MEETING OF THE VIRGINIA CRIMINAL SENTENCING COMMISSION

MEETING OF THE VIRGINIA CRIMINAL SENTENCING COMMISSION April 4, 2016, 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. Evidence-Based Decision Making Initiative in Virginia Lester Wingrove, Evidence-Based Program Specialist Virginia Department of Corrections III. Report on the 2016 General Assembly & Legislative Impact Analysis Meredith Farrar-Owens, Director Joanna Laws, Deputy Director IV. Sentencing Guidelines Compliance FY2016 to Date Jody Fridley, Data Quality/Training Unit Manager V. Immediate Sanction Probation Pilot Project - Evaluation Plan Joanna Laws, Deputy Director VI. Guidelines Manual and Seminar Fee Waivers Meredith Farrar-Owens, Director VII. Miscellaneous Items Meredith Farrar-Owens, Director

Virginia Criminal Sentencing Commission April 4, 2016 Meeting Minutes Members Present: Judge Edward L. Hogshire (Chairman), Judge Malfourd W. Trumbo (Vice-Chairman), Judge Rossie D. Alston, Jr., Judge Bradley B. Cavedo, Delegate Benjamin L. Cline, H.F. Haymore, Jr., Judge Lisa Bondareff Kemler, Judge Michael Lee Moore, Kyanna Perkins, Kemba Smith Pradia, Dick Vorhis (for Linda L. Bryant), Esther J. Windmueller and Judge James S. Yoffy Members Absent: Judge Charles S. Sharp, Senator Bryce E. Reeves, and Shannon L. Taylor The meeting commenced at 10:00 a.m. Judge Hogshire welcomed a new member, Kyanna Perkins, who was recently appointed to the Commission by Governor McAuliffe. She is currently the Director of the Victim- Witness Services Program in the City of Richmond. Agenda I. Approval of Minutes Judge Hogshire asked the Commission members to approve the minutes from the previous meeting, held on November 4, 2015. The Commission unanimously approved the minutes without amendment. II. Evidence-Based Decision Making (EBDM) Initiative in Virginia Meredith Farrar-Owens, Commission s Director, introduced Lester Wingrove, who serves as the co-coordinator for Virginia s Evidence-Based Decision-Making (EBDM) initiative. Mr. Wingrove provided an overview of EBDM and the work to date in the Commonwealth. As described by Mr. Wingrove, the National Institute of Corrections (NIC) began developing the framework for the Evidence-Based Decision-Making (EBDM) initiative in 2008. NIC s goal was to provide guidance to local jurisdictions in the development of collaborative partnerships, a shared vision of desired outcomes, and the systematic use of research in order to improve criminal justice outcomes. For Phases II and III of the project, NIC selected seven local jurisdictions from six different states to receive technical assistance to test this approach. Charlottesville/Albemarle had been chosen as one of the Phase II/III sites. Mr. Wingrove noted that Charlottesville/Albemarle experienced positive change through its participation. In particular, the process created an awareness among stakeholders that it was necessary to challenge practices that could be improved and utilize data and research to inform decisions regarding change.

Mr. Wingrove continued by saying that, in 2014, NIC expanded the EBDM initiative through a competitive application process. For Phase V, NIC selected three states (Wisconsin, Indiana and Virginia) and six localities from within each of those states to receive technical assistance. Each state would have to establish a State Policy Team to support change items identified in the local sites; the State Policy Team must have the organizational authority to reduce barriers that may impede the work of localities. Mr. Wingrove stated that Virginia had a number of localities interested in participating in the EBDM process and, after a very thorough review, the following local teams were selected: Norfolk, Richmond (City), Chesterfield County, Petersburg, Prince William County, and Staunton. Mr. Wingrove noted that each jurisdiction has a Local Team that includes judges, prosecutors, defense attorneys, police, sheriff, jail administrators, victims groups, treatment practitioners, city/county government officials, pretrial services staff, and community corrections representatives. Mr. Wingrove noted that Ms. Farrar- Owens was a member on the State Policy Team and another Commission member, Ms. Perkins, was a member of both the State Team and a local team. According to Mr. Wingrove, the roadmap developed by NIC and the expert technical assistance was essential for the development of sound and productive teams. Each local team and the State Policy Team began the process by developing a shared vision, a purpose for meeting, a charter, group rules, and an understanding of collaboration. The system mapping work enabled each of the local teams and the State Policy Team to identify many potential action items. Through the EBDM process, the team hoped to identify criminal justice practices that could be improved and develop strategies to address them. Most teams identified twenty to thirty potential action items. NIC recommended that each team select three or four top action items on which to focus. Ms. Pradia Smith asked if former inmates were being interviewed about their experience with the criminal justice system. Mr. Wingrove responded that exit interviews can be extremely useful but they were not being done at this time. Mr. Wingrove presented the action items identified by the State Policy Team: data and information sharing, expanded use of validated risk assessments, and responses to probation violations. Mr. Wingrove concluded by saying that the work ahead was very challenging; however, the potential rewards from improving the criminal justice system were significant. Judge Trumbo expressed concern about the use of risk assessments in regards to probation supervision. He stated that, if probationers who are identified as low-risk are monitored less intensely, fewer violations will be detected; however, those probationers could nonetheless be violating the conditions of supervision (without detection). Judge Trumbo believed the result was imperfect data. Ms. Windmueller commented that some courts put offenders on probation who do not need it. Judge Trumbo asked if Mr. Wingrove could provide him with research findings related to probation. Ms. Farrar-Owens said that NIC had provided a great deal of information and she would forward it to Judge Trumbo. Judge Kemler asked how the participating jurisdictions in Virginia were chosen. Mr. Wingrove responded that localities submitted an application and competed with the other jurisdictions. 2

