 from certain persons; however, such prohibition does not apply to gifts from personal friends. SB1380 (2015) Adds three substances to the list of Schedule I Drugs. 10
Modifying Offense Criteria SB1380 (2015) Adds three substances to the list of Schedule I Drugs. Could it have an impact? Can the impact be predicted? Were there past New Court Commitments for the offense(s) impacted? To provide legislators with sentence length data of offenders previously sentenced under the statutes in the proposed bill 11
2015 LEGISLATIVE ACTION SUMMARY INFORMATION SHEET This proposal amends 54.1 3446 of the Code of Virginia, which lists the names of Schedule I drugs. The proposal revises the spelling of some existing substances on the list and adds MDDMA, AB CHMINACA and 5 fluoro AMB to the statute. Because the proposal adds substances to the existing list of Schedule I drugs, there could be an SR bed space impact for felony convictions of these new Schedule I drugs. However, that impact cannot be determined. The table below shows the 2,863 new court commitments from November 2012 through October 2013 which had a Most Serious Charge of commitment as a drug sales or drug possession charge. These new court commitments do not include commitments of offenders who had a Most Serious Charge in another offense category but who also may have had a drug charge. 12
To analyze NCCs for VCCs affected Identify the appropriate VCCs in the proposed legislation. Select out applicable VCCs in database of all offense types. Create variables (one for each VCC). if (OFFENSE_TYPE_STATE_CD = "SEX 3667 F6") LDXXXXA= 1. if (OFFENSE_TYPE_STATE_CD = "SEX 3675 F6") LDXXXXB= 1. Save a file with the new variables identifying the applicable VCCs. Select offenders who have any of the VCCs from the New Court Commitment database. Match the VCCs and New Court Commitment files. Analyze the sentence lengths for each of the applicable VCC. *LDXXXXA. SORT CASES BY LDXXXXA. SPLIT FILE LAYERED BY LDXXXXA. FREQ SentenceType. USE ALL. COMPUTE filter_$=(any(sentencetype,1,2,8)). VARIABLE LABELS filter_$ 'any(sentencetype,1,2,8) (FILTER)'. VALUE LABELS filter_$ 0 'Not Selected' 1 'Selected'. FORMATS filter_$ (f1.0). FILTER BY filter_$. EXECUTE. SORT CASES BY LDXXXXA. SPLIT FILE LAYERED BY LDXXXXA. FREQUENCIES VARIABLES=TotalSentence /FORMAT=NOTABLE /NTILES=4 /NTILES=10 /STATISTICS=STDDEV MINIMUM MAXIMUM MEAN MEDIAN /ORDER=ANALYSIS. filter off. split file off. 13
Template for NCC Sentence Data November 2012 October 2013 New Court Commitments Sentenced for Offenses Affected By LDxxxxx Total Sentence 1 Statute VCC Description N % Life Sentences Mean Median 1 Total Sentence represents time for all offenses for which the offender is incarcerated, not just for the offense category listed. Sentence is shown in months. Offenders with Life, Multiple Life, Three Time Loser, and Death sentences are excluded from this calculation. 14
Decriminalizing Offenses HB1620 (2015) Provides that a person cannot be found guilty of driving under the influence if he is in a motor vehicle that is lawfully parked on private residential property owned or leased by such person or on the private residential property of another with the owner's or lessor's permission and the motor of the vehicle is not running. HB1445 (2015) Decriminalizes marijuana possession if used to treat or alleviate a patient's symptoms of intractable epilepsy. 15
Decriminalizing Offenses HB1445 (2015) Decriminalizes marijuana possession if used to treat or alleviate a patient's symptoms of intractable epilepsy. Could it have an impact? Can the impact be predicted? Were there past New Court Commitments for the offense(s) impacted? 16
2015 LEGISLATIVE ACTION SUMMARY INFORMATION SHEET This Bill is to amend and reenact 18.2 250.1, 18.2 251.1, and 18.2 258.1 of the Code of Virginia, relating to possession or distribution of marijuana for medical purposes; epilepsy. Currently 18.2 250.1 states that marijuana may only be possessed by a person with a valid prescription. This bill proposes that anyone with a valid recommendation while acting in the course of his professional practice may possess marijuana. The bill also modifies 18.2 251.1 in the same manner. The bill also adds epilepsy as a medical condition in which the possession of marijuana would be permitted. As this proposal modifies existing misdemeanors and felonies, it may impact SR bed space. This impact cannot be determined, however. A table is provided that shows that 352 new court commitments between November 2012 and October 2013 who were sentenced under the statutes affected by this bill. 17
