Use of Offender

Risk Assessment in

Virginia

Presentation at the2012 NASC Conference

Meredith Farrar-OwensVirginia Criminal Sentencing Commission

Risk Assessment in Virginia

In Virginia, risk assessment has become an increasingly formal process

Nonviolent offender risk assessment

Sex offender risk assessment

The goal was to produce an instrument that is broadly accurate and provides additional useful information to judges

Risk assessment is integrated into the sentencing guidelines and is designed to avoid net widening

2

Abolish parole

Establish truth-in-sentencing

Convicted felons must serve at least 85% of the pronounced sentence

Target violent felons for longer terms of incarceration/incapacitation

Expand alternative punishment options for some nonviolent felons in order ensure sufficient prison capacity for violent offenders

Goals of Virginia’s Sentencing Reform Legislation (1994)

3

In 1994, Virginia’s legislature directed the newly-created Sentencing Commission to:

Develop an empirically-based risk assessment instrument predictive of a felon’s relative risk to public safety to determine appropriate candidates for alternative sanctions

Apply the instrument to nonviolent felons recommended for prison, with a goal of placing 25% of those offenders in alternative sanctions

Legislative Directive for Nonviolent Offender Risk Assessment

4

The Commission studied 1,500 property and drug felons and examined over 200 factors relating to criminal record, substance abuse, education, employment, etc.

Recidivism was defined as a new felony conviction within three years

A risk assessment worksheet was developed based on the factors that were statistically relevant in predicting recidivism

The instrument was pilot tested in six circuits during 1997-2001

Development of Nonviolent Offender Risk Assessment

5

Offender Reconviction Rates andCumulative Proportion of Affected Offenders

Recommended forAlternative Punishment

Cumulative Proportion of Affected Offenders

Risk Assessment Score

0-2 3-4 5-7 8-9 10-11 12-14 15-17 18 & up0%

20%

40%

60%

80%

100%

25%

12%

OffenderReconviction Rate

6

The NCSC conducted an independent evaluation of the risk assessment instrument used in the pilot sites

Evaluators concluded: “Virginia's risk assessment instrument provides an objective, reliable, transparent, and more accurate alternative to assessing an offender’s potential for recidivism than the traditional reliance on judicial intuition or perceptual short hand”

Independent Evaluation by the National Center for State Courts (NCSC)

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Cost-benefit analysis suggested a net benefit

Evaluators recommended that the instrument be refined based on more recent cases and then expanded statewide

Independent Evaluation by the National Center for State Courts (NCSC)

Savings

Reduced use of prison and jail

$8.7 million

Costs

Alternative sanctions

$6.2 million

Costs

Offender recidivism

$1 million

Net benefitin pilot sites

$1.5 million

–

–

=

8

The Commission updated the risk

assessment instrument, testing and

refining the scale using more recent

felony cases

The Commission recommended, and

the legislature approved, that the risk

assessment be expanded statewide

Statewide implementation began

July 1, 2002

Refinement of Nonviolent Offender Risk Assessment

9

Significant Factors in Assessing Risk for Nonviolent Offenders

Never Married by Age 26

Additional Offenses

Prior Arrest w/in Past 18 Mos.

Prior Adult Incarcerations

Male Offender

Not Regularly Employed

Offense Type

Prior Felony Record (Adult and Juv.)

Offender Age

Relative Degree of Importance

10

The risk assessment is completed in

larceny, fraud and drug cases for

offenders who are recommended for

incarceration by the sentencing

guidelines who also meet the

eligibility criteria

− Excludes offenders with a current or prior violent felony conviction

− Excludes offenders who sell 1 oz. or more of cocaine

− Excludes offenders who must serve a mandatory term of incarceration

Use of Nonviolent Offender Risk Assessment

11

For offenders who score low enough on the risk scale, the sentencing guidelines cover sheet indicates a dual recommendation

− Traditional incarceration − Alternative punishment

As with the sentencing guidelines, compliance with the risk assessment recommendation is discretionary

If a judge follows either sentencing recommendation, he or she is considered in compliance with the guidelines

Use of Nonviolent Offender Risk Assessment

12

Felony Drug, Fraud and Larceny Convictions

Prison In/Out Decision GuidelinesSection A

No Prison Prison

Section BProbation/Jail Decision

Section CPrison Length Decision

Non-incarceration Recommendation

Alternative Punishment

Recommendation

Jail Incarceration

Sentence

Probation Jail

Section DRisk Assessment

Alternative Punishment

Recommendation

Prison Incarceration

Sentence

Section DRisk Assessment

Use of Nonviolent Offender Risk Assessment

13

In 2003, the General Assembly directed the Commission to determine, with due regard for public safety, the feasibility of adjusting the instrument threshold to recommend additional low-risk nonviolent offenders for alternative punishment

The Sentencing Commission concluded that the threshold could be raised from 35

to 38 points without significant risk to public safety

− Change became effective July 1, 2004

Legislative Directive to Revisit Nonviolent Offender Risk Assessment

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New Risk Assessment Threshold