III. Report on the 2016 General Assembly Session & Legislative Impact Analysis Ms. Joanna Laws, the Commission s Deputy Director, began her presentation by discussing the numerous activities related to the General Assembly session performed by Commission staff. These activities included the preparation of fiscal impact statements, as required by statute, and responding to legislators requests for supplemental information. Ms. Laws noted that 3,286 bills were introduced for the 2016 General Assembly session, more than in any year since 2008. Ms. Laws first provided an overview of the requirements pertaining to fiscal impact statements. She reviewed the provisions of 30-19.1:4, which became effective in 2000. 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 30-19.1:4, 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 30-19.1:4, 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 30-19.1:4 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 ( 30-19.1:4 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 calculating the fiscal impact estimates. Using the most recent data available, staff identify the number of offenders likely to be affected by the proposed legislation and estimate the number of additional beds in state facilities that would be required to house those offenders over the following six years. Pursuant to 30-19.1:4, the largest single-year figure is then 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 FY2015, the annual operating cost per prison inmate was $31,406. 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 and Homeland Security. 3

Ms. Laws presented an overview of the number and kinds of legislative impact statements prepared for the 2016 General Assembly. Staff produced 289 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 (65.5%), the definition of a new crime (28.9%), and raising a crime from a misdemeanor to a felony (19.9%). Ms. Laws displayed a slide to show the diversity of topic areas among fiscal impact statements prepared. For the 2016 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 2016 Session, JLARC was asked to review one of the Commission s fiscal impact statements. Ms. Laws described the bill (House Bill 794, which proposed the elimination of the death penalty for defendants who had a severe mental illness at the time of the offense) and discussed the JLARC review (available on the JLARC website). Ms. Laws reported that JLARC eventually concurred with the Commission s conclusion. Ms. Meredith Farrar-Owens then 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. Ms. Farrar-Owens described 15 bills that were passed by the 2016 General Assembly. Among these bills were several pertaining to stalking (House Bill 886, Senate Bill 339, House Bill 752) and violations of protective orders (House Bill 610, House Bill 1087, House Bill 1391), as well as crimes for which offenders must register with the Sex Offender and Crimes Against Minors Registry (House Bill 177), the statute of limitations for certain misdemeanor sex offenses (House Bill 510, Senate Bill 354), voluntary background checks for firearms purchased at gun shows (House Bill 1386), intent when brandishing a firearm (House Bill 560), child abuse and neglect (House Bill 1189), and the addition of several chemical compounds as Schedule I or Schedule IV drugs (House Bill 1077, House Bill 1292). Ms. Farrar-Owens then discussed 17 bills introduced during the 2016 Session that did not pass but, nonetheless, may be of interest to members. These related to: drug distribution resulting in death (House Bill 102, Senate 66), the penalty for certain misdemeanor offenses of domestic violence or stalking (House Bill 754), expansion of felony assault and battery of a family or household member (House Bill 765), abduction of minors for prostitution (House Bill 625), sexual abuse of certain children (House Bill 1317), sale of firearms to certain individuals (House Bill 809), possession of firearms following certain misdemeanors (Senate Bill 546), third offense of petit larceny (House Bill 602), computer trespass (House Bill 922), death penalty for offenders with a severe mental illness (House Bill 794), parole release (House Bill 1031, Senate Bill 216), new sentencing hearings for cases decided by juries following the abolition of parole (Senate Bill 223), and sentence modification for certain juvenile offenders (Senate Bill 94). Senate Bill 23 and Senate Bill 310 would have increased Virginia s felony larceny threshold from $200 to $500 (Senate Bill 23) or $1,500 (Senate Bill 310); both bills were left in committee. 4

