VIRGINIA CRIMINAL SENTENCING COMMISSIONVIRGINIA CRIMINAL SENTENCING COMMISSION 2007 ANNUAL REPORT...

VIRGINIA CRIMINAL

SENTENCING COMMISSION

2007 ANNUAL REPORT

18 Virginia Sentencing Guidelines Manual

VIRGINIA CRIMINAL

SENTENCING

COMMISSION

2007 ANNUAL REPORT

100 North Ninth StreetFifth FloorRichmond, Virginia 23219Website: www.vcsc.virginia.govPhone 804.225.4398

2007 ANNUAL REPORT

Appointed by the Chief Justice of the Supreme Courtand Confirmed by the General Assembly

Judge F. Bruce BachChairman, Fairfax County

Appointments by the Chief Justice of the Supreme Court

Judge Robert J. Humphreys, Vice Chair, Virginia BeachJudge Joanne F. Alper, ArlingtonJudge Junius P. Fulton, NorfolkJudge Lee A. Harris, Jr., HenricoJudge Dennis L. Hupp, WoodstockJudge Larry B. Kirksey, Bristol

Attorney General

The Honorable Robert F. McDonnell(Martin L. Kent, Attorney General's Representative)

Senate Appointments

Eric J. Finkbeiner, RichmondThe Honorable Kenneth W. Stolle, Virginia Beach

House of Delegates Appointments

The Honorable Linda D. Curtis, HamptonThe Honorable C. Todd Gilbert, WoodstockDouglas L. Guynn, Harrisonburg

Governor's Appointments

Francine L. Horne, RichmondRobert C. Hagan, Jr., DalevilleAndrew M. Sacks, NorfolkThe Honorable John R. Doyle, III, Norfolk

Richard P. Kern, Ph.D., DirectorMeredith Farrar-Owens, Deputy Director

Thomas Y. Barnes, Research AssociateJames C. Creech, Ph.D., Research Unit ManagerJody T. Fridley, Training/Data Processing Unit ManagerAngela S. Kepus, Training AssociateJoanna E. Laws, Research AssistantCarolyn A. Williamson, Research Associate

100 North Ninth StreetRichmond, Virginia 23219www.vcsc.virginia.gov804.225.4398

VirginiaCriminal Sentencing

Commission Members

Commission Staff

December 1, 2007

To: The Honorable Leroy Rountree Hassell, Sr., Chief Justice of VirginiaThe Honorable Timothy M. Kaine, Governor of VirginiaThe Honorable Members of the General Assembly of VirginiaThe Citizens of Virginia

Section 17.1-803 of the Code of Virginia requires the Virginia Criminal Sentencing Commission toreport annually upon its work and recommendations. Pursuant to this statutory obligation, we respectfullysubmit for your review the 2007 Annual Report of the Criminal Sentencing Commission.

This report details the work of the Commission over the past year. The report presents the results of acomprehensive examination of the latest data on the drug methamphetamine and its impact in Virginia. Thereport includes a detailed analysis of judicial compliance with the felony sentencing guidelines during fiscal year2007. The Commission's recommendations to the 2008 session of the Virginia General Assembly are alsocontained in this report.

The Commission wishes to sincerely thank those of you in the field whose diligent work with theguidelines enables us to produce this report.

Sincerely,

F. Bruce BachChairman

F. Bruce BachChairman

Richard P. Kern, Ph.D.

Director

100 North Ninth Street

Richmond, Virginia 23219

(804) 225 - 4398

Commonwealth of Virginia

Supreme Court of VirginiaVirginia Criminal Sentencing Commission

1 IntroductionOverview ................................................................................................................................. 7Commission Profile ................................................................................................................. 7Commission Meetings ............................................................................................................. 8Monitoring and Oversight ....................................................................................................... 8Training, Education and Other Assistance .............................................................................. 9Projecting the Impact of Proposed Legislation ..................................................................... 11Prison and Jail Population Forecasting ................................................................................. 12Sentencing Guidelines Software ............................................................................................ 13Methamphetamine Crime in Virginia .................................................................................... 14National Study of Consistency and Fairness in Sentencing .................................................. 15Violent Offenders in the Prison Inmate Population .............................................................. 16

2 Guidelines ComplianceIntroduction ........................................................................................................................... 19Case Characteristics ............................................................................................................... 20Compliance Defined .............................................................................................................. 20Overall Compliance with the Sentencing Guidelines ............................................................ 22Dispositional Compliance ..................................................................................................... 22Durational Compliance .......................................................................................................... 24Reasons for Departure from the Guidelines .......................................................................... 25Compliance by Circuit ........................................................................................................... 27Virginia Localities and Judicial Circuits ............................................................................... 28Compliance by Sentencing Guidelines Offense Group ......................................................... 31Compliance under Midpoint Enhancements ......................................................................... 33Juries and the Sentencing Guidelines .................................................................................... 36Compliance and Nonviolent Offender Risk Assessment ....................................................... 39Compliance and Sex Offender Risk Assessment ................................................................... 42Sentencing Revocation Reports ............................................................................................. 45Probation Violation Guidelines ............................................................................................. 46

continued next page

TABLE OF CONTENTS

3 Methamphetamine Crime in Virginia

Introduction ....................................................................................................................... 53Drug Use in Virginia ............................................................................................................. 55Forensic Analysis in Virginia ................................................................................................ 60Drug Arrests in Virginia ........................................................................................................ 62Methamphetamine Laboratory Seizures ................................................................................ 64Methamphetamine Production in Mexico ............................................................................. 70Responses to Methamphetamine ........................................................................................... 74Mandatory Penalties for Schedule I or II Drug Offenses in Virginia .................................... 82Methamphetamine Convictions in Virginia ........................................................................... 85Relative Prevalence of Methamphetamine ............................................................................ 97Virginia Sentencing Guidelines for Drug Offenses ............................................................. 100Comparing Virginia and Federal Sentencing Guidelines .................................................... 102Quantity of Methamphetamine and Sentencing in Virginia’s Circuit Courts ...................... 105Commission Deliberations .................................................................................................. 110

4 Recommendations of the CommissionIntroduction ..................................................................................................................... 119Recommendation 1 .............................................................................................................. 120Recommendation 2 .............................................................................................................. 124Recommendation 3 .............................................................................................................. 132

5 Appendices .............................................................................................. 138

TABLE OF CONTENTS CONTINUED

Overview

The Virginia Criminal SentencingCommission is required by § 17.1-803of the Code of Virginia to reportannually to the General Assembly, theGovernor and the Chief Justice of theSupreme Court of Virginia. To fulfillits statutory obligation, the Commissionrespectfully submits this report, thethirteenth in the series.

The report is organized into fourchapters. The remainder of theIntroduction chapter provides ageneral profile of the Commission andan overview of its various activitiesand projects during 2007. TheGuidelines Compliance chapterprovides a comprehensive analysis ofcompliance with the sentencingguidelines during fiscal year(FY) 2007. The chapter onMethamphetamine Crime in Virginiadocuments the results of theCommission’s most recent study ofthis drug and its impact on theCommonwealth. In the report’s finalchapter, the Commission presents itsrecommendations for revisions to thefelony sentencing guidelines system.

Commission Profile

The Virginia Criminal SentencingCommission is comprised of 17members as authorized in the Codeof Virginia § 17.1-802. TheChairman of the Commission isappointed by the Chief Justice of theSupreme Court of Virginia, must notbe an active member of the judiciaryand must be confirmed by the GeneralAssembly. The Chief Justice alsoappoints six judges or justices to serveon the Commission. The Governorappoints four members, at least oneof whom must be a victim of crime ora representative of a crime victim’sorganization. In the original legislation,five members of the Commission wereto be appointed by the GeneralAssembly, with the Speaker of theHouse of Delegates designating threemembers and the Senate Committeeon Privileges and Elections selectingtwo members. The 2005 GeneralAssembly modified this provision.Now, the Speaker of the House ofDelegates has two appointments, whilethe Chairman of the House Courts ofJustice Committee, or another memberof the Courts Committee appointed bythe chairman, must serve as the thirdHouse appointment. Similarly, the

1 lntroductionVirginia’s approach

has proven to be

one of the most

successful and

effective avenues

for reform.

8 2007 Annual Report

Senate Committee on Rules makesonly one appointment and the otherappointment must be filled by theChairman of the Senate Courts ofJustice Committee or a designee fromthat committee. The 2005 amendmentdid not affect existing members whoseappointed terms had not expired;instead this provision becameeffective when the terms of twolegislative appointees expired onDecember 31, 2006. The Chairmanof the Senate Courts of JusticeCommittee joined the Commission in2007, as did a member of the HouseCourts of Justice Committee. Thefinal member of the Commission isVirginia’s Attorney General, whoserves by virtue of his office.

The Virginia Criminal SentencingCommission is an agency of theSupreme Court of Virginia. TheCommission’s offices and staff arelocated on the Fifth Floor of theSupreme Court Building at 100 NorthNinth Street in downtown Richmond.

Monitoring and Oversight

Section 19.2-298.01 of the Code ofVirginia requires that sentencingguidelines worksheets be completedin all felony cases for which there areguidelines. This section of the Codealso requires judges to announceduring court proceedings for each casethat the guidelines forms have beenreviewed. After sentencing, theguidelines worksheets are signed bythe judge and become a part of theofficial record of each case. The clerkof the circuit court is responsible forsending the completed and signedworksheets to the Commission.

The sentencing guidelines worksheetsare reviewed by the Commission staffas they are received. TheCommission staff performs this checkto ensure that the guidelines forms arebeing completed accurately. Throughthis review process, errors oromissions are detected and resolved.

Once the guidelines worksheets arereviewed and determined to becomplete, they are automated andanalyzed. The principal analysisperformed with the automatedguidelines database relates to judicialcompliance with sentencing guidelinesrecommendations. This analysis isconducted and presented to theCommission on a semiannual basis.The most recent study of judicialconcurrence with the sentencingguidelines is presented in the nextchapter.

Commission Meetings

The full membership of the

Commission met four times

during 2007. These

meetings, held in the

Supreme Court of Virginia

building, were held on

March 19, June 11,

September 17 and

November 13. Minutes for

each of these meetings are

available on the

Commission’s website

(www.vcsc.virginia.gov).

9Introduction

Training, Education andOther Assistance

The Commission provides sentencingguidelines assistance in a variety offorms: training and educationseminars, training materials andpublications, a website, and assistancevia the “hot line” phone system.Training and education are on-goingactivities of the Commission. TheCommission offers training andeducational opportunities in an effortto promote the accurate completionof sentencing guidelines. Trainingseminars are designed to appeal to theneeds of attorneys for theCommonwealth and probationofficers, the two groups authorized bystatute to complete the officialguidelines for the court. The seminarsalso provide defense attorneys with aknowledge base to challenge theaccuracy of guidelines submitted tothe court. In addition, the Commissionconducts sentencing guidelinesseminars for new members of thejudiciary and other criminal justicesystem professionals. Having all sidesequally versed in the completion ofguidelines worksheets is essential toa system of checks and balances thatensures the accuracy of sentencingguidelines.

In 2007, the Commission offered 55training seminars across theCommonwealth. As in previous years,Commission staff conducted trainingfor attorneys and probation officersnew to Virginia’s sentencingguidelines. The six-hour seminarintroduced participants to thesentencing guidelines and providedinstruction on correct scoring of theguidelines worksheets. The seminaralso introduced new users to theprobation violation guidelines and thetwo offender risk assessmentinstruments that are incorporated intoVirginia’s guidelines system.Seminars for experienced guidelinesusers were also provided. A “What’sNew” course, designed to updateexperienced users on recent changesto the guidelines, was offered inseveral locations during the spring. Allof the courses described above areapproved by the Virginia State Bar,enabling participating attorneys toearn Continuing Legal Educationcredits. This year, training stafffocused considerable time and efforttowards developing a guidelines-related ethics class. The VirginiaState Bar assisted in the developmentof the class material and participatedwith Commission training staff in thepresentation of the seminar. TheVirginia State Bar has approved thisclass for one hour of Continuing LegalEducation Ethics credit. Finally, theCommission regularly conductssentencing guidelines training at theDepartment of Corrections’ TrainingAcademy as part of the curriculumfor new probation officers.


Commission staff traveled throughoutVirginia in an attempt to offer trainingthat was convenient to most guidelineusers. Staff continues to seek outfacilities that are designed for training,forgoing the typical courtroomenvironment for the Commission’straining programs. The sites for theseseminars included a combination ofcolleges and universities, libraries,state and local facilities, a juryassembly room, a museum andcriminal justice academies. Manysites, such as the Roanoke HigherEducation Center, were selected in aneffort to provide comfortable andconvenient locations at little or no costto the Commission.

The Commission will continue to placea priority on providing sentencingguidelines training on request to anygroup of criminal justice professionals.The Commission is also willing toprovide an education program onguidelines and the no-parole sentencingsystem to any interested group ororganization. If an individual isinterested in training, he or she cancontact the Commission and place hisor her name on a waiting list. Oncethere is enough interest, a seminar ispresented in a locality convenient tothe majority of individuals on the list.

In addition to providing training andeducation programs, the Commissionmaintains a website and a “hot line”phone system. By visiting the website,a user can learn about upcomingtraining sessions, access Commissionreports, look up Virginia Crime Codes(VCCs) and utilize on-line versions ofthe sentencing guidelines forms. The“hot line” phone (804.225.4398) isstaffed from 7:45 a.m. to 5:15 p.m.,Monday through Friday, to respondquickly to any questions or concernsregarding the sentencing guidelines.The hot line continues to be animportant resource for guidelines usersaround the Commonwealth.

11Introduction

Projecting the Impact ofProposed Legislation

Section 30-19.1:4 of the Code ofVirginia requires the Commission toprepare fiscal impact statements forany proposed legislation that mayresult in a net increase in periods ofimprisonment in state correctionalfacilities. These impact statementsmust include details as to the impacton adult, as well as juvenile, offenderpopulations and any necessaryadjustments to sentencing guidelinerecommendations. Additionally, anyimpact statement required under§ 30-19.1:4 must include an analysisof the impact on local and regional jailsand state and local communitycorrections programs.

During the 2007 General Assemblysession, the Commission prepared 263impact statements on proposedlegislation. These proposals fell intofive categories: 1) legislation toincrease the felony penalty class of aspecific crime; 2) legislation toincrease the penalty class of a specificcrime from a misdemeanor to afelony; 3) legislation to add a newmandatory minimum penalty for aspecific crime; 4) legislation to expandor clarify an existing crime; and 5)legislation that would create a newcriminal offense. The Commissionutilizes its computer simulationforecasting program to estimate theprojected impact of these proposalson the prison system. The estimatedimpact on the juvenile offenderpopulation is provided by Virginia’sDepartment of Juvenile Justice. Inmost instances, the projected impactand accompanying analysis of a bill ispresented to the General Assemblywithin 48 hours after the Commissionwas notified of the proposedlegislation. When requested, theCommission provides pertinent oraltestimony to accompany the impactanalysis.


Prison and Jail PopulationForecasting

Forecasts of offenders confined instate and local correctional facilitiesare essential for criminal justicebudgeting and planning in Virginia.The forecasts are used to estimateoperating expenses and future capitalneeds and to assess the impact ofcurrent and proposed criminal justicepolicies. Since 1987, the Secretaryof Public Safety has utilized anapproach known as “consensusforecasting” to develop the offenderpopulation forecasts. This processbrings together policy makers,administrators and technical expertsfrom all branches of state government.The process is structured throughcommittees. The Technical AdvisoryCommittee is composed of experts instatistical and quantitative methodsfrom several agencies. Whileindividual members of this Committeegenerate the various prisonerforecasts, the Committee as a wholecarefully scrutinizes each forecastaccording to the highest statisticalstandards. Select forecasts arepresented to the Policy-TechnicalLiaison Work Group. Chaired by theDeputy Secretary of Public Safety, theWork Group evaluates the forecastsand provides guidance and oversight

for the Technical AdvisoryCommittee. It includes deputydirectors and senior managers ofcriminal justice and budget agencies,as well as staff of the HouseAppropriations and Senate FinanceCommittees. Forecasts accepted bythe Work Group then are presentedto the Policy Advisory Committee.Led by the Secretary of Public Safety,the Policy Advisory Committeereviews the various forecasts, makingany adjustments deemed necessary toaccount for emerging trends or recentpolicy changes, and selects the officialforecast for each prisoner population.This Committee is made up of agencydirectors, lawmakers and other top-level officials from Virginia’sexecutive, legislative, and judicialbranches, as well as representativesof Virginia’s law enforcement andprosecutorial associations.

While the Commission is notresponsible for generating the prisonor jail population forecast, it is includedin the consensus forecasting process.In years past, Commission staffmembers have served on theTechnical Advisory Committee and theCommission’s Deputy Director hasserved on the Policy AdvisoryCommittee. In 2007 (as in 2006), theCommission’s Deputy Director wasappointed by the Secretary of PublicSafety to chair the Technical AdvisoryCommittee. The Secretary presentedthe most recent prisoner forecasts tothe General Assembly in a reportsubmitted in October 2007.

13Introduction

Sentencing GuidelinesSoftware

The Commission’s websitewww.vcsc.virginia.gov offers avariety of helpful tools for those whoprepare or use Virginia’s sentencingguidelines. A visitor to the websitecan learn about upcoming trainingsessions, register for a trainingseminar, access Commission reports,and look up Virginia Crime Codes(VCCs). In addition, the websiteprovides on-line versions of thesentencing guidelines forms. Theguidelines forms available on-lineallow a user to print blank forms tohis or her local printer or to fill in theform’s blanks on screen so that thecompleted form can be printed locally.

The current system, however, islimited. Users must still select whichforms to prepare, determine eachscore to enter, sum the points, enterthe total score, look up the guidelinesrecommendation corresponding to thetotal score and insert the guidelinesrange on the cover sheet of the form.No information is saved or stored bythe system once the user prints andexits the on-line screen.

The Commission has been workingclosely with a software developmentcompany, Cross Current Corporation,to enhance and expand thefunctionality of the current system.The Commission is striving to fullyautomate the preparation of thesentencing guidelines forms andprovide this service on-line to users.The development of sentencingguidelines software is proceeding inphases. Phase 2 is nearingcompletion. Phase 2 will provide userswith additional features beyond whatis currently available through theCommission’s website. For example,it will total the scores automaticallyand fill in the appropriate guidelinessentence range for the case on thecover sheet of the form. It will alsoallow users to run multiple chargingscenarios, save prepared guidelinesforms to a local computer, sendcompleted forms to the Commissionelectronically, and search theguidelines database for previouslycompleted forms for a particularoffender. The software will beavailable through the website to allprosecutors, probation officers, publicdefenders and defense attorneys whoregister with the Commission andreceive a log-in identification andpassword. As funds permit, theCommission hopes to pilot test thisphase of the software and make itavailable statewide during the comingyear.


MethamphetamineCrime in Virginia

Methamphetamine, a derivative ofamphetamine, is a potent psycho-stimulant that affects the centralnervous system. A man-made drug(unlike other drugs such as cocaine thatare plant derived), methamphetaminecan be produced from a few over-the-counter and low-cost ingredients. In theUnited States, the use ofmethamphetamine is most prevalent inthe West, but it is becoming increasinglypopular in the Midwest as well.Concern over the potential impact ofmethamphetamine-related crime in theCommonwealth prompted the 2001Virginia General Assembly to direct theCommission to examine the state’sfelony sentencing guidelines formethamphetamine offenses, withspecific focus on the quantity ofmethamphetamine seized in these cases(Chapters 352 and 375 of The Acts ofthe Assembly 2001). The Commissionconducted a second detailed study in2004. Many public officials in Virginiahave remained concerned aboutmethamphetamine in the years since theCommission’s last study. In response,the Commission this year has completeda third study, and the mostcomprehensive to date, on this specificdrug.

In its 2001 and 2004 studies, theCommission found that the number ofconvictions involving met-hamphetamine, although increasing,represented at that time a smallfraction of the drug cases in the stateand federal courts in theCommonwealth. Overall, theCommission’s analysis revealedsentencing in the state’s circuit courtswas not driven primarily by thequantity of methamphetamine seized.The Commission carefully consideredthe sentencing guidelines and existingstatutory penalties applicable inmethamphetamine cases. With noevidence to suggest that judges weresystematically basing sentences on theamount of methamphetamine seized,the Commission did not recommendany adjustments to Virginia’shistorically-based sentencingguidelines to account for the quantityof this drug.

The chapter of this report entitledMethamphetamine Crime in Virginiapresents the most recent dataavailable on use of the drug, labseizures, and arrests and convictionsin the Commonwealth. In addition, theresults of a new analysis comparingquantity and sentencing outcome areprovided.

15Introduction

National Study ofConsistency and Fairness in

Sentencing

In 2007, the National Center for StateCourts (NCSC) in Williamsburg,Virginia, conducted groundbreakingresearch to examine the impact ofdifferent sentencing guidelinessystems on consistency and fairnessin judicial sanctioning. The primarygoal of the study was to provide acomprehensive assessment ofsentencing outcomes in three statesthat employ a range of alternativeapproaches to shaping and controllingjudicial discretion through sentencingguidelines. With long-established andrespected guidelines systems, Virginia,Michigan, and Minnesota wereselected by the NCSC as the subjectsof this unique comparative study.These states vary according to thepresumptive versus voluntary natureof the respective guidelines systemsand differ in basic design andmechanics of the guidelines.Classifying state guidelines systemsalong a continuum from mostvoluntary to most mandatory, Virginiaranks among the most voluntarysystems. Minnesota is considered oneof the most mandatory guidelinessystems in the nation. Michigan fallsin between Virginia and Minnesota onthis continuum. Moreover,Minnesota's guidelines generallyproduce smaller ranges forrecommended sentences than the

guidelines in Michigan and Virginia. Incontrast to the two-dimensionalsentencing grids used in Michigan andMinnesota, Virginia employs a list, ortariff, style scoring system todetermine the recommendedpunishment.

Funded by the National Institute ofJustice (NIJ), the NCSC's studyexamines the extent to which eachstate's system promotes consistencyand proportionality and minimizesdiscrimination. The followingquestions were considered of primaryimportance:

To what extent do sentencingguidelines contribute toconsistency? Are similar casestreated in a similar manner?

To what extent do sentencingguidelines contribute to a lack ofdiscrimination? Is there evidenceof discrimination that is distinctfrom inconsistency in sentencing?Are the characteristics of theoffender's age, gender, and racesignificant in determining whogoes to prison and for how long?


The NCSC has issued a preliminaryreport presenting the results of thisvery significant research. The report,pending final NIJ approval, containstwo important findings for theCommonwealth. First, the studyshows that consistency in sentencinghas been achieved in Virginia. Theresearchers concluded that Virginia'sguidelines system is achieving its goalof overall consistency in sanctioningpractices. Second, there is noevidence of systematic discriminationin sentences imposed in Virginia inregards to race, gender, or the locationof the court. According to NCSC'spreliminary report, virtually noevidence of discrimination ariseswithin the confines of Virginia'scriminal sentencing system.

NIJ is expected to officially releasethe NCSC report in early 2008.

Violent Offenders in thePrison Inmate Population

January 1, 2008, will mark thethirteenth anniversary of the abolitionof parole and the institution of truth-in-sentencing in the Commonwealthof Virginia. Sentencing reformdramatically changed the way felonsare sentenced and serve time inVirginia. For felonies committed onor after January 1, 1995, the practiceof discretionary parole release fromprison was abolished and inmateswere limited to earning no more than15% off their sentences. Virginia'sfelons now must serve at least 85%of their prison or jail sentences. Acritical component of the new systemwas the integration of sentencingguidelines for use in felony cases triedin the state's circuit courts. Originallyadopted by Virginia's judges severalyears before, the voluntary sentencingguidelines were revised to becompatible with the truth-in-sentencing system. Primary featuresof the new guidelines were codifiedin 1995. The Commission was createdto implement and oversee the newtruth-in-sentencing guidelines, tomonitor criminal justice trends, and toexamine key issues at the request ofpolicymakers.

17Introduction

Abolishing parole and achieving truth-in-sentencing were not the only goalsof sentencing reform. Ensuring thatviolent criminals serve longer termsin prison was also a priority. TheGeneral Assembly adoptedmodifications to Virginia's sentencingguidelines to increase the sentencesrecommended for violent offenders.The sentencing enhancements builtinto the guidelines prescribe prisonsentences for violent offenders thatare significantly longer than historicaltime served by these offenders underthe parole system.

Unlike other initiatives, which typicallycategorize an offender based on thecurrent offense alone, the truth-in-sentencing legislation defines anoffender as violent based on thetotality of his criminal career, both thecurrent offense and the offender'sprior criminal history, including juvenileadjudications (§ 17.1-805). Section17.1-805 of the Code of Virginiadefines violent offenses for thepurposes of the truth-in-sentencingguidelines. Included in the definitionare offenders convicted of burglaryof a dwelling and burglary whilearmed with a deadly weapon. Thedefinition also includes offenders whohave been convicted of any burglaryin the past. For nonviolent offenders,

the sentencing guidelines recommendterms roughly equal to the terms theyserved prior to the abolition of parole.In addition, as directed by the GeneralAssembly, the Sentencing Commissionhas developed and implemented anempirically-based risk assessmentinstrument to identify the lowest risk,incarceration-bound, drug andproperty offenders for alternative(non-prison) sanctions.

Sentencing reform has resulted inlonger prison terms for violentoffenders. This approach to reformwas expected to alter the compositionof the state's prison population. Overtime, violent offenders are queuingup in the system due to longer lengthsof stay than under the previoussystem. Nonviolent offenderssentenced to prison, by design, areserving about the same amount oftime on average as they did under theparole system. Moreover, with the useof risk assessment, a portion ofnonviolent offenders receivealternative sanctioning in lieu of prison.As a result, the composition of theprison population has been undergoinga dramatic shift.


The Commission examined this changein the make-up of the inmatepopulation in 2004 and again in 2007.Using the definition of a violentoffender set forth in § 17.1-805, theprison population is now composed ofa larger percentage of violentoffenders than when parole wasabolished. On June 30, 1994, 69.1%of the state-responsible (prison)inmates classified by the Departmentof Corrections (DOC) were violentoffenders. At that time, nearly one inthree inmates was in prison for anonviolent crime and had no priorconviction for a violent offense. ByMay 30, 2004, the percent of theinmate population defined as violenthad increased to 74.4%. As of June13, 2007, 79.1% of the inmatepopulation was defined as violentunder § 17.1-805 (Figure 1).

A clear shift has taken place.Because violent offenders are servingsignificantly longer terms under truth-in-sentencing provisions than underthe parole system and time served bynonviolent offenders has been heldrelatively constant, the proportion ofthe prison population composed ofviolent offenders relative tononviolent offenders has grown. Asviolent offenders continue to servelonger terms and risk assessmentidentifies low-risk nonviolentoffenders for alternative punishmentoptions, the proportion of violentoffenders housed in Virginia's prisonsystem should continue to increaseover the next several years. TheCommission will continue to monitorthis trend.

Note: Analysis compares state-responsible (prison) inmates classified by the Department ofCorrections as of June 30, 1994, May 30, 2004, and June 13, 2007. Improvements in datasystems and increases in the number of records available for analysis provided a moredetailed profile of inmates in 2007.

Sources: Virginia Department of Corrections' FAST and CORIS data systems, the Pre/Post-SentenceInvestigation (PSI) reporting system, and the Virginia Criminal Sentencing Commission’s SentencingGuidelines (SG) database.

Figure 1

Percent of Violent Offenders (as defined by § 17.1-805)in Virginia’s Prison System

1994 69.1%

2004 74.4%

2007 79.1%

2 Guidelines Compliance

In the

Commonwealth,

judicial compliance

with the truth-in-

sentencing

guidelines is

voluntary.

Introduction

On January 1, 2008, Virginia’s truth-in-sentencing system will reach itsthirteen-year anniversary. BeginningJanuary 1, 1995, the practice ofdiscretionary parole release fromprison was abolished and the existingsystem of sentence credits awardedto inmates for good behavior waseliminated. Under Virginia’s truth-in-sentencing laws, convicted felons mustserve at least 85% of the pronouncedsentence and they may earn, at most,15% off in sentence credits, regardlessof whether their sentence is served ina state facility or a local jail. TheCommission was established todevelop and administer guidelines inan effort to provide Virginia’s judiciarywith sentencing recommendations infelony cases under the new truth-in-sentencing laws. Under the currentno-parole system, guidelinesrecommendations for nonviolentoffenders with no prior record ofviolence are tied to the amount of timethey served during a period prior tothe abolition of parole. In contrast,offenders convicted of violent crimes

and those with prior convictions forviolent felonies are subject toguidelines recommendations up to sixtimes longer than the historical timeserved in prison by similar offenders.In the more than 260,000 felony casessentenced under truth-in-sentencinglaws, judges have agreed withguidelines recommendations in morethan three out of every four cases.

This report will focus on casessentenced during most recent fiscalyear, FY2007 (July 1, 2006, throughJune 30, 2007). Compliance isexamined in a variety of ways in thisreport, and variations in data over theyears are highlighted throughout.


Case Characteristics

In FY2007, five judicial circuitscontributed more guidelines cases thanany of the other judicial circuits in theCommonwealth. Those circuits, whichinclude Norfolk (Circuit 4), VirginiaBeach (Circuit 2), the Fredericksburgarea (Circuit 15), Richmond City(Circuit 13), and Henrico County(Circuit 14), comprised nearly one-third(30%) of all worksheets received inFY2007 (Figure 2). In addition, fiveother circuits submitted over 1,000guideline forms during the year:Fairfax (Circuit 19), Portsmouth(Circuit 3), and three circuits in thewestern part of the state: theLynchburg area (Circuit 24), theStaunton area (Circuit 25), and theHarrisonburg area (Circuit 26).

During FY2007, the Commissionreceived a total of 26,692 sentencingguideline worksheets. Of the total,however, 960 worksheets containederrors or omissions that affect theanalysis of the case. For the purposesof conducting a clear evaluation ofsentencing guidelines in effect forFY2007, the remaining sections of thischapter pertaining to judicialconcurrence with guidelinerecommendations focus only on those25,732 cases for which guidelinesrecommendations were calculatedcorrectly.

Circuit Total Percent Rank

1 792 3.0% 15 2 1,739 6.5 2 3 1,001 3.8 10 4 1,941 7.3 1 5 597 2.2 20 6 486 1.8 27 7 995 3.7 11 8 715 2.7 17 9 550 2.1 2410 598 2.2 1911 438 1.6 2812 972 3.6 1313 1,322 5.0 414 1,309 4.9 515 1,617 6.1 316 592 2.2 2117 534 2.0 2518 400 1.5 3019 1,175 4.4 620 517 1.9 2621 403 1.5 2922 728 2.7 1623 979 3.7 1224 1,007 3.8 925 1,019 3.8 826 1,127 4.2 727 965 3.6 1428 567 2.1 2329 575 2.2 2230 347 1.3 3131 685 2.6 18

Total 26,692

Figure 2

Number and Percentage of CasesReceived by Circuit, FY2007

Compliance Defined

In the Commonwealth, judicialcompliance with the truth-in-sentencing guidelines is voluntary. Ajudge may depart from the guidelinesrecommendation and sentence anoffender either to a punishment moresevere or less stringent than called forby the guidelines. In cases in whichthe judge has elected to sentenceoutside of the guidelinesrecommendation, he or she must, asstipulated in § 19.2-298.01 of the Codeof Virginia, provide a written reasonfor departure on the guidelinesworksheet.

The Commission measures judicialagreement with the sentencingguidelines using two classes ofcompliance: strict and general.Together, they comprise the overallcompliance rate. For a case to be instrict compliance, the offender mustbe sentenced to the same type ofsanction (probation, incarceration upto six months, incarceration more thansix months) that the guidelinesrecommend and to a term ofincarceration that falls exactly within

21Guidelines Compliance

the sentence range recommended bythe guidelines. When risk assessmentfor nonviolent offenders is applicable,a judge may sentence a recommendedoffender to an alternative punishmentprogram or to a term of incarcerationwithin the traditional guidelines rangeand be considered in strictcompliance. A judicial sentence wouldalso be considered in generalcompliance with the guidelinesrecommendation if the sentence 1)meets modest criteria for rounding, 2)involves a sentence to time alreadyserved in certain instances, or 3)complies with statutorily-permitteddiversion options in habitual trafficoffender cases.

Compliance by rounding provides fora modest rounding allowance ininstances when the active sentencehanded down by a judge or jury is veryclose to the range recommended bythe guidelines. For example, a judgewould be considered in compliancewith the guidelines if he sentenced anoffender to a two-year sentence basedon a guidelines recommendation thatgoes up to 1 year 11 months. Ingeneral, the Commission allows forrounding of a sentence that is withinfive percent of the guidelinesrecommendation.

Time served compliance is intendedto accommodate judicial discretion andthe complexity of the criminal justicesystem at the local level. A judge maysentence an offender to the amountof pre-sentence incarceration timeserved in a local jail when theguidelines call for a short jail term.Even though the judge does notsentence an offender to post-sentenceincarceration time, the Commissiontypically considers this type of caseto be in compliance. Conversely, ajudge who sentences an offender totime served when the guidelines callfor probation is also regarded as beingin compliance with the guidelinesbecause the offender was not orderedto serve any incarceration time aftersentencing.

Compliance by special exceptionarises in habitual traffic cases as theresult of amendments to §46.2-357(B2and B3) of the Code of Virginia,effective July 1, 1997. Theamendment allows judges to suspendthe 12-month mandatory minimumincarceration term required in felonyhabitual traffic cases conditioned upona sentence to a Detention Center orDiversion Center IncarcerationProgram. For cases sentenced sincethe effective date of the legislation,the Commission considers either modeof sanctioning of these offenders tosatisfy the criteria for judicialcompliance with the sentencingguidelines.


Overall Compliance with theSentencing Guidelines

The overall compliance ratesummarizes the extent to whichVirginia’s judges concur withrecommendations provided by thesentencing guidelines, both in type ofdisposition and in length ofincarceration. Between FY1995 andFY1998, the overall compliance rateremained around 75%, increasedsteadily between FY1999 andFY2001, and then decreased slightlyin FY2002. For the past four fiscalyears, the compliance rate hashovered around 80%. DuringFY2007, judges continued to agreewith the sentencing guidelinesrecommendations in approximately80% of the cases (Figure 3).

In addition to compliance, theCommission also studies departuresfrom the guidelines. The rate at whichjudges sentence offenders to sanctionsmore severe than the guidelinesrecommendation, known as the“aggravation” rate, was 10.4% forFY2007. The “mitigation” rate, or therate at which judges sentenceoffenders to sanctions considered lesssevere than the guidelinesrecommendation, was 9.7% for thefiscal year. Thus, of the FY2007departures, 52% were cases ofaggravation while 48% were cases ofmitigation.

Figure 3

Overall Guidelines Complianceand Direction of DeparturesFY2007(25,732 cases)

Aggravation 10.4%

Compliance 79.9%

Mitigation 9.7%

Mitigation 48%

Aggravation 52%

Dispositional Compliance

Since the inception of truth-in-sentencing in 1995, the cor-respondence between dispositionsrecommended by the guidelines andthe actual dispositions imposed inVirginia’s circuit courts has been quitehigh. Figure 4 illustrates judicialconcurrence in FY2007 with the typeof disposition recommended by theguidelines. For instance, of all felonyoffenders recommended for morethan six months of incarceration duringFY2007, judges sentenced 86%to terms in excess of six months(Figure 4). Some offenders recom-mended for incarceration of morethan six months received a shorterterm of incarceration (one day to sixmonths), but very few of theseoffenders received probation with noactive incarceration.

Overall Compliance

Direction of Departures


Judges have also typically agreed withguidelines recommendations for othertypes of dispositions. In FY2007, 77%of offenders received a sentenceresulting in confinement of six monthsor less when such a penalty wasrecommended. In some cases, judgesfelt probation to be a more appropriatesanction than the recommended jailterm, and in other cases offendersrecommended for short-termincarceration received a sentence ofmore than six months. Finally, 73%of offenders whose guidelinesrecommendation called for noincarceration were given probation andno post-dispositional confinement.Some offenders with a “noincarceration” recommendationreceived a short jail term, but rarelydid offenders recommended for noincarceration receive jail or prisonterms of more than six months.

Since July 1, 1997, sentences to thestate’s Boot Camp, Detention Centerand Diversion Center programs havebeen defined as incarcerationsanctions for the purposes of thesentencing guidelines. Although thestate’s Boot Camp program wasdiscontinued in 2002, the Detentionand Diversion Center programs havecontinued as sentencing options for

Figure 4

Recommended Dispositions andActual Dispositions, FY2007

Probation 72.9% 23.4% 3.7%Incarceration 1 day - 6 months 11.0% 76.5% 12.5%Incarceration > 6 months 5.7% 8.4% 85.9%

Recommended Disposition

Actual Disposition

ProbationIncarceration1 day-6 mos.

