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

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
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
3
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
4
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
5
Offender Reconviction Rates and
Cumulative 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
6
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”
7
Independent Evaluation by the
National Center for State Courts (NCSC)

Cost-benefit analysis suggested a net benefit
Savings
Costs
Reduced use of
prison and jail
Alternative
sanctions
$8.7 million

–
$6.2 million
Costs
–
Offender
recidivism
$1 million
=
Net benefit
in pilot sites
$1.5 million
Evaluators recommended that the instrument
be refined based on more recent cases and
then expanded statewide
8
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
9
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
10
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
11
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
12
Use of Nonviolent Offender Risk Assessment
Felony Drug, Fraud and Larceny Convictions
Prison In/Out Decision Guidelines
Section A
No Prison
Section B
Probation/Jail Decision
Probation
Non-incarceration
Recommendation
Prison
Section C
Prison Length Decision
Jail
Section D
Risk Assessment
Alternative
Punishment
Recommendation
Section D
Risk Assessment
Alternative
Prison
Jail
Incarceration
Punishment
Incarceration
Recommendation
Sentence
Sentence
13
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 35 to 38 points
without significant risk to public safety
− Change became effective July 1, 2004
14
Nonviolent Offender Risk Assessment
by Score and Cumulative Reconviction Rate
Percent of
offenders
Reconviction rate
for offenders scoring at
or below point value
35
2.5%
12.4%
Old Risk
Assessment
Threshold
Score
36
2.7%
13.9%
New Risk
Assessment
Threshold
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%
15
15
Risk Assessment Outcomes for Nonviolent Offenders*
Recommended
for Alternative
Not Recommended
for Alternative
N=6,062
N=6,981
N=6,473
* Offenders recommended by the sentencing guidelines
for prison or jail incarceration
16
16
Risk Assessment Outcomes for Nonviolent Offenders
(as applied to those recommended for PRISON incarceration)*
Recommended for
Alternative
Not Recommended
for Alternative
(1,868)
Received an
Alternative
Sanction
(901)
N=3,583
Did Not
Receive an
Alternative
Sanction
(967)
* Sentencing guidelines recommendation is for
incarceration with a midpoint of one year or more
17
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)
18
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
19
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
20
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
21
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
22
Rates of Recidivism by Risk Assessment Score
Risk
Assessment
Score
Recidivism Rate
23
23
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
Score
Recommended Range Adjustment
44 or more
34 to 43
28 to 33
Up to 27
Increase upper end of range by 300%
Increase upper end of range by 100%
Increase upper end of range by 50%
No change
Midpoint recommendation and low end of the
recommended range remain unchanged
24
Sentencing Guidelines Compliance Rates for Rapists
by Risk Assessment Levels
FY 2011
Compliance
Risk
Assessment Level
No Level
Moderate Risk
High Risk
Very High Risk
Below
Guidelines
Traditional
Range
Adjusted
Range
Above
Guidelines
Number
of Cases
23%
58%
---
19%
120
15%
72%
9%
4%
47
9%
55%
30%
6%
33
30%
50%
20%
0%
10
25
Challenges to Integration of
Risk Assessment into the
Sentencing Guidelines
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
27
ACLU Challenge
Eighth
Amendment
Violation
Fourteenth
Amendment
Violation
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
28
ACLU Challenge
 ACLU did not persuade Virginia’s legislators
Legislature approved the statewide
implementation of risk assessment for
nonviolent offenders beginning July 2002
29
Court Challenges
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)
30
Meredith Farrar-Owens
Virginia Criminal Sentencing Commission
meredith.farrar-owens@vcsc.virginia.gov