Ms. Farrar-Owens turned to 2016 legislation relating specifically to the Commission. In House Joint Resolution 64, the General Assembly confirmed Judge Hogshire as the Commission s Chairman. House Joint Resolution 325 commended Mr. Haymore, a Commission member, for his many years of service as Clerk of the Circuit Court in Pittsylvania County. House Bill 608 extended the sunset provision for the Immediate Sanction Probation pilot program, which is overseen by the Commission, until July 1, 2017. Ms. Farrar-Owens reminded members that the Commission s evaluation of the pilot program is due to the General Assembly on November 1, 2016. Ms. Farrar-Owens discussed House Bill 1059 in some detail. The legislation directs the Commission to conduct a study that is similar to one the Commission conducted for cocaine offenses in the late 1990s. At the conclusion of that study, the Commission recommended incorporating a factor into the sentencing guidelines to increase the prison sentence recommendation in cases involving larger amounts of cocaine. Ms. Farrar- Owens noted that the dramatic rise in the use of heroin in Virginia has raised concern among policymakers. Because the sentencing guidelines forms do not identify the type of drug in all Schedule I or II drug cases, staff must collect supplemental data to complete the study of heroin distribution offenses. Staff have requested data from the Department of Forensic Science, which conducts analysis on drug specimens and provides the results to law enforcement and prosecutors. Ms. Farrar-Owens stated that the findings of the study will be presented to the Commission later this year. Ms. Farrar-Owens described House Bill 1105, which directs the Commission to study recidivism among certain released federal prisoners. In 2014, the United States Sentencing Commission (USSC) modified the federal sentencing guidelines to reduce the recommendations for certain drug offenses. In addition, the US Sentencing Commission opted to make those changes apply retroactively, with federal judges having the discretion to grant early release to affected federal inmates. As of the fall of 2015, about 17,000 had their cases reviewed by the federal courts and 75% of those were granted the sentence reductions; 6,000 federal inmates were released between October 30 and November 2, 2015. According to a USSC report, 160 of those federal inmates were released to Virginia. Additional waves of federal inmates will be released over the next year. House Bill 1105 directs the Commission to track the federal inmates who were granted early-release to identify new crimes they commit in the Commonwealth. Ms. Farrar-Owens noted that getting the information necessary to complete the study (i.e., the list of federal inmates granted early release under the 2014 change) will likely be difficult, as the Federal Bureau of Prisoners had already denied her Freedom of Information Act (FOIA) request. Ms. Farrar-Owens next reviewed House Bill 1298. Virginia s circuit court judges are required by 19.2-298.01 to submit a written reason when they sentence outside the guidelines recommended range. House Bill 1298 specified that the judge s reason for departure must adequately explain the sentence imposed to promote fair sentencing. Ms. Farrar-Owens commented that, when discussing the bill, members of the House Courts of Justice Committee were concerned as to who would make the determination of adequacy and how that would be defined. Delegate Albo, Chairman of the House Courts of Justice Committee, asked if the Sentencing Commission could determine the extent to which departure reasons were missing from the guidelines form when they should have 5

been provided by the judge. Ms. Farrar-Owens informed members that staff does have the ability to determine the proportion of cases missing departure reasons. Ultimately, the House Courts of Justice Committee laid the bill on the table. Delegate Albo then sent a letter requesting that the Commission review House Bill 1298 and asking the Commission if it could compile information on missing departure reasons. Ms. Farrar- Owens stated that staff would present information on this issue to the Commission later in the year. Ms. Farrar-Owens concluded by discussing House Joint Resolution 79. The bill directed the Joint Legislative Audit and Review Commission (JLARC) to conduct a study of the sentencing of Schedule I and II drug offenders, including the efficacy, efficiency, and costs of sanctions (incarceration and alternatives to incarceration) and treatment of Schedule I and II drug offenders. When the legislation was presented to the House Committee on Rules, it was noted that JLARC simply did not have the resources to take on the additional study. The legislation was tabled in the Rules Committee. However, Delegate Albo sent a letter requesting that the Sentencing Commission review the bill and the concept it addressed, and make recommendations for the 2017 Session. Judge Alston felt that the study contemplated by the legislation was much broader than the scope of the Sentencing Commission s duties and suggested another agency would be better suited to conduct the study. As noted by Ms. Farrar-Owens, no legislation was introduced during the 2016 Session pertaining to the recommendations contained in the Commission s 2015 Annual Report. Thus, those recommendations will take effect July 1, 2016. IV. Sentencing Guidelines Compliance & Probation Violation Guidelines FY2016 to Date Mr. Jody Fridley, Manager of the Training/Data Quality Unit, presented a preliminary compliance report for FY2016 to date. A total of 9,975 guidelines worksheets had been submitted to the Commission and automated as of March 8, 2016. He provided the number of cases received by locality. Mr. Fridley requested approval from the members to send this data to the Compensation Board and to send each locality s data to the respective Chief Judge, Circuit Court Clerk, and Commonwealth s Attorney. Ms. Windmueller made a motion to send the data. It was seconded. The Commission voted 13-0 in favor. For that time period examined, judicial concurrence with the guidelines was 80.4%. Departures from the guidelines were nearly evenly split between aggravations (9.4%) and mitigations (10.2%). 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 86.5% of the time. Durational compliance (defined as the rate at which judges sentence offenders to terms of 6