Incarceration>6 mos.

judges. The Commission recognizedthat these programs are morerestrictive than probation supervisionin the community. In 2005, theVirginia Supreme Court concludedthat participation in the DetentionCenter program is a form ofincarceration (Charles v.Commonwealth). Because theDiversion Center program alsoinvolves a period of confinement, theCommission defines both theDetention Center and the DiversionCenter programs as incarcerationterms under the sentencing guidelines.The Detention and Diversion Centerprograms have been counted as sixmonths of confinement. EffectiveJuly 1, 2007, the Department ofCorrections extended these programsby an additional four weeks.


Durational Compliance

In addition to examining the degree towhich judges concur with the type ofdisposition recommended by theguidelines, the Commission alsostudies durational compliance, definedas the rate at which judges sentenceoffenders to terms of incarcerationthat fall within the recommendedguidelines range. Durationalcompliance analysis considers onlythose cases for which the guidelinesrecommended an active term ofincarceration and the offenderreceived an incarceration sanctionconsisting of at least one day in jail.

Durational compliance amongFY2007 cases was approximately80%, indicating that judges agree withthe length of incarcerationrecommended by the guidelines in themajority of jail and prison cases(Figure 5). Among FY2007 cases notin durational compliance, there wereslightly more aggravation sentences(53%) than mitigation sentences(47%).

For cases recommended forincarceration of more than six months,the sentence length recommendationderived from the guidelines (known asthe midpoint) is accompanied by a high-end and low-end recommendation.The sentence ranges recommendedby the guidelines are relatively broad,allowing judges to utilize theirdiscretion in sentencing offenders todifferent incarceration terms while stillremaining in compliance with theguidelines. When the guidelinesrecommended more than six monthsof incarceration and judges sentencedwithin the recommended range, 15%of offenders in FY2007 were givenprison terms equivalent to the midpointrecommendation (Figure 6). Most(66%) of the cases in durationalcompliance with recommendations ofmore than six months resulted insentences below the recommendedmidpoint. For the remaining 19% ofthese incarceration cases sentencedwithin the guidelines range, thesentence exceeded the midpointrecom-mendation. This pattern of

Figure 5

Durational Compliance and Direction of Departures,FY2007*

* Analysis includes only cases recommended for and receiving an activeterm of incarceration.

Aggravation 10.6%

Compliance 79.9%

Mitigation 9.5%

Mitigation 47.2%

Aggravation 52.8%

Figure 6

Distribution of Sentenceswithin Guidelines Range, FY2007*

At Midpoint 15.2%

Below Midpoint 65.9%

Above Midpoint 18.9%

Durational Compliance Direction of Departures

* Analysis includes only cases recommended for morethan six months of incarceration.


Figure 7

Median Length ofDurational Departures, FY2007

Mitigation Cases

Aggravation Cases

10 months

9 months

sentencing within the range has beenconsistent since the truth-in-sentencing guidelines took effect in1995, indicating that judges, overall,have favored the lower portion of therecommended range.

Overall, durational departures from theguidelines are typically less than oneyear above or below therecommended range, indicating thatdisagreement with the guidelinesrecommendation is, in most cases, notextreme. Offenders receivingincarceration, but less than therecommended term, were giveneffective sentences (sentences lessany suspended time) short of theguidelines by a median value of 10months (Figure 7). For offendersreceiving longer than recommendedincarceration sentences, the effectivesentence exceeded the guidelinesrange by a median value of ninemonths.

Reasons for Departurefrom the Guidelines

Compliance with the truth-in-sentencing guidelines is voluntary.Although not obligated to sentencewithin guidelines recommendations,judges are required by § 19.2-298.01of the Code of Virginia to submit tothe Commission their reason(s) forsentencing outside the guidelinesrange. Each year, as the Commissiondeliberates upon recommendations forrevisions to the guidelines, the opinionsof the judiciary, expressed throughtheir departure reasons, are animportant part of the analysis.Virginia’s judges are not limited by anystandardized or prescribed reasons fordeparture and may cite multiplereasons for departure in eachguidelines case.


In FY2007, 9.7% of guideline casesresulted in sanctions below theguidelines recommendation. The mostfrequently cited reasons for sentencingbelow the guidelines recommendationwere: the acceptance of a pleaagreement, the defendant’scooperation with law enforcement, thedefendant’s potential for rehabilitation,minimal offense circumstances, asentence recommendation provided bythe Commonwealth’s Attorney orprobation officer, and the fact that thedefendant was already sentenced toserve incarceration in another case.Although other reasons for mitigationwere reported to the Commission inFY2007, only the most frequentlycited reasons are noted here. For 464of the 2,487 mitigating cases, adeparture reason could not bediscerned.

Judges sentenced 10.4% of theFY2007 cases to terms more severethan the sentencing guidelinesrecommendation. The mostfrequently cited reasons for sentencingabove the guidelines recommendationwere: the acceptance of a pleaagreement, the flagrancy of theoffense, a sentencing guidelinesrecommendation the judge felt was toolow, a sentence recommended by ajury, the defendant’s poor potential forbeing rehabilitated, and the use ofspecial sanctioning programs, such asthe Detention Center Incarcerationprogram. Many other reasons werecited by judges to explain aggravationsentences but with much lessfrequency than the reasons listed here.For 497 of the 2,683 cases sentencedabove the guidelines recommendation,the Commission could not ascertain adeparture reason.

Appendices 1 and 2 containdetailed summaries of the reasonsfor departure from guidelinesrecommendations for each of the15 guidelines offense groups.


Compliance by Circuit

Since the onset of truth-in-sentencing,compliance rates and departurepatterns have varied somewhat acrossVirginia’s 31 judicial circuits. Datafor FY2007 is shown in Figure 8. Themap and accompanying table on thefollowing pages identify the locationof each judicial circuit in theCommonwealth.

In FY2007, nearly two-thirds (19)of the state’s 31 circuits exhibitedcompliance rates at or above 80%,while 11 reported compliance ratesbetween 70% and 79%. Only onecircuit had a compliance rate below70%. There are likely manyreasons for the variations incompliance across circuits. Certainjurisdictions may see atypical casesnot reflected in statewide averages.In addition, the availability ofalternative or community-based

Figure 8

Compliance by Circuit - FY 2007

Circuit Name Circuit Compliance Mitigation Aggravation Total

Radford Area 27 91.4% 5.0% 3.7% 929Newport News 7 86.5 6.3 7.2 968Bristol Area 28 85.2 8.6 6.2 561Martinsville Area 21 85.2 12.1 2.7 364Lee Area 30 85.0 6.7 8.2 341South Boston Area 10 85.0 8.8 6.2 581Loudoun Area 20 84.8 7.2 8.0 512Prince William Area 31 84.5 6.5 9.0 634Hampton 8 82.9 9.0 8.0 697Virginia Beach 2 82.6 8.8 8.6 1,702Petersburg Area 11 82.4 6.3 11.3 426Alexandria 18 81.3 13.9 4.8 396Chesapeake 1 81.2 8.3 10.5 771Portsmouth 3 80.8 7.5 11.7 983Charlottesville Area 16 80.6 10.6 8.8 568Staunton Area 25 80.5 9.5 10.0 991Harrisonburg Area 26 80.2 10.9 8.9 1,089Suffolk Area 5 80.1 8.0 11.9 589Arlington Area 17 80.1 7.4 12.6 517Henrico 14 79.8 10.1 10.1 1,282Richmond City 13 79.7 13.2 7.0 1,308Fairfax 19 78.5 7.7 13.8 984Norfolk 4 78.1 14.5 7.4 1,900Sussex Area 6 77.7 11.5 10.9 470Danville Area 22 77.3 7.2 15.5 704Lynchburg Area 24 77.0 13.8 9.2 991Williamsburg Area 9 76.0 7.1 16.9 492Chesterfield Area 12 75.8 7.2 17.0 959Roanoke Area 23 74.5 15.4 10.1 954Fredericksburg Area 15 71.3 10.2 18.4 1,514Buchanan Area 29 64.1 7.8 28.1 552

Nearly two-thirds (19) of thestate’s 31 circuits exhibitedcompliance rates at or above80%.

Eleven circuits reportedcompliance rates between70% and 79%. Only onecircuit had a compliancerate below 70%.


Fairfax City .................................................... 19Fairfax County .............................................. 19Falls Church .................................................. 17Fauquier ........................................................ 20Floyd ............................................................. 27Fluvanna ....................................................... 16Franklin City ................................................... 5Franklin County ............................................. 22Frederick ....................................................... 26Fredericksburg .............................................. 15

Galax ............................................................ 27Giles ............................................................. 27Gloucester ...................................................... 9Goochland .................................................... 16Grayson ........................................................ 27Greene .......................................................... 16Greensville .................................................... 6

Halifax ........................................................... 10Hampton ........................................................ 8Hanover ........................................................ 15Harrisonburg ................................................. 26Henrico ......................................................... 14Henry ............................................................ 21Highland ........................................................ 25Hopewell ....................................................... 6

Isle of Wight .................................................. 5

James City .................................................... 9

King and Queen ............................................ 9King George .................................................. 15King William ................................................... 9

Lancaster ..................................................... 15Lee ............................................................... 30Lexington ...................................................... 25Loudoun ........................................................ 20Louisa ........................................................... 16Lunenburg .................................................... 10Lynchburg .................................................... 24

Accomack ....................................................... 2Albemarle ...................................................... 16Alexandria .................................................... 18Alleghany ...................................................... 25Amelia ........................................................... 11Amherst ........................................................ 24Appomattox ................................................... 10Arlington ....................................................... 17Augusta ........................................................ 25

Bath .............................................................. 25Bedford City .................................................. 24Bedford County ............................................. 24Bland ............................................................ 27Botetourt ....................................................... 25Bristol ........................................................... 28Brunswick ...................................................... 6Buchanan ..................................................... 29Buckingham ................................................... 10Buena Vista .................................................. 25

Campbell ....................................................... 24Caroline ......................................................... 15Carroll ........................................................... 27Charles City ..................................................... 9Charlotte ....................................................... 10Charlottesville ................................................ 16Chesapeake .................................................. 1Chesterfield ................................................... 12Clarke ........................................................... 26Clifton Forge .................................................. 25Colonial Heights ............................................. 12Covington ...................................................... 25Craig .......................................................... 25Culpeper ....................................................... 16Cumberland ................................................... 10

Danville ......................................................... 22Dickenson ..................................................... 29Dinwiddie ...................................................... 11

Emporia ......................................................... 6Essex ........................................................... 15

Virginia Localities and Judicial Circuits


AUGUSTA

ROCKBRIDGE

Lexington

AMHERST

CAMPBELL

Lynchburg

ROCKINGHAM

Harrisonburg

ALBEMARLECharlottesville

WinchesterLOUDOUN

FAIRFAX

ARLINGTON

Alexandria

PRINCEWILLIAM

CULPEPERFredericksburg

HENRICO

Richmond

CHESTERFIELD

Petersburg

HopewellJAMESCITY

YORKPoquoson

Hampton

NewportNews

ISLE OFWIGHT

Williamsburg

Norfolk

Portsmouth

Chesapeake

Suffolk

Virginia Beach

GREENSVILLE

EmporiaMECKLENBURG

HALIFAX

HENRY

PATRICK

FRANKLIN

Roanoke

PULASKI

TAZEWELL

Bristol

NELSON

Buena VistaBUCKINGHAM

APPOMATTOX

PRINCE EDWARD

CHARLOTTE

LUNENBURG

BRUNSWICK

CUM

BERL

AND

AMELIA

NOTTOWAYBEDFORD

Bedford

South Boston

PITTSYLVANIA

Danville

BOTETOURT

Salem

CRAIG

MONTGOMERY

Radford

GILES

FLOYD

CARROLL

Galax

BLAND

WYTHESMYTH

GRAYSON

RUSSELL

BUCHANAN

DICKENSONWISE

Norton

SCOTTLEE WASHINGTON

POWHATAN

SUSSEX

SOUTHAMPTON

Franklin

Colonial Heights

ALLEGHANY

Covington

Clifton Forge

BATH

HIGHLAND

Staunton

Waynesboro

FAUQUIER

WARREN

SHENANDOAH

PAGE

STAFFORDMADISON

GREENEORANGE

SPOTSYLVANIA

LOUISA

FLUVANNA GOOCHLAND

HANOVER

KINGGEORGE

CAROLINE

KING WILLIAM

WESTMORELAND

NORTHUMBERLANDRICHMOND

ESSEX

KING AND QUEEN

PRINCE GEORGE

NORTHAMPTON

Martinsville

RAPPAHANNOCK

CLARKE

FREDERICK

Falls Church

Fairfax

Manassas

Manassas Park

CHARLES CITY

SURRY

LANCASTERMIDDLESEX

MATHEWSGLOU-

CESTER

ACCO

MACK

ROANOKE

25

26

2410

22

21

23

27

28

29

30

20 17

1819

31

1516

9NEW KENT

14 13

11

12

6 5

12

34

8

2

7

Madison ........................................................ 16Manassas ..................................................... 31Martinsville .................................................... 21Mathews ....................................................... 9Mecklenburg .................................................. 10Middlesex ...................................................... 9Montgomery .................................................. 27

Nelson ........................................................... 24New Kent ...................................................... 9Newport News ............................................. 7Norfolk .......................................................... 4Northampton .................................................... 2Northumberland ............................................. 15Norton ........................................................... 30Nottoway ...................................................... 11

Orange .......................................................... 16

Page ............................................................. 26Patrick ........................................................... 21Petersburg .................................................... 11Pittsylvania .................................................... 22Poquoson ...................................................... 9Portsmouth .................................................... 3Powhatan ..................................................... 11Prince Edward .............................................. 10Prince George ............................................... 6Prince William ................................................ 31Pulaski ........................................................... 27

Radford ......................................................... 27Rappahannock .............................................. 20Richmond City ............................................... 13Richmond County .......................................... 15Roanoke City ................................................. 23Roanoke County ............................................ 23Rockbridge .................................................... 25Rockingham ................................................... 26

Russell .......................................................... 29

Salem ............................................................ 23Scott ............................................................. 30Shenandoah .................................................. 26Smyth ........................................................... 28South Boston ................................................ 10Southampton ................................................. 5Spotsylvania ................................................. 15Stafford ........................................................ 15Staunton ....................................................... 25Suffolk .......................................................... 5Surry ............................................................ 6Sussex ......................................................... 6

Tazewell ....................................................... 29

Virginia Beach ............................................... 2

Warren .......................................................... 26Washington ................................................... 28Waynesboro ................................................. 25Westmoreland ............................................... 15Williamsburg .................................................... 9Winchester .................................................... 26Wise ............................................................. 30Wythe ........................................................... 27

York ................................................................ 9


programs differs from locality tolocality. The degree to which judgesagree with guidelines recom-mendations does not seem to beprimarily related to geography. Thecircuits with the lowest compliancerates are scattered across the state,and both high and low compliancecircuits can be found in closegeographic proximity.

In FY2007, the highest rate of judicialagreement with the sentencingguidelines (91%) was in Circuit 27(Radford area). Concurrence ratesof 85% or higher were also found inCircuit 7 (Newport News), Circuit 10(South Boston area), Circuit 21(Martinsville area), Circuit 28 (Bristolarea), and Circuit 30 (Lee area). Thelowest compliance rates amongjudicial circuits in FY2007 werereported in Circuit 29 (Buchanan,Dickenson, Russell and Tazewellcounties), Circuit 15 (Fredericksburg,Stafford, Hanover, King George,Caroline, Essex, etc.), and Circuit 23(Roanoke area).

In FY2007, the highest mitigation rateswere found in the Circuit 23 (Roanokearea) and Circuit 4 (Norfolk). Eachof these circuits had a mitigation ratearound 15% during the fiscal year.With regard to high mitigation rates, itwould be too simplistic to assume thatthis reflects areas with lenientsentencing habits. Intermediatepunishment programs are notuniformly available throughout theCommonwealth, and thosejurisdictions with better access tothese sentencing options may be usingthem as intended by the GeneralAssembly. These sentences generallywould appear as mitigations from theguidelines. Inspecting aggravationrates reveals that Circuit 29(Buchanan County area) had thehighest aggravation rate at 28%,followed by Circuit 15(Fredericksburg, Stafford, Hanover,King George, Caroline, Essex, etc.)at 18% and Circuits 12 (Chesterfield)and 9 (Williamsburg area) at 17%.Lower compliance rates in these lattercircuits are a reflection of therelatively high aggravation rates.

Appendices 3 and 4 presentcompliance figures for judicialcircuits by each of the 15sentencing guidelines offensegroups.


Compliance by SentencingGuidelines Offense Group

In FY2007, as in previous years,variation exists in judicial agreementwith the guidelines, as well as in judicialtendencies toward departure, whencomparing the 15 offense groups(Figure 9). For FY2007, compliancerates ranged from a high of 86% inthe fraud offense group to a low of63% in robbery cases. In general,property and drug offenses exhibitrates of compliance higher than theviolent offense categories. Theviolent offense groups (assault, rape,sexual assault, robbery, homicide andkidnapping) had compliance rates ator below 75% whereas many of theproperty and drug offense categorieshad compliance rates above 80%.

Figure 9

Compliance by Offense - FY2007

Offense Compliance Mititgation Aggravation Total

Fraud 85.9% 8.3% 5.8% 2,763Drug/Schedule I/II 82.8 7.4 9.8 9,418Larceny 82.7 8.0 9.4 4,716Drug/Other 82.5 5.5 12.0 988Traffic 80.7 6.4 12.9 2,119Assault 74.6 13.0 12.4 1,455Weapon 73.0 14.8 12.3 488Burg./Other Structure 72.5 15.1 12.3 641Kidnapping 69.7 12.3 18.0 122Rape 68.4 23.0 8.6 187Sexual Assault 68.1 15.7 16.2 470Miscellaneous 66.2 16.6 17.2 308Burglary/Dwelling 65.4 19.4 15.2 888Murder/Homicide 64.3 17.7 18.0 283Robbery 63.1 26.3 10.6 885

Total 25,732

Judicial concurrence with guidelinerecommendations remained stable,fluctuating less than two percent, formost offense groups. Althoughcompliance increased dramatically forthe kidnapping offense group, thechange is mostly a function of thesmall number of cases involvingkidnapping as the primary, or mostserious, offense; kidnapping offensescomprise less than one percent of allguideline worksheets received in agiven year. In FY2007, thecompliance rate for the miscellaneousoffense group was significantly lowerthan the rate recorded the previousyear (66% in FY2007 versus 74% inFY2006). This sudden change is mostlikely due to the creation of a newguidelines offense group for many ofthe crimes previously covered by the


miscellaneous guidelines and theaddition of new crimes to theguidelines system. Effective July 1,2006, weapon offenses were removedfrom the miscellaneous worksheetand a separate guideline worksheet forweapon offenses was created. Inaddition, three new guideline offenseswere added to the miscellaneousworksheet in FY2007: extortion byletter, communication, or electronicmessage; arson of an unoccupieddwelling; and escape from acorrectional facility. Compliance forthese offenses ranged from 61% forarson of an unoccupied dwelling to100% for escape from a correctionalfacility.

Since 1995, departure patterns havediffered across offense groups, andFY2007 was no exception. Duringthe time period, the robbery and rapeoffense groups showed the highestmitigation rates with approximatelyone-quarter of cases (26% and 23%,respectively) resulting in mitigationsentences. This mitigation pattern hasbeen consistent with both rape and

robbery offenses since the abolitionof parole in 1995. The most frequentlycited mitigation reasons provided byjudges in robbery cases include thedefendant’s cooperation with lawenforcement, the involvement of a pleaagreement, or that the sentence wasrecommended by the Common-wealth’s attorney or probation officer.The most frequently cited mitigationreasons provided by judges in rapecases include the acceptance of a pleaagreement, the victim’s request thatthe offender receive a more lenientsentence, the defendant’s minimalprior record, and the defendant’spotential for rehabilitation.

In FY2007, offenses with the highestaggravation rates were kidnapping(18%) and murder/homicide (18%).With respect to kidnapping, the highaggravation rate is primarily a functionof the small number of kidnappingcases rather than a true departurepattern; however, judges cited theacceptance of a plea agreement in 9of the 22 aggravation departures. Inmurder/homicide cases, the influenceof jury trials, and extreme casecircumstances have historicallycontributed to higher aggravationrates.


Compliance underMidpoint Enhancements

Section 17.1-805, formerly §17-237,of the Code of Virginia describes theframework for what are known as“midpoint enhancements,” significantincreases in guidelines scores forcases involving violent offenders thatelevate the overall sentence recom-mendation in those cases. Midpointenhancements are an integral part ofthe design of the truth-in-sentencingguidelines. By design, midpointenhancements produce sentencerecommendations for violentoffenders that are significantly greaterthan the time that was served byoffenders convicted of such crimesprior to the enactment of truth-in-sentencing laws. Offenders who areconvicted of a violent crime or whohave been previously convicted of aviolent crime are recommended forincarceration terms up to six timeslonger than the terms served byoffenders fitting similar profiles underthe parole system. Midpointenhancements are triggered forhomicide, rape, or robbery offenses,most assaults and sexual assaults, andcertain burglaries, when any one ofthese offenses is the current mostserious offense, also called the “instantoffense.” Offenders with a prior

record containing at least oneconviction for a violent crime aresubject to degrees of midpointenhancements based on the natureand seriousness of the offender’scriminal history. The most seriousprior record receives the mostextreme enhancement. A prior recordlabeled “Category II” contains at leastone violent prior felony convictioncarrying a statutory maximum penaltyof less than 40 years, whereas a“Category I” prior record includes atleast one violent felony convictionwith a statutory maximum penalty of40 years or more.

Because midpoint enhancements aredesigned to target only violentoffenders for longer sentences,enhancements do not affect thesentence recommendation for themajority of guidelines cases. Amongthe FY2007 cases, 79% of the casesdid not involve midpoint en-hancements of any kind (Figure 10).Only 21% of the cases qualified for amidpoint enhancement because of acurrent or prior conviction for a felonydefined as violent under § 17.1-805.The proportion of cases receivingmidpoint enhancements has notfluctuated greatly since the institutionof truth-in-sentencing guidelines in1995.

Figure 10

Application of MidpointEnhancements, FY2007

Cases With NoMidpoint Enhancement 79%

MidpointEnhancement Cases 21%


Of the FY2007 cases in whichmidpoint enhancements applied, themost common midpoint enhancementwas for a Category II prior record.Approximately 45% of the midpointenhancements were of this type,applicable to offenders with anonviolent instant offense but a violentprior record defined as Category II(Figure 11). In FY2007, another 16%of midpoint enhancements wereattributable to offenders with a moreserious Category I prior record. Casesof offenders with a violent instantoffense but no prior record of violencerepresented 26% of the midpointenhancements in FY2007. The mostsubstantial midpoint enhancementstarget offenders with a combinationof instant and prior violent offenses.About 10% qualified forenhancements for both a currentviolent offense and a Category II priorrecord. Only a small percentage ofcases (4%) were targeted for the mostextreme midpoint enhancementstriggered by a combination of a currentviolent offense and a Category I priorrecord.

Figure 11

Type of Midpoint Enhancements Received,FY 2007

Category I Record

Category II Record

Instant Offense & Category II

Instant Offense & Category I

Instant Offense

15.6%

45.3%

25.6%

9.5%

4.1%

Figure 12

Length of Mitigation Departuresin Midpoint Enhancement Cases, FY2007

Mean

Median

26 months

15 months

Since the inception of the truth-in-sentencing guidelines, judges havedeparted from the sentencingguidelines more often in midpointenhancement cases than in caseswithout enhancements. In FY2007,compliance was 68% whenenhancements applied, significantlylower than compliance in all othercases (83%). Thus, compliance inmidpoint enhancement cases issuppressing the overall compliancerate. When departing from enhancedguidelines recommendations, judgesare choosing to mitigate in nearly threeout of every four departures.

Among FY2007 midpointenhancement cases resulting inincarceration, judges departed fromthe low end of the guidelines rangeby an average just over two years(Figure 12). The median mitigationdeparture (the middle value, wherehalf of the values are lower and halfare higher) was 15 months.


Figure 13

Compliance by Type of Midpoint Enhancement*, FY2007

Number Compliance Mitigation Aggravation of Cases

None 82.9% 6.0% 11.1% 20,433

Category I Record 62.3 33.0 4.7 825

Category II Record 73.8 19.7 6.5 2,398

Instant Offense 65.1 22.9 12.0 1,358

Instant Offense & Category I 61.6 32.4 6.0 216

Instant Offense & Category II 64.1 25.9 10.0 502

Total 25,732

* Midpoint enhancements prescribe prison sentence recommendations for violent offenders which aresignificantly greater than historical time served under the parole system during the period 1988 to 1992.

Compliance, while generally lower inmidpoint enhancement cases than inother cases, varies across thedifferent types and combinations ofmidpoint enhancements (Figure 13).In FY2007, as in previous years,enhancements for a Category II priorrecord generated the highest rate ofcompliance of all midpointenhancements (74%). Compliance incases receiving enhancements for aCategory I prior record wassignificantly lower (62%).Compliance for enhancement casesinvolving a current violent offense was65%. Those cases involving acombination of a current violentoffense and a Category II prior recordyielded a compliance rate of 64%,while those with the most significantmidpoint enhancements, for both aviolent instant offense and a CategoryI prior record, yielded a lowercompliance rate of 62%.

Analysis of departure reasons in casesinvolving midpoint enhancementsfocuses on downward departuresfrom the guidelines. Judges sentencebelow the guidelines recommendationin one out of every four midpointenhancement cases. The mostfrequently cited reasons for departureinclude the acceptance of a pleaagreement, the defendant’scooperation with law enforcement,minimal offense circumstances, andan incarceration term already imposedin another case.

Overall, judges sentence belowthe guidelines recommendationin one out of every fourmidpoint enhancement cases.


Juries and the SentencingGuidelines

There are three general methods bywhich Virginia’s criminal cases areadjudicated: guilty pleas, bench trials,and jury trials. Felony cases in theCommonwealth’s circuit courtsoverwhelmingly are resolved throughguilty pleas from defendants or pleaagreements between defendants andthe Commonwealth. During the lastfiscal year, 88% of guidelines caseswere sentenced following guilty pleas(Figure 14). Adjudication by a judgein a bench trial accounted for 10% ofall felony guidelines cases sentenced.During FY2007, less than 2% offelony guidelines cases involved jurytrials. Under truth-in-sentencing, theoverall rate of jury trials has beenapproximately half of the jury trial ratethat existed under the last year of theparole system.

Jury Trial 1.5%

Figure 14

Percentage of CasesReceived by Methodof Adjudication, FY 2007

Guilty Plea 88.3%

Bench Trial 10.2%

Since the implementation of the truth-in-sentencing system, Virginia’s juriestypically have handed down sentencesmore severe than the recommendationsof the sentencing guidelines. InFY2007, as in previous years, a jurysentence was far more likely to exceedthe guidelines recommendation than asentence given by a judge following aguilty plea or bench trial. By law, juriesare not allowed to receive anyinformation regarding the sentencingguidelines.

Since FY1986, there has been agenerally declining trend in thepercentage of jury trials among felonyconvictions in circuit courts (Figure 15).Under the parole system in the late1980s, the percent of jury trials was ashigh as 6.5% before starting to declinein FY1989. In 1994, the GeneralAssembly enacted provisions for asystem of bifurcated jury trials. Inbifurcated trials, the jury establishes theguilt or innocence of the defendant in

Figure 15

Percent of Felony Convictions Adjudicated by Juries FY1986-FY2007Parole System v. Truth-in-Sentencing (No Parole) System

1986 19951990 2000 2005 20070%

6%

2%

3%

4%

5%

7%

Since FY1986, there has been agenerally declining trend in thepercentage of jury trials amongfelony convictions in circuitcourts.

When the bifurcated trialsbecame effective on July 1, 1994(FY1995), jurors in Virginia, forthe first time, were presentedwith information on theoffender’s prior criminal recordto assist them in making asentencing decision.

Truth-in-Sentencing SystemParole System


the first phase of the trial, and then, in asecond phase, the jury makes its sentencingdecision. When the bifurcated trials becameeffective on July 1, 1994 (FY1995), jurorsin Virginia, for the first time, were presentedwith information on the offender’s priorcriminal record to assist them in making asentencing decision. During the first yearof the bifurcated trial process, juryconvictions dropped slightly to fewer than4% of all felony convictions, the lowest ratesince the data series began.

Among the early cases subjected to the newtruth-in-sentencing provisions, implementedduring the last six months of FY1995, juryadjudications sank to just over 1%. Duringthe first complete fiscal year of truth-in-sentencing (FY1996), just over 2% of thecases were resolved by jury trials, half therate of the last year before the abolition ofparole. Seemingly, the introduction of truth-in-sentencing, as well as the introduction ofa bifurcated jury trial system, appears tohave contributed to the reduction in jury trials.The percentage of jury convictions rose inFY1997 to nearly 3%, but has since declinedto under 2%.

Inspecting jury data by offense type revealsvery divergent patterns for person, propertyand drug crimes. Under the parole system,jury cases comprised 11%-16% of felonyconvictions for person crimes. This rate wastypically three to four times the rate of jurytrials for property and drug crimes (Figure16). However, with the implementation oftruth-in-sentencing, the percent ofconvictions decided by juries droppeddramatically for all crime types. Under truth-in-sentencing, jury convictions for person

‘86 ‘87 ‘88 ‘89 ‘90 ‘91 ‘92 ‘93 ‘94 ‘95

Parole System

‘95 ‘96 ‘97 ‘98 ‘99 ‘00 ‘01 ‘02

Truth-in-Sentencing

Person Crimes

8.510.3

9.110.8

7.8 7.1 7.87

15.115.514.7 14 13.4

14.8

11.212.7 12.2

13.2

6.7

‘03

Parole System Truth-in-Sentencing

Property Crimes

1.3 1.6 1.2 1.1 0.7 0.4 0.70.9

4.8 4.94.83.8 4.14.4

44.13.43.2

0.8

Parole System Truth-in-Sentencing

Drug Crimes

1.2 1.2 0.8 0.6 0.7 0.4 0.60.5

4.65.5

4.1 4.63.7

5.1

2.93.5

2.52.8

0.7

Figure 16

Percent of Felony Convictions Adjudicated by JuriesFY1986-FY2007Parole System v. Truth-in-Sentencing (No Parole) System

‘04 ‘05

7.7

0.8

0.4

0.6

0.6

7.6

‘06

6.9

0.7

0.4

‘95 ‘96 ‘97 ‘98 ‘99 ‘00 ‘01 ‘02 ‘03 ‘04 ‘05 ‘06‘86 ‘87 ‘88 ‘89 ‘90 ‘91 ‘92 ‘93 ‘94 ‘95

‘86 ‘87 ‘88 ‘89 ‘90 ‘91 ‘92 ‘93 ‘94 ‘95 ‘95 ‘96 ‘97 ‘98 ‘99 ‘00 ‘01 ‘02 ‘03 ‘04 ‘05 ‘06

‘07

5.5

0.7‘07

0.6

‘07


crimes varied from 7% to 11% offelony convictions for those crimes.In FY2007, this rate dropped to itslowest since truth-in-sentencing wasenacted, less than 6%. The percentof felony convictions resulting fromjury trials for property and drug crimesdeclined to less than 1% under truth-in-sentencing.

In FY2007, the Commission received356 cases adjudicated by juries. Whilethe compliance rate for casesadjudicated by a judge or resolved bya guilty plea was at 80% during thefiscal year, sentences handed downby juries concurred with the guidelinesonly 43% of the time (Figure 17). Infact, jury sentences fell above theguidelines recommendation in nearlyhalf (48%) of all jury cases. Thispattern of jury sentencing vis-à-vis theguidelines has been consistent sincethe truth-in-sentencing guidelinesbecame effective in 1995.

Figure 17

Sentencing GuidelinesCompliance in Jury andNon-Jury Cases, FY2007

Aggravation 48%

Non-JuryCases

Compliance80%

Mitigation 10%

Aggravation 10%

Mitigation 9%

JuryCases

Compliance43%

In those jury cases in which the finalsentence fell short of the guidelines, itdid so by a median value of 16 months(Figure 18). In cases where theultimate sentence resulted in asanction more severe than theguidelines recommendation, thesentence exceeded the guidelinesmaximum recommendation by amedian value of nearly four and a halfyears.

A small portion of the jury casesreceived by the Commission (3%)involved juvenile offenders tried asadults in circuit court. According to§16.1-272 of the Code of Virginia,juveniles may be adjudicated by a juryin circuit court; however, anysentence must be handed down by thecourt without the intervention of a jury.Therefore, juries are not permitted torecommend sentences for juvenileoffenders. Rather, circuit court judgesare responsible for formulatingsanctions for juveniles. There aremany options for sentencing thesejuveniles, including commitment to theDepartment of Juvenile Justice.Because judges, and not juries, mustsentence in these cases, they areexcluded from the previous analysis.

In cases of adults adjudicated by ajury, judges are permitted by law tolower a jury sentence. Typically,however, judges have chosen not toamend sanctions imposed by juries. InFY2007, judges modified 22% of jurysentences.

Figure 18

Median Length of DurationalDepartures in Jury Cases,FY2007

Mitigation Cases

Aggravation Cases

16 months

53 months


Compliance and NonviolentOffender Risk Assessment

In 1994, as part of the reformlegislation that instituted truth-in-sentencing, the General Assemblydirected the Commission to study thefeasibility of using an empirically-based risk assessment instrument toselect 25% of the lowest risk,incarceration-bound, drug andproperty offenders for placement inalternative (non-prison) sanctions. By1996, the Commission developed suchan instrument and implementation ofthe instrument began in pilot sites in1997. The National Center for StateCourts (NCSC) conducted anevaluation of nonviolent riskassessment in the pilot sites for theperiod from 1998 to 2001. In 2001, theCommission conducted a validationstudy of the original risk assessmentinstrument to test and refine theinstrument for possible use statewide.In July 2002, the nonviolent riskassessment instrument wasimplemented statewide for all felonylarceny, fraud, and drug cases. Thissection will review the most recentfiscal year of statewide data, FY2007.

Between July 1, 2006 and June 30,2007, more than two-thirds of allguidelines received by theCommission were for nonviolentoffenses. However, only 39% ofthese nonviolent offenders wereeligible for risk assessment evaluation.The goal of the nonviolent riskassessment instrument is to divertlow-risk offenders, who arerecommended for incarceration on theguidelines, to an alternative sanctionother than prison or jail. Therefore,nonviolent offenders who arerecommended for probation/noincarceration on the guidelines are noteligible for the assessment.Furthermore, the instrument is not tobe applied to offenders convicted ofdistributing one ounce or more ofcocaine and those who have a currentor prior violent felony conviction. Inaddition to those not eligible for riskassessment, there were 3,205nonviolent offense cases for which arisk assessment instrument was notcompleted and submitted to theCommission.


Among the FY2007 eligible offendersfor whom a risk assessment form wasreceived (6,981 cases), 53% wererecommended for an alternativesanction by the risk assessmentinstrument (Figure 19). A largeportion of offenders recommendedfor an alternative sanction through riskassessment were given some form ofalternative punishment by the judge.In FY2007, nearly 42% of offendersrecommended for an alternative weresentenced to an alternativepunishment option.

Among offenders recommended forand receiving an alternative sanctionthrough risk assessment, judgesutilized supervised probation moreoften than any other option (Figure20). In addition, in nearly half of thecases in which an alternative wasrecommended, judges sentenced theoffender to a shorter term ofincarceration in jail (less than twelvemonths) rather than the longer prisonsentence recommended by thetraditional guidelines range. Otherfrequent sanctions included restitution(24%), indefinite probation (22%),fines (14%), and a sentence of timeserved while awaiting trial (14%).

Figure 19

Percentage of EligibleNonviolent Risk AssessmentCases Recommended forAlternatives, FY2007(6,981 cases)

Recommended forAlternatives 53%

Not Recommended forAlternatives 47%

Figure 20

Types of Alternative Sanctions Imposed, FY2007

2.2%2.3%

4.6%6.1%

8.8%7.0%

13.5%11.5%

23.6%21.5%

47.8%80.7%

2.4%

1.8%

1.3%0.7%

2.8%

13.7%

1.4%Day Reporting

Electronic Montioring

Substance Abuse ServicesSuspended Driver’s License

Unsupervised ProbationDetention Center

Time ServedDiversion Center

RestitutionIndefinite Probation

Jail (vs. Prison Recommendation)Supervised Probation

Commuity Service

CCCA*

Intensive SupervisionDrug Court

First Offender

Fines

Work Release

* Any program established through the Comprehensive Community Corrections Act


The Department of Corrections’Diversion Center program was citedin 12% of the cases, while theDetention Center program was citedas an alternative sanction 7% of thetime. Less frequently citedalternatives include unsupervisedprobation, suspension of theoffender’s driver’s license, substanceabuse services, programs under theComprehensive CommunityCorrections Act (CCCA), firstoffender status under §18.2-251, andcommunity service, etc.

