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Thursday, November 7, 2013

Virginia Criminal Sentencing Commission November 6, 2013 Meeting: Members Voted to Increase Child Pornography Sentences Without Any Legislative Oversight


 
First a reminder for readers. 
The Virginia Criminal Sentencing Commission is not a Legislative branch like the Virginia State Crime Commission . The VCSC is a judicial branch; they mainly conduct studies and gather data on sentencing guidelines in Virginia. 

I have previously posted about the VCSC  
-          September 9, 2013: http://goo.gl/DmSU3D
-          July 7, 2013:               http://goo.gl/DhiOdl  
 
OK.
 
Yesterday November 6, 2013 the Virginia Criminal Sentencing Commission met in Richmond, their fourth and final meeting for 2013 and I attended. 

When yesterday’s Presentations  are finally loaded on the VCSC website you’ll be able to read the full proposals that I’m going to note in this post. 

The sentencing duration of a convicted offender for crimes in Virginia is determined with “Assessment Worksheets” based on the crimes being charged and points assigned to each offender based on an array of questions and history. These worksheets are created and maintained by the VCSC. 

There were 5 Proposals all voted on and approved by the members of VCSC and they will become law next July. Anything the VCSC recommends does not require a bill to be submitted at the upcoming General Assembly session. These proposals will be included in the VCSC December Report and unless a lawmaker (State Delegate or State Senator) proposes a bill in-time for the January 2014 session to stop a specific one, then these will all automatically become law in July 2014 with no discussion, no debate, no votes and no media attention. 

I will cover Proposals/Recommendations #1 through #3 in this post. 

Proposal/ Recommendation #1: 

Online Solicitation of a Child- § 18.2-374.3. 

Compliance with Sentencing Guidelines for Online Solicitation of a Child (§ 18.2-374.3) FY2009 – FY2013 (Preliminary)

-          Number of Cases-321 

Compliance = (59.2%) of Judges are sentencing within the current guidelines
Aggravation= (32.4%) of Judges are sentencing above the current guidelines
Mitigation=      (8.4%) of Judges are sentencing below the current guidelines 

So, in other words actual practice is not matching up with current sentencing guidelines (per 5 years of data) and the VCSC feels the need to adjust the sentences to reflect what is occurring in courthouses across the Commonwealth. 

To get real-life application and the legal statute to match up better the VCSC recommends the following: 

 
1- On the Other Sexual Assault –Section A (Part II) Guideline Worksheet 

Line M currently has 3 charges listed all resulting in 6 points. 

M. Online solicitation
Procure minor for obscene material
Procure minor for prostitution, sodomy or pornography
Propose sex act with child age 15+, offender 7+ years older (1 count) …………….................. 6 

The VCSC recommends splitting Line M and create a Line N

N. Online solicitation
Propose sex act with child under age 15, offender NOT 7+ years older (1 count) ……..…….. 8 (+2) 

and create a Line O

O. Online solicitation
Propose sex act with child under age 15, offender 7+ years older (1st/2nd or subsequent)
Propose sex act with child age 15+, offender 7+ years older (2nd or subsequent) ……..…... 9 (+3) 

2- Then a similar fix on the Other Sexual Assault –Section B Guideline Worksheet

Line F currently has 2 charges listed all resulting in 1 point 

F. Online solicitation Procure minor for obscene material Procure minor for prostitution, sodomy or pornography (1 count) ……………........................ 1

The VCSC recommends splitting Line F and create a Line  

G. Online solicitation Propose sex act with child under age 15 (1 count) .……..…………………………………..…….. 6 (+5) 

and create a Line H  

H. Online solicitation Propose sex act with child age 15+, offender 7+ years older (1 count) ……..…....................... 2 (+1)

When scored on Section B, these cases will always result in a jail recommendation
 
3- Plus they recommend adding a whole new factor to Section B that already exists  in Section A.

SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY OFFENSE IS ONLINE SOLICITATION (§ 18.2-374.3)
·         Victim Injury (Threatened, Emotional, Physical or Life Threatening)
If YES, add 5 points 
(When scored on Section B, online solicitation cases involving victim injury will always result in a jail recommendation) 

4- Then a similar fix on the Other Sexual Assault –Section C Guideline Worksheet (aka-Prison Length Worksheet)

The VCSC recommends splitting Primary Group O and increase points for certain offenses. 