incarceration that fall within the recommended guidelines range) was also high for the fiscal year to date, at 82.5%. Mr. Fridley reviewed 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 34% of the mitigation departures). Plea agreement was also the most common reason reported in aggravation cases (cited in 24% 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, 89.2%, was found in Circuit 28 (Bristol area). He also noted that Circuit 13 in Richmond had the lowest compliance rate, at 67.5%. Showing compliance by offense group, Fraud had the highest rate (85.1%). The Sexual Assault offense group recorded the lowest compliance rate during FY2016 to date (61.6%) and the highest rate of aggravation of all offense groups (30.2%). The Robbery offense group recorded the highest rate of mitigation during FY2016 (17.9%). Judge Cavedo asked if jury cases were included this data. Mr. Fridley responded that jury cases were included in the analysis; however, the number of jury cases was quite small since the analysis captured only six months of sentencing data. Mr. Fridley provided information on the extent to which circuit court judges sentence offenders to Virginia s Department of Juvenile Justice (DJJ). For juvenile offenders transferred to circuit court and tried as adults, judges have the option to sentence the offender to a term of commitment with DJJ. Mr. Fridley reported that there were 45 individuals sanctioned in this manner during FY2015 and FY2016 to date. Among these offenders, the most common offense was robbery. Mr. Fridley informed members that a commitment to DJJ would appear as a mitigation departure in the compliance report. However, excluding such cases only increases the overall compliance rate from 80.1% to 80.2%. Thus, the impact is very small. 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 2002. Following extensive study, revised risk assessment instruments were implemented at the beginning of FY2014. Of the 2,809 risk assessment cases analyzed for FY2016 to date, 49% of the eligible offenders were recommended for an alternative sanction. Among offenders recommended for an alternative, 43% received some type of alternative sanction. Offenders were more likely to receive an alternative sanction when one was recommended if the case involved a plea agreement (compared to cases that did not have a plea agreement). Mr. Fridley then reported preliminary compliance results for guidelines offenses added or modified as of July 1, 2014. For many of the offenses, the number of cases was too small to provide meaningful results. Mr. Fridley said that staff would continue to monitor these offenses. 7

Mr. Fridley concluded by discussing the Commission s probation violation guidelines. These guidelines apply to offenders found in violation of community supervision for reasons not related to a new crime. These are often called technical violations. For FY2016 to date, overall compliance with the probation violation guidelines was approximately 55%. 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. V. Immediate Sanction Probation Pilot Project Evaluation Plan For the benefit of the new Commission member, Ms. Laws gave a brief overview of the Immediate Sanction Probation pilot program and showed a map of the four pilot sites (Henrico County, the City of Lynchburg, Harrisonburg/ Rockingham County, and Arlington/ Falls Church). The Commission s evaluation of the pilot program is due to the General Assembly on November 1, 2016. Ms. Laws then discussed the analysis plan for the Commission s evaluation. As of June 30, 2015, a total of 202 offenders in the four pilot sites had been placed in the Immediate Sanction Probation program. Staff will track these individuals for the evaluation. Of the 202 offenders, nearly two-thirds were medium or elevated risk when placed in the program, according to the COMPAS risk/needs assessment tool used by the Department of Corrections (DOC). Ms. Laws reminded members that the Immediate Sanction Probation Program was designed to target at-risk probationers who were not performing well on traditional probation. Roughly one-fourth (24.3%) of the probationers placed into the program were identified by COMPAS as low risk for recidivating. Low-risk offenders cannot become candidates for the Immediate Sanction Probation Program until they have accumulated at least three technical violations. The accrual of multiple violations increases a probationer s risk of failing probation. Probationers who were identified as low risk by the COMPAS instrument had accumulated an average of four such violations at the time they were placed in the Immediate Sanction Probation program. For the evaluation, staff will construct a matched comparison group of similar offenders serving under regular probation supervision. This will involve two stages. First, staff (with assistance from DOC) will select a comparison probation district for each of the four pilot sites. The comparison district should be similar to the pilot site in community characteristics, length of probation supervision, frequency of drug screens, drugs of abuse, probation officers familiarity with Motivational Interviewing, etc. Second, within the comparison district, staff will select comparison offenders similar to program participants in demographic characteristics, criminal record, number of prior probation revocations, probation status, primary drug of abuse, risk level, etc. The outcomes of the pilot program will be assessed by comparing the results of participants to offenders in the comparison group. Staff will examine measures such as the number of skipped probation appointments and positive drug screens. Staff will also capture data on new arrests and new convictions, which will be used to calculate recidivism rates. The staff will determine the number of days offenders spent in jail serving time on violations, as well as the number of days served in jail or prison by those 8