When a nonviolent offender isrecommended for an alternativesanction via the risk assessmentinstrument, a judge is considered tobe in compliance with the guidelinesif he chooses to sentence thedefendant to a term within thetraditional incarceration periodrecommended by the guidelines or ifhe chooses to sentence the offenderto an alternative form of punishment.For drug offenders eligible for riskassessment evaluation, the overallcompliance rate is 84%, but a portionof this compliance reflects the use ofan alternative punishment option as

recommended by the risk assessmenttool (Figure 21). In 24% of these drugcases, judges have complied with therecommendation for an alternativesanction. Similarly, in fraud cases withoffenders eligible for risk assessmentevaluation, the overall compliance rateis 88%. In 37% of these fraud cases,judges have complied by utilizingalternative punishment when it wasrecommended. Finally, among larcenyoffenders eligible for risk assessment,the compliance rate is 83%. Judgesutilized an alternative, asrecommended by the risk assessmenttool, in 9% of larceny cases. Thelower usage of alternatives for larcenyoffenders is due primarily to the factthat larceny offenders arerecommended for alternatives at alower rate than drug and fraudoffenders. The National Center forState Courts, in its evaluation ofVirginia’s risk assessment tool, and theCommission, during the course of itsvalidation study, found that larcenyoffenders are the most likely torecidivate among nonviolentoffenders.

Figure 21

Compliance Rates for Nonviolent Offenders Eligible for Risk Assessment,FY2007

Compliance Traditional Adjusted Number

Mitigation Range Range Aggravation of Cases Overall Compliance

Drug 6% 60% 24% 10% 3,991

Fraud 7% 51% 37% 5% 1,184

Larceny 8% 74% 9% 9% 1,806

Overall 7% 62% 22% 9% 6,981

84%

88%

83%

84%


Compliance and Sex OffenderRisk Assessment

In 1999, the Virginia GeneralAssembly requested the VirginiaCriminal Sentencing Commission todevelop a sex offender riskassessment instrument, based on therisk of re-offense, which could beintegrated into the state’s sentencingguidelines system. Such a riskassessment instrument could be usedas a tool to identify those offenderswho, as a group, represent the greatestrisk for committing a new offense oncereleased back into the community. TheCommission conducted an extensivestudy of felony sex offendersconvicted in Virginia’s circuit courtsand developed an empiricalassessment tool based on the risk thatan offender would be re-arrested fora new sex offense or other crimeagainst the person.

Effectively, risk assessment meansdeveloping profiles or compositesbased on overall group outcomes.Groups are defined by having anumber of factors in common that arestatistically relevant to predictingrepeat offending. Those groupsexhibiting a high degree of re-offending are labeled high risk.Although no risk assessment modelcan ever predict a given outcome withperfect accuracy, the risk instrument,overall, produces higher scores for thegroups of offenders who exhibitedhigher recidivism rates during thecourse of the Commission’s study. Inthis way, the instrument developed bythe Commission is indicative ofoffender risk.

The risk assessment instrument wasincorporated into the sentencingguidelines for sex offenders beginningJuly 1, 2001. For each sex offenderidentified as a comparatively high risk(those scoring 28 points or more onthe risk tool), the sentencing guidelineshave been revised such that a prisonterm will always be recommended. Inaddition, the guidelines range (whichcomes in the form of a low end, amidpoint and a high end) is adjusted.For offenders scoring 28 points ormore, the high end of the guidelinesrange is increased based on theoffender’s risk score, as summarizedbelow.

• For offenders scoring 44 ormore, the upper end of theguidelines range is increasedby 300%.

• For offenders scoring 34through 43 points, the upperend of the guidelines rangeis increased by 100%.

• For offenders scoring 28through 33 points, the upperend of the guidelines rangeis increased by 50%.

The low end and the midpoint remainunchanged. Increasing the upper endof the recommended range providesjudges the flexibility to sentence higherrisk sex offenders to terms above thetraditional guidelines range and still bein compliance with the guidelines.This approach allows the judge toincorporate sex offender riskassessment into the sentencingdecision while providing the judge withflexibility to evaluate thecircumstances of each case.


Figure 21

Sex Offender RiskAssessment Levels forSexual Assault Offenders,FY2007*

No Level

2.4%

Level 2 11%

25.6%

60%

Level 3

Level 1

During FY2007, there were 470offenders convicted of an offensecovered by the sexual assaultguidelines (this group does not includeoffenders convicted of rape, forciblesodomy or object penetration). Morethan half (60%) were not assigned alevel of risk by the sex offender riskassessment instrument (Figure 21).Approximately 26% of sexual assaultguidelines cases resulted in a Level 3risk classification, with an additional11% assigned to Level 2. Just over2% of offenders reached the highestrisk category of Level 1.

Under sex offender risk assessment,the upper end of the guidelines rangeis extended by 300%, 100% or 50%for offenders assigned to Level 1, 2or 3, respectively. Judges have begunto utilize these extended ranges whensentencing sex offenders. For sexualassault offenders reaching Level 1

Figure 22

Other Sexual Assault Compliance Rates By Risk Assessment Level, FY2007*

Compliance

Traditional Adjusted Number Mitigation Range Range Aggravation of Cases Percent of Compliance Combined

Level 1 18% 55% 27% 0% 11

Level 2 24% 60% 14% 2% 50

Level 3 19% 56% 16% 9% 117

No Level 14% 64% --- 22% 278

Overall 16% 61% 6% 16% 456

82%

74%

73%

64%

*Excludes cases missing the sex offender riskassessment portion of the Other Sexual Assaultworksheet.

68%

the extended guidelines range (Figure22). Judges used the extendedguidelines range in 14% of the Level2 and 16% of Level 3 risk cases.Judges rarely sentenced Level 1, 2 or3 offenders to terms above theextended guidelines range provided inthese cases. However, offenderswho scored less than 28 points on therisk assessment instrument (who arenot assigned a risk category andreceive no guidelines adjustment)were less likely to be sentenced incompliance with the guidelines (64%)and the most likely to receive asentence that was an upwarddeparture from the guidelines (22%).

risk, 27% were given sentences within

*Excludes cases missing the sex offender risk assessment portion of the Other Sexual Assault worksheet.


In FY2007, there were 187 offendersconvicted of offenses covered by therape guidelines (which include thecrimes of rape, forcible sodomy, andobject penetration). Among offendersconvicted of these crimes, over one-half (55%) were not assigned a risklevel by the Commission’s riskassessment instrument. Ap-proximately 25% of rape casesresulted in a Level 3 adjustment—a50% increase in the upper end of thetraditional guidelines rangerecommendation (Figure 23). Anadditional 17% received a Level 2adjustment (100% increase). Themost extreme adjustment (300%)affected 3% of rape guidelines cases.

Four of the five rape offendersreaching the Level 1 risk group weresentenced within the guidelines range,with one judge using the extendedupper end of the guidelines range(Figure 24). However, 28% ofoffenders with a Level 2 riskclassification, and 15% of offenderswith a Level 3 risk classification,were given prison sentences withinthe adjusted range of the guidelines.With extended guidelines rangesavailable for higher risk sex offenders,judges rarely sentenced Level 1, 2 or3 offenders above the expandedguidelines range.

Figure 24

Rape Compliance Rates By Risk Assessment Level, FY2007*

Compliance

Traditional Adjusted Number Mitigation Range Range Aggravation of Cases Overall Compliance

Level 1 20% 60% 20% 0% 5

Level 2 16% 47% 28% 9% 32

Level 3 26% 59% 15% 0% 46

No Level 24% 63% --- 13% 103

Overall 23% 59% 9% 9% 186

80%

75%

74%

63%

68%

*Excludes cases missing the sex offender risk assessment portion of the Rape worksheet.

Figure 23

Sex Offender RiskAssessment Levels for RapeOffenders, FY2007*

No Level

2.7%

Level 2 17.2%

24.7%

55.4%

Level 3

Level 1

*Excludes cases missing the sex offender riskassessment portion of the Rape worksheet.


Sentencing RevocationReports (SRRs)

The most complete resource regardingrevocations of community supervisionin Virginia is the SentencingCommission’s Community Cor-rections Revocations Data System,also known as the SentencingRevocation Report (SRR) database.First implemented in 1997 withassistance from the Department ofCorrections (DOC), the SRR is asimple form designed to capture thereasons for, and the outcomes of,community supervision violationhearings. The probation officer (orCommonwealth’s attorney) completesthe first part of the form, whichincludes the offender’s identifyinginformation and checkboxes indicatingthe reasons why a show cause orrevocation hearing has beenrequested. The checkboxes are basedon the list of eleven conditions forcommunity supervision established forevery offender, but special supervisionconditions imposed by the court canalso be recorded. Following theviolation hearing, the judge completesthe remainder of the form with therevocation decision and any sanctionordered in the case. The completedform is submitted to the Commission,where the information is automated.A revised SRR form was developedand implemented in 2004 to serve asa companion to the new probationviolation sentencing guidelinesintroduced that year.

In FY2007, there were 11,497 felonyviolations of probation, suspendedsentence, and good behavior for whicha SRR report was submitted to theCommission. The circuits submittingthe largest number of SRRs in FY2007were Circuit 4 (Norfolk), Circuit 1(Chesapeake), and Circuit 19 (Fairfax).Circuit 6 (Sussex County area), Circuit11 (Petersburg area) and Circuit 30(Lee County area) submitted thefewest SRRs in FY2007 (Figure 25).

Figure 25

Number and Percent of Sentencing Revocation ReportsReceived by Circuit—FY2007

Circuit Circuit Name Number Percent

4 Norfolk 1,024 8.9% 1 Chesapeake 631 5.519 Fairfax 539 4.7 3 Portsmouth 526 4.627 Radford Area 520 4.522 Danville Area 503 4.413 Richmond City 481 4.226 Harrisonburg Area 478 4.215 Fredericksburg Area 473 4.114 Henrico 437 3.8 5 Suffolk Area 406 3.523 Roanoke Area 389 3.4 7 Newport News 388 3.431 Prince William Area 376 3.3 9 Williamsburg Area 374 3.321 Martinsville Area 342 3.029 Buchanan Area 323 2.824 Lynchburg Area 317 2.825 Staunton Area 315 2.7 8 Hampton 313 2.718 Alexandria 304 2.612 Chesterfield Area 302 2.610 South Boston Area 283 2.516 Charlottesville Area 283 2.528 Bristol Area 253 2.220 Loudoun Area 238 2.1 2 Virginia Beach 222 1.917 Arlington Area 182 1.6 6 Sussex Area 142 1.211 Petersburg Area 105 0.930 Lee Area 28 0.2


Probation ViolationGuidelines

In 2003, the General Assemblydirected the Commission to develop,with due regard for public safety,discretionary sentencing guidelines forfelony offenders who are determinedby the court to be in violation of theirprobation supervision for reasons otherthan a new criminal conviction(Chapter 1042 of the Acts of Assembly2003). Often these offenders arereferred to as “technical violators.”In determining the guidelines, theCommission was to examine historicaljudicial sanctioning patterns inrevocation hearings.

Early use of the probation violationguidelines, effective July 1, 2004,indicated that the guidelines neededfurther refinement to better reflectcurrent judicial sentencing patterns inthe punishment of supervisionviolators. Therefore, the SentencingCommission’s 2004 Annual Reportrecommended several adjustments tothe probation violation guidelines.Changes included assigning additionalpoints on the Section A worksheet foroffenders found in violation of certain

conditions of probation. Also,defendants who admitted to usingdrugs, other than marijuana or alcohol,during their current supervision period,would be assigned the same numberof points on the Section C worksheetas those who had a positive drug test.Lastly, the Section C recommendationtable was adjusted based on sentencesjudges imposed during the monthsfollowing the implementation of theprobation violation guidelines. Theseproposed changes were accepted bythe General Assembly and becameeffective for technical probationviolators sentenced July 1, 2005, andafter. The same probation violationguidelines remained in effect for bothFY2006 and FY2007. FY2007 casesare examined below.

For FY2007, the Commission received5,774 probation violation guidelineforms. The worksheets include casesin which the court found the defendantin violation of the conditions ofprobation (except Condition 1, a newlaw violation), cases that the courtdecided to take under advisement untila later date, and cases in which thecourt did not find the defendant inviolation. Approximately 42% ofthese offenders were on probation fora felony property offense and another39% were being supervised as a resultof a felony drug offense (Figure 26).A smaller portion (12%) of theoffenders were on probation for acrime against the person.

Figure 26

Probation Violation Worksheets Receivedby Type of Most Serious Original Offense—FY2007*

Original Offense Type Percent Received

Property 41.9%Drug 38.5Person 11.9Traffic 5.8Other 1.8Total 100.0

*Includes FY2007 worksheets received regardless of disposition.


When examining the alleged violations,over half (55%) were cited for using,possessing, or distributing a controlledsubstance (Condition 8 of the DOCConditions of Probation) (Figure27). Violations of Condition 8 mayinclude a positive test (urinalysis, etc.)for a controlled substance or a signedadmission. In nearly half of the cases(49%), offenders were cited for failingto follow their probation officer’sinstructions. Other frequently citedviolations included failing to report tothe probation office in person or bytelephone when instructed (41%) andabsconding from supervision (37%).In more than one-quarter of theviolation cases (27%), offenders werecited for failing to follow specialconditions imposed by the court, suchas failing to pay court costs andrestitution, failing to comply withcourt-ordered substance abusetreatment, or failing to successfullycomplete alternatives such asDetention Center, Diversion Center,or Day Reporting. It is important tonote that defendants may be, andtypically are, cited for more than oneviolation of their probation conditions.

Figure 27

Violation Conditions Cited by Probation Officers,Excluding New Law Violations, FY2007*

*Includes worksheets received in FY2007 regardless ofdisposition (not in violation, etc).

Use, Possess, etc., Drugs

Fail to Follow InstructionsFail to Report to PO

Abscond from SupervisionSpecial Court Conditions

Change Residence w/o PermissionFail to Maintain Employment

Fail to Report ArrestUse, Possess, etc., Alcohol

Fail to Allow PO to Visit HomePossess Firearm

55% 49.4% 41.1% 37.1% 26.5% 19.7% 10.7% 3.9% 3.9%0.8%0.4%

VIRGINIA DEPARTMENT OF CORRECTIONS

Conditions of Probation/Post Release Supervision

Effective: 11/01/2001 PPS 2 PPS 2 (CCOP-Chapte (CCOP-Chapter 3 )

1 of 1 Rev.02/1/2005

To: VACCIS # Last First Middle VSP # Under the provisions of the Code of Virginia, the Court has placed you on probation/post release supervision this date , for a period of by the Honorable , Judge, presiding in the Court at . Special conditions ordered by the Court are:

Offense & Sentence:

You are being placed on probation/post release supervision subject to the conditions listed below. The Court or Parole Board may revoke or extend your probation/post release supervision and you are subject to arrest upon cause shown by the Court, the Parole Board and/or by the Probation and Parole Officer. Probation/Post Release Supervision conditions are as follows:

1. I will obey all Federal, State and local laws and ordinances. 2. I will report any arrest, including traffic tickets, within 3 days to my Probation and Parole Officer. 3. I will maintain regular employment and notify my Probation and Parole Officer within 3 days of any

changes in my employment. 4. I will report in person, by telephone, and as otherwise instructed by my Probation and Parole Officer. 5. I will permit my Probation and Parole Officer to visit my home and place of employment. 6. I will follow my Probation and Parole Officer’s instructions and be truthful, cooperative. 7. I will not use alcoholic beverages to the extent that it disrupts or interferes with my employment or

orderly conduct. 8. I will not unlawfully use, possess, or distribute controlled substances, or related paraphernalia. 9. I will not use, own, possess, transport or carry a firearm.

10. I will not change my residence without permission of my Probation and Parole Officer. I will not leave the State of Virginia or travel outside of a designated area without permission of my Probation and Parole Officer.

11. I will not abscond from supervision. I understand I will be considered an absconder when my whereabouts are no longer known to my supervising Probation and Parole Officer. I freely, voluntarily and intelligently waive any right I may have to extradition if arrested outside of Virginia.

Your minimum date of release from supervision is but you will remain under supervision until you receive a final release. You will report as follows: I have read the above, and/or had the above read and explained to me, and by my signature or mark below, acknowledge receipt of these Conditions and agree to the Conditions set forth. Signed: Probation and Parole Officer Date: Date:


Of the 5,774 probation violation casesreceived by the Commission forFY2007, there were 5,433 cases inwhich the defendant was found inviolation of a condition of probationother than a new law violation and theguidelines form was preparedcompletely and accurately. For theremaining 341 cases, the judge tookthe matter under advisement until alater date, the offender was not foundin violation of probation conditions, anoutdated form was prepared, or theworksheets were incomplete ormissing; these 341 cases are excludedfrom the following analysis.

Figure 28

Probation Violation Guidelines Overall Complianceand Direction of Departures, FY2007(5,433 Cases)*

Aggravation 23.3%

Compliance 46.5%

Aggravation43.6%

*Includes FY2007 cases found to be in violation that were completed accurately on current guideline forms

Mitigation 30.2%

Mitigation 56.4%

Overall Compliance Direction of Departures

The overall compliance ratesummarizes the extent to whichVirginia’s judges concur withrecommendations provided by theprobation violation guidelines, both intype of disposition and in length ofincarceration. For FY2007, theoverall compliance rate was nearly47%, slightly higher than the 45%compliance rate for FY2006 andsignificantly higher than thecompliance rate of 35% duringFY2005 (Figure 28). The aggravationrate, or the rate at which judgessentence offenders to sanctions moresevere than the guidelines recom-mendation, was 23% during FY2007.The mitigation rate, the rate at whichjudges sentence offenders to sanctionsconsidered less severe than theguidelines recommendation, was 30%.


Figure 29 illustrates judicialconcurrence with the type ofdisposition recommended by theprobation violation guidelines for themost recent fiscal year. There arethree general categories of sanctionsrecommended by the probationviolation guidelines—probation/noincarceration, a jail sentence up totwelve months, or a prison sentenceof one year or more. Data forFY2007 reveal that judges agree withthe type of sanction recommended bythe probation violation guidelines in55% of the cases. When departingfrom the dispositional recom-mendation, judges were more likely tosentence below the guidelinesrecommendation than above it.Consistent with the traditionalsentencing guidelines, sentences tothe Detention Center and DiversionCenter programs are defined asincarceration sanctions under theprobation violation guidelines. TheDetention and Diversion Centerprograms are counted as six monthsof confinement. In the previousdiscussion of dispositional compliance,imposition of one of these programsis categorized as incarceration of sixmonths.

Figure 29

Probation Violation GuidelinesDispositional Compliance,FY2007

Another facet of compliance isdurational compliance. Durationalcompliance is defined as the rate atwhich judges sentence offenders toterms of incarceration that fall withinthe recommended guidelines range.Durational compliance analysisconsiders only those cases for whichthe guidelines recommended an activeterm of incarceration and the offenderreceived an incarceration sanctionconsisting of at least one day in jail.Data reveal that durationalcompliance for FY2007 wasapproximately 50% (Figure 30). ForFY2007 cases not in durationalcompliance, mitigations were moreprevalent than aggravations.

When judges sentenced offenders toincarceration, but to an amount lessthan the recommended time, offenderswere given “effective” sentences(sentences less any suspended time)short of the guidelines range by amedian value of nine months. Foroffenders receiving longer thanrecommended incarcerationsentences, the effective sentenceexceeded the guidelines range by amedian value of nine months as well.Thus, durational departures from theguidelines are typically less than oneyear above or below the recom-mended range.

Aggravation 18.1%

Compliance 55%

Mitigation 26.9%

Figure 30

Probation Violation GuidelinesDurational Compliance,FY2007*

Aggravation 18.5%

Compliance 49.5%

Mitigation 32%

*Compliance in cases that are recommended for,and receive, an active jail or prison sentence.


Similar to the traditional felonysentencing guidelines, sentencing inaccordance with the recom-mendations of the probation violationguidelines is voluntary. With respectto the traditional sentencingguidelines, Virginia’s judges arerequired by § 19.2-298.01 of the Codeof Virginia to submit reasons fordeparture when they sentence outsideof the guidelines range. Currently,there is no statutory provisionmandating the preparation andsubmission of the probation violationguidelines, nor are judges required toprovide written reasons for departurewhen giving a sentence above orbelow the guidelines. Because theopinions of the judiciary, as reflectedin their departure reasons, are ofcritical importance when revisions tothe guidelines are considered, theCommission has requested thatjudges enter departure reasons on theprobation violation guidelines form,even though they are not statutorilyrequired to do so. Many judges haveresponded to the Commission’srequest. Ultimately, the types ofadjustments to the probation violationguidelines, those that would allow theguidelines to more closely reflectjudicial sentencing practices acrossthe Commonwealth, are largelydependant upon the judges’ writtenreasons for departure.

According to FY2007 data, 47% ofprobation violation guidelines casesresulted in sentences that fell withinthe guidelines recommendation. Withjudges departing from these guidelinesat such a high rate, written departurereasons are an integral part ofunderstanding judicial sentencingdecisions. An analysis of the 1,639mitigation cases revealed that nearlyhalf (49%) did not include a departurereason. For the mitigation cases inwhich departure reasons wereprovided, judges were most likely tocite the defendant’s progress inrehabilitation, the recommendation ofthe Commonwealth’s Attorney, aguidelines recommendation that wastoo high, or the utilization of analternative punishment option, such asthe Detention or Diversion Centerprogram.


Examining the 1,266 aggravationcases, the Commission once againfound that half (51%) did not includea departure reason. When adeparture reason was provided inaggravation cases, judges were mostlikely to cite the defendant’s priorrecord including previous probationviolations, a poor potential forrehabilitation, substance abuseproblems, or that the guidelinesrecommendation was too low.

In its 2006 Annual Report, theCommission recommended furtherrefinement of the probation violationguidelines. These changes wereaccepted by the 2007 GeneralAssembly and became effective onJuly 1, 2007. Early FY2008 datasuggest that the changes will improvecompliance rates. As with the felonysentencing guidelines firstimplemented in 1991, the developmentof useful sentencing tools for judgesto deal with probation violators will bean iterative process, withimprovements made over severalyears. Feedback from judges is ofcritical importance to this process.Changes proposed by the Commissionare made with the goal of enhancingthe usefulness of these guidelines forVirginia’s circuit court judges as theymake difficult sanctioning decisions.

3 MethamphetamineCrime in Virginia

Unlike other drugs

that are plant

derived, such as

cocaine, meth-

amphetamine is a

man-made drug that

can be produced

from a few over-

the-counter and

low-cost ingredients.

Introduction

Methamphetamine, a form ofamphetamine, is a highly addictivestimulant that affects the centralnervous system. In addition to feelingsof excitement and euphoria,methamphetamine can cause severeparanoia, confusion, anxiety,hallucinations, and violent behavior.Partly due to the toxic nature of someof the ingredients used to createmethamphetamine, prolonged use canlead to serious health problems,including long-term changes in brainchemistry, the destruction of braincells, oral infections, and an increasedrisk of stroke and kidney failure(DrugInfo Clearinghouse, 2007;National Institute on Drug Abuse,2006).

Unlike most other drugs,methamphetamine is typicallymanufactured in clandestinelaboratories using common householdingredients, including battery acid andpseudoephedrine. The methods usedto manufacture methamphetamine inclandestine laboratories can beextremely dangerous to thecommunity, since laboratories producetoxic chemicals and sometimesexplode. Methamphetamine can beingested orally, snorted, smoked orinjected intravenously. “Ice,” the onlyform of methamphetamine that can be

smoked, is crystalline in appearance andtypically resembles shards of glass orchunks of ice. Ice tends to have a higherpurity and, consequently, an even greaterpotential for addiction than the tablet andpowder forms of the drug (Scott & Dedel,2006; DrugInfo Clearinghouse, 2007).

Because of the potential for physical andpsychological abuse and its limited medicalapplications, methamphetamine is listedas a Schedule II narcotic under theControlled Substances Act, Title II, of theComprehensive Drug Abuse Preventionand Control Act of 1970. Althoughmethamphetamine use is more commonin the Western region of the United States,its popularity has increased in manycommunities in the Midwest and South.Areas in the Northeast and Mid-Atlantichave also experienced a slight rise in theuse of the drug (Hunt, Kuck, & Truitt,2006). Amid concern over meth-amphetamine-related crime in theCommonwealth, the 2001 GeneralAssembly directed the Virginia CriminalSentencing Commission to examine thestate’s felony sentencing guidelines forSchedule I and II drug offenses, with aparticular focus on methamphetamine(Chapters 352 and 375 of The Acts ofthe Assembly 2001). The Commissionwas directed to examine the quantity ofmethamphetamine seized in these casesand its impact on sentencing outcomes inVirginia’s circuit courts.


In its 2001 study, the Commission foundthat although the number of casesinvolving methamphetamine in Virginiahad increased since the early 1990s,these cases remained a smallpercentage of drug cases in state andfederal courts in the Commonwealth.The Commission’s analysis showed thatsentencing in the Commonwealth’scircuit courts was primarily driven byan offender’s prior criminal recordrather than the quantity ofmethamphetamine involved. This wasespecially true in cases where theoffender had previously been convictedof a violent offense. As part of itsinvestigation, the Commissionthoroughly examined the sentencingguidelines, including the factors thataccount for the offender’s criminalrecord and the built-in enhancementsthat increase the sentencerecommendation for offenders with priorconvictions for violent offenses.Analysis did not reveal statisticalevidence that judges systematically basesentences on the amount ofmethamphetamine involved in a case.Therefore, the Commission concludedthat Virginia’s historically-basedsentencing guidelines should not beadjusted to include methamphetaminequantity at that time (Virginia CriminalSentencing Commission, 2001).

In 2004, the Commission revisited themethamphetamine issue and repeatedthe study using the most recent dataavailable. The Commission observed acontinuing increase in the number ofmethamphetamine cases in theCommonwealth but the proportion ofthese cases, relative to other Schedule Ior II drugs, remained low. TheCommission found that the nature of anoffender’s prior record and the numberof charges resulting in a conviction werethe most important factors in determiningthe sentencing outcome. The amountof methamphetamine seized was still nota significant factor in sentencingdecisions in Virginia’s circuit courts.Since the sentencing guidelines alreadyaccount for the number of counts andthe offender’s prior record, theCommission did not make anyrecommendations for revisions to thesentencing guidelines in 2004 (VirginiaCriminal Sentencing Commission, 2004).

Methamphetamine crime in Virginia hascontinued to be an issue of concern forthe general public, legislators, and otherofficials over the past several years. Inresponse to this concern, the Commissionhas conducted a third detailed study ofmethamphetamine crime. This chapterof the Commission’s 2007 AnnualReport describes the Commission’s mostrecent findings, including the latestanalysis of methamphetamine quantityand sentencing outcomes. This sectionalso includes information onmethamphetamine-related crime in theCommonwealth and details the mostrecent research regarding meth-amphetamine use, lab seizures, arrests,and convictions in the state.

55Methamphetamine Crime in Virginia

Figure 31

Use of Illicit Drugs by 12th Graders, 2005

Drug Use in Virginia

According to results from the NationalSurvey on Drug Use and Health(NSDUH), formerly the NationalHousehold Survey on Drug Abuse, thepercentage of Virginians reporting useof any illicit drug in the past monthwas lower than the national averagein 2005. Conducted by the SubstanceAbuse and Mental Health ServicesAdministration (SAMHSA), a divisionof the U.S. Department of Health andHuman Services, the NSDUHinterviews approximately 70,000Americans over the age of 11 eachyear. This survey has providedinformation on the use of alcohol,tobacco, and illicit drugs by the civilian,non-institutionalized population since1971. Between 2003 and 2005, thepercentage of Virginians surveyedwho reported use of an illicit drug inthe past month, considered currentdrug use, declined from 7.7% to 6.8%.A smaller decrease of .3% wasobserved on the national level from2003 to 2005. The percentage ofVirginians between the ages of 12 and17 who reported drug use in the pastmonth declined from 11.9% to 8.3%between 2003 and 2005. The changeamong this demographic was mirroredon the national level, with a fall from11.4% to 10.2% during the same timespan (Wright & Sathe, 2005; Wright,Sathe, & Spagnola, 2007).

National and state surveys suggestthat, among students surveyed in 2005,the percentage of Virginia’s twelfthgraders reporting methamphetamineor ice use at least once in their lifetimewas slightly higher than the nationalrate. However, the rate of use in thepast month was lower amongVirginia’s twelfth grade students thannationally (Figure 31). Monitoring theFuture has provided information onillicit drug use by American studentsin the twelfth grade since 1975. Eighthand tenth grade students were includedin the national sample beginning in1991.

Marijuana

Cocaine/Crack

Ecstasy

Methamphetamine/Ice

Heroin

43.8% 20%

4.8%2.2% 5%1.8% 4.4%2%

2.6%1.3%

Marijuana

Cocaine/Crack

Ecstasy

Methamphetamine/Ice

Heroin

44.6% 20.1%

5.7%1.6% 5.4%1% 4.3%2.7%

1.5%.5%

Virginia

National

LifetimePast 30 Days

Sources: Moore, Honnold, Derrig, Glaze, & Ellis, (2006);Monitoring the Future 2005 Online Data


The Virginia Community Youth Survey(CYS) is administered by the VirginiaCommonwealth University Center forPublic Policy and is funded by theVirginia Department of MentalHealth, Mental Retardation, andSubstance Abuse Services. Modeledafter the Monitoring the Futureproject, the CYS duplicated questionsfrom the national survey for the localstudy, which was administered in2000, 2003, and 2005. According tothe 2005 surveys, high school studentsin Virginia use methamphetamine lessfrequently than other drugs. Whilethe lifetime use of cocaine, crack orecstasy was lower among twelfthgraders in Virginia than nationally in2005, use of these drugs in the pastmonth was higher in Virginia than forthe nation as a whole. The proportionof Virginia’s twelfth grade studentsreporting lifetime or current use ofmarijuana, however, was lower thanthe national average.

Figure 32

Percent of High School Students in Virginia ReportingMethamphetamine or Ice Use, 2000 v. 2005

8th Grade 1.8% 1.2% -0.6%

10th Grade 3.6% 4.5% +0.9%

12th Grade 6.0% 4.4% -1.6%

8th Grade 0.6% 0.5% -0.1%

10th Grade 1.4% 2.3% +0.9%

12th Grade 2.0% 2.0% none

PercentState 2000 2005 Change

Lifetime Use

Used in the Past 30 Days

Sources: Moore, Glaze, Honnold, Ellis, & Rives (2004); Moore, et al. (2006);Monitoring the Future 2005 Online Data

Between 2000 and 2005, lifetime useof methamphetamine among eighth andtwelfth grade students in Virginiadeclined, while past-month useremained stable (Figure 32). Only tenthgraders reported an increase in bothlifetime and current use ofmethamphetamine during this timeperiod. In 2005, a slightly largerpercentage of tenth grade students(2.3%) had used methamphetamine orice in the past 30 days than twelfth gradestudents (2%), showing a shift from2000 (Moore, Honnold, Derrig, Glaze,& Ellis, 2006; Moore, Glaze, Honnold,Ellis, & Rives, 2004; Monitoring theFuture: A Continuing Study of AmericanYouth: 2005 Online Data).

Use of methamphetamine among highschool students is more common in theSouthwest and Northwest areas of thestate than elsewhere (regions shown inFigure 33). A larger proportion of highschool students in the Southwest regionof Virginia reported lifetime or pastmonth use of methamphetamine or icethan students in the other areas of thestate in 2005 (Figure 34). Among highschool students from Southwest Virginiawho completed the 2005 survey, 6%reported having ever usedmethamphetamine or ice and 2.6%reported current methamphetamine orice use. The Northwest region hadslightly lower rates of use than theSouthwest, with 4.6% of students in theNorthwest acknowledging use ofmethamphetamine or ice during theirlifetime and 2.4% admitting use in thepast 30 days. The percentage of highschool students reportingmethamphetamine use in other areas ofthe state was significantly lower thanin these two regions (Moore, et al., 2006).


The agency responsible for conductingthe NSDUH, SAMHSA, also gathersinformation regarding demographicand substance abuse characteristicsof admissions to substance abusetreatment programs. In Virginia, theDepartment of Mental Health, MentalRetardation, and Substance AbuseServices (DMHMRSAS) submits thisinformation to SAMHSA, whichcompiles the information in theTreatment Episode Data Set (TEDS).Emergency admissions are notincluded in the figures provided toSAMHSA by DMHMRSAS.

DMHMRSAS collects informationabout publicly-funded providers ofmental health, mental retardation, andsubstance abuse services fromCommunity Service Boards (CSBs).CSBs are established andadministered by localities and serve asthe single point of entry into publicly-funded providers of mental health,mental retardation, and substanceabuse services. A change in themethod of data collection by

Figure 33

Virginia’s Health Planning Regions

Northern

Eastern

Northwest

Central

Southwest

Southwest

Northwest

Eastern

Central

Northern

Total

6.0% 2.6%

4.6%2.4%

2.6% 1.1%

2.5%1.5%

2.2%0.8%

LifetimePast 30 Days

3.3%1.5%

Figure 34

Reported Methamphetamine or Ice UseAmong High School Students in Virginiaby Region, 2005

DMHMRSAS in fiscal year 2004resulted in a change in the number ofproviders reporting to the CSBs thanin past years, which may haveartificially inflated the number ofadmissions reported to SAMHSA.The change in data reporting hasresulted in difficulties comparing rawnumbers before and after FY2004,since differences, to some extent, maybe attributed to changes in datacollection practices rather than actualchanges in the number of admissions.Percentages can be a more accuratemethod of comparing prior years ofdata in these circumstances.

Source: Moore, et al. (2006)


Figure 35

Substance Abuse Admissions in Virginia by Primary Drug Type1992-2005

The percentage of treatmentadmissions for methamphetamineremains very low in comparison toother drugs. Figure 35 shows that,between 1992 and 2005, theproportion of treatment admissions formethamphetamine rose from 0.2% to2.4%. The percent of treatmentadmissions involving cocaine or crackdecreased from 61% to 36% between1992 and 2005. The proportion oftreatment admissions attributed tomarijuana use has more than doubledand, for three years (2001, 2002, and2003), marijuana accounted for moreadmissions than cocaine. In 2005,marijuana and cocaine togethercomprised more than two-thirds ofsubstance abuse admissions inVirginia.

Crack/Cocaine

Methamphetamine

Heroin

Marijuana

Other Drugs

The primary source of treatmentadmissions referrals formethamphetamine abuse has shiftedsince the early 1990s. The proportionof admissions stemming fromindividual referrals, including self-referrals, has decreased substantiallysince 1995 (Figure 36). Since 2000,criminal justice agencies have replacedindividuals as the primary source ofadmissions for methamphetamine. In1999, legislation known as theSubstance Abuse Reduction Effort(SABRE) allocated funds for thescreening and assessment ofoffenders for substance abuseproblems. SABRE also allottedmoney for placement in treatmentservices, which may explain the risein the percentage of admissions fromcriminal justice agencies in 2000.

Source: Treatment Episode Data Set (TEDS), 1992-2005

70%

60%

50%

40%

30%

20%

10%

0%

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005

36%34%

14%13.5%

2.4%

Change in reporting

2005


Although funding for this program wasvirtually eliminated in 2002, criminaljustice agencies continue to accountfor the most referrals formethamphetamine in Virginia’spublicly-funded substance abuseservices facilities.

Although TEDS does not includeinformation regarding specific typesof methamphetamine, the form ofingestion provides an indicator of theprevalence of ice methamphetamine.Because ice is the only smokable formof methamphetamine, the percentageof methamphetamine admissionsrelated to smoking the drug is anindication of ice use in theCommonwealth. Between 2000 and

Figure 36

Methamphetamine Admissions in Virginia by Source of Referral1992-2005

*Includes referrals from self-help groups, religious organizations, and federal, state, and local agencies providingaid in the areas of poverty relief, unemployment, shelter and social welfare.Note: Schools and employers are not shown because each comprised a small percentage of referrals. In 2005, schools and employers combined accountedfor less than 1% of the total number of methamphetamine treatment admissions.Source: Treatment Episode Data Set (TEDS), 1992-2005

Individual

2005Criminal Justice Referral

Healthcare Provider

Other Community Referral*

2005, the proportion ofmethamphetamine admissions relatedto smoking the drug increased from10% to 48.5%, which suggests a risein use of the ice form of the drugamong individuals admitted formethamphetamine abuse in Virginia.

Change in reporting

26.2%

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005

70%

60%

50%

40%

30%

20%

10%

SABRE funds available

45.3%

21.9%

5.6%


Forensic Analysis in Virginia

The Virginia Department of ForensicScience (DFS) collects detailedinformation regarding substancessubmitted to the agency for analysis.The number of cases involvingsubstances testing positive formethamphetamine rose from 366cases in 2000 to 1,084 cases in 2006(Figure 37). Although the number ofsubstances identified asmethamphetamine has increased overthe years, cases involving otherSchedule I or II drugs have increasedas well. For instance, the number ofcocaine-related cases rose from12,471 to 19,089 between 2004 and2006. Methamphetamine remains avery small proportion of the substancesanalyzed by the Department ofForensic Science and marijuana,cocaine, and heroin cases continue tooutnumber cases involvingmethamphetamine.