Bills for which SR bed space impacts can be predicted, using tools such as VADOC s microsimulation model, include: Modifying offense penalty or class, Mandatory minimum terms of incarceration, Special release mechanisms, Other practices related to parole, and Earning rate of good time credits. 18
Offense Penalty or Class HB2040 (2015) Increases penalty of pandering to a minor from a Class 4 felony to a Class 3 felony. HB1964 (2015) Amends two existing Code sections on receiving money for procuring a person for prostitution and receiving money from the earnings of a person engaged in prostitution to increase penalties if the crime involves a minor. SB1234 (2015) Increases grand larceny threshold from $200 to $500. 19
Offense Penalty or Class SB1234 (2015) Increases grand larceny threshold from $200 to $500. Could it have an impact? Can the impact be predicted? Were there past New Court Commitments for the offense(s) impacted? Pre Sentence Investigations of CY2012 New Court Commitments analyzed Forecast growth rate used to predict how many beds would be saved by this bill 20
2015 LEGISLATIVE ACTION SUMMARY INFORMATION Proposes an increase in the larceny/fraud threshold felony level from $200 to $500 and would amend multiple statutes with the current felony threshold of $200. Exceptions to the felony threshold dollar value would not be impacted. For example, stealing goods totaling over $5 directly from a person would remain a felony under 18.2 95. Convictions for a third or subsequent larceny after two prior convictions would remain felonies regardless of the dollar value of the third or subsequent larceny offense. The impact on SR bed space is based on a review of the PreSentence Investigations for CY2012 SR New Court Commitments (NCC) who: Were serving that term of incarceration for offenses involving only a dollar threshold felony larceny offense, Had fewer than two prior larceny convictions. FY2015 FY2016 FY2017 FY2018 FY2019 FY2020 SR Bed Space Impact (6 actual offenders) 1 1 3 6 9 9 SR Bed Space Impact (7 estimated offenders) 1 1 4 7 11 11 Cumulative SR Bed Space Impact 2 2 7 13 20 20 21
Mandatory Minimums HB2008 (2013) Clarifies that no person while serving that portion of a sentence that is a mandatory minimum is eligible for work release, unless such person is participating in a work or education program operated by or under contract with the Department of Juvenile Justice. SB973 (2015) Adds Attorney for the Commonwealth and Deputy Attorney for the Commonwealth to the list of persons for which an enhanced penalty applies if such person is victimized because of his/her position. LD14102858 (2014) This proposal amends 18.2 248.03 of the Code of Virginia, relating to manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute methamphetamine and increases the current mandatory minimum, to be served consecutively with any other sentence, from 3 years to 10 years for an offense involving 28 grams or more of methamphetamine (Section A) and from 5 years to 10 years mandatory minimum for an offense involving 227 grams or more (Section B). 22
Mandatory Minimums LD14102858 (2014) Mandatory minimum increases for methamphetamine Could it have an impact? Can the impact be predicted? Were there past New Court Commitments for the offense(s) impacted? Forecast growth rate used to predict how many additional beds would be needed by this bill. 23
This proposal amends 18.2 248.03 of the Code of Virginia, relating to manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute methamphetamine. This proposal increases the current mandatory minimum, to be served consecutively with any other sentence, from 3 years to 10 years for an offense involving 28 grams or more of methamphetamine (Section A) and from 5 years to 10 years mandatory minimum for an offense involving 227 grams or more (Section B). Identify NCCs under statute Analyze length of sentence Fill in Impact Template Based on sentences 6 years and under and over 6 years (Inmate Population Forecast Horizon) Impact analysis for each individual VCC (Virginia Criminal Code) SR Bed Space Impact FY2014 FY2015 FY2016 FY2017 FY2018 FY2019 18.2 248.03(A) 0 0 0 0 45 91 18.2 248.03(B) 0 0 0 0 8 16 Total Impact 0 0 0 0 53 107 24