who ultimately have their probation revoked (i.e., offenders who do not successfully complete the program). Ms. Laws indicated that data entry for the evaluation study was ongoing. Staff will be working with DOC to identify a suitable comparison group. Following that, criminal history reports ( rap sheets ) for participants and comparison offenders will be requested from the State Police. Analysis will be conducted in the fall. Ms. Laws noted that October 17, 2016, was the target date for sending a draft of the evaluation report to Commission members for review, with the final report due to the General Assembly by November 1. VI. Guidelines Manual and Seminar Fee Waivers Ms. Farrar-Owens began by providing an overview of the Commission s new fee waiver program. While the Commission provides free guidelines manuals and training to government employees, such as Commonwealth s attorneys, probation officers and public defenders, the Commission charges private defense attorneys, including courtappointed attorneys, for manuals and training seminars. In June 2015, the Commission approved the allocation of $3,000 for one year (as a pilot program) to provide fee waivers for manuals and training for attorneys who perform court-appointed work and meet criteria set by the Commission. Applications for fee waivers were to be evaluated based on the percentage of the applicant s practice focusing on indigent defense cases and financial need of applicant (especially for new or solo practitioners). Ms. Farrar-Owens displayed the fee waiver application and the scoring sheet used by staff to objectively evaluate fee waiver applications, both of which had been approved by the Commission at its September 2015 meeting. Ms. Farrar-Owens presented a status report on this pilot program. The Commission had received twenty-one fee-waiver applications as of March 22, 2016. Eighteen of those had been approved. Ms. Farrar-Owens displayed information describing the characteristics of the applicants approved for a fee waiver. Ms. Farrar-Owens informed members that the funds approved by the Commission for fee waivers for the fiscal year were exhausted as of January 29, 2016. She asked if the Commission wished to approve funds for waivers for FY2017. If so, Ms. Farrar-Owens asked members if the Commission desired to modify the application, scoring sheet, or procedures. Finally, Ms. Farrar-Owens asked if those approved for fee waivers should be provided a hard copy of the manual or be given access to an electronic version of the manual. Judge Alston made a motion that the Commission should continue the program with the same funding for FY2017; the application form, etc., should not be modified, and electronic access to the manual should be provided. The motion was seconded. Ms. Windmueller asked if users have access to the manual through the Commission s mobile application. Mr. Fridley said that the application is available to the public. With discussion concluded, the Commission voted 10-0 in favor. New funds will be available on July 1, 2016. 9

VII. Miscellaneous Items Ms. Farrar-Owens stated that staff were currently reviewing the sentencing guidelines manual and updating certain sections. Staff wished to present members with an option for updating the section of the manual relating to the classification of person crimes for scoring select factors on the sentencing guidelines. She noted that the scoring of those guidelines factors, originally based on the Pre/Post-Sentence Investigation (PSI) reports used in circuit courts, was distinct from categorizing an offender s prior record as violent per 17.1-805(C). Since the late 1980s, person crimes have included those crimes in which a victim is killed, injured, abducted, harassed, or sexually assaulted, or is the subject of a sex offense; crimes involving an element of force, threat, intimidation, or endangerment are generally included. Prostitution involving minors and obscenity offenses involving minors have been classified in the manual as person crimes for guidelines scoring. Ms. Farrar-Owens noted that the manual currently excludes prostitution-related offenses between adults from the definition of person crimes. However, this could be refined if the Commission desired. One approach to classifying prostitution-related offenses between adults (including sex trafficking) is to have guideline preparers look at the specific facts of the case and score the offense as a person crime if it involved force, threat, intimidation or extortion. There was consensus among members to update the manual as described by Ms. Farrar-Owens. Ms Farrar-Owens reminded the members of the dates of the remaining Commission meetings for the year. The Commission is scheduled to meet on June 6, September 12 and November 2. With no further business on the agenda, the Commission adjourned at 12:35. 10

MEETING OF THE VIRGINIA CRIMINAL SENTENCING COMMISSION June 6, 2016, 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 Rossie D. Alston, Jr. II. Review of Guidelines for Heroin Distribution (House Bill 1059) Meredith Farrar-Owens, Director III. Recidivism Study on Released Federal Offenders (House Bill 1105) Joanna Laws, Deputy Director IV. Sentencing and Alternatives to Incarceration for Schedule I or II Drug Offenders (Letter from House Courts of Justice Committee) Meredith Farrar-Owens, Director V. Revision of the Probation Violation Guidelines Study Planning Joanna Laws, Deputy Director VI. Miscellaneous Items Meredith Farrar-Owens, Director