Percent ChangeSubstance 2000 2001 2002 2003 2004 2005 2006 2000-2006

Methamphetamine 366 335 584 907 979 1,141 1,084 196%

Cocaine 12,588 11,807 12,612 12,893 12,471 15,905 19,089 52

Marijuana 25,751 24,104 23,856 24,582 22,462 26,338 28,066 9

Heroin 1,654 1,576 1,675 1,470 1,395 1,532 1,754 6

Note: Multiple types of drugs can be reported in each case.Source: Virginia Department of Forensic Science

According to information provided byDFS, the average amount ofmethamphetamine submitted per casein 2006 was 4.5 grams (Figure 38).Between 2000 and 2006,methamphetamine was second onlyto marijuana in the average amountof drug seized per case. The averageweight of methamphetamine per casehas declined since its peak in 2001and now is roughly equal to theaverage weight of cocaine per case.Averages such as these can bestrongly influenced by unusual casesand a few cases with abnormally largedrug amounts can significantlyincrease the average amountreported.

Figure 37

Substances Submitted to the Virginia Department of Forensic Science


Year Marijuana Methamphetamine Cocaine Heroin

2000 64.4 9.9 6.9 0.82001 56.5 12.2 7.4 2.52002 47.4 8.6 6.9 0.92003 55.1 8.6 5.3 4.62004 55.6 6.8 6.3 0.82005 83.6 5.3 5.1 1.22006 43.0 4.5 4.6 0.7

Figure 38

Average Weight of Drug per Case (in grams)Analyzed by the Department of Forensic Science

Source: Virginia Department of Forensic Science

The Commonwealth of Virginia providesdata to the National Forensic LaboratoryInformation System (NFLIS), a nationalreporting system that gathers data frommany sites across the nation. Currently,almost all states have at least oneparticipating forensic laboratory. Figure39 shows the regions used for thisreporting system. The West is the onlyregion in which substances testing positivefor methamphetamine are more commonthan any other drug. According to annualNFLIS publications, 38% of drug itemsanalyzed in the Western region of theUnited States tested positive formethamphetamine in 2004 (Figure 39).This percentage decreased to about 36%in 2006. Nearly half of the total drug itemsanalyzed in the Midwest in 2004 werecannabis and this drug continues to be themost frequently identified drug in theregion. Methamphetamine-positive testshave remained between 5% and 10% inthis area. Cocaine is still the mostcommonly identified drug in the Northeastand the South, accounting for more thana third of substances testing positive fordrugs in these regions in 2006.Methamphetamine, recorded in less than7% of the cases in the South in 2006, isnearly nonexistent in the Northeast.

Substance 2004 2005 2006

Methamphetamine 38.4% 40.9% 35.8%Cannabis 22.0 21.4 23.2Cocaine 20.1 20.0 20.8Heroin 3.5 3.5 3.5

Substance 2004 2005 2006

Methamphetamine 8.7 8.9 6.4Cannabis 48.4 45.9 45.4Cocaine 26.0 26.4 28.8Heroin 4.9 5.2 4.5

Substance 2004 2005 2006


Substance 2004 2005 2006


West

Midwest

South

Northeast

Figure 39

Percent of Substances Submitted to the NationalForensic Laboratory Information System by Region

Note: Data include state and federal sources.Sources: Weimer et al. (2007); Weimer, Wong, Sannerud, Eicheldinger, Ancheta, Strom, &Rachal (2006); Weimer, Wong, Strom, Forti, Eicheldinger, Bethke, Ancheta, & Rachal (2004)


Drug Arrests in Virginia

All law enforcement agencies in thestate are required to report crimes andarrests to the Virginia State Police.The State Police organize the data andpublish an annual report containingthese statistics. According to theVirginia State Police, the number ofarrests for drug violations in Virginiarose from 23,181 to 32,000 between2000 and 2006. The number of arrestsfor offenses involving amphetamines,including methamphetamine, nearlytripled between 2000 and 2006,reaching 567 in 2006 (Figure 40).However, amphetamines haveremained a small proportion of

Figure 40

Drug Arrests in Virginia (Excluding Marijuana), 2000-2006

2006:Crack 5,623

Cocaine 3,271

Heroin 678Amphetamines/Meth 567

narcotics arrests in theCommonwealth and growth hasslowed in recent years. Other typesof drugs comprise the vast majorityof narcotics arrests in Virginia.Between 2000 and 2006, marijuana(not shown in Figure 40) accountedfor more than half of all drug arrestseach year. The proportion of arrestsfor the second most common drug,crack cocaine, has remained between15% and 18% during this time period.Approximately 10% of the drugarrests between 2000 and 2006 wereassociated with powder cocaine.Amphetamine arrests have accountedfor less than 3% of all drug arrests inthe Commonwealth since 2000.

Sources: Virginia Department of State Police Crime in Virginia Reports, 2000 through 2006

6,000

5,000

4,000

3,000

2,000

1,000

0

2000 2001 2002 2003 2004 2005 2006


Drug Type Arrests Percent

Marijuana 2,119 76.6%Unknown 303 11.0Crack 133 4.8Other 121 4.4Cocaine 66 2.4Amphetamines/Methamphetamine 22 0.8Heroin 3 0.1

Total 2,767 100.0

Figure 41

Juvenile Drug Arrests by Drug Type, 2006

Source: Virginia Department of State Police (2007)

Between 2000 and 2006, very fewjuveniles were arrested foramphetamine-related offenses withinthe Commonwealth, with the numberof juvenile arrests for these crimesreaching only 22 in 2006 (Figure 41).Marijuana, followed by crack andpowder cocaine, consistentlyaccounted for the majority of juveniledrug arrests across all six years. In2006, for instance, 76.6% of drugarrests of individuals under the age of

18 were for marijuana-relatedoffenses. However, juvenilescomprised a small proportion of allmarijuana arrests in theCommonwealth. Only 12.8% ofindividuals arrested for marijuana in2006 were below 18 years of age.Among juveniles, crack accounted for4.8% of drug arrests and powdercocaine comprised 2.4% of arrests in2006. Amphetamines made up lessthan 1% of drug arrests that year.


MethamphetamineLaboratory Seizures

Methamphetamine can be producedusing a fairly simple process andcommon household products, includingover-the-counter cold medications. Asa consequence, methamphetaminelaboratories can be operated in houses,mobile homes, apartments, hotel rooms,and automobiles by individuals withoutformal training. Laboratories used tomanufacture methamphetamine cancause considerable harm to personsand the environment. Physical injuryto manufacturers, occupants,emergency responders, cleanupcrews, and neighbors can result fromexplosions, fires, chemical burns, andinhalation of toxic fumes emitted duringmethamphetamine production.Methamphetamine laboratories andremnants thereof also pose a risk tothe surrounding environment, sincemuch of the waste can be dangerousif not disposed of properly (Scott &Dedel, 2006). According to apublication from the Office of NationalDrug Control Policy (2004),approximately 5 to 6 pounds of toxicbyproducts are produced for everypound of methamphetamine created.If these hazardous materials arediscarded improperly, as is typically thecase, they can enter into the watertable and poison nearby residents andwildlife.

The El Paso Intelligence Center(EPIC), a division of the U.S. DrugEnforcement Administration (DEA),maintains the National ClandestineLaboratory Seizure System, whichcollects information from local, state,and federal agencies regardingclandestine laboratory seizures. Thisdatabase contains statistics regardingthe number, type, and location oflaboratories, manufacturingbyproducts, and equipment seized. Ininstructions issued to law enforcementagencies, EPIC defines clandestinelaboratories as “an illicit operationconsisting of a sufficient combinationof apparatus and chemicals that eitherhas been or could be used in themanufacture or synthesis of controlledsubstances.” EPIC also collectsinformation regarding the number ofchildren affected by meth-amphetamine laboratories andproduction.


The number of methamphetaminelaboratory seizures by federal or localagencies in Virginia has decreasedsubstantially in the past few years,from a peak of 66 in 2004 to 18 in2006 (Figure 42). Data for 2006 areconsidered preliminary. As of August31, 2007, 11 methamphetamine labseizures had been reported to theDEA for 2007. Since the figures for2007 only include laboratory seizuresreported through August 31, 2007, theyare incomplete and are expected tochange as EPIC continues to receivereports. For the most part,methamphetamine laboratory seizureswithin Virginia have historically beenclustered in the Southwest region ofthe state, particularly along the I-81corridor. Of the 18 lab seizures in

September 1, 2005 - GovernorWarner issues ExecutiveDirective 8**

Figure 42

Methamphetamine Lab Seizures in Virginia, 1999-2007

2006, 16 were located in SouthwestVirginia. This pattern may beattributable to the common bordersshared with Tennessee and Kentucky,both of which have been listed amongthe top ten states in methamphetaminelab seizures for the past three years.

1999 2000 2001 2002 2003 2004 2005

81 5

10

24

66

48

2006*

18

2007*

11

* Data for 2006 are preliminary and data for 2007 are incomplete – due to lags in reporting time, the number of seizures known to the DEA maychange over time. Data for 2007 only include laboratory seizures submitted to EPIC prior to September 1, 2007.** Executive Directive 8 required the development of restrictions on the sale and purchase of products containing key ingredients used in themanufacture of methamphetamine.Source: U.S. Drug Enforcement Administration – El Paso Intelligence Center Clandestine Laboratory Seizure System


State 2000 2001 2002 2003 2004 2005 2006*

Missouri 3 3 2 1 1 1 1Indiana 11 10 9 7 5 3 2Illinois 16 13 11 10 7 5 3Arkansas 12 9 6 5 3 6 4Kentucky 20 18 15 12 10 4 5Tennessee 10 8 5 3 2 2 6California 1 1 1 2 4 7 7Alabama 21 17 16 14 13 8 8Oklahoma 7 4 4 4 9 19 9Michigan 31 23 19 21 19 12 10Georgia 23 28 24 18 17 11 11Florida 32 29 20 17 16 10 12Ohio 25 24 28 25 20 15 13Iowa 13 11 10 8 8 13 14North Carolina 30 30 33 22 14 14 15Texas 5 5 7 9 12 16 16Mississippi 18 16 14 16 15 20 17Washington 2 2 3 6 6 9 18West Virginia 39 35 32 30 23 23 19Colorado 15 15 13 15 21 22 20South Carolina 38 38 37 31 22 21 21Kansas 4 7 12 13 18 18 22Oregon 9 6 8 11 11 17 23New York 43 41 39 40 36 36 24Arizona 6 12 17 23 24 24 25Pennsylvania 35 37 36 34 29 31 26New Mexico 22 25 21 20 26 28 27Nevada 8 14 26 24 34 33 28Virginia 42 40 40 37 30 26 29Idaho 19 22 27 33 37 38 30Minnesota 17 20 18 19 25 27 31Louisiana 29 34 29 28 27 29 32North Dakota 27 26 23 26 31 30 33Nebraska 24 21 25 27 28 25 34Utah 14 19 22 29 33 34 35Wisconsin 34 32 35 35 38 35 36Montana 28 27 30 32 35 40 37Hawaii 37 39 41 41 40 37 38New Jersey ** 47 42 46 47 47 39New Hampshire 44 44 45 45 46 42 40Alaska 26 36 34 36 32 32 41Connecticut ** 45 43 44 ** 44 42Maine 40 42 ** ** 44 46 43South Dakota 36 33 38 39 41 39 44Wyoming 33 31 31 38 39 41 45Massachusetts ** 46 46 48 43 43 46Rhode Island ** 48 47 47 ** ** 47Maryland ** 43 44 43 45 45 48Vermont ** ** ** ** 49 48 **Delaware 41 ** ** 42 42 ** **D. C. ** ** ** ** 48 ** **

Figure 43

State Rankings for Methamphetamine Lab Seizures, 2000-2006

* Data for 2006 are preliminary.** State did not report for the given year.

Source: U.S. Drug EnforcementAdministration – El Paso Intelligence CenterClandestine Laboratory Seizure System

The decrease in the number ofmethamphetamine lab seizuresseen in Virginia has also beenobserved across the nation, withthe total number of lab seizuresfalling from 10,294 in the peakyear of 2003 to 3,548 in 2006.


The decrease in the number ofmethamphetamine lab seizures seen inVirginia has also been observedacross the nation, with the total numberof lab seizures falling from 10,294 inthe peak year of 2003 to 3,548 in 2006.Only Idaho, New Jersey, and NewYork reported an increase in thenumber of methamphetamine labseizures between 2005 and 2006, andall of these states reported increasesof fewer than 11 labs. Virginia ranked29th among states in meth-amphetamine laboratory seizuresreported to the DEA in 2006,compared to a ranking of 26th in 2005(Figure 43).

A few states accounted for a largemajority of laboratory seizures in 2006.For instance, the state ranked first in thenation between 2003 and 2006, Missouri,accounted for more than ten percent ofall reported lab seizures each year.However, the number of laboratoryseizures in the state has fallenconsiderably, from 1,116 in 2004 to 404in 2006. The top five states represented43% of lab seizures and the top ten statescomprised 65% of lab seizures in 2006.Early data for 2007 suggest that thepattern is continuing with Missouri,Arkansas, Indiana, and Illinois remainingamong the top five. However, therankings may change as EPIC continuesto receive additional information.Officials in Missouri recently reportedthat they expect Missouri to lead thenation in methamphetamine laboratoryseizures again in 2007 (Pruneau, 2007).


Between 2000 and 2007, four statessharing a common border withVirginia, namely North Carolina,Tennessee, Kentucky, and WestVirginia, reported moremethamphetamine lab seizures thanthe Commonwealth (Figure 44).Maryland and Washington, D.C. didnot consistently report to EPIC duringthis time period. Gaps in reportingmay indicate that law enforcementagencies did not seize anymethamphetamine labs in these areasduring years they did not report. Foryears where data are available,Maryland and Washington, D.C.reported very few lab seizures. OnlyTennessee experienced an increasein the number of laboratories reportedbetween 2006 and 2007, from 222 to323 seizures, respectively. However,the number of laboratories seized inTennessee in 2007 remains below labseizures reported in the state between2001 and 2005.

Many individuals attribute the recentdecrease in the number ofmethamphetamine laboratories seizedin the U.S. to laws restricting certainingredients necessary to themanufacturing process. Over the pastseveral years, the majority of statesand the federal government haveenacted measures addressing the saleof precursor chemicals that areingredients used in the production ofmethamphetamine. By November 3,2006, 41 states, including Virginia, hadpassed legislation restricting over-the-counter sales and purchases ofproducts containing pseudoephedrine,a common precursor chemical(National Alliance for Model StateDrug Laws [NAMSDL], 2007a).

Figure 44

Methamphetamine Lab Seizures,Virginia and Surrounding States

Tennessee

2000

2001

2002

2003

2004

2005

2006*

2007*

226

382

451

770

1,032

537

222

323

Kentucky

2000

2001

2002

2003

2004

2005

2006*

2007*

84

128

211

338

399

353

238

97

2000

2001

2002

2003

2004

2005

2006*

2007*

17

28

35

132

242

176

89

38

North Carolina

2000

2001

2002

2003

2004

2005

2006*

2007*

2

15

41

53

105

102

62

25

West Virginia

2000

2001

2002

2003

2004

2005

2006*

2007*

1

5

10

24

66

48

18

11

Virginia

2001

2002

2003

2004

2005

2006*

2

1

2

2

3

0

Maryland

* Data for 2006 are preliminary and data for 2007 are incomplete. Data for 2007 onlyinclude laboratory seizures submitted to EPIC prior to September 1, 2007.Note: Data for Maryland are not available for 2000 and 2007. Data for Washington, D.C.are only available for 2004, during which one laboratory seizure was reported.Source: U.S. Drug Enforcement Administration – El Paso Intelligence Center ClandestineLaboratory Seizure System


State 2003 2004 2005 2006*

Tennessee 301 293 52 25

North Carolina 69 127 100 45

Kentucky 55 82 86 42

West Virginia 20 36 36 19

Virginia 10 36 19 5

Figure 45

Number of Children Affected by Clandestine MethamphetamineLaboratories, Virginia and Surrounding States

These laws have generally includedprovisions restricting who can sell andpurchase the products, how they canbe displayed, the quantity that can besold within a particular time period,and how the products can bepackaged. On the federal level, theCombat Methamphetamine EpidemicAct of 2005 (CMEA) was passed aspart of the reauthorization of the U.S.Patriot Act and was signed into lawon March 9, 2006. The CMEAadopted pieces from many of theexisting state laws and createdbaseline restrictions on how productscontaining ephedrine, pseu-doephedrine or phenyl-propanolaminecan be sold within the United States.The section in this chapter entitled“Responses to Methamphetamine”contains additional informationregarding laws and policies targetingmethamphetamine production,distribution, and use.

In addition to gathering generalinformation regarding the number ofmethamphetamine laboratories,dumpsites, and equipment seized in anarea, the El Paso Intelligence Center alsocollects statistics related to the numberof children who are injured or killed inconnection with a methamphetaminelaboratory and the number of childrenresiding in or visiting a location containinga laboratory. Following the same patternas the number of methamphetamine labsseized, the number of children affectedby methamphetamine laboratoriesnationally has decreased substantiallysince the peak year of 2003, from 3,683in 2003 to 1,243 in 2006. Missouriexperienced the largest decreasebetween 2003 and 2006, from 442children in 2003 to 125 children in 2006.Tennessee, the state reporting the third-highest number of children affected in2003, saw a dramatic decline, from 301children in 2003 to 25 in 2006. Relativeto neighboring states, the number ofchildren affected in Virginia has remainedlow (Figure 45).

* Data for 2006 are preliminaryNote: Data for Maryland and Washington, D.C., are not available.Source: U.S. Drug Enforcement Administration – El Paso Intelligence Center Clandestine Laboratory Seizure System


A recent informal study conducted bylaw enforcement and a local newsoutlet in Georgia suggests that simplythe use of methamphetamine in alocation, absent a workingmethamphetamine laboratory, candeposit harmful chemicals that remainin areas long after drug use has ceased.The report notes thatmethamphetamine residue was locatedin a home where methamphetaminewas smoked nearly four years prior tothe test and methamphetamine was notknown to have been manufactured inthe immediate area. This findingsuggests that the act of smokingmethamphetamine releases toxicchemicals that can remain in thesurrounding area for an extendedperiod of time (Saltzman, 2007).Reports from Utah and Montana alsopoint to the potential hazards ofexposure to residual chemicals leftfrom methamphetamine smoke(Romboy, 2007; Gevock, 2006). Stepstaken by Virginia and other states toaddress laboratory cleanup and thelong term effects of methamphetamineproduction are summarized in the“Responses to Methamphetamine”section of this chapter.

MethamphetamineProduction in Mexico

The number of methamphetaminelaboratories seized in the United Stateshas decreased considerably over thepast few years. However, nationalreports suggest that meth-amphetamine supply has not wanedproportionally. Officials attribute thisto an increase in the production of thedrug in Mexico and importation intothe U.S. According to a reportreleased by the National DrugIntelligence Center (NDIC) in 2006,the amount of methamphetamineseized at points of entry along theU.S.-Mexico border increased from2,706 pounds in federal fiscal year2003 to 4,346 pounds in FY2005. Areport by the United StatesGovernment Accountability Office(GAO) estimates that the amount ofmethamphetamine seized withinMexico increased from 560 kilogramsin calendar year 2000 to 980 kilogramsin 2005, which is equivalent to 1,235and 2,161 pounds, respectively. Thisamount decreased to 600 kilograms(1,323 pounds) in 2006, potentially dueto increased restrictions on precursorchemicals in Mexico (GAO, 2007).


Federal agencies report that, asdomestic methamphetaminelaboratory seizures have declined inrecent years, Mexican DrugTrafficking Organizations (DTOs)have supplanted domestic suppliersand expanded to sustain the marketsthat were previously supplied bydomestic laboratories. The NDICattributes decreases in meth-amphetamine-related seizures andarrests in the United States to thedecline in domestic met-hamphetamine production and a shiftin DEA strategy to focus upon fewerbut higher priority targets, rather thana decrease in the availability of thedrug (NDIC, 2005; NDIC, 2006).Representatives from Mexico havealso noted an increase in the numberof methamphetamine laboratoryseizures within their borders through2005. At a conference in Decemberof 2005, an official from Mexico’sOffice of the Attorney General statedthat the number of laboratory seizuresin Mexico rose from 11 in 2002 to 21in 2004. Data for 2005 show a furtherincrease to 28 laboratory seizures(Lopez, 2005).

The NDIC and DEA argue thatMexican DTOs’ capability to producehigher purity methamphetamine insuperlabs located in Mexico has ledto an increase in the prevalence of theice form of methamphetamine in theU.S. In federal fiscal year 2005,border agents in the Southwest seized1,423 pounds of ice, compared to 260pounds in FY2003. The 2007 NationalMethamphetamine Threat Assess-ment, published by the NDIC, cites this447% increase in the amount of iceseized as the source of a nationalincrease in methamphetamine-relatedtreatment admissions, since ice tendsto be more potent and, consequently,more addictive than powder meth-amphetamine.


Although some research suggests thatan increase in the availability and useof the ice form of methamphetaminein the United States is due to theimportation of more ice from Mexico,the source of methamphetamineseized in Virginia can be difficult toidentify. Due to the distance from theMexican-American border, importeddrugs may change hands numeroustimes before reaching theCommonwealth. Consequently,characteristics related to the offendercan be poor indicators of the sourceof drugs seized in the state. However,the variable representing thedefendant’s place of birth is the onlypotential indicator of possible ties withMexican DTOs that is available.Only two of the five individualssentenced in Virginia’s circuit courtsfor transporting methamphetamineinto the Commonwealth (§ 18.2-248.01) between fiscal years 2000 and2006 identified a locality in Mexico astheir place of birth. The remainingthree offenders sentenced in Virginia’scircuit courts for transportingmethamphetamine were born in theU.S. but outside the Commonwealth.

According to data from the UnitedStates Sentencing Commission, thepercentage of federal defendantsconvicted of traffickingmethamphetamine who claimedMexican citizenship peaked around20% nationally in calendar year 2002.This percentage declined to 12% in2003 and then increased again to 18%in 2004. In Virginia, Mexican citizenscomprised 10% of individuals whowere convicted in federal courts in2005 for methamphetamine traf-ficking. Preliminary data for 2006suggest that the percentage ofoffenders convicted of traffickingmethamphetamine in Virginia’s federalcourts who claimed Mexicancitizenship was slightly more than12%. Other areas of the countryhave experienced much higher ratesof Mexican nationals convicted fortrafficking methamphetamine. In2005, Mexican nationals comprised36.7% of convictions for this crime inthe Southwest and 30.9% in theNorthwest.

Methamphetamine production inMexico is expected to decrease soondue to restrictions placed uponprecursor chemicals by the Mexicangovernment. In 2004, the MexicanFederal Commission for the


Protection against Sanitary Risk(COFEPRIS), a Division of theMexican Department of Health,concluded that Mexico’s imports ofpseudoephedrine products farexceeded legitimate domesticrequirements. As a result, theMexican government introducedregulations relating to the importationof products containing pseu-doephedrine, leading to a reduction ofimports from 216 metric tons ofpseudoephedrine in 2004 to 70 metrictons in 2006 (GAO, 2007; U.S.Bureau for International Narcoticsand Law Enforcement Affairs, 2007).However, an unknown amount ofpseudoephedrine is also imported intoMexico through illegal channels(Randewich, 2007).

Recently, Mexican officialsimplemented restrictions onprecursors similar to requirementsestablished in the U.S. in an attemptto reduce the amount ofmethamphetamine produced withinthe country. Beginning on September1, 2007, products containingpseudoephedrine must be kept behindpharmacy counters in Mexico and,similar to laws in Oregon, can only bepurchased with a valid prescription.Mexican officials asked pharmaciesto limit the amount ofpseudoephedrine per transaction to 60milligrams or less during the timebetween the announcement of theprescription-only policy in July of 2007

and its implementation in September(“Mexico Tightens Restrictions,”2007). Effective January 2008, theimportation of pseudoephedrine andephedrine into Mexico will no longerbe permitted and all use of productscontaining the chemicals will beillegal by January 2009 (U.S. Officeof National Drug Control Policy,2007).

Mexican DTOs have adapted tolegislation restricting precursorchemicals in Mexico by creatingnew routes of obtaining precursorchemicals, importing non-restrictedchemical derivatives, usingalternative production methods, andmislabeling packages to avoidinspection by Mexican lawenforcement officials (NDIC, 2007).Nevertheless, recent informationsuggests that the laws haveimpacted methamphetamineproduction in Mexico and in the U.S.More specifically, a U.S. Attorneyin Knoxville, Tennessee, noted thatan upturn in laboratory seizures inthe state over the past few monthsmay be a result of precursorrestrictions in Mexico, which haveaffected the production ofmethamphetamine in that countryand subsequent importation into theUnited States. According to officials,domestic producers of meth-amphetamine must now fill thesupply gap created by the reductionin imported methamphetamine, asthe demand for the drug in Tennesseehas remained high (Poovey, 2007).


Responses toMethamphetamine

The Commonwealth of Virginiaclassifies methamphetamine as aSchedule II controlled substance dueto the potential for physical andpsychological abuse and its limitedmedical applications. Section 54.1-3448 of the Code of Virginia alsolists one methamphetamine precursorchemical, phenylacetone (alsoreferred to as P2P, phenyl-2-propanone, phenylpropanone orbenzylmethylketone), as a ScheduleII controlled substance. Since the1980s, restrictions placed uponphenylacetone have greatly increasedthe difficulty of obtaining thischemical. As a result, the majority ofdomestic methamphetaminemanufacturers have shifted to the redphosphorous or sodium reduction(Nazi) methods, which rely uponephedrine or pseudoephedrine as theprimary precursor chemical. Inaddition to creating a purer and morepotent form of the drug, the latter twotechniques produce meth-amphetamine in a shorter amount oftime and the precursor chemicals areeasier to obtain (Scott & Dedel, 2006;McEwen & Uchida, 2000).

In response to rising concernregarding the large number ofmethamphetamine laboratory seizuresover the past several years, the UnitedStates Congress and many states,including Virginia, have restricted thesale of ephedrine, pseudoephedrine,and phen-ylpropanolamine. Forinstance, in April 2004, Oklahomaimplemented restrictions mandatingthat only pharmacies can sell products

containing pseudoephedrine, thatthese products must be kept behindthe counter or in locked cabinets, thatretailers must verify and maintainrecords of purchasers’ identification,and that an individual cannot obtainmore than 9 grams of productscontaining pseudoephedrine within any30-day period. Tennessee’smethamphetamine precursor law,which went into effect on March 31,2005, is more expansive andencompasses more precursors, in thatit regulates all products containingpseudoephedrine, ephedrine orphenylpropanolamine (U.S. Office ofNational Drug Control Policy, 2006).

During the 2005 legislative session,Virginia’s General Assembly identifiedthe possession of two or morechemicals used in the production ofmethamphetamine, includingephedrine, pseudoephedrine, andphenylpropanolamine, with the intentto manufacture methamphetamine, asa Class 6 felony. On September 1,2005, Governor Mark R. Warnerissued Executive Directive 8,mandating that the VirginiaDepartment of Health issue an orderrestricting the sale of productscontaining precursor ingredients. Inaddition, the Emergency Orderrequired that certain state agenciesdevelop further comprehensiveeducational efforts to help curbmethamphetamine use and that theVirginia Department of MentalHealth, Mental Retardation, andSubstance Abuse Services develop aplan for treating methamphetamineaddiction.


The subsequent Order FindingImminent Danger to the Public Healthand Requiring Corrective Action,issued by the Department of Health,detailed restrictions on ephedrine andpseudoephedrine sales. Pursuant tothe mandate, between October 1,2005, and July 1, 2006, retailers wererequired to keep products withephedrine or pseudoephedrine as theonly active ingredient behind a storecounter and they could not sell morethan nine grams of these precursoringredients in one transaction. Inaddition, retailers were obligated tocollect and maintain records of salesof ephedrine and pseudoephedrineand purchasers had to provideidentification in order to obtain theproducts. In 2006, the GeneralAssembly created §18.2-248.8 toaddress this issue prior to theexpiration of the Emergency Order.The General Assembly adopted therequirements set forth in theDepartment of Health’s Order andbroadened them to include anyproduct containing ephedrine orpseudoephedrine. Additionally, theGeneral Assembly limited the totalamount of ephedrine orpseudoephedrine a purchaser couldobtain to 3.6 grams per day andexpanded the amount of time retailersare required to maintain records ofsales from one year to two years.

The federal Combat Meth-amphetamine Epidemic Act (CMEA)was signed into law in March of 2006and incorporated elements of states’preexisting laws regulating productscontaining ephedrine, pseu-doephedrine or phenylpropanolamine(PPA). The CMEA establishedminimum standards for restricting thesale of certain chemicals that can beused in the manufacture of meth-amphetamine. The Food and DrugAdministration (FDA) had alreadytaken steps to remove PPA from alldrug products and has requested thatcompanies reformulate all medicationscontaining the chemical (FDA, 2005).Although the requirements establishedin the CMEA apply to productscontaining PPA, most of theseproducts have already been removedfrom retail outlets.

The CMEA became effective instages and came into full effect onSeptember 30, 2006. Beginning onApril 10, 2006, retailers cannot sellmore than 3.6 grams of ephedrine,pseudoephedrine or PPA-basedproducts to a single customer in a dayand not more than 9 grams per month.Likewise, it is unlawful for anyindividual to purchase more than 3.6grams of products containing theseingredients in a day or more than 9grams in 30 days. All such products,excluding liquids, may only be sold inblister packaging, which makes theremoval of large amounts ofmedications from the packaging moredifficult and time consuming.Effective September 30, 2006,retailers must keep products


containing ephedrine, pseu-doephedrine or PPA behind thecounter or in a locked cabinet. Inaddition, sellers of these products mustreceive training in procedures set forthin the CMEA regarding theappropriate method of dispensation.Relevant procedures include verifyingthe customer’s identity based on agovernment-issued photo ID andmaintaining a logbook containingcertain information regarding thepurchaser and the product sold.

Some states have adopted controls onprecursor chemicals that supplementthe requirements enumerated in theCMEA. Oregon, for instance,requires that purchasers of productscontaining pseudoephedrine presentretailers with a valid prescription priorto obtaining the medication. As notedabove, in 2005, Virginia’s GeneralAssembly made the possession of anytwo methamphetamine precursorchemicals, as defined in § 18.2-248(J)Code of Virginia, with the intent tomanufacture methamphetamine aClass 6 felony. As of January 2, 2007,eleven states (Arizona, Illinois, Iowa,Kansas, Minnesota, Missouri, NewMexico, Oklahoma, Oregon, WestVirginia, and Wisconsin) listedpseudoephedrine and/or ephedrine asSchedule V controlled substances. In2005, Oregon classified ephedrine,pseudoephedrine, and phen-ylpropanolamine as Schedule IIIcontrolled substances (NAMSDL,2007b). On the federal level,ephedrine, pseudoephedrine, and PPAare regulated as List I chemicals.

List I chemicals are substances thathave been identified as havinglegitimate uses but that are alsodiverted for use in the manufactureof a controlled substance. Theregulations associated with List Ichemicals include requiringmanufacturers, distributors, importers,and exporters of these chemicals toregister with the federal governmentand placing these entities underincreased scrutiny (21 Code ofFederal Regulations 1313; DEA,2005).

Numerous law enforcement officialsand agencies have reported that theCMEA and similar laws restricting thesale of precursor chemicals contain acritical loophole. More specifically, lawenforcement officers haveencountered barriers in their effortsto prevent the unlawful acquisition ofthese chemicals because someretailers do not maintain the logbooksrequired under the CMEA in anelectronic format (Roser, 2007).Consequently, legislators in severalstates, including Oklahoma, Arkansas,Missouri, Kentucky, and Virginia, havesuggested amendments to the laws torequire retailers to maintain logbookselectronically. In Virginia, legislationrequiring electronic logbooks wasintroduced in 2007 (SB 879) but failedto pass in the General Assembly.Kentucky implemented such arequirement in 2007 and electronicrecords of all purchases relating topseudoephedrine and ephedrine in thestate will be accessible by lawenforcement officials and pharmaciesby the end of the year


(§ 218A.1446(3)(c), KentuckyRevised Statutes). Arkansas alsopassed legislation in 2007 (§ 5-64-1106, Code of Arkansas) mandatingthat pharmacies enter transactioninformation regarding met-hamphetamine precursors into a real-time electronic logbook maintained bythe Arkansas Crime InformationCenter. However, this requirement issubject to available funding, whereasKentucky has already provided theresources required to implement theprogram ("Big Brother Entering MethFight in Kentucky," 2007). Oklahomahas contracted with a private vendorto enter information from logbooks intoa central database that is accessibleto law enforcement officers (Roser,2007). Many pharmacies alreadymaintain electronic logbooks, but therecords in most states are notconnected to a single database thatallows pharmacies to accessinformation from other retailers. TheU.S. Congress is currently consideringa bill that would provide grants tostates that wish to develop electroniclogbook systems (S. 1276).

The proliferation of methamphetaminelaboratory seizures over the pastdecade has also led to local policiesand legislation designed to protect thepublic from the lingering effects ofmethamphetamine laboratories. Theinstruments, chemicals, and residueleft behind after an individual hasmanufactured methamphetamine canlead to considerable health problemsand environmental pollution yearsafter the laboratory has beendismantled. In response, a number ofstates have developed legislation that

requires owners of residential propertyto notify potential buyers or tenants ifa property has been the site of aclandestine laboratory. ByJanuary 11, 2007, 14 states, includingCalifornia and Colorado, had enacteddisclosure laws, although the strictnessof the duty to disclose and whetherthis duty still applies if a location hasbeen deemed suitable for habitationvaries across states (NAMSDL,2007c; “Cooking Up Solutions to aCooked Up Menace,” 2006).

In addressing the contamination ofareas by methamphetaminelaboratories, some states have createdfeasibility-based standards and setforth specific criteria that a locationmust meet before being considereddecontaminated (NAMSDL, 2007c).In addition, many states and localitieshave implemented programs to ensurethat residual toxins are removed fromproperties affected by meth-amphetamine laboratories. In someareas, the cost of met-hamphetaminelaboratory cleanup has placed asignificant financial burden on propertyowners and the local government.The 2005 Virginia General Assemblyacknowledged this cost and specifiedthat judges may order an offenderconvicted of manufacturing anycontrolled substance, including met-hamphetamine, to reimburse theCommonwealth, the locality or aninnocent property owner for costsassociated with the cleanup, removal,remediation or repair of the affectedproperty (§18.2-248(C1) and§ 19.2-305.1(B1), Code of Virginia).While some states do not requiredisclosure to buyers or tenants, they


make the information available to allinterested persons in the form oflaboratory registries (NAMSDL,2007c). The federal government andseveral states collect and publishinformation regarding locations thathave been used for the manufactureof methamphetamine. OnDecember 5, 2006, the DEAannounced the creation of the NationalClandestine Laboratory Register,which lists the addresses of locationswhere methamphetamine labs,dumpsites or equipment werediscovered, in order to help protectneighbors and potential home buyers(DEA, 2006). Nine of the fourteenstates with registries, includingArkansas and Tennessee, haveestablished procedures for removingproperties from the list, usually afterrigorous testing has shown that thelocation is safe and free from toxicresidue. To date, Virginia has notenacted legislation requiring thatproperty owners disclose prior use ofa property for methamphetamineproduction and the Commonwealthdoes not maintain a publicly-accessiblelist of such locations. However,addresses of locations wherelaboratories have been seized inVirginia are available through theNational Clandestine LaboratoryRegister.

A few states have also createdmethamphetamine offender registriesthat, like sex offender registries, makeinformation regarding individualsconvicted of certain crimes availableto the public. In 2005, Tennessee’sGeneral Assembly passed the Meth-Free Tennessee Act, mandating that theTennessee Bureau of Investigationscreate a registry containing informationabout all individuals convicted of sellingor manufacturing methamphetamineafter March 30, 2005. Minnesota’sgovernor signed an executive order in2006 that established a similar registry,with the hopes that law enforcementcould use it as a tool and the publicwould be better equipped to protectthemselves from potential dangers intheir communities (Minnesota Bureauof Criminal Apprehension, 2006).

In addition to other dangers faced bylaw enforcement officers as a resultof the illegal manufacture ofmethamphetamine, operators of suchlaboratories sometimes construct‘booby traps’ designed to discourageor prevent entry of the premises bygovernment agents. Under currentVirginia law, individuals are prohibitedfrom maintaining or operating a fortifieddrug house, as defined in § 18.2-258.02,Code of Virginia. A fortified drughouse is a structure used for themanufacture or distribution of illegalnarcotics that is reinforced with thepurpose of impeding, deterring ordelaying entry by law enforcementofficers and that is the object of a validsearch warrant. Maintaining a fortifieddrug house in Virginia is a Class 5felony and is punishable byimprisonment for up to 10 years.


