Post on 31-Dec-2015
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)
7
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
14
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)
17
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
18
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
19
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
20
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
21
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
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
24
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
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
29
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
30