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Use of Offender Risk Assessment in Virginia

Use of Offender Risk Assessment in Virginia. Presentation at the 2012 NASC Conference Meredith Farrar-Owens Virginia Criminal Sentencing Commission. Risk Assessment in Virginia. In Virginia, risk assessment has become an increasingly formal process Nonviolent offender risk assessment

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Use of Offender Risk Assessment in Virginia

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  1. Use of Offender Risk Assessment in Virginia Presentation at the 2012 NASC ConferenceMeredith Farrar-OwensVirginia Criminal Sentencing Commission

  2. 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

  3. Goals of Virginia’s Sentencing Reform Legislation (1994) • 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

  4. Legislative Directive for Nonviolent Offender Risk Assessment • 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

  5. Development of Nonviolent Offender Risk Assessment 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

  6. Offender Reconviction Rates andCumulative Proportion of Affected Offenders 100% Cumulative Proportion of Affected Offenders 80% 60% Recommended for Alternative Punishment Offender Reconviction Rate 40% 25% 20% 12% 0% 0-2 3-4 5-7 8-9 10-11 12-14 15-17 18 & up Risk Assessment Score

  7. Independent Evaluation by the National Center for State Courts (NCSC) • 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”

  8. Independent Evaluation by the National Center for State Courts (NCSC) • Cost-benefit analysis suggested a net benefit • Evaluators recommended that the instrument be refined based on more recent cases and then expanded statewide Savings Reduced use of prison and jail $8.7 million Costs Alternative sanctions $6.2 million Costs Offender recidivism $1 million Net benefit in pilot sites $1.5 million – – =

  9. Refinement of Nonviolent Offender Risk Assessment • 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

  10. Significant Factors in Assessing Risk for Nonviolent Offenders Relative Degree of Importance Offender Age Prior Felony Record (Adult and Juv.) Offense Type Not Regularly Employed Male Offender Prior Adult Incarcerations Prior Arrest w/in Past 18 Mos. Additional Offenses Never Married by Age 26

  11. Use of Nonviolent Offender Risk Assessment • 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

  12. Use of Nonviolent Offender Risk Assessment • 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

  13. Use of Nonviolent Offender Risk Assessment Felony Drug, Fraud and Larceny Convictions Prison In/Out Decision Guidelines Section A No Prison Prison Section B Section C Probation/Jail Decision Prison Length Decision Probation Jail Section D Section D Non-incarceration Recommendation Risk Assessment Risk Assessment Alternative Prison Alternative Jail Punishment Incarceration Punishment Incarceration Recommendation Sentence Recommendation Sentence

  14. Legislative Directive to Revisit Nonviolent Offender Risk Assessment • 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 35to 38 points without significant risk to public safety • Change became effective July 1, 2004

  15. Nonviolent Offender Risk Assessment by Score and Cumulative Reconviction Rate Old Risk Assessment Threshold New Risk Assessment Threshold 15

  16. Risk Assessment Outcomes for Nonviolent Offenders* Not Recommended for Alternative Recommended for Alternative N=6,062 N=6,981 N=6,473 * Offenders recommended by the sentencing guidelines for prison or jail incarceration 16

  17. Risk Assessment Outcomes for Nonviolent Offenders (as applied to those recommended for PRISON incarceration)* Recommended for Alternative Not Recommended for Alternative (1,868) N=3,583 Did Not Receive an Alternative Sanction Received an Alternative Sanction (901) (967) * Sentencing guidelines recommendation is for incarceration with a midpoint of one year or more 17

  18. Criticisms of Virginia’s Risk Assessment Instrument 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)

  19. Response • 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

  20. Legislative Directive for Sex Offender Risk Assessment • 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

  21. Development of Sex Offender Risk Assessment • 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

  22. Significant Factors in Assessing Risk for Sex Offenders Relative Degree of Importance 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. Battery with Penetration 22

  23. Rates of Recidivism by Risk Assessment Score Risk Assessment Score Recidivism Rate 23

  24. Use of Sex Offender Risk Assessment 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 Assessment ScoreRecommended 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

  25. Sentencing Guidelines Compliance Rates for Rapists by Risk Assessment Levels FY 2011 Compliance Above Guidelines Risk Assessment Level Number of Cases Below Guidelines Traditional Range Adjusted Range No Level 23% 58% --- 19% 120 15% 72% Moderate Risk 9% 4% 47 High Risk 9% 55% 30% 6% 33 Very High Risk 30% 50% 20% 0% 10

  26. Challenges to Integration of Risk Assessment into theSentencing Guidelines

  27. ACLU Challenge • 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

  28. ACLU Challenge 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 Eighth Amendment Violation Fourteenth Amendment Violation

  29. ACLU did not persuade Virginia’s legislatorsLegislature approved the statewide implementation of risk assessment for nonviolent offenders beginning July 2002 ACLU Challenge

  30. Virginia’s Court of Appeals has repeatedly refused to interfere with judicial reference to offender risk assessments Court Challenges • “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)

  31. Meredith Farrar-OwensVirginia Criminal Sentencing Commission meredith.farrar-owens@vcsc.virginia.gov

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