A rise in concern and awarenessregarding children affected bymethamphetamine spurred numerouslegislative actions over the past severalyears. An article in a recent editionof the Virginia Child ProtectionNewsletter notes that children areespecially vulnerable to harms causedby the toxic byproducts ofmethamphetamine laboratoriesbecause of their small size and highmetabolic and respiratory rates. Inaddition to the physical effects ofexposure to toxic chemicals producedduring the manufacture ofmethamphetamine, children can alsosuffer from neglect and abuse fromparents involved in methamphetaminemanufacture, use or distribution(“Methamphetamine and ChildMaltreatment,” 2007).

Numerous groups have formed acrossthe nation with the purpose ofprotecting children from the harms ofmethamphetamine. Children affectedby drugs, including methamphetamine,are commonly referred to as “DrugEndangered Children” (DEC). Inrecent years, programs have emergednationwide to assist law enforcement,healthcare professionals, and childwelfare workers in providing servicesto children affected by meth-amphetamine (U.S. Office ofNational Drug Control Policy, 2005).

These programs often focusspecifically upon children affected bymethamphetamine laboratories, butsome include children affected byparental drug production and use ingeneral. The federal government hasdeveloped a standardized trainingprogram to teach local officials howto coordinate resources and servicesto assist children found in drugproduction environments, especiallymethamphetamine laboratories. Thenational DEC initiative also providesfunding to assist states in developingprograms and in responding to childrenaffected in this manner (DEA, 2003).

Many states, including Virginia, haveinstituted heightened penalties for thesale and manufacture ofmethamphetamine in the presence ofa child. Virginia’s General Assemblypassed legislation in 2005 thatexpanded the definition of child abuseto include permitting a child to bepresent during the manufacture orattempted manufacture of a ScheduleI or II controlled substance, such asmethamphetamine (§ 16.1-228(1) and§ 63.2-100(1), Code of Virginia).Further, § 18.2-248.02 states that acustodian of a child under the age of18 who allows the child to be presentduring the manufacture or attemptedmanufacture of methamphetamine isguilty of a felony punishable by a termof imprisonment from 10 to 40 years.


Virginia, along with most states, hasalso incorporated the sale ordistribution of methamphetamine in thepresence of a child into its legislationregarding child abuse. Specifically,§ 16.1-228(1) and § 63.2-100(1) statethat the act of allowing a child to bepresent during the unlawful sale of aSchedule I or II controlled substanceis child abuse. Some states haveexpanded the definition of child abuseor child endangerment to includewitnessing adult use ofmethamphetamine and allowingchildren to ingest methamphetamine.Wyoming, for instance, enactedlegislation in 2004 providing penaltiesfor custodians who permit children tobe present in a location wheremethamphetamine is possessed, storedor ingested (§ 6-4-405(b), WyomingStatutes). In addition, § 6-4-405(a),W.S., defines child endangerment, inpart, as causing or permitting a childto ingest methamphetamine orallowing a child to be present in alocation where the hazardous wasteproduced by methamphetamine isnearby or where methamphetamine ismanufactured, sold or stored. This partof Wyoming law does not mandatethat the person be a custodian of thechild in order for the penalties to apply.In 2006, Hawaii passed legislation toexpand its child endangerment statuteto include any act that causes or allowsa child to ingest methamphetamine(§ 709-904(1)(b), Hawaii RevisedStatutes). Hawaii’s law states that thisstatute is applicable whether or not theperson is “charged with the care orcustody of a minor” (§ 709-904(1)(b),H.R.S.).

In addition to increasing penalties andexpanding legislation related tomethamphetamine, many states havedeveloped treatment and preventionefforts targeted at users ofmethamphetamine and individuals atrisk for abuse. Methamphetaminehas been described as an extremelydestructive and addictive drug. Braindamage and changes in brainchemistry resulting frommethamphetamine use can furthercomplicate treatment and recovery(“Methamphetamine and ChildMaltreatment,” 2007). The Directorof the Division of Epidemiology,Services, and Prevention research atthe National Institute on Drug Abuse,Dr. Wilson M. Compton, recentlynoted that “without treatment, 70 to90 percent of those addicted tomethamphetamine will relapse”(“Methamphetamine and ChildMaltreatment,” 2007, p. 19).Anecdotal reports also suggest thatmethamphetamine users are moredifficult to supervise by probation andparole officers due to the nature ofthe addiction. Several federal districtcourt judges have observed thatmethamphetamine addicts tend to failat a higher rate than individualsaddicted to other drugs and thereforerequire more intense supervision inthe community (Administrative Officeof the U.S. Courts, 2004).


Many states and the federalgovernment have provided funds forthe development and implementationof various treatment programs aimedat curbing methamphetamine abuseand decreasing the likelihood ofrelapse. In 2005, the SubstanceAbuse and Mental Health ServicesAdministration (SAMHSA)announced the award of $16.2 millionin grants for methamphetamine abusetreatment in areas particularlyaffected by methamphetamine use(U.S. Department of Health andHuman Services, 2005). In someinstances, federal grants are awardedto assist states in developinginnovative programs. At other times,grants are distributed as a means ofaiding states in expanding existingtreatment and prevention programs.For instance, SAMHSA recentlyawarded Arizona an $8.3 millionAccess to Recovery Grant to expandand enhance methamphetaminetreatment through drug courts (Stateof Arizona Executive Office of theGovernor, 2007). While Virginia hasreceived numerous grants fromSAMHSA for substance abusetreatment programs, these grantshave not specifically focused uponmethamphetamine treatment in theCommonwealth.

Programs designed to preventmethamphetamine use, particularlyamong teenagers, have proliferatedover the past few years. The federalgovernment and, at times, privatephilanthropists and corporations, haveassisted states in developing programsdesigned to inform the public aboutthe harms of methamphetamine. Oneof the more prominent attempts toprevent teenagers fromexperimenting with methamphetamine,the Montana Meth Project, is currentlyfunded by a combination of federal,state, and private donations (Florio,2007). The radio and televisioncommercials are designed toemphasize the severe consequencesof methamphetamine use and havebeen described by some as toographic (Brandt, 2006). The strategy,consisting primarily of public serviceannouncements, has shown somepromise in discouraging met-hamphetamine use andexperimentation in Montana. Resultsfrom the 2007 Montana Youth RiskBehavior Survey indicate a significantdecrease in the proportion of highschool students reportingmethamphetamine use at least oncein their lifetime. More specifically, thepercentage of high school studentswho reported trying meth-amphetamine fell from 14% in 1999to 5% in 2007 (Montana Office ofPublic Instruction, 2007). As a resultof the positive reports from Montana,other states, including Kansas andMissouri, are currently consideringfunding similar prevention efforts(Bauer, 2007).


Mandatory Penalties forSchedule I or II DrugOffenses in Virginia

The Code of Virginia contains manymandatory minimum penalties relatedto Schedule I or II drugs. Figure 46describes the mandatory minimumpenalties applicable to meth-amphetamine crimes. The 2000General Assembly passed several ofthese laws as part of the legislativepackage known as the SubstanceAbuse Reduction Effort (SABRE).Under the SABRE initiative, theGeneral Assembly revised the drugkingpin statute and addedmethamphetamine to the list of drugscovered by this law.

The drug kingpin statute currentlyconsists of a series of increasedpenalties based upon certain casecharacteristics, including the type andamount of drug involved. For instance,under § 18.2-248(H) of the Code ofVirginia, any individual whomanufactures, distributes, sells orpossesses with the intent to sell at least100 grams of pure methamphetamineor at least 200 grams of a mixturecontaining methamphetamine issubject to a mandatory minimumsentence of 20 years of imprisonment.The drug kingpin laws were expandedin 2006 to include mandatory minimumsentences for another group ofoffenders. Specifically, § 18.2-248(C)now requires that judges impose amandatory minimum penalty of 5years of imprisonment if an offendermanufactures, sells, distributes orpossesses with the intent to distribute10 grams or more of meth-amphetamine or 20 grams or more of

a methamphetamine mixture. Bothsections outline five criteria that mayexempt an individual from particularmandatory minimum penalties,including an offender’s lack of a priorviolent record and cooperation withauthorities. The mandatory minimumpenalties set forth in § 18.2-248(H)and § 18.2-248(C) cannot besuspended if an offender operates acontinuing criminal enterprise.

Different penalties are applicable foroffenders who are the principaladministrators or leaders of acontinuing criminal enterpriseinvolved in the manufacture, sale,distribution or possession withthe intent to sell certain amountsof Schedule I or II drugs. Section18.2-248(H1) establishes a mandatoryminimum sentence of 20 years forthese individuals if the offenseinvolves at least 100 grams but lessthan 250 grams of methamphetamineor at least 200 grams but less than 1kilogram of a methamphetaminemixture within a 12-month period.Section 18.2-248(H2) pertains toprincipal administrators of criminalenterprises that engage in themanufacture, sale, distribution orpossession with the intent to sell atleast 250 grams of methamphetamineor at least 1 kilogram of amethamphetamine mixture. Anoffender meeting these requirementsmust be sentenced to lifeimprisonment, with few exceptions.The law allows a judge to reduce thissentence to 40 years if the offendercooperates with law enforcementauthorities.


Offense

Manufacture, sell, give, distribute or possess with intent todistribute quantities of a Schedule I or II drug defined in18.2-248(C)

Manufacture, sell, give, distribute or possess with intent todistribute quantities of a Schedule I or II drug defined in18.2-248(H)

Manufacture, sell, give, distribute or possess with theintent to sell quantities of a Schedule I or II drug defined in18.2-248(H1) during any 12 month period as administrator,organizer or leader of a continuing criminal enterprise

Manufacture, sell, give, distribute or possess with theintent to sell quantities of a Schedule I or II drug defined in18.2-248(H2) during any 12 month period as administrator,organizer or leader of a continuing criminal enterprise

Gross $100,000 but less than $250,000 during any 12month period as administrator, organizer or leader of acontinuing criminal enterprise

Gross $250,000 or more within any 12 month period asadministrator, organizer or leader of a continuing criminalenterprise

Manufacture, sell, give, distribute or possess with intent todistribute a Schedule I or II (third or subsequent conviction)

Manufacture methamphetamine (third or subsequentconviction)

Transport 1 ounce or more of a Schedule I or II drug intothe Commonwealth with intent to sell or distribute

Transport 1 ounce or more of a Schedule I or II drug intothe Commonwealth with intent to sell or distribute (secondor subsequent conviction)

Sell a Schedule I or II drug to a minor at least 3 yearsyounger than offender

Cause minor to assist in the sale of a Schedule I or II drug

Manufacture, sell, distribute or possess with intent to sellany drug on or near certain properties

Possess a Schedule I or II drug while possessing firearmon or about the person

Manufacture, sell, distribute, possess with intent todistribute a Schedule I or II drug while in possession of afirearm

Statute

§ 18.2-248(C)

§ 18.2-248(H)

§ 18.2-248(H1)(ii)

§ 18.2-248(H2)(ii)

§ 18.2-248(H1)(i)

§ 18.2-248(H2)(ii)

§ 18.2-248(C)

§ 18.2-248(C1)

§ 18.2-248.01

§ 18.2-248.01

§ 18.2-255(A)

§ 18.2-255(A)

§ 18.2-255.2

§ 18.2-308.4(B)

§ 18.2-308.4(C)

Amount ofMethamphetamine

10 grams or more pure,20 grams or more mixture

100 grams or more pure,200 grams or more mixture

100-249 grams pure,200-999 grams mixture

250 grams or more pure,1,000 grams or more mixture

No requirement

No requirement

No requirement

No requirement

1 ounce or more

1 ounce or more

No requirement

No requirement

No requirement

No requirement

No requirement

MandatoryPenalty

5 years*

20 years*

20 years*

Life**

20 years*

Life**

5 years

3 years

3 years

10 years

5 years

5 years

1 year

2 years

5 years

Figure 46

Mandatory Minimum Sentencing Laws in Virginia Related to Methamphetamine

* These mandatory minimum penalties may be suspended if the following conditions are met: the offender has never been convicted of a violent felony, theoffender did not use or threaten violence or possess a weapon in connection with the offense, the offender was not an organizer or administrator of a continuingcriminal enterprise, the offense did not result in death or serious bodily injury, and the offender cooperates with authorities.** Judges may reduce this sentence to 40 years if the offender cooperates with law enforcement authorities.


Several mandatory minimum lawsrelating to subsequent drugconvictions became effective onJuly 1, 2000. After this date, offenderswho received a third or subsequentconviction for selling a Schedule I orII drug were subject to a three-yearmandatory minimum sentence under§ 18.2-248(C). In 2006, the GeneralAssembly modified this section andincreased the mandatory minimumpenalty from three years to five years.The 2005 General Assembly addedsubsection C1 to § 18.2-248, whichcreated a mandatory minimum termof imprisonment of three years forindividuals who receive a third orsubsequent conviction formanufacturing methamphetamine.

An offender who transports oneounce or more of a Schedule I or IIdrug into the Commonwealth mustserve a minimum of three years ofimprisonment and individuals whoreceive a second conviction mustserve at least 10 years in prison(§18.2-248.01). Selling, distributing orpossessing with the intent to sell aSchedule I or II drug while possessinga firearm subjects the offender to afive-year mandatory minimumpenalty. The minimum sentence forsimple possession of a Schedule I orII drug in conjunction with a firearmis two years of imprisonment if theoffender carries a firearm on hisperson.

Mandatory sentences set forth by theGeneral Assembly take precedenceover the discretionary sentencingguidelines system. When scoring theguidelines, preparers are instructed tosubstitute the mandatory minimum forany value of the recommended range(low, midpoint or high) that falls belowthe specified minimum. This practiceensures that the guidelinesrecommendation comply withapplicable mandatory minimumpenalties.


MethamphetamineConvictions in Virginia

For the present study ofmethamphetamine convictions inVirginia, the Commission collectedinformation from the state and federaljudicial systems. Since some criminaloffenses carried out in the state ofVirginia are processed in the federalsystem, the inclusion of federal dataallows for a more complete analysisof the prevalence of and trends inmethamphetamine convictions. TheUnited States Sentencing Commissionprovides data regarding federalconvictions in all U.S. states andterritories. In the federal system,preparation of sentencing guidelinesis mandatory and pre-sentenceinvestigation reports (PSIs) are filedin nearly every case. Due to thenature of conviction data collection onthe state and federal levels, there issometimes a lag before data can beconsidered relatively complete for agiven year. Federal data are completethrough federal fiscal year 2006(September 30, 2006).

In Virginia’s circuit courts, thepreparation of sentencing guidelinesis required in every case that involvesan offense for which guidelines havebeen developed. The completion of aPSI is not mandatory within the statejudicial system and an offender canwaive the preparation of the report.In these cases, the judge is onlyprovided with the guidelines at the timeof sentencing. In most felony cases,a post-sentence report will becompleted and submitted aftersentencing if a pre-sentence report hasnot been prepared. Post-sentencereports can be submitted months andeven years after an individual has beensentenced. In some felony cases, areport is never prepared, as can bethe case when the offender nevercomes to the attention of theDepartment of Corrections. This canoccur when an offender does notserve any prison time and is not placedon supervised probation. Due to thelack of reports for some cases andsignificant lags in reporting time, thedata system used to collectinformation from PSIs is incompleteand does not account for allconvictions in Virginia’s circuit courts.Since Virginia’s sentencing guidelinesencompass nearly all felony drugoffenses, guidelines data are morecomplete and up-to-date than PSIdata. However, the guidelines formsdo not identify the particular type ofdrug involved in a case. This lack ofinformation precludes any analysisbased upon specific drug type using


the sentencing guidelines database.PSI data, on the other hand, identifyup to two drug types and thecorresponding quantities of drugs foreach case. PSI data also provide amore detailed account of the instantoffense, as well as the offender’scriminal, social, and educationalhistory.

The drug type and quantity have notbeen recorded in every narcotics-related case in the PSI database. Theproportion of drug cases in which thedrug type field on the PSI was leftblank increased from a low of 1.7%in 1997 to 7.5 % in 2004. Whenpreparing the report, probation officersmay also input vague descriptors thatidentify the general class of drugrather than the particular type. Forinstance, the current study revealedthat many methamphetamine caseswere labeled as amphetamine cases,which is a more general term thatincludes methamphetamine and anumber of other stimulants. Also,probation officers sometimes identifythe drug type as simply a Schedule Ior II drug. For drug convictionssentenced in 2004, the percentage ofcases missing the drug type or usinga non-specific descriptor was 12.5%.Although data for 2005 and 2006should be considered incomplete,analysis suggests further increases inthe proportion of cases with unclearor missing drug types in these years.

Review of PSI offense narrativesrevealed that probation officerssometimes misidentify other drugs asmethamphetamine and vice versa. Forexample, preparers occasionallyrecorded that a case involved ecstasy(3,4-methylenedioxymethamphetamineor MDMA) or Ritalin(methylphenidate) when, in actuality,the drug was methamphetamine. Thismiscoding is most likely due to thesimilarity of these drugs’ chemicalnames. Although these drugs arechemically distinct, they are allstimulants and can be categorizedunder the umbrella term of“amphetamines.” In addition, drugswith a crystalline structure that testedpositive for methamphetamine werefrequently categorized asmethamphetamine, although ice is theonly form of the drug that exhibits suchan appearance. Since ice is the onlyform of methamphetamine that can besmoked (Scott & Dedel, 2006),methamphetamine residue detected ona smoking instrument should havebeen categorized as ice as well.


Reviewing the PSI offense narrativesfor each case that was identified asinvolving methamphetamine, ice,ecstasy or amphetamines allowed theCommission to verify the drug type andamount, if sufficient detail wasavailable. In the two prior studies inthis series, only methamphetamine andice narratives were selected forverification and, since ice was not aslarge of a concern at the time of thesestudies, distinctions between the twoforms of methamphetamine were notaddressed. Automated PSI narrativeshave only been available since fiscalyear 2000. Consequently, the form ofmethamphetamine present forconvictions prior to July 1, 1999, couldnot be confirmed. The PSI datasystem is the only source of drug-specific information and, therefore, isthe most useful resource for thepresent study.

According to available PSI data, thenumber of cases involvingmethamphetamine in theCommonwealth’s circuit courtsincreased between FY2000 andFY2004 (Figure 47). For the purposesof this report, a case includes allconvictions handled together in thesame sentencing hearing. In FY2000,89 cases involved manufacturing,distributing, selling, possessing with theintent to sell, selling foraccommodation or possessing(without the intent to sell)methamphetamine. This numberincreased dramatically in FY2001 andpeaked in FY2004 at 204 reported

cases. Data for FY2005 and FY2006suggest a downward turn in thenumber of methamphetamineconvictions in Virginia’s circuit courts.However, figures for recent years aresubject to change due to lags inreporting. Although the numbers foreach year may increase as additionalreports are received, it is unlikely thatFY2006 cases will exceed the numberof cases recorded in FY2004.

Figure 47

Methamphetamine Convictions in Virginia’s Circuit Courts,Fiscal Years 2000-2006

FY00 FY01 FY02 FY03 FY04 FY05* FY06*

Number of Cases

89

144130

146

204

157

73

*Data are incomplete. While the figures for prior years may increase slightly as post-sentence reports are received, the figures for FY2005 and FY2006 should be considered incomplete and subject to greater increases.Note: A case includes all convictions that are handled together in the same sentencing hearing.Source: Pre/Post-Sentence Investigation (PSI) Report Database


According to PSI data, well over half(60%) of convictions for meth-amphetamine in FY2002 were for thesale, manufacture or possessionwith the intent to distribute the drug(Figure 48). These crimes are definedin § 18.2-248(C) and (C1) of the Codeof Virginia and carry a statutorypenalty of 5 to 40 years or, formanufacturing methamphetamine, 10to 40 years of incarceration. Almost30% of methamphetamine convictionsin FY2002 were for simple possession.Possession, defined by § 18.2-250,carries a statutory penalty range of 1to 10 years of imprisonment. Incontrast, in cases involving crack,powder cocaine, ecstasy or heroin,convictions for simple possessionoutnumbered convictions for sales-related offenses. For instance, salesand manufacturing offensesconstituted 41% of all crack cases inFY2002 while possession convictions

Figure 48

Percent of Drug Cases in Virginia’s Circuit Courtsby Type of Offense,2002 and 2005

accounted for 50% of the crackcases in that year. Likemethamphetamine cases, mostmarijuana cases in circuit court inFY2002 involved sales or productionof the drug. With the exception ofecstasy cases, these overall patternsdid not change in FY2005. However,the percentage of methamphetaminecases accounted for by sales-relatedoffenses decreased to 54% and theproportion involving possession roseto nearly 39%. While more than halfof ecstasy convictions in FY2002were for possession of the drug,possession cases dropped to 38% in2005, with a corresponding increasein the percent of sales-related cases.

Marijuana 2002 2005*

Sale/Manufacturing 61.7% 64.6%

Possession 24.3 22.5

Accommodation 1.0 1.1

Crack

Sale/Manufacturing 41.2 41.1



Cocaine




Heroin




Meth




Ecstasy




*Data are incomplete.Note: Percentages do not add to 100% because a small number of miscellaneousoffenses are not shown.

Source: Pre/Post-Sentence Investigation (PSI) Database


Figure 49

Methamphetamine Convictions in Circuit Courts byType of Methamphetamine

FY00 FY01 FY02 FY03 FY04 FY05* FY06*

Number of Cases

86 52

135121

138

185

14121

16

19

89

9

3

Methamphetamine Ice

The ice form of methamphetaminehas garnered increasing attention inrecent years, particularly sinceMexican Drug TraffickingOrganizations are reportedlytransporting more ice into the countrythan in prior years (NDIC, 2006).Information from the PSI database isconsistent with data from theTreatment Episode Data Set, whichhave suggested a rise in ice use amongindividuals seeking treatment formethamphetamine. Similarly, thenumber of methamphetamineconvictions relating to ice has risen

over the past few years. Specifically,in FY2000, ice accounted for only 3of the 89 methamphetamineconvictions in Virginia’s circuit courts(Figure 49). In comparison,preliminary data for FY2006 showthat more than one in four cases (21out of 73 cases) involved ice.

This apparent increase in iceconvictions may be partially accountedfor by changes in the amount and typeof detail contained in the PSI offensenarratives. During review of theoffense narratives, strict standards

*Data are incomplete.Note: A case includes all convictions that are handled together in the same sentencing hearing.Source: Pre/Post-Sentence Investigation (PSI) Report Database


were used to determine if the drugdescribed in the PSI narrative wasice. The substance was onlyconsidered ice if a crystallinestructure or residue on a smokingdevice was specifically mentioned. Ifan offense narrative only noted thatitems tested positive formethamphetamine and the PSIs didnot contain additional informationregarding the nature of the substance,the case was coded as meth-amphetamine.

Results from the PSI database areconsistent with reports from theVirginia Community Youth Survey,which suggest that the prevalence ofmethamphetamine varies acrossregions of the state. The roughly 130localities that comprise Virginia’scircuit court system are grouped intosix administrative regions thatrepresent the main geographicalareas of the state: Tidewater (Region1), Northern Virginia (Region 2),Central Virginia (Region 3),Southwest Virginia (Region 4),Southside Virginia (Region 5), and theShenandoah Valley/Piedmont area(Region 6). The boundaries for

Region 6Shenandoah Valley/Piedmont

Region 4Southwest Virginia

Region 5Southside Virginia

Region 3Central Virginia

Region 2Northern Virginia

Region 1Tidewater

Figure 50

Supreme Court of Virginia Judicial Regions

these judicial regions have beenestablished by the Supreme Court ofVirginia and are displayed in Figure50.

The regional distribution ofmethamphetamine cases in Virginia’scircuit courts changed considerablybetween FY1995 and FY2006 (Figure51). In FY1995, the largest share(24%) of methamphetamine-relatedconvictions occurred in the CentralVirginia region, followed closely by theShenandoah Valley region (21%).Over the next five years, Virginiaexperienced an increase in theproportion of methamphetamine casesfrom circuit courts in ShenandoahValley. More than 70% ofmethamphetamine cases in FY2000occurred in one of the three circuitcourts that comprise this region(Circuits 16, 25, and 26), while casesin Central Virginia dropped to less than5% of methamphetamine convictionsin the state.


Regional shifting continued afterFY2000, with a rise in cases from theSouthwest region of the state. TheShenandoah Valley and Southwestregions accounted for 113 of the 157(72%) methamphetamine convictionsin FY2005. That year, the proportionof cases in the Southwest region roseto 21%. Available data for FY2006indicate a slight rise in the proportionof methamphetamine cases inNorthern and Southside Virginia anda decrease in the Southwest. Overall,however, well over half of themethamphetamine cases betweenFY2000 and FY2006 occurred in theShenandoah Valley area. Theseregional patterns are reflected in data

Fiscal Northern Central Southwest Southside ShenandoahYear Tidewater Virginia Virginia Virginia Virginia Valley/Piedmont Cases

1995 16.7% 11.9% 23.8% 9.5% 16.7% 21.4% 42

1996 9.9% 7.9% 5.9% 11.9% 18.8% 45.5% 101

1997 9.2% 9.2% 15.4% 24.6% 18.5% 23.1% 65

1998 13.0% 14.0% 11.0% 14.0% 11.0% 37.0% 100

1999 8.8% 4.0% 10.4% 16.8% 12.0% 48.0% 125

2000 2.2% 3.4% 4.5% 9.0% 10.1% 70.8% 89

2001 5.5% 7.5% 4.8% 8.2% 11.0% 63.0% 144

2002 7.7% 5.4% 9.2% 7.7% 9.2% 60.8% 130

2003 4.1% 9.6% 1.4% 8.9% 12.3% 63.7% 146

2004 10.2% 14.1% 3.4% 8.8% 7.8% 55.6% 204

2005* 8.3% 10.2% 3.8% 21.0% 5.7% 51.0% 157

2006* 6.8% 13.7% 0.0% 11.0% 11.0% 57.5% 73

*Data are incomplete.Source: Pre/Post-Sentence Investigation (PSI) Report Database

Figure 51

Methamphetamine Cases in Virginia's Circuit Courtsby Judicial Region

related to methamphetaminelaboratory seizures and self-reportedmethamphetamine use. As describedabove, most of the methamphetaminelaboratory seizures between 2000 and2006 occurred in the Southwest orShenandoah Valley regions of thestate. In addition, the 2005 VirginiaCommunity Youth Survey indicatesthat high school students in theShenandoah Valley and Southwestareas of the state reported the highestrates of lifetime and current use ofmethamphetamine.


Among convictions for man-ufacturing, distributing, selling, andpossessing with the intent to sellmethamphetamine, the majority ofcases sentenced in the state’s circuitcourts involved relatively smallamounts of the drug. Information ondrug quantity was not available for allmethamphetamine cases in the PSIdatabase. Between January 1, 1992,and September 18, 2006, 573methamphetamine cases sentenced inVirginia’s circuit courts involvedmanufacturing or sales-relatedoffenses, including distribution andpossession with intent to sell. Theamount of methamphetamine was notavailable for 150 of these cases.

Figure 52

Quantity of Methamphetamine in Manufacture/SaleCases in Virginia’s Circuit Courts, 1992-2006

Note: Analysis includes manufacture, distribution, sale, and possessionwith intent to sell methamphetamine.Source: Pre/Post-Sentence Investigation (PSI) Report Database

The mean seizure amount formethamphetamine cases sentencedbetween 1992 and 2006 was 16.2grams. The mean, however, issometimes not an accuraterepresentation of the typical case, inthat a few large seizure amounts caninflate the average significantly. In thecurrent analysis, the amount ofmethamphetamine was above 200grams in 8 cases. Approximately 95%of the cases were associated withamounts lower than 65 grams. One-third of the cases involved less than1.05 grams of the drug (Figure 52).The median amount is very useful inthis instance, since it is not heavilyaffected by extreme values. Themedian identifies the center value in arange of numbers, where half of thecases fall above the value and half ofthe cases fall below. The medianamount of methamphetamine seizedbetween 1992 and 2006 was 2.9grams.

Mean: 16.2 gramsMedian: 2.9 grams


An analysis of the quantity ofmethamphetamine involved inmanufacture and sales-related casessentenced in Virginia’s circuit courtsrevealed geographical differences inthe amount of drug seized. Forinstance, the mean seizures in theNorthern, Southwest, and ShenandoahValley/Piedmont areas exceeded 15grams, with Northern Virginia yieldingthe highest average amount at 33.7grams (Figure 53). The number ofsales and manufacturing cases fromNorthern and Central Virginia wasrelatively small, with only 16 and 9cases, respectively. The data showthat several cases involved very largeamounts of methamphetamine, whichcan have a large impact upon the mean

Figure 53

Quantity of Methamphetamine inManufacture/Sales Cases in Circuit Courts by Region, 1999-2006

Mean MedianJudicial Region (in grams) (in grams) Cases

Tidewater (1) 12.7 3.9 27Northern Virginia (2) 33.7 1.8 16Central Virginia (3) 11.4 0.9 9Southwest Virginia (4) 16.9 1.5 62Southside Virginia (5) 13.0 3.2 29Shenandoah Valley/Piedmont (6) 16.4 3.0 205

TOTAL 348

Note: Analysis includes manufacture, distribution, sale, and possession with intent to sell methamphetamine.Source: Pre/Post-Sentence Investigation (PSI) Report Database

values. This is particularly true if thereis a small number of cases, as inNorthern Virginia. The medianquantities of methamphetamineindicate that manufacture and sales-related cases typically involved thelargest amounts in the Tidewater area,followed by the Southside Virginiaregion.


instance, between calendar years2001 and 2003, the number ofmethamphetamine convictions infederal courts increased from 54 to130 but dropped the following yearto 99. This figure then peaked at 178in 2005. Federal data for 2006suggest another fall in the number ofconvictions, but this dataset is onlycomplete through the end of thefederal fiscal year and it is very likelythat the numbers will increase.

Virginia is divided into two judicialdistricts that guide administration ofjustice in the federal system (Figure55). The federal district responsiblefor the majority of convictions formethamphetamine-related offensesvaried considerably in the late 1990s.While nearly 86% of meth-amphetamine cases in federal courtsin Virginia were concentrated in theEastern district in 1995, the Western

Figure 54

Methamphetamine Cases in Federal Courts in Virginia, 1992-2006

1992 1993 1994 1995 1996 1997 1998

Number of Cases

19 8 6 7 1525

64

*Data for 2006 are complete through September 30, 2006.Source: United States Sentencing Commission Data Set

1999 2000 2001 2002

38

82

5470

2003 2004 2005

130

99

178

2006*

119

Only some felony offenses committedin Virginia are prosecuted in Virginia’scircuit courts. The federal judicialsystem maintains jurisdiction oversome crimes committed in theCommonwealth and officials maychoose to prosecute individuals infederal courts. Analysis of federaldata shows that methamphetaminecases processed in the federal courtsystem tend to exhibit differentcharacteristics than cases in the circuitcourts. The number of convictions formethamphetamine-related offenses infederal courts in the Commonwealthincreased from 7 in 1995 to 178 in2005, which is similar to the patternseen in Virginia’s circuit courts (Figure54). However, the number ofconvictions has increased moresharply overall in federal courts thanin state courts and with greaterfluctuations from year to year. For


district accounted for the majority ofmethamphetamine-related cases in1996 and 1997 (Figure 56). Thepattern shifted again in 1998 and 66%of methamphetamine convictions infederal courts occurred in the Easternregion of Virginia. In 2000, the gapbetween the two districts closed andthe cases were almost equally splitacross districts. The following yearmarked a shift in the distribution ofcases across districts and, since then,the majority of federal meth-amphetamine convictions haveoccurred in the Western district of thestate.

Virginia circuit court data can also begrouped based upon the boundaries ofthe federal judicial districts. Statecircuit court data show much lessvariation from year to year. Morespecifically, methamphetamine casesin the Commonwealth have beenconcentrated in the Western districtsince 1995. The percentage ofconvictions occurring in the circuitcourts in the Eastern region peakedat slightly over a third of the cases in1998.

Nearly all methamphetamine-relatedcases processed in federal courts inVirginia between 1999 and 2006involved trafficking as the primaryoffense. With the exception of casesin 2004 and 2006, the percentage ofcases relating to trafficking chargesdid not fall below 90% during this timeperiod. In 2004, cases for whichtrafficking was the highest chargecomprised 78.8% of the federalmethamphetamine cases and in 2006,based upon preliminary data, this

Virginia Federal Circuit Courts District CourtsYear Eastern Western Year Eastern Western1995 32.8% 67.2% 1995 85.7% 14.3%1996 33.3 66.7 1996 26.7 73.31997 25.7 74.3 1997 24.0 76.01998 35.2 64.8 1998 65.6 34.41999 14.8 85.2 1999 65.8 34.22000 16.9 83.1 2000 56.1 43.92001 15.6 84.4 2001 20.4 79.62002 21.9 78.1 2002 30.0 70.02003 18.9 81.1 2003 13.8 86.22004 28.0 72.0 2004 25.3 74.72005* 29.1 70.9 2005 24.7 75.32006* 14.1 85.9 2006* 20.2 79.8

*Data are incomplete.Sources: Pre/Post-Sentence Investigation (PSI) Report Database; United StatesSentencing Commission Data Set

Figure 56

Methamphetamine Cases in Federal and State Courtsin Virginia by Federal District

Figure 55

Federal Judicial Circuits in Virginia

percentage was 88.2%. In comparison,the proportion of cases in Virginia’s circuitcourts involving the sale or manufactureof methamphetamine remained below61% for each year between 1992 and2006. The fact that possession casescomprise a larger proportion ofmethamphetamine convictions in statecircuit courts versus federal courtssuggests that many of the cases involvingthe sale of methamphetamine are funneledinto the federal system.


Differences also exist betweenfederal and state cases in terms ofthe amount of methamphetamineseized. Available data show thatmethamphetamine convictions inVirginia’s federal courts tend to involvelarger drug quantities than cases incircuit courts. For methamphetaminetrafficking cases sentenced in federalcourts between 1999 and 2006, themean and median quantities ofmethamphetamine were 63,432.9grams and 534.9 grams, respectively.On average, federal trafficking casesin the Eastern district of Virginia

Figure 57

Quantity of Drug in Methamphetamine Trafficking

Cases in Federal Courts in Virginia, 1999-2006*

Amount Eastern District Western District Total

Less than 50g 13.3% 14.8% 14.3%50g to 199g 22.2 19.4 20.2200g to 349g 5.9 7.4 7.0350g to 499g 4.4 5.5 5.2500g to 1,499g 20.0 21.2 20.91,500g to 5,000g 17.8 19.4 18.9More than 5,000g 16.3 12.3 13.5

Mean 209,778g 2,643.3g 63,432.9gMedian 590.5g 529.1g 534.9g

Number of Cases 140 326 466

*Data for 2006 are complete through September 30, 2006.Note: Data do not include trafficking cases for which quantity was not recorded.Source: United States Sentencing Commission Data Set

involved larger quantities of the drugthan cases in the Western districtduring this time (Figure 57). A verylarge seizure of methamphetamineoccurred in the Eastern district in 2006and drastically increased the meanvalue. However, the median valuesfor the Eastern and Western districtsalso indicate that, on average, largeramounts of methamphetamine wereseized in the Eastern district than theWestern district between 1999 and2006. In sales and distribution casesin Virginia’s circuit courts, the meanweight of methamphetamine was 16.6grams and the median was 2.9 grams.None of the methamphetamine casesin the circuit courts involved amountsgreater than 500 grams.


Relative Prevalence ofMethamphetamine

Indicators of drug prevalence withinthe Commonwealth show thatmethamphetamine remains much lesspervasive than other Schedule I or IIdrugs. Although methamphetamineconvictions on the state level increasedbetween the early 1990s and 2004,preliminary data for fiscal years 2005and 2006 suggest a recent decline.Moreover, methamphetamineaccounted for a very small percentageof Schedule I or II drug convictionsduring this time period. Data collectedusing the Virginia Community YouthSurvey indicate a decrease between2000 and 2005 in the percentage oftwelfth graders who reported usingmethamphetamine at least once intheir lifetime . In addition, current useof methamphetamine by twelfthgraders was lower than marijuanaand cocaine in 2005. Treatmentadmission statistics for Virginia showthat, although the percentage ofadmissions relating to met-hamphetamine use increased between1995 and 2005, the majority ofadmissions during this time periodwere associated with marijuana orcocaine.

