Proposed Recommendations for Guidelines Revisions

1. Proposed Recommendations for Guidelines Revisions

2. Proposed Recommendations • At its September meeting, the Commission considered proposals for possible revisions to the sentencing guidelines. • The Commission voted to table two recommendations pending further analysis by staff. • Staff have conducted additional analysis for the Commission’s review.

3. Proposed Recommendation 3:False Statement on Firearm Consent Form

4. False Statement on a Firearm Consent Form, § 18.2-308.2:2(K) • Issue • This offense was added to the guidelines effective July 1, 2006. • During the first year of implementation, compliance for Making a False Statement on a Firearm Consent Form was 67%, with mitigation comprising nearly all of the departures (30%). • Most commonly cited reasons for mitigation are: minimal circumstances of the case, plea agreement, lack of serious prior record, and recommendation of Commonwealth’s attorney. • Many of the offenders whose sentences were mitigated had only one count of the offense, no additional offenses, and no victim injury; many had a prior record that included a previous incarceration, but no legal restraint was scored.

5. False Statement on a Firearm Consent Form, § 18.2-308.2:2(K) Actual Disposition 29 cases 38 cases

6. Proposed Recommendation 3 – Original 3

7. Proposed Recommendation 3 – Original • By revising the primary offense score for Making a False Statement on a Firearm Consent Form on Section A of the Weapons Guidelines from 4 points to 3 points, compliance can be improved slightly. FY2007 (66 cases)

8. Virginia Form

9. Federal Form

10. Denial of Firearm Purchases • The State Police maintains files on all firearm transaction requests and the results of the state and federal criminal history searches, as well as searches for protective orders, outstanding warrants, and adjudications of mental deficiency. • Records are kept for approximately 12 months and then destroyed. • Commission staff requested copies of these records for persons convicted of making a false statement in order to gain a better understanding of the these cases.

11. Basis of Firearm Transaction Denial For 8 of these offenders, a juvenile adjudication for a felony offense was noted. For 10 of these offenders, an out-of-state felony conviction was noted. Note: Firearm transaction records were available for 61 of the 70 offenders examined. Multiple reasons may be cited in each case.

12. Basis of Firearm Transaction Denial and Guidelines Compliance Note: Firearm transaction records were available for 61 of the 70 offenders examined. Multiple reasons may be cited in each case.

13. Basis of Firearm Transaction Denial and Guidelines Compliance Offenders with a Prior Felony Conviction or Juvenile Adjudication Note: Firearm transaction records were available for 61 of the 70 offenders examined. Multiple reasons may be cited in each case.

14. Time Since Prior Felony Conviction or Juvenile Adjudication Note: Firearm transaction records were available for 61 of the 70 offenders examined. Multiple reasons may be cited in each case.

15. Proposed Recommendation 3 – Revised Revise the Weapons Sentencing Guidelines by decreasing the points assigned to the primary offense factor on Section A (from 4 points to 1) and by adding a factor to increase the score (by 3 points) for offenders with: - a prior adult or juvenile felony conviction for a crime against the person - a conviction for any other felony within the last five years - a prior domestic assault misdemeanor conviction - an outstanding protective order For offenders meeting any of the above conditions, the revision will have no impact on guidelines recommendation. For the remaining offenders, the guidelines will be less likely to recommend a term of incarceration of more than six months.

16. 1 NEW FACTOR SCORE THE FOLLOWING ONLY IF PRIMARY OFFENSE AT CONVICTION IS FALSE STATEMENT ON A FIREARM CONSENT FORM (§ 18.2-308.2:2(K)) Basis of False Statement on Consent Form (listed below) Prior felony conviction for crime against person Other prior felony conviction within 4 years of current offense Prior domestic assault misdemeanor conviction Subject to protective order at time of offense If YES, add 3

17. Proposed Recommendation 3 – Revised • By revising the guidelines for Making a False Statement on a Firearm Consent Form as described, compliance can be improved slightly and a better balance between mitigation and aggravation can be achieved.

18. Proposed Recommendation 4:Involuntary Manslaughter

19. Involuntary Manslaughter (§ 18.2-36 & § 18.2-36.1(A)) • Issue • Combined, the compliance for Involuntary Manslaughter and Involuntary Vehicular Manslaughter is 52%, with nearly all of the departure sentences above the guidelines. • Most commonly cited reasons for aggravation are: aggravating circumstances/flagrancy of offense, extreme violence/victim injury, guidelines recommendation is too low, offender has drug/alcohol problems • In nearly two-thirds of the aggravating departure cases, the offender had been recommended for probation or up to six months in jail but was sentenced to serve more than six months of incarceration.

20. Involuntary Manslaughter (§ 18.2-36 & § 18.2-36.1(A)) Compliance in Cases of Involuntary Manslaughter and Involuntary Vehicular Manslaughter FY2003 – FY2006 224 cases

21. Involuntary Manslaughter (§ 18.2-36 & § 18.2-36.1(A)) Actual Disposition 102 cases 122 cases

22. Proposed Recommendation 4 – Original 3 2nd count

23. Proposed Recommendation 4 – Original • By increasing the points for the primary offense on Section A of the Murder/Homicide Guidelines from 1 point to 3 points (for 1 count) and from 3 to 8 points (for 2 counts), the guidelines would better reflect recent judicial practice.

24. Involuntary Manslaughter (§ 18.2-36 & § 18.2-36.1(A)) 102 cases 122 cases

25. Proposed Recommendation 4 – Revised Revise the Murder/Homicide Sentencing Guidelines applicable to Involuntary Manslaughter by: - increasing the points for the primary offense on Section A from 1 point to 3 points (for 1 count) and from 3 to 8 points (for 2 counts), and - increasing the points for the primary offense on Section C (adding 3 points for the Other Category, and making corresponding increases for Category I and Category II). As a result of these changes, offenders convicted of involuntary manslaughter will be more likely to receive a recommendation for more than six months of incarceration. In addition, offenders convicted of involuntary manslaughter will receive a longer sentence recommendation on Section C.

26. Proposed Recommendation 4 – Revised 88 X 44 X 22 X

27. Proposed Recommendation 4 – Revised • By revising the guidelines for Involuntary Manslaughter in the manner described, compliance can be improved and the rate of aggravation can be reduced, better reflecting recent judicial practice.