18.2 248.03(A) NAR 3149 F9 Legislative Impact Calculator (Should work for all bills where a Mandatory Minimum is created, increased or decreased) If a proposal changes multiple VCC, you'll need a separate sheet for each VCC then add the impact from each sheet to get the total impact You only need to enter information into the green cells Mean Sentence for VCC Offense of Offenders w/total Sentence <= 72 New Sentence for VCC Offense in Proposed # of offenders with that VCC # of offenders with Total Sentence > 72 months # of offenders with Total Sentence <= 72 months Mean Total Sentence of Offenders w/total Sentence <=72 months months Difference Legislation New Total Sentence VCC NAR 3149 F9 59 13 46 48.2 41.4 6.8 120.0 126.8 4.0 10.6 Current Practice Approx LOS Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 NCC Year 0.76% 0.80% 0.71% 0.19% 0.53% 0.34% Forecast Growth Rate Year 1 46 46 46 46 1 1 Year 2 47 47 46 46 1 Year 3 47 47 47 46 Year 4 47 47 47 Year 5 47 47 Year 6 48 Total 46 93 140 186 188 190 Proposal Approx LOS Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 NCC Year 0.76% 0.80% 0.71% 0.19% 0.53% 0.34% Forecast Growth Rate Year 1 46 46 46 46 46 46 Year 2 47 47 46 46 46 Year 3 47 47 47 46 Year 4 47 47 47 Year 5 47 47 Year 6 48 Total 46 93 140 186 234 281 FY2014 FY2015 FY2016 FY2017 FY2018 FY2019 SR Bed Space Impact 0 0 0 0 45 91 25
18.2 248.03(B) NAR 3151 F9 Legislative Impact Calculator (Should work for all bills where a Mandatory Minimum is created, increased or decreased) If a proposal changes multiple VCC, you'll need a separate sheet for each VCC then add the impact from each sheet to get the total impact You only need to enter information into the green cells Mean Sentence for VCC Offense of Offenders w/total Sentence <= 72 New Sentence for VCC Offense in Proposed # of offenders with that VCC # of offenders with Total Sentence > 72 months # of offenders with Total Sentence <= 72 months Mean Total Sentence of Offenders w/total Sentence <=72 months months Difference Legislation New Total Sentence VCC NAR 3151 F9 14 6 8 56.9 45.0 11.9 120.0 131.9 4.7 11.0 Current Practice Approx LOS Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 NCC Year 0.76% 0.80% 0.71% 0.19% 0.53% 0.34% Forecast Growth Rate Year 1 8 8 8 8 0 0 Year 2 8 8 8 8 0 Year 3 8 8 8 8 Year 4 8 8 8 Year 5 8 8 Year 6 8 Total 8 16 24 32 33 33 Proposal Approx LOS Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 NCC Year 0.76% 0.80% 0.71% 0.19% 0.53% 0.34% Forecast Growth Rate Year 1 8 8 8 8 8 8 Year 2 8 8 8 8 8 Year 3 8 8 8 8 Year 4 8 8 8 Year 5 8 8 Year 6 8 Total 8 16 24 32 41 49 FY2014 FY2015 FY2016 FY2017 FY2018 FY2019 SR Bed Space Impact 0 0 0 0 8 16 26
Parole/Special Release Eligibility SB661 (2014) Allows a parole hearing for nonviolent offenders whose crime was committed on or after January 1, 1995, and who have served 50% of their sentence. If the incarceration is the offender's second felony incarceration in Virginia or another state, the offender must serve 75% of the sentence before becoming eligible for a parole hearing. HB868 (2014) Provides that a prisoner is ineligible for conditional release due to age if he was convicted of a felony act of violence and was subject to a protective order at the time of the offense or after the offense but prior to being released from incarceration for the offense and the victim of the felony offense was the protected person under the protective order. HB2388 (2015) Requires the Parole Board to release any person eligible for parole whose time served, including earned sentence credits and good conduct credits, exceeds the midpoint of the most recent discretionary sentencing guidelines for the same or similar offense unless the Board feels there is a substantial risk that such person will not conform to the conditions of parole and issues a reasoned decision explaining the basis for such decision. 27
Parole/Special Release Eligibility HB2388 (2015) Deferred release for offenders eligible for parole. Could it have an impact? Is the impact determinable? Were there past New Court Commitments for the offense(s) impacted? 28
Other Considerations Impacts on SR bed space could also impact Bed space increases or decreases of local facilities Demand for alternative sanctions, such Detention or Diversion Centers VADOC Community Supervision workloads Workloads of local supervision staff 29
Summary Each year there are hundreds of legislative proposals that could impact our SR prison population. Because of potential fiscal consequences, we provide impact analysis to estimate the impact in the form of State Responsible bed space forecasting. When a precise impact is not feasible, we provide whatever background information we have, such as the volume of cases under a statute and sentences that offenders receive. DOC is only one agency that provides data and analysis to legislators. 30
Contact Dr. Tama Celi Manager: Statistical Analysis and Forecast Unit Virginia Department of Corrections tama.celi@vadoc.virginia.gov 804 887 8248 31