Virginia Criminal Sentencing Commission June 6, 2016 Meeting Minutes Members Present: Judge Edward L. Hogshire (Chairman) by telephone, Judge Rossie D. Alston, Jr., Judge Bradley B. Cavedo, H.F. Haymore, Jr., Cassy Horn (for Senator Bryce E. Reeves), Judge Dennis L. Hupp, Judge Lisa Bondareff Kemler, Judge Michael Lee Moore, Kyanna Perkins, Judge Charles S. Sharp, Kemba Smith Pradia, Shannon L. Taylor, Dick Vorhis (for Linda L. Bryant), Esther J. Windmueller and Judge James S. Yoffy Members Absent: Delegate Benjamin L. Cline The meeting commenced at 10:00 a.m. Due to recent surgery, Judge Hogshire was unable to travel and participated in the meeting by telephone. Judge Hogshire announced that he had selected Judge Alston to serve as the Commission s next Vice-Chairman. Judge Hogshire then welcomed Judge Dennis Hupp, whom the Chief Justice had appointed to fill the vacancy left by Judge Trumbo. Judge Hupp previously served on the Commission from 2003 to 2010. Judge Hogshire then asked Judge Alston to preside over the meeting while he listened in. Agenda I. Approval of Minutes Judge Alston asked the Commission members to approve the minutes from the previous meeting, held on April 4, 2016. The Commission unanimously approved the minutes without amendment. II. Review of Guidelines for Heroin Distribution (House Bill 1059) Meredith Farrar-Owens, the Commission s Director, began by reviewing House Bill (HB) 1059, adopted by the 2016 General Assembly. HB1059 directs the Commission to conduct a special study of distribution-related offenses involving heroin. Specifically, the Commission must evaluate judge-sentencing and jury-sentencing patterns and practices in heroin distribution cases across the Commonwealth and recommend adjustments in the sentencing guidelines. Ms. Farrar-Owens presented information on recent trends in Virginia related to heroin. She displayed figures showing the dramatic rise in the number of fatal overdoses and hospital discharges (non-fatal overdoses) associated with heroin between 2010 and 2014. During that time period, the percentage of substance abuse treatment admissions associated with heroin increased and surpassed admissions for cocaine. Between 2008 and 2013, the number of arrests increased for nearly all drugs except cocaine. Ms. Farrar-Owens

reported that, in 2014, arrests dropped for all drugs except heroin. With the exception of marijuana, trends in cases submitted to the Department of Forensic Science (DFS) generally track trends in drug arrests. DFS conducts analysis on drug specimens and provides the results to law enforcement and prosecutors. Cocaine submissions to DFS still outnumber heroin statewide, although the gap has narrowed and, in the northern Shenandoah Valley, the number of heroin cases now outnumber cocaine. Statewide, the rate of heroin submissions to DFS (per 100,000 population) increased 175% between 2006 and 2014. The highest submission rates were found in the upper Shenandoah Valley, Central Virginia, and the Tidewater area. Ms. Farrar-Owens also noted that, while far southwest Virginia has the lowest heroin submission rates, it is the area with the highest rate of submissions for prescription opioids. The number of sentencing events in which the sale, etc., of a Schedule I/II drug was the most serious offense declined by 18% between fiscal years (FY) 2008 and 2015, largely driven by the drop in cocaine arrests. Ms. Farrar-Owens stated that HB1059 directs the Commission to conduct a study similar to one the Commission conducted for cocaine offenses in the 1990s. In 1996, the Commission received feedback from judges, prosecutors and other criminal justice professionals on the sentencing guidelines for drug offenses. Some argued that drug sales involving larger quantities should receive longer prison term recommendations and the guidelines should be modified to address it. During that time, more than 92% of the sentencing events resulting from the sale, distribution, etc., of Schedule I or II drugs ( 18.2-248(C)) involved some form of cocaine. At the conclusion of that study, the Commission recommended incorporating a factor into the sentencing guidelines to increase the prison sentence recommendation in cases involving larger amounts of cocaine, and the General Assembly accepted this recommendation. Ms. Farrar-Owens then described the staff s approach to the study mandated by HB1059. Sentencing guideline data do not contain specific information as to the type of Schedule I or II drug involved in the case; however, Pre-Sentence Investigation (PSI) reports are designed to capture drug type. The staff began by matching sentencing guidelines data to PSI reports for FY2011 through FY2015. Of the 932 heroin sentencing events identified by matching to PSI records, about 83% had the quantity of the drug recorded on the PSI report. Ms. Farrar-Owens noted that cases may involve multiple types of drugs, but staff found that approximately 69% of heroin sentencing events list heroin as the only drug type in the case. Ms. Taylor asked if possession of heroin cases were included in the study. Ms. Farrar- Owens stated that, per the mandate, only distribution-related cases were identified. Judge Alston asked if there was a relationship between the amount of heroin and sentencing outcomes. Ms. Farrar-Owens responded that staff had not yet begun that stage of the analysis. Ms. Farrar-Owens indicated that staff must collect supplemental data to complete the study of heroin distribution offenses, specifically quantity information for cases that did not have a matching PSI report. Staff had requested and received data from DFS. Staff will match DFS data to sentencing guidelines data to identify cases involving the sale, distribution, etc., of heroin ( 18.2-248(C)) and the quantity of drug determined by the DFS analysis. 2