Category I         Category II           Other
Current:
O. Online Solicitation
All online solicitation except as listed below (1 count)      ………… 68               ……… 34           …… 17 (no prior record) 

Recommended Increase:
P. Online Solicitation
Propose sex act with child under age 15, offender 7+ years older (1st & 2nd or subsequent)
1 count                                  ……………………………..……………………………148 (+80)  ……… 74 (+40)   …... 37 (+20)

5- A second change on the Other Sexual Assault –Section C Guideline Worksheet (aka-Prison Length Worksheet)

Split Additional Offense factor and increase points for certain offenses
·         Additional Offenses  

Primary offense OTHER THAN                                     Primary offense
Online Solicitation § 18.2-374.3                                        Online Solicitation § 18.2-374.3
Maximum Penalty Points                                                   Maximum Penalty Points
Years:     Less than 1 .......... 0                                  Years:     Less than 1 ........0
1 ...….................................. 1                                     1 ...…................................1
2 …….................................. 2                                    2 ……................................2
3 ……...................................3                                    3 ……................................3
4 ............................………....4                                    4 .............................………4
5 ............................………… 5                                     5 .............................………8  (+3)
10 ..............................………10                                   10 .........................……..…12 (+2)
20 ..............................………19                                  20 ........................……….. 15 (-4)
30 ............................….…….29                                 30 ...........................………18 (-11)
40 or more................……….39                                  40 or more..............………22 (-17) 

6- A third change on the Other Sexual Assault –Section C Guideline Worksheet (aka-Prison Length Worksheet)

Split Victim Injury factor and increase points for certain offenses
·         Victim Injury  

Primary offense OTHER THAN                              Primary offense
Online Solicitation § 18.2-374.3                                  Online Solicitation § 18.2-374.3
              Points                                                                           Points
Threatened or emotional …….... 6                   Threatened or emotional ……....14 (+8)
Physical or life threatening ……. 9                  Physical or life threatening …….15 (+6) 

All 6 of these steps will add additional years to everyone’s sentence in the future. This proposal makes the aggravated sentences the norm and now the mitigated sentences will be EVEN HIGHER. 

The theory of the VCSC is that judges will no longer feel that the guidelines aren’t sufficient and continue to go above them but with new higher sentences will stay within them. But there are already mandatory minimum’s for Online Solicitation of a Child (§ 18.2-374.3) so those judges going above that today are already over-sentencing. 

I bet, if the judges see more years in the 2014 guidelines and they have always felt the need to be extra harsh by over-sentencing Sex Offenders (that’s why they’re going above the guidelines now) if they will not continue to go beyond the guidelines even after the increase occurs in 2014. So this proposal will actually add more years of incarceration and probation (equaling more money) to every offender even though that is not the supposed intention of the VCSC. And because a bill was not required at a G.A. session, a fiscal impact statement was not done on this so the financial cost was never discussed, debated or voted on but it became the standard in July 2014.  

I feel VCSC’s Recommendation #1 ‘s real intention/goal is to increase the prison sentences for everyone convicted of Online Solicitation of a Child (§ 18.2-374.3) NOT to “help the judges stay within the written guidelines” and having it done through the VCSC December Report instead of the legislative process makes it happen easily, quietly and quickly.

Proposal/ Recommendation #2:

Child Pornography- §18.2-374.1 and § 18.2-374.1:1 

Compliance with Sentencing Guidelines for Child Pornography Offenses FY2009 – FY2013 (Preliminary) 

I- Production  §18.2-374.1
-          Number of Cases = 57 

Compliance = (64.9%) of Judges are sentencing within the current guidelines
Aggravation= (24.6%) of Judges are sentencing above the current guidelines
Mitigation=      (10.5%) of Judges are sentencing below the current guidelines 

II- Possession/Reproduction  § 18.2-374.1:1
-          Number of Cases = 362               

Compliance = (64.1%) of Judges are sentencing within the current guidelines
Aggravation= (13.0%) of Judges are sentencing above the current guidelines
Mitigation=      (22.9%) of Judges are sentencing below the current guidelines 

VCSC wants to see the sentencing for these two statutes more closely aligned; there is currently a 12% difference in the mitigating cases. 

This would mean that possession and reproduction (forwarding it on to another person or copying it) would no longer carry a longer sentence than production currently does. I actually agree with this goal, as production is when the victim was harmed and possessing it is looking at it, never touching anyone. Apples and oranges! 

One point that was made during the meeting discussion yesterday that I was not aware of is charges of “attempt” and “to conspire” are being sentenced the same as “completed acts”. This definitely needs to be addressed at the legislative level. 

In the Power Point Presentation if you are interested you can read on the VCSC site how the scoring will change for #2 recommendation, it does include reducing the points for those who posses child pornography, which I have always supported. 

Proposal/ Recommendation #3: 

Is a small administrative change almost not worth mentioning but for anyone who goes to read the presentation I didn’t want you to become alarmed if I hadn’t included #3. 

Recommendation #3 is just splitting the Obscenity Offenses from the Other Sexual Assault Guidelines into a New Offense Group because the one page is too crowded. 

Anyone who feels Recommendation #1 or #2 should be stopped with a bill at the upcoming Virginia General Assembly session should email or call your one State Delegate and your one State Senator this week and ask them to patron a bill to do just that! 

Thank you  

Mary Devoy