Information provided by the VirginiaDepartment of Forensic Scienceshows an increase in the number ofcases involving methamphetamine.The agency processed 366 cases thatwere related to methamphetamine in2000, compared to 1,084 cases in

2006. However, the overall numberof cases related to marijuana, cocaine,heroin or methamphetamine increasedfrom 40,085 to 43,266 between 2000and 2006. The number of casesassociated with marijuana or cocainecontinues to far exceed the number ofcases related to methamphetamine.Reports from the Virginia State Policeshow a general increase in drug arrestsbetween 2000 and 2006, withmarijuana accounting for the majorityof these arrests, followed by crack andpowder cocaine. Although arrests foramphetamines grew from 203 to 567during this time period, these casesonly comprised 2% of drug arrests in2006.

Crack and powder cocaine offenseshave accounted for the majority ofdrug convictions in Virginia’s circuitcourts during the past decade. Amongcases involving the most commonlyreported drugs (cocaine, heroin,ecstasy, and methamphetamine), 95%were related to cocaine in FY1995. Incomparison, cocaine was listed aseither the primary or secondary drugin 87% of these cases in FY2005.Methamphetamine was recorded asone of the two drug types in less than2% of the cases in FY2000. Of thecases related to cocaine, heroin,ecstasy or methamphetamine inFY2005, 5% involved meth-amphetamine. The percentage ofcases associated with heroin rose from6% in FY1995 to 12% in FY2003,before decreasing to 10% in FY2005.


Analysis of circuit court conviction datafor cocaine (including crack), heroin,ecstasy or methamphetamine casesrevealed distinct regional variations inthe prevalence of these drugs. Cocainewas reported in more than 90% of thesecases in all of the Commonwealth’sjudicial regions in FY1995. Althoughthe percent of cases associated withcocaine has declined somewhat sincethat time, cocaine continues to representthe majority of drug cases (Figure 58).Since FY1995 the prevalence of heroinrelative to other drugs examined hasdoubled in the Tidewater, NorthernVirginia and Central Virginia regions.

Overall, methamphetamine cases havecomprised a much smaller percentageof drug cases compared to cocaine.However, the Shenandoah Valley/Piedmont and Southwest areas of thestate experienced a large increase in thepercentage of cases involvingmethamphetamine between FY1992and FY2006. Specifically, thepercentage of cases involvingmethamphetamine as either the primaryor secondary drug in the Shenandoah

Figure 58

Drug Cases in Virginia’s Circuit Courts by Judicial Region, FY2006*

Judicial Region Cocaine Heroin Methamphetamine Ecstasy

Tidewater (1) 87.3% 13.3% 1.5% 1.5%Northern Virginia (2) 79.9 9.0 6.9 5.6Central Virginia (3) 95.4 8.6 0.0 0.0Southwest Virginia (4) 73.9 0.0 34.8 0.0Southside Virginia (5) 95.3 0.7 5.3 0.0Shenandoah Valley/Piedmont (6) 56.5 0.0 45.7 0.0Virginia Total 85.3 8.0 8.2 1.5

*Data are incomplete.Note: Up to two drug types can be reported in each case.Data include the most common drugs as reported in FY2006, with the exception of marijuana.Source: Pre/Post-Sentence Investigation (PSI) Report Database

Valley rose from 1.2% in FY1992 tomore than 45% of the cases inFY2006 (Figure 58). In FY2005, thisfigure was 25.6%, suggesting a largeincrease in the proportion of casesrelating to methamphetamine in theShenandoah Valley between FY2005and FY2006. In Southwest Virginia,the percentage of cases relating tomethamphetamine decreased from apeak of 45% in FY2005 to 35% inFY2006. In FY2006, meth-amphetamine cases accounted forless than 7% of drug cases in the otherfour regions of the state. Althoughdata for fiscal years 2005 and 2006are fairly complete, PSI reportsconcerning cases sentenced duringthis time period continue to be receivedand these figures may change slightly.In general, the majority of cocaine,heroin, methamphetamine, andecstasy-related cases in Virginiacontinue to involve cocaine as eitherthe primary or secondary drug.Although marijuana is not discussedhere and is not included in the analysisdescribed above, the number ofmarijuana convictions in circuit courthas typically remained below one-fifthof the number of cases involvingcocaine.


Federal conviction data also show thatpowder and crack cocaine haveremained the most predominant drugsin the state over the past severalyears. In 2000, cocaine was identifiedas the most serious drug in 554 of the841 (66%) drug convictions for whichthe primary drug type was available.By 2005, the proportion haddecreased slightly to 64% . Cocainewas recorded as one of the five drugtypes in 65% of the cases in 2005 and2006 (Figure 59). Federal convictiondata for Virginia indicate an overallincrease in the number ofmethamphetamine and ice convictionsbetween 1997 and 2005. However,methamphetamine cases have neveraccounted for more than 16% of allfederal drug cases in Virginia.

2003 2004 2005 2006*

Cocaine 61.3% 64.6% 65.0% 65.3%

Marijuana 22.5 23.7 19 22.5

Heroin 12.3 8.8 4.8 5.1

Meth 11.3 9.3 15.2 15.2

Ecstasy 3.1 2.8 2.2 0.6

When marijuana is excluded, powderand crack cocaine comprise 79-80% ofthe federal cases. Methamphetaminewas identified as one of the five drugtypes in slightly more than 18% of thesecases in 2006 (excluding marijuana). Asin circuit courts, more cases in theWestern portion of the state involvedmethamphetamine. Specifically, in2006, nearly 40% of cocaine, heroin,methamphetamine, and ecstasyconvictions in the Western district wereassociated with meth-amphetamine,compared to 7% in the Eastern district.Conversely, 90% of the cases in theEastern district were related to cocainein 2006 while only 59.7% of the casesin the Western district involved cocainein that year. These regional differenceswere consistent between 1999 and2006. Although the number ofmethamphetamine convictions inVirginia’s federal courts has increasedsince the mid-1990s, powder and crackcocaine continue to be the mostprevalent drugs.

Figure 59

Drug Cases in Federal Courts in Virginia, 2003-2006*

* Data for 2006 are complete through September 30, 2006.Note: Up to five drug types can be reported in each case.Source: United States Sentencing Commission Data Set


Virginia SentencingGuidelines for Drug Offenses

After the abolition of parole in 1994,Virginia’s General Assembly directedthe Commission to develop andoversee a system of sentencingguidelines that were compatible withthe newly developed sanctioningsystem. The General Assemblysought to establish truth-in-sentencingin Virginia and to target violentoffenders for longer terms ofincarceration. Truth-in-sentencingrequires that offenders serve all ornearly all of the time imposed at thesentencing hearing. Felony offenderswho committed crimes on or afterJanuary 1, 1995, must now serve atleast 85% of their prison or jailsentence.

Prior criminal history plays animportant role in Virginia’s sentencingguidelines. The guidelines wereformulated to target violent offendersfor periods of incarceration that arelonger than terms served under theparole system. All offenders with acurrent or prior conviction for a violentfelony are subject to enhancedsentence recommendations under theexisting guidelines. More specifically,sentence recommendations for theseoffenders can be up to six times longerthan the time served before 1995.Guidelines recommendations forindividuals who have never beenconvicted of a violent crime areroughly equivalent to the average timeserved by similar offenders prior tothe abolition of parole in Virginia.

Figure 60Primary Offense Factor on Section C of the Schedule I or II Drug Sentencing Guidelines

Primary Offense

Score

Category I Category II

Other

A. Possess Schedule I or II drug - Attempted, conspired or completed:1 count ....................................................................... 20 ..................... 10 ..................... 52 counts ...................................................................... 28 ..................... 14 ..................... 73 counts ...................................................................... 36 ..................... 18 ..................... 9

B. Sell, Distribute, possession with intent, Schedule I or II drugCompleted: 1 count ....................................................................... 60 ..................... 36 .................. 12

2 counts ...................................................................... 80 ..................... 48 .................. 163 counts ...................................................................... 95 ..................... 57 .................. 194 counts .................................................................... 130 ..................... 78 .................. 26

Attempted or conspired: 1 count ....................................................................... 48 ..................... 24 .................. 122 counts ...................................................................... 64 ..................... 32 .................. 163 counts ...................................................................... 76 ..................... 38 .................. 194 counts .................................................................... 104 ..................... 52 .................. 26

C. Sell, etc. Schedule I or II drug, subsequent offense; third and subsequent offenseCompleted: 1 count ..................................................................... 110 ..................... 66 .................. 22

2 counts .................................................................... 310 ................... 186 .................. 62Attempted or conspired: 1 count ....................................................................... 88 ..................... 44 .................. 22

2 counts .................................................................... 248 ................... 124 .................. 62D. Sell, etc. Schedule I or II drug to minor

Attempted, conspired or completed: 1 count ....................................................................... 60 ..................... 30 .................. 15E. Accomodation–Sell, etc. Schedule I or II drug - Attempted, conspired or completed:

1 count ....................................................................... 32 ..................... 16 ..................... 82 counts ...................................................................... 40 ..................... 20 .................. 10

F. Sell, etc. imitation Schedule I or II drug - Attempted, conspired or completed:1 count ....................................................................... 12 ....................... 6 ..................... 32 counts ...................................................................... 20 ..................... 10 ..................... 5

Prior Record Classification

Drug/Schedule I/II Section C Offender Name:


The guidelines worksheets that takeinto account an offender’s priorrecord and the nature of the currentoffense. An offender convicted of onecount of selling a Schedule I or II drugwho has never been convicted of aviolent felony will receive a guidelinesscore of 12 for the primary offensefactor on the Section C (prisonsentence length) worksheet (Figure60). Scores on this worksheet areequivalent to months of imprisonment.An offender with a prior convictionfor a violent felony that carries astatutory maximum penalty of lessthan 40 years is classified as aCategory II offender. For anindividual with a Category II priorrecord, the guidelines score for thisfactor is increased to 36 months.Category I offenders, individuals witha prior conviction for a violent felonycarrying a statutory maximum penaltyof 40 years or more, receive a scoreof 60 months for this factor. Thescores for additional offenses, weapon

use, and other prior record factors areadded to the primary offense score todetermine the final sentencerecommendation.

In addition to the enhancements for aviolent prior record, the Section Cworksheet for Schedule I or II drugoffenses also contains several factorsrelating to other aspects of an offender’scriminal history. The Prior Convictions/Adjudications factor accounts for theseriousness of an offender’s prior adultconvictions and juvenile adjudications,including nonviolent offenses (Figure61). Scores are also generated for thenumber of prior felony drug, person, andproperty convictions and adjudicationsand further increase the sentencerecommendation. The presence of aprior juvenile record adds one point tothe final score for this section.Offenders convicted of possessing aSchedule I or II drug receive additionalpoints if they have two or more priorconvictions for offenses involvingSchedule I or II drugs.

Figure 61Prior Record Factors on Section C of the Schedule I or II Drug Sentencing Guidelines

Prior Juvenile Record If YES, add 1

Prior Felony Property Convictions/Adjudications Number: 1, 2 ............................................................................................................................................................. 1

3 ................................................................................................................................................................. 24 or more ................................................................................................................................................... 3

Prior Felony Convictions/Adjudications Against Person Number: 1 ................................................................................................................................................................. 3

2 ................................................................................................................................................................. 63 ................................................................................................................................................................. 94 or more ................................................................................................................................................ 12

Prior Convictions/Adjudications Assign points to the 5 most recent and serious prior record events and total the points

Number: 1 ....................................................................... 22 ....................................................................... 33 ....................................................................... 5

Prior Felony Drug Convictions/Adjudications

Maximum Penalty: Less than 5 ....................................................... 0 (years) 5, 10 ................................................................. 1

20 ..................................................................... 20

0

0

0 0

0 0

4 ......................................................................... 75 ......................................................................... 86 or more ......................................................... 10

30 ....................................................................... 340 or more ......................................................... 4


Most felony offenses involving aSchedule I or II drug are covered byVirginia’s sentencing guidelines. Withthe exception of cocaine offenses, thequantity of the drug seized does notaffect the guidelines recommendation.On July 1, 1997, the Commissionimplemented guidelines enhancementsfor offenders convicted ofmanufacturing, distributing, selling orpossessing with the intent to sellcertain amounts of cocaine. At thattime, cocaine representedapproximately 90% of all Schedule Ior II drug convictions in Virginia’scircuit courts. As noted above,cocaine continues to comprise a largeproportion of drug convictions in theCommonwealth. Based on analysisof historical data, the Commissionconcluded that the quantity of cocainewas related to sentencing outcomes.Cocaine was therefore selected forenhancements. A factor on the prisonsentence length (Section C)worksheet increases the midpointrecommendation by 3 years forcocaine distribution involving 28.35grams (1 ounce) up to 226.7 grams.For the distribution of a half-pound ofcocaine (226.8 grams) or more, themidpoint recommendation is increasedby 5 years. These threshold amountswere the result of statistical analysesthat revealed a relationship betweenthe amount of cocaine seized in a caseand the sentence outcome.

Comparing Virginia andFederal Sentencing

Guidelines

The United States SentencingCommission (USSC) administers thesystem of federal sentencingguidelines. As in Virginia, the federalguidelines were adopted in order topromote greater consistency insentences and eliminate unwarranteddisparity. The two guidelines systemsalso share the common goal oftargeting specific offenders,particularly violent offenders, formore severe penalties. Both the stateand federal guidelines take intoaccount the defendant’s criminalrecord and the seriousness of thecurrent offense when calculating thefinal sentence recommendation.

From the full implementation of thefederal sentencing guidelines in 1989until the landmark decision in UnitedStates v. Booker in 2005, theguidelines recommendations wereviewed as compulsory and federaljudges were only allowed to departfrom the recommended range inspecified circumstances. In Booker,the United States Supreme Courtdeclared that mandatory sentencing


enhancements based upon judicial factfinding violated the Sixth Amendmentright to trial by jury. In other words,judges were sometimes called upon todetermine factual elements of the casethat were not admitted by thedefendant nor found by the jury, as ina case where the amount of druginvolved is questionable and the jurynever determined the exact amount.In this example, for an individual toscore the federal guidelinesappropriately, someone must make thedetermination as to the drug quantity.Consequently, the federal guidelines,like Virginia’s guidelines, are nowviewed as advisory rather thanmandatory, with the purpose ofproviding sentencing judges withanother factor to weigh duringsentencing (Campbell & Bemporad,2006).

Although numerous similarities existbetween the two guidelines systems,the federal guidelines differ fromVirginia’s system in several respects.For one, the sentence rangesrecommended by the federal guidelinesare limited by the Sentencing ReformAct of 1984, which mandates that thetop of each guidelines range cannotexceed the bottom by more than sixmonths or 25 percent, whichever isgreater. The formats of the sentencingguidelines are different as well. Asnoted above, the federal guidelinestake into account the offender’scriminal record and the severity of thecurrent offense, referred to as the“offense level” in the guidelines. In

creating and implementing theguidelines, the USSC designed a gridbased upon scores representing theoffense level and prior record. Thetable includes 43 offense levels and 6criminal history categories. Therecommended range of imprisonmentis located at the intersection of therelevant offense level and criminalhistory scores. The table is divided intofour zones, which representalternatives to imprisonment. Forinstance, Zone A includes ranges ofsentence recommendations betweenzero and six months, but judges mayimpose any sentence from probation toimprisonment without departing fromthe guidelines if the offender falls intothis category. The other zones, withthe exception of cells falling within themost serious zone, offer morerestrictive alternatives to imprisonment(Hofer, Loeffler, Blackwell, &Valentino, 2004).

In cases involving drug trafficking, theoffense level score in the federalguidelines is directly linked to theamount and type of drug involved in aparticular case. The USSC identifiedthe quantity thresholds based, in part,upon the Anti-Drug Abuse Act of 1986(ADAA), which established mandatoryminimum penalties for trafficking incertain amounts and types of drugs.The USSC has incorporated 17different drug quantity groupings intothe guidelines, including those specifiedin the ADAA. The amount categoriesare associated with varying scores forthe offense level and, consequently, theseverity of the recommended sentence.


The specific rationale behind theUSSC’s development of drug quantitycategories that are not associated withmandatory minimum sentences isunclear. The USSC may havedesigned these categories in order tocreate a more refined spectrum ofquantities that more closely links therelative harmfulness of the drugamount to the recommendedsentence. The incorporation ofnumerous quantity ranges also helpsavoid instances where minutedifferences in quantity result insubstantial differences in sentencerecommendations. Other than themandatory penalties specified in theADAA, the basis for the cutoffweights in the federal guidelines isunclear (Hofer et al., 2004). Incontrast to the federal system,Virginia’s guidelines only take intoaccount the amount of the drug if thecase involved the distribution ofrelatively large amounts of cocaine.Virginia’s threshold points for quantityof cocaine were determined basedupon statistical analysis of historicalsentencing patterns.

Unlike Virginia’s guidelines, thefederal guidelines differentiatebetween powder and crack cocaine.

More specifically, the amount ofpowder cocaine that triggers particularpenalty enhancements for federaldefendants differs from the amountof crack cocaine necessary to reachthe same offense level score. Thecocaine factor that qualifies theoffender for sentence enhancementsin the Commonwealth’s guidelinesdoes not distinguish between the typesof cocaine involved. In casesinvolving other drugs, the drug typeand amount do not impact the sentencerecommendation.

In addition to taking into account theamount of methamphetamine in acase, the federal guidelines alsodifferentiate between the specific typeand purity of methamphetamineinvolved. For example, legislationenacted by the U.S. Congressmandates that convictions for offensesrelating to smokable crystalmethamphetamine (ice) will receivea higher offense level score on theguidelines than cases involving otherforms of methamphetamine (U.S.Sentencing Commission, 2007).While Virginia’s guidelines do notaccount for the purity or type of drug,Virginia’s drug kingpin laws distinguishbetween pure methamphetamine anda methamphetamine mixture inspecifying the amounts that triggermandatory minimum sentences.


Quantity ofMethamphetamine andSentencing in Virginia’s

Circuit Courts

The Commission continuouslymonitors sentencing practices inVirginia’s circuit courts and the state’ssentencing guidelines system. Eachyear, the Commission considerspossible changes to the guidelines thatmay increase the usefulness of thistool for judges. This year, theCommission once again examined therelationship between the quantity ofmethamphetamine and sentencingoutcome to determine what impact, ifany, the amount of methamphetaminehas had on sentencing decisions.

The present analysis, as in to priorstudies, focused on individualsconvicted in Virginia’s circuit courts.Federal cases were excluded fromthis analysis because the federalsentencing guidelines specificallyaccount for drug quantity. In addition,the recommended sentence ranges inthe federal guidelines are very narrowand, until recently, these guidelineswere treated as compulsory, with fewexceptions. Consequently, the drugamount in a particular case hashistorically affected sentencingdecisions in federal courts. Virginia’ssentencing guidelines, on the otherhand, are relatively broad and havebeen discretionary since theirinception. The relationship betweendrug quantity and sentence outcome

in the Commonwealth’s circuit courtsis not as clearly defined as it is in thefederal system. Analysis of Virginia’scircuit court cases allows theCommission to examine the role of thequantity of methamphetamine in anenvironment where judges have beenable to consider the amount of thedrug involved and incorporate this intothe sentencing decision at theirdiscretion.

The sentencing decision occurs withinthe context of many other factors and,consequently, the current analysistakes into consideration additionalfactors that have been shown toimpact sentences, such as anoffender’s prior record and weaponuse. The Commission’s examinationof sentencing patterns in Virginia’scircuit courts revealed that, forindividuals convicted ofmanufacturing, selling, distributing orpossessing with the intent to sellmethamphetamine, the amount of thedrug does not play a significant role inthe sentencing decision. As in priorstudies, the Commission did notobserve a consistent relationshipbetween larger quantities ofmethamphetamine and sentencelength in these sale/manufacturecases.


The Commission categorizedoffenders and amounts ofmethamphetamine in various ways inorder to determine if drug quantity isrelated to sentence outcome in circuitcourts. Since this aspect of the studyfocused specifically upon the quantityof methamphetamine, cases wherethe drug amount was unknown wereexcluded from the analysis. As partof the analysis, the Commissioncreated four equally-sized groups ofcases based upon the drug amount.Each group represented one quarterof the methamphetamine sale/manufacture cases sentenced underVirginia’s truth-in-sentencingprovisions. The mean sentence forthe 25% of methamphetamine casesrepresenting the smallest quantities(less than one gram) was 15.8 monthsof imprisonment (Figure 62). Themedian sentence for this group was7.5 months, meaning that half of theseoffenders received sentences thatwere shorter than 7.5 months while

the other half received sentences thatwere longer than 7.5 months. Incomparison, the mean sentence lengthfor cases involving the seizure of 1 to2.9 grams was nearly 25 months, witha median of 14 months.

The mean and median sentence lengthfor the third group of offenders, whichwas comprised of cases associatedwith amounts of methamphetaminebetween 3 and 12.9 grams, were lowerthan for cases involving 1 to 3 grams.The average sentence for the groupof offenders selling or manufacturingthe largest quantities of meth-amphetamine was not higher than thesentence for offenders arrested withsmaller amounts of the drug.Specifically, the mean sentence foroffenders with 13 grams or more ofmethamphetamine was equal to theaverage sentence for offendersapprehended with 1 to 2.9 grams ofthe drug. The median sentence forthe fourth group was 4.5 months longerthan the median sentence for thesecond group and 6.5 months longerthan the third group, indicating anirregular and unsteady relationshipbetween the amount ofmethamphetamine and the length ofthe sentence received. This suggeststhat the average sentence length wasnot consistently higher for offenderswho were arrested with largeramounts of the drug.

Figure 62

Sentence Length in Methamphetamine Sale/ManufactureCases in Virginia’s Circuit Courts (in months)

Less than 1gram

1 to 2.9 grams

3 to 12.9 grams

13 grams or more

15.8

7.5

24.914

18.812

24.9

18.5

Mean

Median

Note: Analysis is based on cases sentenced under Virginia's truth-in-sentencing/no-parole system from 1995 through 2006.Data include the offenses of manufacture, sale, distribution, and possession with intent to sell.Source: Pre/Post-Sentence Investigation (PSI) Database


The Commission also examined therelationship between drug amount andsentence length within the context ofoffenders’ criminal records. Thisstage of the analysis focused onoffenders with no prior felony recordwho were only convicted of one countof selling or manufacturingmethamphetamine. These cases weregrouped using the same amounts asabove. Sentencing patterns indicatethat offenders arrested with less than1 gram of methamphetamine received,on average, substantially lowersentences than individuals convictedof sales and manufacturing offensesinvolving between 1 and 2.9 grams ofthe drug (Figure 63). The mean andmedian sentences for defendants inthe second and third groups, involving1 to 2.9 grams and 3 to 12.9 grams,were nearly equal. The mean andmedian sentences for cases involvingthe largest quantities were greaterthan the average sentences for theother groups, but only slightly.

Offenders with a prior felony recordwho were convicted of one count ofthe sale or manufacture ofmethamphetamine receivedconsiderably longer sentences thandefendants without a prior record. Inparticular, the median sentence foroffenders with a prior record whowere arrested with 13 grams or moreof methamphetamine was 12 monthslonger than the median sentence foroffenders without a prior record(Figure 64). However, the meansentence for offenders with a priorfelony record who were arrested withless than l gram of methamphetaminewas higher than the average sentence

Figure 63

Sentence Length in Methamphetamine Sale/Manufacture Casesin Virginia’s Circuit Courts (in months)

Offenders with no prior felony record convicted of 1 count

Figure 64

Sentence Length in Methamphetamine Sale/ManufactureCases in Virginia’s Circuit Courts (in months)

Offenders with a prior felony record convicted of 1 count

for offenders with 1 to 2.9 grams ofmethamphetamine. Examining the natureof the offender’s prior record, offenderswith a prior violent record who wereconvicted of one count received longersentences, on average, than offenderswithout a prior violent record.

Less than 1gram

1 to 2.9 grams

3 to 12.9 grams

13 grams or more

21.312

19.612

23.212

28.2

24

Mean

Median

Less than 1gram

1 to 2.9 grams

3 to 12.9 grams

13 grams or more

7.13

16.77

16.17

18.2

12

Mean

Median

Note: Analysis is based on cases sentenced under Virginia’s truth-in-sentencing/no-parole system from 1995through 2006. Data include the offenses of manufacture, sale, distribution, and possession with intent to sellSource: Pre/Post-Sentence Investigation (PSI) Database


The Commission considered variousother means of categorizing the casesbased upon drug quantity. Asdiscussed above, Virginia’s GeneralAssembly has developed mandatoryminimum laws based upon specificamounts of drugs. The Departmentof Forensic Science reports thatnearly all methamphetamine cases inVirginia’s circuit courts are associatedwith methamphetamine mixtures andvery few cases involve puremethamphetamine. Therefore, theCommission focused its analysis onthe amounts set forth by the GeneralAssembly for methamphetaminemixtures. Of the cases sentenced inVirginia’s circuit courts between 1995and 2006 associated with the sale ormanufacture of methamphetamine,only 8 cases involved more than 200grams of methamphetamine and noneof the cases involved more than 1,000grams, the most serious threshold fora methamphetamine mixture

Figure 65

Sentence Length inMethamphetamine Sale/Manufacture Cases in Virginia’sCircuit Courts (in months)

established by the General Assembly.Offenders convicted of selling 200grams or more of methamphetaminereceived shorter sentences on averagethan offenders who were arrested forselling between 20 and 199 grams(Figure 65). However, the smallnumber of offenders with 200 gramsor more makes it difficult to draw firmconclusions.

Results of analyses with other cutoffpoints also do not support thehypothesis that individuals who areconvicted of selling the largestamounts of methamphetamine receivethe longest sentences. For instance,the Commission examined therelationship between the amountsspecified in the current cocaine factoron the sentencing guidelines andsentence length in methamphetaminecases. More specifically, the averagesentence for the seven defendantswho were convicted of selling 226.8

Figure 66

Sentence Length in MethamphetamineSale/Manufacture Cases in Virginia’sCircuit Courts (in months)

Mean Median

Less than 20 grams

20 to 199 grams

200 to 999 grams

19.9

12

25.624

21.915.5

Less than 28.5 grams

28.5 to 99.9 grams

100 grams or more

20.2

12

25.524

24.315.5

Note: Analysis is based on cases sentenced under Virginia’s truth-in-sentencing/no-parole system from 1995through 2006. Data include the offenses of manufacture, sale, distribution, and possession with intent to sell.Source: Pre/Post-Sentence Investigation (PSI) Database


grams (one-half pound) or more ofmethamphetamine was less than amonth longer than the averagesentence for individuals with less than226.8 grams. The median sentencefor both groups was 12 months.Furthermore, individuals who werearrested with at least 28.35 grams (1ounce) but less than 100 grams ofmethamphetamine tended to receivelonger sentences than offenders with100 grams or more (Figure 66).

Analyses of sentencing patterns thattake into consideration all relevantfactors available in the data do notsupport the conclusion that individualsconvicted of selling or manufacturingthe largest amounts of meth-amphetamine receive the longestsentences in Virginia’s circuit courts.Several models were generated usingfactors that have been shown toimpact sentencing decisions in thepast. This portion of the Commission’sstudy incorporated variablesrepresenting the amount ofmethamphetamine seized, thepresence of a firearm, the role of thedefendant in the offense, prior criminalhistory, the nature and number ofcharges at conviction, and whether theoffender was part of a ‘drug ring,’ inaddition to many other factors.

Numerous categorizations andpermutations of the amount ofmethamphetamine, including thegroupings described above, wereformulated in order to identify anypoints at which the quantity may haveaffected the length of sentenceimposed by the judges, controlling forother factors related to the offenderand offense. Rigorous testing, usingthe same methodology and statisticaltechniques employed during thedevelopment of Virginia’s historically-based guidelines, did not reveal astatistically significant relationshipbetween the quantity ofmethamphetamine and the sentenceoutcome. The analyses yielded noempirical evidence that circuit courtjudges are basing sentences on theamount of methamphetamine seized ina case.

As in other types of cases, sanctioningin methamphetamine cases waslargely driven by the nature of theoffender’s criminal history, whetherthe offender was in possession of afirearm at the time of the offense, andthe number of charges resulting in aconviction. Virginia’s sentencingguidelines specifically account for thenumber of charges and thedefendant’s juvenile and adult criminalhistory. In measuring criminal record,the guidelines take into considerationthe number and nature of prioroffenses, including the degree ofseriousness. The guidelines alsoaccount for the possession of afirearm at the time of the offense.


Commission Deliberations

Each year, the Commission monitorsthe sentencing guidelines system andconsiders possible modifications toincrease the usefulness of theguidelines. The Commission analyzeschanges and trends in judicialsentencing practices in order toidentify specific areas where theguidelines may not be consistent withjudicial thinking. This year, theCommission examined the sentencingguidelines in relation tomethamphetamine offenses. TheCommission found that there is noempirical evidence at this time tosupport revisions to the sentencingguidelines based on the quantity ofmethamphetamine.

Analyses conducted by theCommission focused upon individualsconvicted of the sale or manufactureof methamphetamine who weresentenced under truth-in-sentencingprovisions. Available PSI dataindicate that the quantity ofmethamphetamine involved in a caseis not a significant factor in judicialsentencing decisions, after controllingfor other case and offendercharacteristics. The nature of theoffender’s prior record and thenumber of charges at convictionappear to be the most importantfactors in determining the effective

sentence. The sentencing guidelinestake these two factors into accountwhen determining the finalrecommended sentence. The built-inmidpoint enhancements in theguidelines significantly increase therecommended sentence for offenderswith prior convictions for violentcrimes. Other factors included on theworksheets increase the sentencerecommendation based upon thenumber and type of prior convictions.

Virginia’s General Assembly hasdeveloped numerous mandatoryminimum penalties for offensesinvolving Schedule I or II drugs,including methamphetamine. Theselaws take precedence over thediscretionary guidelines system whenthe guidelines recommendation islower than the mandatory minimum.Consequently, in cases wheremandatory minimum penalties apply,the guidelines recommendations areadjusted to coincide with legislativemandates.

The Commission has not observedsufficient evidence to recommendchanges to the sentencing guidelinesrelating to Schedule I or II drugs atthis time. However, the Commissionwill continue to monitor and examinepatterns in the sentencing ofmethamphetamine cases and theimpact of drug quantity.


References

Administrative Office of the United States Courts. (2004). Addicted and adanger to the community: Supervising meth addicts. The Third Branch:Newsletter of the Federal Courts, 36(7). Retrieved October 16,2007, from http://www.uscourts.gov/ttb/july04ttb/addicts/.

Bauer, L. (2007, October 30). Anti-meth campaign from Montana has Kansasinterested, maybe Missouri. The Kansas City Star (KS). RetrievedOctober 31, 2007, from http://www.kansascity.com/105/story/340096.html.

Big brother entering meth fight in Kentucky. (2007, July 30). 14News WFIETV (IN). Retrieved November 29, 2007, from http://www.14wfie.com/Global/story.asp?S=6817481&nav=3w6o.

Brandt, A. (2006, May 6). Meth is here. Havre Daily News (MT). RetrievedNovember 8, 2007, from http://www.havredailynews.com/articles/2006/05/09/local_headlines/meth.txt.

Campbell, L.B. & Bemporad, H.J. (2006). An Introduction to FederalSentencing: Ninth Edition. Office of the Federal Public Defender,Western District of Texas. Retrieved October 24, 2007, from http://www.ussc.gov/training/educat.htm.

Cooking up solutions to a cooked up menace: Responses to methamphetaminein a federal system. (2006). Harvard Law Review, 119. RetrievedJuly 10, 2007, from http://www.harvardlawreview.org/issues/119/june06/june06.shtml.

DrugInfo Clearinghouse. (2007, March 13). Ice. Australian Drug Foundation.Retrieved June 14, 2007, from http://www.druginfo.adf.org.au/article.asp?ContentID=ice_general_info1.

Florio, G. (2007, July 20). Meth project founder critical of ‘crazy’ drug policy.Great Falls Tribune (MT). Retrieved October 31, 2007, from http://www.november.org/stayinfo/breaking07/MethFounder.html.

Gevock, N. (2006, October 5). Stuck with the cleanup. The Montana Standard(MT). Retrieved October 12, 2007, from http://www.montanastandard.com/articles/2006/10/05/newsbutte/hjjdijjejjihgh.txt.

Hofer, P.J., Loeffler, C., Blackwell, K., & Valentino, P. (2004). Fifteen Yearsof Guidelines Sentencing: An Assessment of How Well the FederalCriminal Justice System is Achieving the Goals of SentencingReform. Washington, D.C.: U.S. Sentencing Commission.


Hunt, D., Kuck, S., & Truitt, L. (2006). Methamphetamine Use: LessonsLearned. Final Report to the National Institute of Justice (NCJ 209730).Retrieved June 13, 2007, from www.ncjrs.gov/pdffiles1/nij/grants/209730.pdf.

Lopez, J. J. D. (2005, December 1). Regulation in Mexico. Presented at theSecond National Methamphetamine Legislative and Policy Conference,Honolulu, HI. Retrieved October 12, 2007, from http://www.natlalliance.org/publications.asp.

Methamphetamine and child maltreatment. (2007). Virginia Child ProtectionNewsletter, 79, 1-6, 19.

Mexico tightens restrictions on pseudoephedrine sales to combat meth. (2007,July 19). Arizona Daily Star (AZ). Retrieved October 12, 2007, fromhttp://www.azstarnet.com/news/192425.

McEwen, T. & Uchida, C.D. (2000). An Evaluation of the COPS OfficeMethamphetamine Initiative: Interim Report. Washington, D.C.: U.S.Department of Justice, Office of Community Oriented Policing Services.

Minnesota Bureau of Criminal Apprehension. (2006, July 27). GovernorPawlenty Signs Executive Order Creating Meth Offender Registry.Retrieved October 29, 2007, from https://mor.state.mn.us/ExecOrder.aspx.

Monitoring the Future: A Continuing Study of American Youth (12th-GradeSurvey): 2005 Online Data. Inter-University Consortium for Politicaland Social Research (ICPSR), University of Michigan Institute for SocialResearch. Retrieved July 2, 2007, from the ICPSR Web site: http://www.icpsr.umich.edu/.

Montana Office of Public Instruction. (2007, September 18). SignificantReduction in High School Meth Use Summary Report: Youth RiskBehavior Survey (YRBS) 2007 Montana High School. RetrievedNovember 1, 2007, from http://opi.mt.gov/PDF/Superintendent/MMO091807MethSummary.pdf.

Moore, M.A., Honnold, J., Derrig, M., Glaze, A., & Ellis, J.M. (2006). 2005Virginia Community Youth Survey. Richmond, VA: VirginiaCommonwealth University, Center for Public Policy.

Moore, M.A., Glaze, A., Honnold, J., Ellis, J.M., & Rives, M.E. (2004). 2003Virginia Community Youth Survey. Richmond, VA: VirginiaCommonwealth University, Center for Public Policy.


National Alliance for Model State Drug Laws. (2007a). Restrictions on Over-the-Counter Sales/Purchases of Products ContainingPseudoephedrine (As of November 2006). Alexandria, VA: NationalAlliance for Model State Drug Laws.

National Alliance for Model State Drug Laws. (2007b). Scheduling andRegulation of Ephedrine and Pseudoephedrine Legislative Chart(As of January 2, 2007). Alexandria, VA: National Alliance for ModelState Drug Laws.

National Alliance for Model State Drug Laws. (2007c). At a Glance: CommonThemes Regarding Properties Where Controlled SubstanceLaboratories are Found. Alexandria, VA: National Alliance for ModelState Drug Laws.

National Conference of State Legislatures. (2007). State Crime Legislation in2005. Retrieved October 25, 2007, from http://www.ncsl.org/programs/cj/05crime.htm.

National Institute on Drug Abuse. (2006). Methamphetamine: Abuse andaddiction. National Institute on Drug Abuse Research Report Series.Bethesda, MD: U.S. Department of Health and Human Services.

Poovey, B. (2007, October 22). Meth lab busts increase after two-year decline:Officials say change linked to illegal drug crackdown in Mexico.Knoxville News Sentinel (TN). Retrieved October 29, 2007, from http://www.knoxnews.com/news/2007/oct/22/meth-lab-busts-increase-after-two-year-decline/.

Pruneau, E. (2007, October 26). Meth labs continue to be a problem.Missourian (Washington, MO). Retrieved October 26, 2007, fromhttp://www.zwire.com/site news.cfm?

Randewich, N. (2007, July 19). Mexico limits some cold remedies in narcoticswar. Reuters News Service. Retrieved July 19, 2007, from http://www.reuters.com/article/worldNews/idUSN1927125520070719.


Romboy, D. (2007, February 25). How toxic is ‘toxic’. Deseret News (UT).Retrieved October 5, 2007, from http://deseretnews.com/dn/view/0,1249,660198239,00.html.

Roser, M.A. (2007, November 4). In meth war, pharmacy logs go unreviewed.Austin American-Statesman (TX). Retrieved November 5, 2007, fromhttp://www.statesman.com/search/content/news/stories/local/11/04/1104meth.html.

Saltzman, W. (2007). CBS46 investigates: Traces of meth. CBS46 News, WGCLTV (GA). Retrieved October 5, 2007, from http://www.cbs46.com/news/13717062/detail.html.