Ms. Farrar-Owens continued by saying that sentencing events involving heroin will be analyzed to determine if there is a correlation between drug quantity and sentencing outcomes. The findings of the study will likely be presented at the Commission s November meeting. She noted that, based on the results of the analysis, the Commission could consider adding a factor to the sentencing guidelines to account for drug quantity in heroin cases. Ms. Taylor asked if compliance rates for heroin distribution cases were available. Ms. Farrar-Owens said she would provide those numbers to her. Judge Alston asked if there were subsets of heroin cases that may have important distinctions. Ms. Farrar-Owens noted that DFS data include information on purity factors and other compounds that have been added, such as Fentanyl. Judge Alston commented that the Commission may face some of the same challenges in this area as the federal government did 30 years ago with crimes involving crack versus powder cocaine. III. Recidivism Study on Released Federal Offenders (House Bill 1105) Joanna Laws, the Commission s Deputy Director, began her presentation by reviewing HB1105, which directs the Commission to study recidivism among certain released federal prisoners. The Commission must calculate the recidivism rate of federal prisoners released by the U.S. Bureau of Prisons whose sentences were retroactively reduced pursuant to Amendments 782 and 788 of the U.S. Sentencing Commission's Guidelines Manual for crimes committed in the Commonwealth. The report is due December 31. If the Commission is unable acquire the information needed to calculate the rate of recidivism, the Commission must report any information regarding the recidivism rate of such prisoners as the Commission was able to acquire. Ms. Laws provided background information to members. She described the Federal Anti-Drug Abuse Act of 1986, which established the 100-to-1 powder-to-crack quantity ratio incorporated into the federal sentencing guidelines. In 2007, the US Sentencing Commission lowered the sentencing guidelines for crack cocaine offenses and made these changes retroactive. The Federal Fair Sentencing Act of 2010 (FSA) increased crack cocaine quantity thresholds that triggered mandatory minimum penalties for federal drug trafficking offenses, effectively reducing the powder-to-crack drug quantity ratio from 100-to-1 to 18-to-1; the Act also removed the five-year mandatory minimum term for simple possession of crack cocaine. In addition, it directed the US Sentencing Commission to review sentencing guidelines for drug offenses to better account for certain aggravating factors and the defendant s role in the offense. The US Sentencing Commission revised the sentencing guidelines, as instructed, in 2010. In 2014, the US Commission modified the federal sentencing guidelines to reduce the recommendations for certain drug offenses by reducing base offense levels for crimes contained in the Drug Quantity Table by two levels. This change was projected to reduce penalties for new drug cases by an average of 11 months for 70% of drug trafficking offenders. In addition, the US Sentencing Commission opted to make those changes apply retroactively, with federal judges having the discretion to grant early release to affected federal inmates. In order to receive a reduction in sentence, eligible inmates 3

must submit an application to the court. As of the spring of 2016, about 38,000 inmates had had their cases reviewed by the federal courts. In the U. S. Fourth Circuit, 71% of eligible federal inmates were granted the sentence reduction. Virginia s Sentencing Commission was directed by HB1105 to study these inmates. Ms. Laws reported that the first wave of 6,000 federal inmates was released between October 30 and November 2, 2015. According to a USSC report, 160 of those federal inmates were released to Virginia. Additional waves of federal inmates will be released over the next year. The USSC anticipates that an additional 8,550 federal inmates will be released due to a sentence reduction by November 1, 2016. Ms. Laws noted that the US Sentencing Commission had studied the five-year recidivism rate for offenders whose sentences were reduced retroactively under the 2007 guidelines changes for crack cocaine offenses. For that study, recidivism was defined as a reconviction for any new offense, re-arrest without case disposition information available, or a revocation of probation/parole. The key finding of the US Sentencing Commission study was that, when compared to offenders released prior to 2007, the recidivism rate for offenders released under the retroactive guidelines changes was similar (47.8% among inmates released prior to 2007 versus 43.3% among inmates with retroactive changes). Judge Alston asked if the federal probation system had been changed in any way due to the early release of the inmates, since most of the offenders will be supervised in the community. Ms. Laws responded that release of the federal inmates did not begin until October-November 2015, in order to give the federal probation/parole system a chance to prepare for the additional caseload. Ms. Windmueller wondered why the General Assembly asked Virginia s Commission to study these offenders. Ms. Farrar-Owens said that, based on the discussion of General Assembly members during the legislative session, some legislators may have been worried that the early release of federal inmates could be a public safety issue for Virginia. Ms. Taylor asked if the recidivism rate could be broken down by the Eastern district and Western district. Ms. Laws said she could break down those numbers. Ms. Laws described staff action to date. Getting the information necessary to complete the study (i.e., the list of federal inmates granted early release under Amendments 782 and 788 of the U.S. Sentencing Commission's Guidelines Manual) will likely be difficult, as the Federal Bureau of Prisoners had already denied the Director s initial Freedom of Information Act (FOIA) request. The Director had contacted two local law enforcement agencies to determine if they have any relevant information about offenders released under these changes, but the inquiries were not fruitful. The Director had begun to explore the possibility of gaining access to the federal Public Access to Court Electronic Records (PACER) system, but that did not appear to be promising. Ms. Windmueller commented that, in her experience, federal probation/parole supervision was very strict. Ms. Smith Pradia asked if any other states were studying these released offenders. Ms. Laws said she didn t believe that any other states were researching released federal offenders. Ms. Farrar-Owens noted that the legislation was written such that the Commission must make a reasonable attempt to acquire the data to complete the study and report on what information it could obtain. 4