Old Risk Assessment Threshold

ScorePercent of offenders

Reconviction rate for offenders scoring at

or below point value

35 2.5% 12.4%

36 2.7% 13.9%

37 2.2% 13.4%

38 2.7% 13.6%

39 5.4% 16.0%

40 3.0% 18.8%

More than 40 58.7%

Nonviolent Offender Risk Assessmentby Score and Cumulative Reconviction Rate

1515

Recommended for Alternative

Not Recommended for Alternative

N=6,062

N=6,981

N=6,473

Risk Assessment Outcomes for Nonviolent Offenders*

* Offenders recommended by the sentencing guidelines for prison or jail incarceration

1616

Received an Alternative Sanction

Did Not Receive an Alternative

Sanction

* Sentencing guidelines recommendation is for incarceration with a midpoint of one year or more

Risk Assessment Outcomes for Nonviolent Offenders

(as applied to those recommended for PRISON incarceration)*

Recommended for Alternative

Not Recommended for Alternative

N=3,583(1,868)

(901) (967)

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It assesses risk only and not needs

It does not include dynamic risk factors

Young, unemployed, unmarried men are

much less likely to be recommended for

an alternative (it takes only a short

prior record to push the score over the

threshold)

Criticisms of Virginia’s Risk Assessment Instrument

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Virginia’s risk assessment instrument is intended to be a quick, easy-to-administer tool based on information readily available at sentencing

Nonviolent offender risk assessment can only help offenders

The sentencing guidelines for these offenders recommend incarceration

Risk assessment identifies the lowest risk of these offenders and recommends alternative punishment

Response

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Develop a sex offender risk

assessment instrument based on the

risk of re-offending and the impact of

treatment interventions

Integrate a risk assessment

instrument into the sentencing

guidelines for sex offenses

Determine the range of sentences that

should be imposed on convicted sex

offenders

Legislative Directive for Sex Offender Risk Assessment

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Studied 600 felony sex offenders released from incarceration (or given probation)

Offenders followed for 5-10 years after return to the community

Recidivism defined as a re-arrest for a sex offense or other crime against the person

Concern that reconviction drastically underestimates recidivism due to difficulties in detection/prosecution of sex offenses

Development of Sex OffenderRisk Assessment

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Offender Age

Prior Person/Sex Arrests(Felony and Misd)

Offense Location

Employment History

Offender Relationship/Victim Age

Prior Incarcerations

Education

No Prior Treatment

Aggravated Sex. Batterywith Penetration

Significant Factors in Assessing Risk for Sex Offenders

Relative Degree of Importance

2222

Risk Assessment

Score

Recidivism Rate

Rates of Recidivism by Risk Assessment Score

2323

Offenders scoring 28 or more are always recommended for prison and the upper end of the recommended prison sentence range is increased as follows:

Risk AssessmentScore Recommended Range

Adjustment

44 or more Increase upper end of range by 300%34 to 43 Increase upper end of range by 100%28 to 33 Increase upper end of range by 50%Up to 27 No change

Midpoint recommendation and low end of the recommended range remain unchanged

Use of Sex Offender Risk Assessment

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Sentencing Guidelines Compliance Rates for Rapists by Risk Assessment Levels FY 2011

Moderate Risk

High Risk

Very High Risk 30%

9%

15%

No Level 23%

50%

55%

72%

58%

20%

30%

9%

---

0%

6%

4%

19%

10

33

47

120

Risk Assessment Level

Below Guidelines

Compliance

Above Guidelines

Number of Cases

Traditional Range

Adjusted Range

25

Challenges to Integration of Risk Assessment into theSentencing Guidelines

American Civil Liberties Union (ACLU) urged Virginia legislators to block implementation of offender risk assessment (2001), stating that:

Statistical correlations are not a legitimate basis for assessing criminal penalties

Virginia is the first (and maybe only) state to base criminal sentences on generalized, actuarial data

ACLU Challenge

27

Applying the risk assessment punishes offenders based upon “status” in violation of the cruel and unusual punishment clause

Risk assessment violates the due process requirement of fundamental fairness in criminal proceedings because the sentence is based not on the offender’s record or crime, but on the characteristics of other offenders in other crimes

ACLU Challenge

Eighth Amendment

Violation

Fourteenth Amendment

Violation

28

ACLU did not persuade Virginia’s

legislators

Legislature approved the statewide

implementation of risk assessment

for nonviolent offenders beginning

July 2002

ACLU Challenge

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Virginia’s Court of Appeals has repeatedly refused to interfere with judicial reference to offender risk

assessments

“The discretionary sentencing guidelines are not binding on the trial judge; rather, the guidelines are merely a tool to assist the judge in fixing an appropriate punishment”

“When a sentence falls within the statutory limits set by the legislature, this court will not interfere with the judgment”

Virginia Court of Appeals (2004)

Court Challenges

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Meredith Farrar-OwensVirginia Criminal Sentencing Commission

meredith.farrar-owens@vcsc.virginia.gov