Scott, M.S., & Dedel, K. (2006). Clandestine Methamphetamine Labs: 2ndEdition. Washington, D.C.: U.S. Department of Justice, Office ofCommunity Oriented Policing Services.

State of Arizona Executive Office of the Governor. (2007, September 20).Arizona Awarded $8.3 Million for Meth Recovery Grant: Funds to beUsed to Increase Methamphetamine Treatment Services Statewide[Press Release]. Retrieved October 30, 2007, from http://azgovernor.gov/media/PressReleases.asp.

Treatment Episode Data Set (TEDS), 1992-2005, Concatenated Data.Substance Abuse and Mental Health Data Archive (SAMHDA), Inter-University Consortium for Political and Social Research (ICPSR).Retrieved June 1, 2007, from http://www.icpsr.umich.edu/cocoon/SAMHDA/DAS/04626.xml.

U.S. Bureau for International Narcotics and Law Enforcement Affairs. (2007).International Narcotics Control Strategy Report: Volume I.Washington, D.C.: U.S. Department of State, Bureau for InternationalNarcotics and Law Enforcement Affairs.

U.S. Department of Health and Human Services. (2005, August 18). HHSAwards $16.2 Million for Methamphetamine Abuse Treatment [PressRelease]. Retrieved October 31, 2007, from http://www.hhs.gov/news/press/2005pres/20050818.html.

U.S. Drug Enforcement Administration. (2006, December 5). DEA CreatesFirst-Ever National Meth Site Registry [Press Release]. RetrievedOctober 3, 2007, from http://www.dea.gov/pubs/states/newsrel/wdo120506.html.


U.S. Drug Enforcement Administration. (2005). Drugs of Abuse: 2005 Edition.Washington, D.C.: U.S. Department of Justice, Drug EnforcementAdministration.

U.S. Drug Enforcement Administration. (2003, October 6). White House DrugPolicy Office Launches National Initiative to Assist “Drug EndangeredChildren” [Press Release]. Retrieved July 9, 2007, from http://www.whitehousedrugpolicy.gov/news/press03/100603.html.

U.S. Food and Drug Administration. (2005, December 23).Phenylpropanolamine (PPA) Information Page. Retrieved November8, 2007, from http://www.fda.gov/cder/drug/infopage/ppa.

U.S. Government Accountability Office. (2007). Report to CongressionalRequestors: Drug Control, U.S. Assistance has Helped MexicanCounternarcotics Efforts, but Tons of Illicit Drugs Continue toFlow into the United States (GAO Publication No. GAO-07-1018).Washington, D.C.: U.S. Government Accountability Office.

U.S. National Drug Intelligence Center. (2007). National Drug ThreatAssessment 2008. Johnstown, PA: U.S. Department of Justice, NationalDrug Intelligence Center.

U.S. National Drug Intelligence Center. (2006). National MethamphetamineThreat Assessment 2007. Johnstown, PA: U.S. Department of Justice,National Drug Intelligence Center.

U.S. National Drug Intelligence Center. (2005). Methamphetamine Drug ThreatAssessment. Johnstown, PA: U.S. Department of Justice, National DrugIntelligence Center.

U.S. Office of National Drug Control Policy. (2007, October 2). White HouseDrug Czar Releases Southwest Border Counternarcotics Strategy[Press Release]. Retrieved November 29, 2007, from http://www.whitehousedrugpolicy.gov/NEWS/press07/100207.html.

U.S. Office of National Drug Control Policy. (2006). Pushing Back AgainstMeth: A Progress Report on the Fight Against Methamphetaminein the United States. Washington, D.C.: U.S. Executive Office of thePresident, Office of National Drug Control Policy.


U.S. Office of National Drug Control Policy. (2005, August 18). Fact Sheet:Impact of Methamphetamine on Children. Retrieved July 9, 2007,from http://www.whitehousedrugpolicy.gov/news/press05/meth_children_factsheet.html.

U.S. Office of National Drug Control Policy. (2004). National Synthetic DrugsAction Plan: The Federal Government Response to the Production,Trafficking, and Abuse of Synthetic Drugs and DivertedPharmaceutical Products. Washington, D.C.: U.S. Executive Officeof the President, Office of National Drug Control Policy.

U.S. Sentencing Commission: 1994-2006 Online Data. Federal JusticeStatistics Resource Center, U.S. Department of Justice Bureau ofJustice Statistics. Retrieved June 26, 2007, from http://fjsrc.urban.org/index.cfm.

U.S. Sentencing Commission. (2007). Report to the Congress: Cocaine andFederal Sentencing Policy. Washington, D.C.: U.S. SentencingCommission.

Virginia Criminal Sentencing Commission. (2001). Annual Report 2001.Richmond, VA: Virginia Criminal Sentencing Commission.

Virginia Criminal Sentencing Commission. (2004). 2004 Annual Report.Richmond, VA: Virginia Criminal Sentencing Commission.

Virginia Department of State Police. (2001). Crime in Virginia, 2000. Richmond,VA: Virginia Department of State Police.








Weimer, B.J., Peters, D., Sannerud, C., Eicheldinger, C., Ancheta, J., Strom,K., & Rachal, V. (2007). The National Forensic LaboratoryInformation System: 2006 Annual Report. Washington, DC: U.S.Drug Enforcement Administration, Office of Diversion Control.

Weimer, B.J., Wong, L., Sannerud, C., Eicheldinger, C., Ancheta, J., Strom, K.,& Rachal, V. (2006). The National Forensic Laboratory InformationSystem: 2005 Annual Report. Washington DC: U.S. DrugEnforcement Administration, Office of Diversion Control.

Weimer, B.J., Wong, L., Strom, K., Forti, A., Eicheldinger, C., Bethke, A., Ancheta,J., & Rachal, V. (2004). The National Forensic LaboratoryInformation System: Year 2004 Annual Report. Washington, DC:U.S. Drug Enforcement Administration, Office of Diversion Control.

Wright, D., & Sathe, N. (2005). State Estimates of Substance Use from the2002–2003 National Surveys on Drug Use and Health (DHHSPublication No. SMA 05-3989, NSDUH Series H-26). Rockville, MD:Substance Abuse and Mental Health Services Administration, Officeof Applied Studies.

Wright, D., Sathe, N., & Spagnola, K. (2007). State Estimates of SubstanceUse from the 2004–2005 National Surveys on Drug Use and Health(DHHS Publication No. SMA 07-4235, NSDUH Series H-31).Rockville, MD: Substance Abuse and Mental Health ServicesAdministration, Office of Applied Studies.

4 Recommendationsof the Commission Unless otherwise

provided by law,

the changes

recommended by

the Comission

become effective

on the following

July 1.

Introduction

The Commission closely monitors thesentencing guidelines system and, eachyear, deliberates upon possible modi-fications to enhance the usefulness ofthe guidelines as a tool for judgesas they make their sentencingdecisions. Under § 17.1-806 of theCode of Virginia, any modificationsadopted by the Commission must bepresented in its annual report, due tothe General Assembly each Decem-ber 1. Unless otherwise provided bylaw, the changes recommended by theCommission become effective on thefollowing July 1.

The Commission draws on severalsources of information to guide its dis-cussions about modifications to theguidelines system. Commission staffmeet with circuit court judges andCommonwealth's attorneys at varioustimes throughout the year, and thesemeetings provide an important forumfor input from these two groups. Inaddition, the Commission operates a"hot line" phone system, staffed Mon-day through Friday, to assist users withany questions or concerns regardingthe preparation of the guidelines.While the hot line has proven to be animportant resource for guidelines us-ers, it has also been a rich source ofinput and feedback from criminal jus-

tice professionals around the Common-wealth. Moreover, the Commissionconducts many training sessions overthe course of a year and these ses-sions often provide information that isuseful to the Commission. Finally, theCommission closely examines compli-ance with the guidelines and departurepatterns in order to pinpoint specificareas where the guidelines may needadjustment to better reflect current ju-dicial thinking. The opinions of the ju-diciary, as expressed in the reasons theywrite for departing from the guidelines,are very important in directing theCommission's attention to areas of theguidelines that may require amend-ment.

The Commission has adopted three rec-ommendations this year. Each of theseis described in detail on the pages thatfollow.


Recommendation 1

Add a factor to Section C of the sentencing guidelines for Schedule I/IIand other drugs to increase the prison sentence recommendationfor offenders who have an accompanying weapons offense requiringa mandatory minimum term.

Issue

In 1999, the Virginia General Assembly enacted legislation known as Vir-ginia Exile, followed by the Substance Abuse Reduction Effort (SABRE) in2000. These two pieces of legislation created new mandatory minimumterms for certain weapons offenses and increased existing mandatory mini-mum terms for other weapon crimes. Virginia's sentencing guidelines, whichare based on historical practices, were developed prior to the implementa-tion of the Exile and SABRE mandatory penalties. As a result, the guide-lines sometimes yield sentence recommendations that fall below the man-datory minimum sentence that a judge must now impose. When this oc-curs, mandatory sentences specified in the Code of Virginia take prece-dence over the guidelines. Guidelines preparers are instructed to replaceany part of the recommended sentence range (low, midpoint or high) thatfalls below the mandatory minimum with the mandatory minimum requiredby law. This type of adjustment must often be made when an offender isconvicted of a drug crime together with an Exile or SABRE weapons charge.With several years of sentencing data under Exile and SABRE provisionsnow available, the Commission is in a position to examine the judicial sen-tencing patterns that have emerged in order to determine if any revisions tothe guidelines are warranted.

121Recommendations

Discussion

As detailed in §17.1-805 of the Code of Virginia, the initial set of discre-tionary felony sentencing guidelines was grounded in a comprehensive analy-sis of sentencing and prison time-served for felons released from incarcera-tion between 1988 and 1992. This analysis formed a baseline set of sen-tencing midpoints and ranges upon which enhancements were applied toincrease the recommendations for offenders with current or prior convic-tions for violent crimes. These guidelines have been in place sinceJanuary 1, 1995. The Commission has relied on judicial compliance anddeparture patterns, as well as judges' written reasons for departure, as thebasis for recommending revisions to the guidelines.

The Exile and SABRE legislation (enacted in 1999 and 2000, respectively)created new and raised existing mandatory minimum penalties for numer-ous weapons offenses defined in the Code of Virginia. Because the sen-tencing guidelines are based on historical practices prior to the implementa-tion of the new mandatory penalties, the guidelines sometimes produce sen-tence recommendations that fall below the mandatory minimum sentencerequired by law. Since mandatory sentences take precedence over theguidelines, the Commission instructs guidelines preparers to replace anypart of the recommended sentence range (low, midpoint or high) that fallsbelow the mandatory minimum with the required mandatory minimum. Forexample, if the guidelines recommend a range of one year to two years andthree months (with a midpoint of two years), but a five-year mandatoryminimum sentence is required, the preparer should replace the low, mid-point, and high guidelines recommendation (shown on the guidelinescoversheet) with five years. This type of adjustment is frequently neces-sary when an offender is convicted of a drug crime together with an Exileor SABRE weapons charge. The Commission's analysis revealed that nearlythree in four drug cases with an accompanying Exile or SABRE weaponsoffense require an adjustment to the guidelines range.

At only 69%, compliance in cases with drug and weapon convictions ismuch lower than overall compliance in drug cases, which exceeds 80%.During FY2003 through FY2006, judges sentenced above the guidelines in21% of cases involving drug and weapon convictions (Figure 67). TheCommission's analysis of sentencing practices in drug cases indicates thatjudges often give offenders some additional time to serve for the drug con-viction, beyond the statutorily-prescribed mandatory minimum term for theaccompanying weapons charge. It is evident that the guidelines could beadjusted to more accurately reflect judicial sentencing in these specific cir-cumstances.

Figure 67

Guidelines Compliance forDrug Crimes Accompanied byWeapons OffensesRequiring a Mandatory MinimumTerm, FY2003 – FY2006(653 cases)

Mitigation 10%

Compliance 69%

Aggravation 21%


To accomplish this, the Commission recommends adding a new factor toSection C of the Schedule I/II and other drug guidelines. This factor wouldadd points when there is an additional conviction for an Exile or SABREweapons charge (Figures 68 and 69). Specifically, the factor would add 13points if the weapons charge carries a two-year mandatory minimum sen-tence and 32 points if the weapons charge carries a five-year minimummandatory sentence. These points, when added to the primary offensescore for the drug offense and the scores for prior record and other factors,will result in a guidelines recommendation for most affected offenders thatis at least as high as the mandatory minimum that the judge must impose.


Legally Restrained at Time of Offense If YES, add 3

Total ScoreSee Drug/Schedule I/II Section C Recommendation Table for guidelines sentence range.

Then go to Section D Nonviolent Risk Assessment and follow the instructions.

Primary Offense


3 ................................................................................................................................................................. 24 or more ................................................................................................................................................... 3


2 ................................................................................................................................................................. 63 ................................................................................................................................................................. 94 or more ................................................................................................................................................ 12

Firearm in Possession at Time of Offense If YES, add 5


Number: 1 ....................................................................... 22 ....................................................................... 33 ....................................................................... 5


Maximum Penalty: Less than 5 ....................................................... 0 (years) 5, 10 ................................................................. 1

20 ..................................................................... 2

Maximum Penalty: Less than 5 ...................................................... 0 (years) 5, 10 ................................................................. 1

20 ..................................................................... 2

Additional Offenses Assign points to each additional offense (including counts) and total the points

Score

Category I Category II

Other

A. Possess Schedule I or II drug - Attempted, conspired or completed:1 count ....................................................................... 20 ..................... 10 ..................... 52 counts ...................................................................... 28 ..................... 14 ..................... 73 counts ...................................................................... 36 ..................... 18 ..................... 9

B. Sell, Distribute, possession with intent, Schedule I or II drugCompleted: 1 count ....................................................................... 60 ..................... 36 .................. 12

2 counts ...................................................................... 80 ..................... 48 .................. 163 counts ...................................................................... 95 ..................... 57 .................. 194 counts .................................................................... 130 ..................... 78 .................. 26

Attempted or conspired: 1 count ....................................................................... 48 ..................... 24 .................. 122 counts ...................................................................... 64 ..................... 32 .................. 163 counts ...................................................................... 76 ..................... 38 .................. 194 counts .................................................................... 104 ..................... 52 .................. 26

C. Sell, etc. Schedule I or II drug, subsequent offense; third and subsequent offenseCompleted: 1 count ..................................................................... 110 ..................... 66 .................. 22

2 counts .................................................................... 310 ................... 186 .................. 62Attempted or conspired: 1 count ....................................................................... 88 ..................... 44 .................. 22

2 counts .................................................................... 248 ................... 124 .................. 62D. Sell, etc. Schedule I or II drug to minor

Attempted, conspired or completed: 1 count ....................................................................... 60 ..................... 30 .................. 15E. Accomodation–Sell, etc. Schedule I or II drug - Attempted, conspired or completed:

1 count ....................................................................... 32 ..................... 16 ..................... 82 counts ...................................................................... 40 ..................... 20 .................. 10

F. Sell, etc. imitation Schedule I or II drug - Attempted, conspired or completed:1 count ....................................................................... 12 ....................... 6 ..................... 32 counts ...................................................................... 20 ..................... 10 ..................... 5


0 0

0

0

0

0 0

0 0

0 0

Drug/Schedule I/II Section C

Drug Schedule I or II/ Section C Eff. 7-1-07

SCORE THE FOLLOWING FACTORS ONLY IF PRIMARY OR ADDITIONAL OFFENSE INVOLVES THE SELL, ETC. OF COCAINE

Quantity of Cocaine Less than 28.35 grams .............................................................................................................................. 028.35 grams to less than 226.8 grams .................................................................................................. 36226.8 grams or more .............................................................................................................................. 60

Sale/Quantity of Cocaine (§18.2-248(C) or §18.2-255(A) convictions only)

0

Offender Name:

Primary Offense Additional Counts Assign points to each count of the primary not scored above and total the points

Maximum Penalty: 5 ,10 ............................................................................................................................................................. 1 (years) 40 or more .................................................................................................................................................. 5

4 ......................................................................... 75 ......................................................................... 86 or more ......................................................... 10

30 ....................................................................... 340 or more ......................................................... 4

30 ....................................................................... 440 or more ......................................................... 5

Mandatory Firearm Conviction for Current Event Assign points to each additional offense

with a mandatory minimum and total the points

2 Year Mandatory Minimum .................................................................................................................... 135 Year Mandatory Minimum ................................................................................................................. 32

Figure 68

Proposed Drug Schedule I/II Section C Worksheet

New factor

123Recommendations

By amending the guidelines in this way, judicial concurrence with the guide-lines is projected to improve. The modification is also expected to yield amore balanced split between aggravation and mitigation departures. Giventhe judicial sentencing practices from FY2003 through FY2006, compliancewith the guidelines is anticipated to increase from 69% to 72%, while ag-gravating departures should decline from 21% to approximately 13%(Figure 70).

The Commission's proposal is designed to integrate current judicial sanc-tioning practices into the guidelines; therefore, no impact on correctionalbed space is anticipated.

Primary Offense



Total ScoreSee Drug/Other Section C Recommendation Table for guidelines sentence range.

Then, go to Section D Nonviolent Risk Assessment and follow the instructions.


3 ................................................................................................................................................................. 24 or more ................................................................................................................................................... 3


2 ................................................................................................................................................................. 63 ................................................................................................................................................................. 94 or more ................................................................................................................................................ 12

Firearm in Possession at Time of Offense If YES, add 5


Number: 1 ................................................................................................................................................................. 22 ................................................................................................................................................................. 33 ................................................................................................................................................................. 54 ................................................................................................................................................................. 75 ................................................................................................................................................................. 86 or more ................................................................................................................................................ 10


Maximum Penalty: Less than 5 ................................................................................................................................................. 0 (years) 5, 10 ........................................................................................................................................................... 1

20 ............................................................................................................................................................... 230 ............................................................................................................................................................... 340 or more ................................................................................................................................................. 4

Maximum Penalty: Less than 5 ................................................................................................................................................ 0 (years) 5, 10 ........................................................................................................................................................... 1

20 ............................................................................................................................................................... 230 ............................................................................................................................................................... 440 or more ................................................................................................................................................. 5


Score

Category I Category II Other

A. Other than listed below: (1 count) ..................................................................................... 32 ..................... 16 ..................... 8B. Sell, etc. 1/2 oz - 5 pounds of marijuana for profit;

Sell, etc. marijuana to inmate for accommodationAttempted, conspired or completed: 1 count .................................................. 20 ..................... 10 ..................... 5

2 counts ................................................ 28 ..................... 14 ..................... 73 counts ................................................ 40 ..................... 20 .................. 10

C. Sell, etc. more than 5 pounds of marijuana for profit; Sell etc. third or subsequent felonyAttempted, conspired or completed: 1 count .................................................. 76 ..................... 38 .................. 19

D. Sell marijuana to minorAttempted, conspired or completed: 1 count .................................................. 60 ..................... 30 .................. 15

E. Manufacture marijuana not for personal useAttempted, conspired or completed: 1 count .................................................. 24 ..................... 12 ..................... 6

F. Transport 5 pounds or more of marijuana into CommonwealthAttempted, conspired or completed: 1 count ................................................. 76 ..................... 38 .................. 19

G. Sell, etc. Schedule III or IV drug to minorAttempted, conspired or completed: 1 count ................................................. 60 ..................... 30 .................. 15


0 0

0

0

0

0 0

0 0

0 0

Drug Other/ Section C Eff. 7-1-08

Drug/Other Section C

0

Offender Name:


Maximum Penalty: 5,10 ............................................................................................................................................................ 1 (years) 30 ............................................................................................................................................................... 4

40 or more ................................................................................................................................................. 5

9

Mandatory Firearm Conviction for Current Event Assign points to each additional offense

with a mandatory minimum and total the points

2 Year Mandatory Minimum .................................................................................................................... 135 Year Mandatory Minimum ................................................................................................................. 32

Figure 69

Proposed Drug Other Section C Worksheet

Compliance Mitigation Aggravation

Current 69% 10% 21%

Projected 72% 15% 13%

Figure 70

Current and Projected SentencingGuidelines Compliance Rates for DrugCrimes Accompanied by WeaponsOffenses Requiring a MandatoryMinimum Term

New factor


Recommendation 2

Revise the weapons sentencing guidelines to increase the likelihoodthat some offenders convicted of making a false statement on acriminal history consent form required for purchasing a firearm(§ 18.2-308.2:2(K)) will be recommended for probation or up to sixmonths of incarceration rather than incarceration for a term of morethan six months.

Issue

The crime of making a false statement on a criminal history consent formrequired for purchasing a firearm (§ 18.2-308.2:2(K)) was added to theguidelines system effective July 1, 2006. While overall compliance with theguidelines for weapons offenses is fairly high, compliance is lower in casesinvolving this particular offense. In addition, when judges depart from therecommendation, they nearly always give the offender a sentence belowthe guidelines recommendation. This suggests that the guidelines could berefined to more closely reflect judicial thinking in these cases.

Discussion

Under § 18.2-308.2:2(K), any person who wishes to purchase a firearmfrom a dealer must consent in writing, on a form provided by the VirginiaState Police, to have the dealer obtain a criminal history record check. TheState Police form asks the potential buyer if he has ever been convicted ofa felony offense or found guilty or adjudicated delinquent as a juvenile 14years of age or older (at the time of the offense) of a crime that would bea felony if committed by an adult. The form also asks the potential buyer ifhe is subject to a protective order or a court order restraining the applicantfrom harassing, stalking, or threatening his child or intimate partner, or achild of such partner. A form required by the federal government must alsobe completed. The federal form asks the potential buyer additional questionsnot found on the state form. For example, the federal form asks if thebuyer has ever been convicted of a misdemeanor domestic violence offense,if he has ever been adjudicated mentally defective, or if he is under indictmentfor a felony. The potential buyer must show identification to the firearmdealer and sign the forms.

125Recommendations

Mitigation 30%

Compliance 67%

Aggravation 3%

The dealer then submits the criminal history consent form to the State Police,which performs a check of the applicant’s criminal history, the status of anyprotective orders, outstanding warrants, prior adjudications for mentaldeficiency, etc. The firearm dealer can complete the transaction only ifauthorized by the State Police. If the State Police, when it checks thecriminal history and other criteria for purchasing a firearm, determines thatthe applicant has made a false statement on either the state or federal form,the agency can initiate an investigation that may ultimately result in convictionunder § 18.2-308.2:2(K).

This crime has been covered by the sentencing guidelines since July 1,2006. The Commission closely monitors the implementation of newguidelines to determine if, based on judicial acceptance in the form ofcompliance and departures, any adjustments are needed. During the firstyear of implementation, compliance for making a false statement on a consentform was lower than expected, at only 67% (Figure 71). Mitigations, orsentences below the guidelines, comprised nearly all of the remaining cases(30%). The most common reasons judges cited for mitigating were: theminimal circumstances of the case, acceptance of a plea agreement, thelack of a serious prior record in the offender’s background, or that thesentence had been recommended by the Commonwealth’s attorney.Although the most common reasons for mitigation cited by judges do notpoint to a specific factor or factors to evaluate for possible revision, they dosuggest that there are circumstances in which judges find a sentence belowthe guidelines to be the most appropriate for the case.

Figure 71

Guidelines Compliance forMaking a False Statement on a Consent FormRequired for Purchase of a Firearm, FY2007(66 cases)


The Commission’s analysis indicates that judges are departing below theguidelines most often when the guidelines recommend a term of incarcerationof more than six months. When the guidelines recommend more than sixmonths of incarceration for an offender convicted of this crime, judgesconcur with that recommendation in less than 37% of the cases (Figure72). In 63% of the cases, judges are imposing lesser sanctions, such as ashort jail term or probation without an active term of incarceration. Incontrast, when the guidelines recommend probation without activeincarceration for an offender convicted of this crime, judges agree withthat disposition in the vast majority of cases (79%).

To examine these cases in further detail, the Commission contacted theVirginia State Police. The State Police maintains files on all firearmstransaction requests and the results of the state and federal criminal historysearches, as well as searches for protective orders, outstanding warrants,and adjudications of mental deficiency. Records are kept for approximately12 months and then destroyed. Commission staff requested copies of theserecords for persons convicted of making a false statement in order to gaina better understanding of the characteristics of these cases.

Figure 72

Recommended Dispositions and Actual Dispositions forOffenders Convicted of Making a False Statement on aConsent Form Required for Purchase of a Firearm, FY2007

Probation 79.3% 20.7% 0.0%Incarceration > 6 months 36.8% 26.3% 36.9%

Recommended Disposition

Actual Disposition

ProbationIncarceration1 day-6 mos.

Incarceration>6 mos.

127Recommendations

The State Police was able to provide firearm transaction records for 61 ofthe 70 offenders under examination. Of the 61 offenders for whom recordswere available, 30 were found to have a prior felony conviction or juvenileadjudication for a felony that would preclude purchase of a firearm(Figure 73). According to the records, 10 of these offenders had failed todisclose an out-of-state felony conviction, while 8 offenders did not report aprior juvenile adjudication. Twenty of the 61 offenders had been convictedof a domestic violence misdemeanor in the past. Eight of the offenderswere denied the transaction because they were the subject of a protectiveorder at the time they wanted to purchase a firearm. Only three of theoffenders were found to be under felony indictment and one had anoutstanding warrant. Two were denied the purchase of a firearm becausethey had previously been adjudicated mentally defective. Multiple reasonscould be cited for each offender.

Figure 73

Basis of Firearm Transaction Denial for Offenders Convicted ofMaking a False Statement on a Consent Form Required for Purchase of a Firearm, FY2007(61 Offenders)

Number of Cases

Prior Felony Conviction/Juvenile Adjudication 30

Prior Domestic Violence Conviction 20

Current Protective Order 8

Felony Indictment 3

Mental Health Adjudication 2

Warrant for Arrest 1

Source: Virginia State PoliceNote: Firearm transaction records were available for 61 of the 70 offenders examined at this stage of the analysis.Multiple reasons may be cited in each case.


Figure 74

Basis of Firearm Transaction Denial and Guidelines Compliance, FY2007

The Commission found that judicial compliance with the guidelines variesdepending on the reason that the firearm transaction was denied. Judgescomplied with the guidelines most often if the offender was under felonyindictment, was the subject of a warrant, or had a previous mental healthadjudication. Although only six offenders met these criteria, judges compliedwith the guidelines in all six cases (Figure 74). For offenders subject to anactive protective order, judges were also more likely to comply with theguidelines recommendation, as six of the eight cases were sentenced withinthe recommended range (75%). Judges complied with the guidelines in70% of the cases in which the offender had a prior misdemeanor domesticassault conviction. In contrast, the compliance rate in cases in which theoffender had a prior felony or a prior juvenile adjudication was as low as60%, with mitigation accounting for 40% of the sentences.

Felony Conviction or Juvenile Adjudication

Domestic Violence Conviction

Protective Order

Felony Indictment, Warrant or Mental Health Adjudication

60% 40% 0% 30

70 25 12.5 20

75 12.5 12.5 8

100 0 0 6

Compliance Mitigation Aggravation Cases

Figure 75

Basis of Firearm Transaction Denial and Guidelines Compliance forOffenders with a Prior Felony Conviction or Juvenile Adjudication for a Felony,FY2007

No Prior Felony Person Crime

Prior Felony Person Crime


55% 45% 0% 22

75 25 0% 8



129Recommendations

When the Commission further explored the subset of offenders who had aprior felony conviction or juvenile adjudication, 8 of the 30 were found tohave a prior felony conviction or adjudication for a crime against a person.When a prior person crime was noted in the record, judges complied withthe guideline in 75% of the cases (Figure 75). Judges complied less often(55%) and mitigated at a substantially higher rate (45%) if the offender’sprior record included only nonviolent felonies.

The Commission also found divergent compliance patterns based on theage of the offender’s felony record (Figure 76). Offenders who had afelony conviction or juvenile adjudication within the last four years weremore likely to receive a sentence within the guidelines range (75%). Whenthe offender’s felony conviction/adjudication was more than four years old,judges sentenced within the guidelines at a significantly lower rate (43%)and gave sentences below the guidelines in all remaining cases (57%).The Commission analyzed numerous cutoff points for the age of prior felonyconvictions and determined that a cutoff at four years demonstrated thegreatest distinctions in sentencing patterns.

Figure 76

Age of Prior Felony Conviction/Adjudication for Offenders Convicted ofMaking a False Statement on a Consent Form Required for Purchase ofa Firearm, FY2007

Prior Felony Conviction or JuvenileAdjudication within Last 4 Years

Prior Felony Conviction or JuvenileAdjudication More than 4 Years Ago


75% 25% 0% 16

43 57 0% 14



Additional Offenses Total the maximum penalties for additional offenses, including counts

Primary Offense

A. Maliciously discharge firearm, etc., in/at occupied building (1 count) ................................................................................ 2

B. Discharge firearm from vehicle (1 count) .................................................................................................................................. 1

C. Possess firearm on school property (1 count) ........................................................................................................................... 1

D. Possession of sawed-off shotgun (1 count) ............................................................................................................................. 2

E. False statement on consent form (1 count) .......................................................................................................................... 4

F. Possession of firearm or concealed weapon by convicted felon

1 count ........................................................................................................................................................... 3

2 counts .......................................................................................................................................................... 4

None ...................................................................................................................................................... 0Other than post-incarceration supervision ........................................................................................ 2Post-incarceration supervision ........................................................................................................... 5

Legally Restrained at Time of Offense

Prior Incarcerations/Commitments If YES, add 4

Score

Weapon/Firearm Section A

Years: Less than 1 ..................................................................................................................................................... 01 - 7 ................................................................................................................................................................. 18 - 18 ............................................................................................................................................................... 219 - 28 ............................................................................................................................................................. 329 - 38 ............................................................................................................................................................. 439 or more ...................................................................................................................................................... 5

Threatened, emotional or physical .............................................................................................................. 1Serious physical ............................................................................................................................................ 2

Victim Injury

Prior Convictions /Adjudications Total the maximum penalties for the 5 most recent and serious prior record events

Years: Less than 2 ............................................................................................................................................. 02 - 38 ...................................................................................................................................................... 139 or more .............................................................................................................................................. 2

Weapon/Firearm/Section A Eff. 7-1-08

Total ScoreIf total is 8 or less, go to Section B. If total is 9 or more, go to Section C.

0

0

0

0

0

0

Mandatory Firearm Conviction for Current Event If YES, add 6 0

Offender Name:

Primary Offense Additional Counts Total the maximum penalties for counts of the primary not scored above

Years: 5 -7 ................................................................................................................................................................. 18 - 18 .............................................................................................................................................................. 219 - 28 ............................................................................................................................................................ 329 - 38 ............................................................................................................................................................ 439 or more ...................................................................................................................................................... 5

0

Prior felony conviction/juvenile adjudication for crime against personOther prior felony conviction/juvenile adjudication within 4 years of current offensePrior domestic assault misdemeanor convictionSubject to protective order at time of offense

Basis of False Statement on Consent Form (listed below) If YES, add 3

SCORE THE FOLLOWING ONLY IF PRIMARY OFFENSE AT CONVICTION IS

FALSE STATEMENT ON A FIREARM CONSENT FORM (§ 18.2-308.2:2(K))

0

Through this analysis, the Commission was able to identify several factorsthat judges appear to use to differentiate offenders who make a falsestatement on a firearm consent form. This has led the Commission torecommend revising Section A of the weapons guidelines specifically forthis crime. This recommendation entails decreasing the points assigned tothe primary offense factor on Section A (from 4 points to 1) and adding afactor to increase the score (by 3 points) for offenders with a prior felonyconviction or juvenile adjudication for a crime against a person, a conviction/adjudication for any other felony within the last four years, a prior domesticassault misdemeanor conviction, or an outstanding protective order. Theproposed worksheet is shown in Figure 77. For offenders meeting any ofthe above conditions, the revision will have no impact on the guidelines

Figure 77

Proposed Weapon Section A Worksheet

New factor

Points changed1

131Recommendations

recommendation. For the remaining offenders, the Section A total scorewill be lower and, as a result, the guidelines will be less likely to recommenda term of incarceration in excess of six months and more likely to recommendprobation or incarceration up to six months in jail.

While the proposal reduces the Section A score for some offenders, therecommended changes more accurately reflect judicial practice. With theserevisions, judicial concurrence with the guidelines is expected to improve.Given judicial practices during FY2007, compliance with the guidelines forthis crime is anticipated to increase from 67% to 70%. While this is amodest improvement in the compliance rate, this change is expected toreduce the disproportionate rate at which judges have been sentencingbelow the guidelines. Mitigation departures are expected to decline from30% to 17%, resulting in a more balanced departure pattern above andbelow the guidelines.

The Commission’s proposal is designed to integrate current judicialsanctioning practices into the guidelines; therefore, no impact on correctionalbed space is anticipated.


Current 67% 30% 3%


Figure 78

Current and Projected Sentencing Guidelines Compliance Rates for Making aFalse Statement on a Consent Form Required for Purchase of a Firearm


Recommendation 3

Amend the miscellaneous sentencing guidelines to:1) add the offenses of gross, wanton, or reckless care for a child(§ 18.2-371.1(B)) and cruelty and injuries to children (§ 40.1-103), and2) adjust the points assigned to the current child abuse felony cov-ered by this worksheet, child abuse/neglect resulting in seriousinjury (§ 18.2-371.1(A)), to increase the sentence recommenda-tion in certain cases, particularly those resulting in physical injuryto a child.

Issue

The current guidelines cover the crime of child abuse/neglect resulting inserious injury, a Class 4 felony (§ 18.2-371.1(A)). Two related lesseroffenses, including one defined in the same statute as the current guide-lines offense, are not covered.

Compliance for the offense that is currently covered by the guidelines issignificantly lower than the compliance rate for most other crimes, withmost of the departure sentences exceeding the guidelines recommenda-tion. The guidelines can be revised to be more closely aligned with judges'actual sentencing practices.

Discussion

Each year, the Commission closely analyzes compliance with the guide-lines by offense, including departure patterns, to pinpoint specific areaswhere the guidelines may need adjustment to better reflect current judi-cial thinking. With a compliance rate of only 50% and an aggravation rateof 37%, the guidelines for the crime of child abuse/neglect resulting inserious injury (§ 18.2-371.1(A)) are clearly out of sync with judicial prac-tice (Figure 79). When departing above the guidelines, judges are mostoften citing the extreme violence in the case, which was noted in nearlyhalf of the aggravation departures. Judges also frequently cite the victim'svulnerability and the flagrancy of the offense when giving a sentence abovethe guidelines.

Using the departure reasons provided by judges, the Commission exam-ined the current guidelines for this offense. Numerous possible scorerevisions were tested. The objective was to identify the best fit for thesentencing data, in order to maximize compliance with the guidelines and,if possible, produce a balance between mitigation and aggravation de-

Mitigation 13%Compliance 50%

Aggravation 37%

Figure 79

Guidelines Compliance forChild Abuse and Neglect Resulting inSerious Injury (§ 18.2-371.1(A))(216 cases)

133Recommendations

partures. The Commission found that sentencing practices for child abuse/neglect resulting in serious injury vary considerably, making the identification offactors that are consistently used by judges more difficult.

The Commission has developed a recommendation to at least marginally im-prove compliance for this offense. The Commission recommends increasingthe primary offense score and the victim injury score on Section A of the mis-cellaneous guidelines. In addition, the Commission recommends increasingthe score for the primary offense factor on the Section B worksheet. OnSection C, the Commission recommends revising the primary offense scoresfor this crime downward but this change would be accompanied by increasesin the scores for victim injury. The recommended revisions are presented inFigure 80, 81, and 82.


Primary Offense

A. Burn unoccupied dwelling/church (1 count) ......................................................................................................................... 6B. Burning of personal property, standing grain, etc., value $200 or more

1 count ............................................................................................................................................................ 22 counts .......................................................................................................................................................... 6

C. Threatening to bomb, burn or explode (1 count) ................................................................................................................ 1D. Threat by letter, communication or electronic message (1 count) ..................................................................................... 3E. Child neglect/abuse, serious injury

1 count ........................................................................................................................................................... 32 counts .......................................................................................................................................................... 7

F. Gross, reckless care of child (1 count) .................................................................................................................................... 1G. Cruelty and injury to child (1 count) ....................................................................................................................................... 2H. Failure to appear in court for felony offense

1 count ........................................................................................................................................................... 12 counts .......................................................................................................................................................... 4

I. Perjury, falsely swear an oath (1 count) ................................................................................................................................ 1J. Possession or sale of Schedule III drug or marijuana by prisoner (1 count) ....................................................................... 3K. Escape from correctional facility (1 count) ............................................................................................................................ 7L. Maliciously shoot, throw missile at train, car, etc. (1 count) ................................................................................................. 1

None ...................................................................................................................................................... 0Other than post-incarceration supervision ........................................................................................ 2Post-incarceration supervision ........................................................................................................... 5

Legally Restrained at Time of Offense

Prior Incarcerations/Commitments If YES, add 4

Score

Miscellaneous Section A

Years: Less than 1 ..................................................................................................................................................... 01 - 7 ................................................................................................................................................................. 18 - 18 ............................................................................................................................................................... 219 - 28 ............................................................................................................................................................. 329 - 38 ............................................................................................................................................................. 439 or more ...................................................................................................................................................... 5

Victim Injury

Prior Convictions /Adjudications Total the maximum penalties for the 5 most recent and serious prior record events

Years: Less than 2 ............................................................................................................................................. 02 - 38 ...................................................................................................................................................... 139 or more .............................................................................................................................................. 2

Miscellaneous/Section A Eff. 7-1-08

Total ScoreIf total is 8 or less, go to Section B. If total is 9 or more, go to Section C.