IV. Sentencing and Alternatives to Incarceration for Schedule I or II Drug Offenders (Letter from House Courts Justice Committee) Ms. Farrar-Owens provided an overview of House Joint Resolution (HJR) 79, introduced during the 2016 General Assembly Session. HJR79 would have directed the Joint Legislative Audit and Review Commission, or JLARC, to study the sentencing of Schedule I and II drug offenders and alternatives to incarceration. In conducting its study, JLARC would be directed to review the efficacy, efficiency, and costs of sentencing and treatment of Schedule I and II drug offenders and evidence-based alternatives to incarceration. When HJR79 was presented in the House Rules Committee, it was noted that JLARC did not have the resources to take on the additional study and, as a result, HJR79 was tabled. However, the Chairman of the House Courts of Justice Committee (Delegate Albo) sent a letter to the Commission requesting that the Commission review the bill, and the concept it addresses, and make recommendations for the 2017 Session. Ms. Farrar-Owens presented information pertaining to the sentencing guidelines for Schedule I/II drug offenses. During the last five years, compliance with the guidelines for these offenses has been high (nearly 82%), with 10% downward departures and 8% upward departures. For possession of a Schedule I/II drug, roughly half (51%) of offenders receive probation without an active term of incarceration. For the sale, distribution, etc., of a Schedule I/II drug, the most common sanction is a prison term, ordered in 62% of the cases, with a median sentence of 2.3 years. Ms. Farrar-Owens also described the risk assessment instrument applicable to nonviolent offenders. Following a directive from the General Assembly, the Commission developed the nonviolent offender risk assessment instrument, which was implemented statewide in 2002. The goal of the nonviolent risk assessment is to divert low-risk offenders, who are recommended for incarceration on the guidelines, to an alternative sanction other than traditional incarceration. In FY2014 and FY2015, 37.1% (5,127) of Schedule I/II drug offenders were eligible to be assessed for an alternative sanction recommendation. Of the 5,127 eligible Schedule I/II drug offense cases, 61.3% were recommended for an alternative sanction by the risk assessment tool. Of Schedule I/II drug offenders recommended for alternative sanctions, the proportion who received such an alternative was 43.7%. Commission members discussed HJR79 and the letter sent by Delegate Albo. Judge Alston suggested that the General Assembly wished for the Commission to complete the study. He asked members for their comments. Judge Kemler believed that the Commission needed more clarification regarding what role Delegate Albo anticipated the Commission would have in such a study. Judge Yoffy recommended that the Commission send a letter to Delegate Albo asking for such clarification. Judge Yoffy also believed it was important to remind the General Assembly about the Commission s statutory mandate and charter. Judge Cavedo made a motion to adopt this recommendation, which was seconded by Ms. Windmueller. With no further discussion, the Commission voted 13-0 in favor. 5

V. Revision of the Probation Violation Guidelines Study Planning Ms. Laws provided a brief overview of the probation violation guidelines (PVG). In 1997, the Commission partnered with the Virginia Department of Corrections (DOC) to systematically gather data on the reasons for, and the outcomes of, community supervision violation proceedings in Virginia s circuit courts. This collaboration resulted in the creation of the Sentencing Revocation Report (SRR) and the establishment of the SRR database. In 2003, the General Assembly directed the Commission to develop, with due regard for public safety, sentencing guidelines for felony probation violators returned to court for reasons other than a new criminal conviction (these are often called technical violators ). To develop guidelines applicable to technical violations, the Commission examined historical sentencing practices in revocation hearings. The Commission drew a sample of 600 cases from the SRR database. Supplemental information was gathered on factors of interest that were not contained in the automated data. The Commission designed a special form to record information from the probations officers violation letters (which are sent to the court). After careful consideration of the findings, the Commission concluded that guidelines for technical probation violations could be a useful tool for circuit court judges. Ms. Laws stated that, in its 2003 Annual Report, the Commission proposed statewide implementation of the new guidelines, and the 2004 General Assembly approved the recommendation. Ms. Laws then presented compliance patterns over the years and the impact of revisions to the guidelines on compliance rates. Compliance with the probation violation guidelines has hovered between 50% and 54% since FY2008 and this pattern continued in FY2015. Although past amendments to the probation violation guidelines have increased compliance, the compliance rate remains relatively low. Several criminal justice practitioners have requested that the Commission consider revising the probation violation guidelines by modifying existing factors, accounting for additional factors beyond those currently captured, and expanding probation violation guidelines to cover new law (Condition 1) violators. For FY2015, the Commission received 12,653 SRRs. Of the total, 6,269 cases involved a new law violation. In these cases, the judge found the defendant guilty of violating Condition 1 of the Department of Corrections' Conditions of Probation (obey all federal, state, and local laws and ordinances). In 6,384 cases, the offender was found in violation of other conditions not related to a new law violation. As an initial step for the new study, staff matched SRR data to the Circuit Court Case Management System (CMS) and Sentencing Guidelines (SG) data to assess the completeness of the SRR database. Ms. Laws reported that approximately 63% of the 73,631 felony revocation events (conducted pursuant to 19.2-306) in Circuit Court CMS data had a corresponding SRR submitted to the Commission. The Commission was more likely to receive a SRR if the offender was revoked due to a violation of supervised probation compared to other types 6