0

0

0

0

0

0

Mandatory Firearm Conviction for Current Event If YES, add 6 0

Offender Name:


Years: 5 -7 .................................................................................................................................................................. 18 - 18 ............................................................................................................................................................... 219 - 28 ............................................................................................................................................................. 329 - 38 ............................................................................................................................................................. 439 or more ...................................................................................................................................................... 5

0

Primary offense other than child neglect/abuse

Points

Threatened, emotional, or physical ........................... 2Serious physical ........................................................... 5

Points

Threatened, emotional, or physical ........................... 1Serious physical ........................................................... 2

Primary offense child neglect /abuse etc.

Figure 80

Proposed Miscellaneous Section A Worksheet

Increased points forprimary offenseNew offenses added

Increased points forvictim injury

26

37

12

25



Primary Offense

A. Burn unoccupied dwelling/church (1 count) ......................................................................................................................... 6

B. Burning of personal property, standing grain, etc., value $200 or more (1 count) ............................................................ 6

C. Threatening to bomb, burn or explode (1 count) ................................................................................................................ 6

D. Threat by letter, communication or electronic message (1 count) ..................................................................................... 7

E. Child neglect/abuse, serious injury (1 count) ....................................................................................................................... 3

F. Gross, reckless care of child (1 count) .................................................................................................................................... 2

G. Cruelty and injury to child (1 count) ....................................................................................................................................... 2

H. Failure to appear in court for felony offense (1 count) ..................................................................................................... 10

I. Perjury, falsely swear an oath (1 count) ................................................................................................................................ 7

J. Possession or sale of Schedule III drug or marijuana by prisoner (1 count) ....................................................................... 7

K. Escape from correctional facility (1 count) ........................................................................................................................ 10

L. Maliciously shoot, throw missile at train, car, etc. (1 count) ................................................................................................ 7

Years: Less than 1 ..................................................................................................................................................... 0

1 - 9 ................................................................................................................................................................. 2

10 - 19 ............................................................................................................................................................. 3

20 - 29 ............................................................................................................................................................. 4

30 - 39 ............................................................................................................................................................. 5

40 or more ...................................................................................................................................................... 6


Score

Miscellaneous Section B

Total ScoreSee Miscellaneous Section B Recommendation Table to convert score to guidelines sentence.

Miscellaneous/Section B Eff. 7-1-08

0

0

Offender Name:


Years: 5 - 9 ................................................................................................................................................................. 2

10 - 19 ............................................................................................................................................................. 3

20 - 29 ............................................................................................................................................................. 4

30 - 39 ............................................................................................................................................................. 5

40 or more ...................................................................................................................................................... 60


Points

Threatened, emotional, or physical ............................... 9Serious physical .......................................................... 10

Points

Threatened, emotional, or physical ............................... 2Serious physical ............................................................ 3

Victim InjuryPrimary offense child neglect /abuse

Figure 81

Proposed Miscellaneous Section B Worksheet

Increased points forprimary offenses

New offenses added

31

135Recommendations


Prior Felony Convictions/Adjudications with the Same VCC Prefix as Primary OffenseNumber: 1 ...................................................................................................................................................................... 2

2 ...................................................................................................................................................................... 43 ...................................................................................................................................................................... 64 ...................................................................................................................................................................... 85 or more ...................................................................................................................................................... 10

Prior Felony Convictions/Adjudications Against PersonNumber: 1 ...................................................................................................................................................................... 1

2 ...................................................................................................................................................................... 23 ...................................................................................................................................................................... 34 ...................................................................................................................................................................... 45 or more ........................................................................................................................................................ 5


Maximum Penalty: Less than 20 ................................................................................................................................................... 0 (years) 20, 30 , 40 or more .......................................................................................................................................... 1

Victim Injury

Firearm Used or Brandished If YES, add 2


Maximum Penalty: Less than 5 ..................................................................................................................................................... 0 (years) 5, 10 ................................................................................................................................................................ 1

20 .................................................................................................................................................................... 230 .................................................................................................................................................................... 340 or more ...................................................................................................................................................... 5

Miscellaneous Section C

Score

Category I Category II Other

A. Burn unoccupied dwelling/church (1 count) ........................................................................ 68 ................. 34 ................ 17

B. Burning of personal property, standing grain, etc., value $200 or more (1 count) ........... 32 ................. 16 ................... 8C. Threatening to burn, bomb or explode (1 count) ............................................................... 32 ................. 16 ................... 8

D. Threat by letter, communication or electronic message (1 count) ..................................... 40 ................. 20 ................ 10

E. Child neglect/abuse, serious injury (1 count) ...................................................................... 32 ................. 16 ................... 8F. Gross, reckless care of child (1 count) .................................................................................. 28 ................. 14 ................... 7

G. Cruelty and injury to child (1 count) .................................................................................... 28 ................. 14 ................... 7

H. Failure to appear in court for felony offense (1 count) ....................................................... 32 ................. 16 ................... 8I. Perjury, falsely swear an oath (1 count) ............................................................................... 12 ................... 6 ................... 3

J. Possession or sale of Schedule III drug or marijuana by prisoner (1 count) ...................... 32 ................. 16 ................... 8

K. Escape from correctional facility (1 count) ........................................................................... 40 ................. 20 ................ 10L. Maliciously shoot, throw missile at train, car, etc. (1 count) ................................................ 32 ................. 16 ................... 8


Primary Offense

Total ScoreSee Miscellaneous Section C Recommendation Table for guidelines sentence range.

Miscellaneous/Section C Eff. 7-1-06

0 0

0 0

0 0

0 0

0

0 0

0

Offender Name:


Maximum Penalty: 5,10 ................................................................................................................................................................. 1 (years)


Points

Threatened or emotional ............................................ 6Physical ........................................................................ 7Serious physical ......................................................... 10

Points

Threatened or emotional ............................................ 2Physical ........................................................................ 4Serious physical ........................................................... 5

Primary offense child neglect /abuse etc.

Figure 82

Proposed Miscellaneous Section C Worksheet

Increased points forvictim injury

Decreased points for primary offense

New offenses added32 16 936 18 8

245

6 710


With the recommended changes in place, compliance is expected to im-prove, albeit modestly (Figure 83). It is anticipated, however, that the pro-posal will provide an improved departure pattern, as it should reduce theaggravation rate from 37% to 29%. The Commission has directed staff tocontinue examining this offense in the hopes that the guidelines can befurther improved. This will likely be an iterative process with improve-ments made over several years. Continued feedback from judges will beof critical importance to this process.

Figures 80, 81 and 82 also show the proposed guidelines for the offenses ofgross, wanton, or reckless care for a child (§ 18.2-371.1(B)) and crueltyand injuries to children (§ 40.1-103), both Class 6 felonies. The Commis-sion found that approximately 43% of offenders convicted of a Class 6felony child abuse receive probation without an active term of incarcera-tion. Nearly 30% are given an incarceration term up to six months in jail;the median sentence in these cases is three months. The remaining 27%are sentenced to more than six months of incarceration; the median sen-tence for these offenders is two years. Similar to the Class 4 felony childabuse offense discussed above, the Commission's analysis revealed con-siderable variation in sanctioning practices for these two Class 6 felonyoffenses. Based on recent sanctioning practices, the Commission devel-oped guidelines for these crimes that would maximize judicial concurrence,although compliance is expected to be lower than the compliance rate formost other offenses (Figure 84). The proposed guidelines balance depar-tures above and below the guidelines to the extent possible. As noted above,child abuse crimes will be the subject of ongoing study by Commissionstaff.

The Commission's proposal is designed to integrate current judicial sanc-tioning practices into the guidelines; therefore, no impact on correctionalbed space is anticipated.



Figure 84

Projected Sentencing Guidelines Compli-ance Rates for Gross, Wanton, or Reck-less Care for a Child (§ 18.2-371.1(B))and Cruelty and Injuries to Children(§ 40.1-103)


Current 50% 13% 37%


Figure 83

Current and Projected SentencingGuidelines Compliance Rates forChild Abuse/Neglect Resulting inSerious Injury (§ 18.2-371.1(A))

APPENDICES5


Appendix 1

Judicial Reasons for Departure from Sentencing GuidelinesProperty, Drug and Miscellaneous Offenses

Burg. of Burg. Other Sch. I/II OtherReasons for MITIGATION Dwelling Structure Drugs Drugs Fraud Larceny Misc Traffic Weapon

(N=172) (N=97) (N=697) (N=54) ( N=229) (N=375) (N=51) (N=136) (N=72)

No reason given 24 15 140 13 39 83 13 38 11Minimal property or monetary loss 1 0 0 0 1 5 0 0 1Minimal circumstances/facts of the case 14 9 30 1 17 16 2 10 15Offender not the leader 1 1 2 0 0 0 0 0 0Small amount of drugs involved in the case 0 0 20 1 2 0 1 0 0Offender and victims are relatives/friends; Victim Request 1 0 0 0 4 1 0 0 0

Little or no injury/offender did not intend to harm; victim requested lenient sentence 6 0 0 0 5 7 0 0 0

Offender has no prior record 1 2 5 0 0 1 0 0 0Offender has minimal prior record 7 1 12 2 4 5 0 2 5Offender's criminal record overstates his degree of criminal orientation 1 2 13 0 1 2 1 1 2Offender cooperated with authorities 23 9 80 7 15 20 3 6 4Offender is mentally or physically impaired 6 1 23 3 9 16 2 5 3Offender has emotional or psychiatric problems 1 3 4 0 1 0 0 1 0Offender has drug or alcohol problems 0 2 3 1 4 1 0 3 0Offender needs counseling 0 1 7 0 1 1 0 1 0Offender has good potential for rehabilitation 12 4 42 2 22 35 3 7 7Offender shows remorse 3 0 3 1 2 2 0 2 0Age of Offender 8 2 9 0 1 4 0 1 0Jury sentence 1 0 4 0 1 4 1 3 1Multiple charges are being treated as one criminal event 1 1 2 0 1 0 0 0 0Guilty plea 3 0 9 2 3 5 0 1 2Sentence recommended by Comm. Atty or probation officer 11 5 36 3 13 17 3 5 7Weak evidence or weak case 4 2 25 0 3 8 0 2 2Plea agreement 31 14 151 17 52 97 17 31 15

Sentencing consistency with co-defendant or with similar cases in the jurisdiction 2 6 4 0 3 2 1 2 0

Time served 3 3 6 0 8 8 0 0 0Offender already sentenced by another court or in previous proceeding for other offenses 17 12 48 3 22 20 1 3 2Offender will likely have his probation revoked 3 0 1 0 0 0 0 0 0Offender is sentenced to an alternative punishment to incarceration 13 9 38 2 9 16 0 3 0Attempted act, not completed 0 0 0 0 1 0 0 0 1Guidelines recommendation is too harsh 2 5 4 0 2 2 1 7 1Guidelines recommendation exceeded the statutory maximum 0 0 0 0 0 0 0 0 0Judge rounded guidelines minimum to nearest whole year 0 0 1 0 0 0 0 0 0Other mitigating factors 2 4 33 1 5 9 2 4 1

Note: Figures indicate the number of times a departure reason was cited.

Because multiple reasons may be cited in each case, figures will not total the number of cases in each offense group.

139Appendices

Burg. of Burg. Other Sch. I/II OtherReasons for AGGRAVATION Dwelling Structure Drugs Drugs Fraud Larceny Misc Traffic Weapon

(N=135) (N=79) (N=922) (N=119) (N=160) (N=441) (N=53) (N=274) (N=60)

No reason given 20 9 185 21 33 94 9 54 9Extreme property or monetary loss 0 2 0 0 6 26 0 0 0The offense involved a high degree of planning 3 2 1 0 3 16 0 2 0Aggravating circumstances/flagrancy of offense 54 18 62 8 23 49 9 34 9Offender used a weapon in commission of the offense 1 1 2 0 0 2 0 1 3Offender was the leader 1 0 0 0 0 2 0 0 0

Offender's true offense behavior was more seriousthan offenses at conviction 4 1 15 5 2 8 2 2 3

Offender is related to or is the caretaker of the victim 0 0 0 0 0 1 0 0 0Extraordinary amount of drugs or purity involved in the case 0 0 29 5 0 0 0 9 0Aggravating circumstances relating to sale of drugs 0 0 4 1 0 0 0 0 0Drugs were involved 0 0 6 0 0 2 0 0 0Offender immersed in drug culture 0 0 17 1 0 0 0 0 0Unprovoked attack 0 0 0 0 0 0 0 0 0Victim vulnerability 1 0 0 1 3 6 2 1 0Victim request 8 3 2 1 2 5 2 11 0Victim injury 1 0 0 0 0 2 7 5 0Previous punishment of offender has been ineffective 1 3 22 3 1 12 1 5 3Offender was under some form of legal restraint at time of offense 1 0 23 1 0 3 0 2 1Offender has a serious juvenile record 0 1 1 0 0 0 0 0 0

Offender's criminal record understates the degree of hiscriminal orientation 5 5 44 2 3 15 3 14 1Offender has previous conviction(s) or other chargesfor the same type of offense 5 3 32 7 6 22 0 36 0

New crime committed after current offense 1 1 13 2 3 4 0 3 0Offender failed to cooperate with authorities 2 1 19 0 4 17 2 5 0Offender has mental health problems 1 0 0 0 1 0 1 0 0Offender has drug or alcohol problems 0 0 12 2 1 1 0 12 0Offender has poor rehabilitation potential 5 3 47 1 5 24 1 27 2Offender shows no remorse 5 1 15 0 1 13 8 5 5Age of offender 0 0 2 0 0 0 0 0 0Jury sentence 4 6 36 7 11 16 2 17 2Sentence recommended by Comm. Attorney or probation officer 2 1 12 0 2 6 0 3 2Plea agreement 18 14 179 27 30 65 9 32 21Community sentiment 1 0 6 0 4 2 1 1 0

Sentencing consistency with codefendant or with other similarcases in the jurisdiction 1 2 7 1 3 2 0 0 0

Teach offender a lesson 0 1 4 0 0 1 0 1 0Offender is sentenced to an alt. punishment to incarceration 4 3 72 10 10 23 0 11 0Guidelines recommendation is too low 17 9 70 14 15 54 7 24 6Mandatory minimum penalty is required in the case 0 0 7 0 0 1 0 6 3Judge rounded guidelines minimum to nearest whole year 1 0 3 0 1 0 0 0 0Other reason for aggravation 2 1 17 4 2 11 0 6 0

Note: Figures indicate the number of times a departure reason was cited.Because multiple reasons may be cited in each case, figures will not total the number of cases in each offense group.

Appendix 1

Judicial Reasons for Departure from Sentencing GuidelinesProperty, Drug and Miscellaneous Offenses


Appendix 2

Judicial Reasons for Departure from Sentencing GuidelinesOffenses Against the Person

Reasons for Mitigation Assault Homicide Kidnapping Robbery Rape Sexual Assault (N=189) (N=49) (N=15) (N=233) (N=43) (N=74)

No reason given 32 2 2 42 4 6Minimal property or monetary loss 0 0 0 0 0 0Minimal circumstances/facts of the case 15 7 0 16 3 10Offender was not the leader or active participant in offense 1 2 0 5 0 0Offender and victim are related or friends 2 0 0 0 1 0

Little or no victim injury/offender did not intend to harm;victim requested lenient sentence 21 0 1 4 6 3

Victim was a willing participant or provoked the offense 4 0 0 0 2 2Offender has no prior record 2 0 0 4 0 3Offender has minimal prior criminal record 3 1 1 15 5 5Offender's criminal record overstates his degreeof criminal orientation 3 0 0 41 0 0Offender cooperated with authorities or aided law enforcement 3 8 0 0 1 3Offender has emotional or psychiatric problems 2 0 2 1 0 3Offender is mentally or physically impaired 9 1 0 5 2 6Offender has drug or alcohol problems 1 0 1 0 0 0Offender needs counseling 0 0 0 0 0 0Offender has good potential for rehabilitation 12 2 0 14 5 4Offender shows remorse 1 1 0 3 1 1Age of offender 2 2 0 13 2 8Multiple charges are being treated as one criminal event 0 0 0 2 0 0Guilty plea 3 1 1 1 1 1Jury sentence 2 4 2 2 2 1Sentence was recommended by Comm. atty or probation officer 14 4 0 20 4 5Weak evidence or weak case against the offender 9 3 1 5 3 5Plea agreement 37 12 7 22 12 18

Sentencing consistency with codefendant or with othersimilar cases in the jurisdiction 0 2 0 7 0 1

Time served 5 0 0 3 0 0

Offender already sentenced by another court or inprevious proceeding for other offenses 5 2 1 6 0 2

Offender will likely have his probation revoked 0 0 0 0 0 0Offender is sentenced to an alt. punishment to incarceration 6 0 0 4 1 0Guidelines recommendation is too harsh 1 0 0 3 1 1Attempt, not a completed act 0 0 0 0 0 0Guidelines recommendation exceeded the statutory maximum 0 0 0 0 0 0Judge rounded guidelines minimum to nearest whole year 0 0 0 0 0 0Other reasons for mitigation 2 1 0 8 1 0



141Appendices

Reasons for AGGRAVATION Assault Homicide Kidnapping Robbery Rape Sexual Assault (N=151) (N=51) (N=22) (N=94) (N=16) (N=76)

No reason given 31 7 2 13 3 7The offense involved a high degree of planning 0 1 0 2 1 2Aggravating circumstances/flagrancy of offense 25 12 6 28 3 14Offender used a weapon in commission of the offense 3 1 0 3 0 0

Offender was the leader 2 1 1 1 0 0Offender's true offense behavior was more seriousthan offenses at conviction 5 0 0 2 1 2Offender is related to or is the caretaker of the victim 0 0 1 1 1 7Offender immersed in drug culture 1 0 0 0 0 0Offense was an unprovoked attack 4 0 0 0 0 0Offender knew of victim's vulnerability 5 2 1 4 2 12The victim(s) wanted a harsh sentence 4 0 0 1 0 4Extreme violence or severe victim injury 40 3 3 3 1 1Previous punishment of offender has been ineffective 1 1 0 2 1 0Offender was under some form of legal restraint at time of offense 2 0 0 0 0 1Offender has a serious juvenile record 1 0 0 1 0 0Offender's record understates the degree of his criminal orientation 5 2 0 1 0 0

Offender has previous conviction(s) or other charges for the same offense 7 0 0 2 0 1New crime committed after current offense 0 1 0 0 0 0Offender failed to cooperate with authorities 2 0 0 2 0 1Offender has mental health problems 0 0 0 0 0 0Offender has drug or alcohol problems 1 1 0 1 0 0Offender has poor rehabilitation potential 6 1 1 10 2 8Offender shows no remorse 11 3 0 5 1 6Age of offender 1 0 0 0 0 0Jury sentence 16 21 2 16 3 3Sentence was recommended by Comm, atty or probation officer 1 1 0 1 0 0Plea agreement 33 1 9 6 0 16Community sentiment 0 0 0 0 0 0Offender is sentenced to an alt. punishment to incarceration 1 0 0 0 0 0Guidelines recommendation is too low 22 7 1 14 1 14Mandatory minimum penalty is required in the case 0 1 0 1 0 1Judge rounded guidelines minimum to nearest whole year 0 0 0 1 0 0Other reasons for aggravation 1 1 0 0 1 5



Appendix 2

Judicial Reasons for Departure from Sentencing GuidelinesOffenses Against the Person


Appendix 3Sentencing Guidelines Compliance by Judicial Circuit: Property, Drugs, and Miscellaneous Offenses

Circ

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# of

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# of

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# of

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es

1 82.1% 3.6% 14.3% 28

2 90.4 2.6 7.0 115

3 80.8 7.7 11.5 26

4 86.0 3.5 10.5 57

5 88.9 0.0 11.1 18

6 81.2 12.5 6.3 16

7 78.1 9.4 12.5 32

8 90.0 0.0 10.0 20

9 77.8 0.0 22.2 9

10 83.3 0.0 16.7 12

11 76.9 7.7 15.4 13

12 76.9 2.6 20.5 39

13 75.0 20.8 4.2 24

14 83.8 2.7 13.5 37

15 66.7 6.3 27.0 63

16 94.4 0.0 5.6 18

17 90.4 4.8 4.8 21

18 100.0 0.0 0.0 5

19 84.1 4.8 11.1 63

20 96.2 0.0 3.8 26

21 86.7 13.3 0.0 15

22 84.6 0.0 15.4 13

23 71.1 6.7 22.2 45

24 62.5 12.5 25.0 32

25 86.8 9.4 3.8 53

26 75.6 13.3 11.1 45

27 97.6 0.0 2.4 42

28 88.9 2.8 8.3 36

29 56.5 0.0 43.5 23

30 85.7 14.3 0.0 14

31 89.3 7.1 3.6 28

Total 82.5 5.5 12.0 988

52.2% 30.4% 17.4% 23

2 59.0 23.0 18.0 61

3 79.2 12.5 8.3 24

4 62.2 28.9 8.9 45

5 55.2 17.2 27.6 29

6 78.1 18.8 3.1 32

7 79.2 8.3 12.5 24

8 66.7 20.0 13.3 30

9 85.7 0.0 14.3 21

10 80.8 11.5 7.7 26

11 73.3 0.0 26.7 15

12 60.0 25.0 15.0 20

13 71.4 19.1 9.5 21

14 51.0 24.5 24.5 53

15 65.7 8.6 25.7 35

16 69.0 20.7 10.3 29

17 36.4 0.0 63.6 11

18 43.8 25.0 31.3 16

19 66.7 9.1 24.2 33

20 66.7 13.3 20.0 15

21 75.0 25.0 0.0 16

22 55.2 17.2 27.6 29

23 48.6 45.7 5.7 35

24 60.9 34.8 4.3 46

25 73.0 21.6 5.4 37

26 65.8 26.3 7.9 38

27 80.0 15.6 4.4 45

28 76.0 8.0 16.0 25

29 54.8 9.7 35.5 31

30 90.9 9.1 0.0 11

31 75.0 8.3 16.7 12

Total 65.4 19.4 15.2 888

1 72.4% 10.4% 17.2% 29

2 69.4 25.0 5.6 36

3 78.6 0.0 21.4 14

4 77.8 16.6 5.6 18

5 76.4 11.8 11.8 17

6 90.9 0.0 9.1 11

7 93.7 6.3 0.0 16

8 90.9 9.1 0.0 11

9 61.5 23.1 15.4 13

10 80.0 13.3 6.7 15

11 75.0 8.3 16.7 12

12 77.8 16.6 5.6 18

13 84.0 8.0 8.0 25

14 79.3 13.8 6.9 29

15 53.3 17.8 28.9 45

16 56.2 31.3 12.5 16

17 87.4 6.3 6.3 16

18 66.7 0.0 33.3 9

19 57.2 21.4 21.4 14

20 80.0 20.0 0.0 10

21 87.5 12.5 0.0 16

22 65.0 35.0 0.0 20

23 48.4 29.0 22.6 31

24 57.8 21.1 21.1 19

25 78.1 0.0 21.9 32

26 72.2 16.7 11.1 36

27 89.7 2.6 7.7 39

28 62.1 31.0 6.9 29

29 63.1 15.8 21.1 19

30 80.0 6.7 13.3 15

31 81.8 18.2 0.0 11

Total 72.5 15.1 12.3 641

BURGLARY OF DWELLING BURGLARY - OTHER DRUG/OTHER

1

143Appendices

SCHEDULE I/II DRUGS FRAUD LARCENY

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# of

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# of

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# of

Cas

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1 84.6% 6.4% 9.0% 156

2 86.0 8.5 5.5 308

3 82.8 8.6 8.6 93

4 76.8 17.3 5.9 306

5 85.0 6.0 9.0 100

6 80.6 12.9 6.5 62

7 85.3 9.8 4.9 82

8 85.1 12.6 2.3 87

9 73.1 5.6 21.3 108

10 87.8 3.7 8.5 82

11 82.9 0.0 17.1 70

12 77.6 6.1 16.3 246

13 81.3 13.8 4.9 123

14 86.3 7.8 5.9 358

15 76.8 8.5 14.7 307

16 86.6 6.7 6.7 89

17 84.1 5.1 10.8 158

18 91.7 6.4 1.9 109

19 79.5 6.3 14.2 240

20 93.8 0.9 5.3 114

21 85.0 13.7 1.3 80

22 79.1 6.8 14.1 192

23 78.0 10.1 11.9 159

24 87.1 8.8 4.1 147

25 90.5 5.1 4.4 158

26 81.9 10.4 7.7 183

27 94.9 3.2 1.9 157

28 93.0 4.2 2.8 71

29 58.9 8.2 32.9 146

30 82.8 7.1 10.1 99

31 88.1 4.8 7.1 126

Total 82.7 8.0 9.4 4,716

1 85.4% 5.0% 9.6% 280

2 85.9 6.4 7.7 597

3 81.3 6.1 12.6 628

4 81.0 11.9 7.1 893

5 84.1 3.8 12.1 214

6 79.1 3.5 17.4 115

7 91.7 3.2 5.1 571

8 87.6 5.8 6.6 362

9 81.1 8.4 10.5 143

10 89.7 5.9 4.4 136

11 88.1 5.2 6.7 135

12 70.3 6.0 23.7 266

13 81.7 12.1 6.2 811

14 80.0 7.6 12.4 355

15 69.9 7.6 22.5 432

16 81.6 9.2 9.2 195

17 85.5 6.2 8.3 145

18 79.4 16.7 3.9 102

19 85.5 7.0 7.5 242

20 85.6 5.8 8.6 139

21 87.5 7.3 5.2 96

22 73.5 3.3 23.2 181

23 83.7 9.6 6.7 375

24 79.5 10.4 10.1 355

25 82.0 6.8 11.2 322

26 88.2 5.3 6.5 356

27 93.2 3.4 3.4 351

28 82.8 9.7 7.5 186

29 63.4 6.1 30.5 131

30 86.3 4.2 9.5 95

31 86.4 5.3 8.3 206

Missing 66.7 0.0 33.3 3

Total 82.8 7.4 9.8 9,418

1 86.4% 4.5% 9.1% 66

2 93.4 4.4 2.2 137

3 81.3 4.7 14.0 43

4 84.1 10.9 5.0 119

5 76.6 12.8 10.6 47

6 90.0 6.0 4.0 50

7 82.4 12.3 5.3 57

8 75.9 6.9 17.2 29

9 89.1 0.0 10.9 46

10 89.4 8.7 1.9 104

11 89.5 1.5 9.0 67

12 81.4 6.7 11.9 135

13 91.8 4.1 4.1 49

14 87.3 8.5 4.2 142

15 77.7 10.7 11.6 233

16 83.6 11.5 4.9 61

17 82.7 9.6 7.7 52

18 85.7 12.9 1.4 70

19 87.8 6.8 5.4 148

20 90.4 8.4 1.2 83

21 89.2 8.1 2.7 37

22 95.2 2.4 2.4 85

23 74.2 22.9 2.9 105

24 83.5 14.3 2.2 91

25 86.0 7.3 6.7 150

26 83.1 12.7 4.2 142

27 95.9 4.1 0.0 122

28 91.3 6.2 2.5 81

29 80.0 6.0 14.0 100

30 91.1 8.9 0.0 45

31 95.5 0.0 4.5 67

Total 85.9 8.3 5.8 2,763


TRAFFIC

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MISCELLANEOUS

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WEAPONS

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1 82.2% 5.1% 12.7% 79

2 80.2 4.8 15.0 147

3 76.2 14.3 9.5 42

4 85.3 10.8 3.9 102

5 86.8 0.0 13.2 38

6 83.0 7.5 9.5 53

7 76.9 5.8 17.3 52

8 77.1 2.9 20.0 35

9 78.1 3.1 18.8 64

10 94.6 2.7 2.7 75

11 76.4 11.8 11.8 34

12 81.8 5.7 12.5 88

13 75.5 14.0 10.5 57

14 82.5 7.0 10.5 86

15 74.3 8.1 17.6 148

16 77.6 8.3 14.1 85

17 68.2 4.5 27.3 44

18 73.7 26.3 0.0 19

19 71.9 4.5 23.6 89

20 79.4 1.6 19.0 63

21 90.9 6.1 3.0 33

22 88.0 3.0 9.0 67

23 72.2 15.3 12.5 72

24 84.6 9.6 5.8 104

25 75.0 7.6 17.4 92

26 80.0 5.6 14.4 125

27 93.3 1.7 5.0 60

28 96.8 1.6 1.6 61

29 57.1 0.0 42.9 28

30 90.9 0.0 9.1 22

31 85.5 1.8 12.7 55

Total 80.7 6.4 12.9 2119

1 80.0% 20.0% 0.0% 5

2 72.2 0.0 27.8 18

3 80.0 20.0 0.0 5

4 85.7 9.5 4.8 21

5 50.0 50.0 0.0 4

6 33.3 50.0 16.7 24

7 75.0 8.3 16.7 12

8 60.0 20.0 20.0 5

9 75.0 0.0 25.0 8

10 66.7 0.0 33.3 3

11 70.6 11.8 17.6 17

12 85.8 7.1 7.1 14

13 33.3 55.6 11.1 9

14 71.4 14.3 14.3 14

15 53.6 21.4 25.0 28

16 100.0 0.0 0.0 6

17 40.0 20.0 40.0 5

18 0.00 0.0 0.0 0

19 50.0 0.0 50.0 6

20 77.8 11.1 11.1 9

21 100.0 0.0 0.0 5

22 78.6 7.1 14.3 14

23 55.6 22.2 22.2 9

24 69.2 23.1 7.7 13

25 77.8 11.1 11.1 9

26 62.4 18.8 18.8 16

27 60.0 0.0 40.0 5

28 100.0 0.0 0.0 2

29 42.9 21.4 35.7 14

30 100.0 0.0 0.0 3

31 80.0 0.0 20.0 5

Total 66.2 16.6 17.2 308

1 88.9% 11.1% 0.0% 9

2 73.5 8.8 17.7 34

3 79.0 10.5 10.5 19

4 94.2 2.9 2.9 34

5 70.6 17.6 11.8 17

6 80.0 6.7 13.3 15

7 75.0 16.7 8.3 12

8 80.0 10.0 10.0 10

9 60.0 0.0 40.0 5

10 75.0 14.3 10.7 28

11 66.7 0.0 33.3 3

12 68.7 12.5 18.8 16

13 61.1 16.7 22.2 18

14 76.0 8.0 16.0 25

15 80.0 6.7 13.3 30

16 100.0 0.0 0.0 4

17 75.0 25.0 0.0 4

18 100.00 0.0 0.0 3

19 80.0 0.0 20.0 5

20 41.7 58.3 0.0 12

21 66.7 33.3 0.0 12

22 55.6 18.5 25.9 27

23 66.7 11.1 22.2 9

24 60.5 26.3 13.2 38

25 72.4 13.8 13.8 29

26 52.6 26.3 21.1 19

27 76.9 23.1 0.0 13

28 91.7 8.3 0.0 12

29 64.3 28.6 7.1 14

30 100.0 0.0 0.0 9

31 100.0 0.0 0.0 3

Total 73.0 14.8 12.3 488

Appendix 3Sentencing Guidelines Compliance by Judicial Circuit: Property, Drugs, and Miscellaneous Offenses

145Appendices

ASSAULT

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KIDNAPPING

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HOMICIDE

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1 83.3% 0.0% 16.7% 6

2 82.6 4.4 13.0 23

3 100.0 0.0 0.0 3

4 42.4 21.2 36.4 33

5 80.0 20.0 0.0 10

6 0.0 0.0 0.0 0

7 71.4 14.3 14.3 7

8 55.6 33.3 11.1 9

9 70.0 20.0 10.0 10

10 55.6 33.3 11.1 9

11 77.8 11.1 11.1 9

12 62.5 25.0 12.5 8

13 75.0 7.1 17.9 28

14 50.0 25.0 25.0 8

15 37.5 37.5 25.0 8

16 100.0 0.0 0.0 2

17 50.0 50.0 0.0 4

18 66.70 33.3 0.0 6

19 50.0 14.3 35.7 14

20 33.3 0.0 66.7 3

21 75.0 0.0 25.0 4

22 66.6 16.7 16.7 6

23 70.0 10.0 20.0 10

24 60.0 40.0 0.0 10

25 63.6 27.3 9.1 11

26 63.6 27.3 9.1 11

27 66.7 0.0 33.3 6

28 57.1 28.6 14.3 7

29 85.7 0.0 14.3 7

30 80.0 0.0 20.0 5

31 66.7 0.0 33.3 6

Total 64.7 17.3 18.0 283

1 73.2% 12.2% 14.6% 41

2 83.1 6.0 10.9 83

3 82.3 5.9 11.8 51

4 73.6 18.7 7.7 91

5 84.0 4.0 12.0 50

6 74.0 13.0 13.0 54

7 71.7 13.1 15.2 46

8 76.5 2.9 20.6 34

9 67.8 16.1 16.1 31

10 76.9 15.4 7.7 52

11 72.4 17.2 10.4 29

12 79.1 8.3 12.6 48

13 81.4 5.7 12.9 70

14 69.3 14.8 15.9 88

15 72.2 15.6 12.2 90

16 68.5 22.9 8.6 35

17 70.5 11.9 17.6 17

18 86.7 13.3 0.0 30

19 77.8 4.4 17.8 45

20 71.4 14.3 14.3 14

21 83.9 12.9 3.2 31

22 77.1 8.3 14.6 48

23 62.9 27.4 9.7 62

24 65.2 16.7 18.1 72

25 64.6 25.0 10.4 48

26 67.2 16.4 16.4 61

27 82.9 9.8 7.3 41

28 78.6 10.7 10.7 28

29 88.2 5.9 5.9 17

30 62.5 12.5 25.0 16

31 75.0 9.4 15.6 32

Total 74.6 13.0 12.4 1,455

1 66.7% 0.0% 33.3% 3

2 75.0 0.0 25.0 4

3 100.0 0.0 0.0 3

4 81.8 0.0 18.2 11

5 50.0 0.0 50.0 2

6 66.7 33.3 0.0 3

7 80.0 20.0 0.0 5

8 77.8 22.2 0.0 9

9 0.0 0.0 100.0 2

10 0.0 0.0 0.0 0

11 0.0 0.0 0.0 0

12 40.0 0.0 60.0 5

13 100.0 0.0 0.0 3

14 85.7 0.0 14.3 7

15 73.4 13.3 13.3 15

16 100.0 0.0 0.0 1

17 100.0 0.0 0.0 2

18 66.70 0.0 33.3 3

19 45.4 27.3 27.3 11

20 50.0 50.0 0.0 2

21 0.0 0.0 0.0 0

22 100.0 0.0 0.0 1

23 100.0 0.0 0.0 2

24 62.5 25.0 12.5 8

25 100.0 0.0 0.0 4

26 60.0 0.0 40.0 5

27 50.0 50.0 0.0 2

28 100.0 0.0 0.0 1

29 33.4 33.3 33.3 3

30 0.0 0.0 0.0 0

31 60.0 20.0 20.0 5

Total 69.7 12.3 18.0 122

Appendix 4Sentencing Guidelines Compliance by Judicial Circuit: Offenses Against the Person

146 2007 Annual ReportC

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1 66.7% 0.0% 33.3% 3

2 73.3 10.0 16.7 30

3 62.5 37.5 0.0 8

4 65.8 23.7 10.5 38

5 70.6 23.5 5.9 17

6 71.4 14.3 14.3 7

7 70.6 5.9 23.5 17

8 66.7 33.3 0.0 9

9 57.1 0.0 42.9 7

10 76.5 17.6 5.9 17

11 60.0 40.0 0.0 5

12 90.9 0.0 9.1 11

13 100.0 0.0 0.0 8

14 64.7 11.8 23.5 17

15 58.8 11.8 29.4 34

16 100.0 0.0 0.0 7

17 58.4 8.3 33.3 12

18 100.0 0.0 0.0 2

19 48.2 18.5 33.3 27

20 57.1 28.6 14.3 7

21 80.0 20.0 0.0 5

22 37.5 25.0 37.5 8

23 57.2 21.4 21.4 14

24 80.0 16.0 4.0 25

25 55.6 25.9 18.5 27

26 68.2 18.2 13.6 22

27 73.9 17.4 8.7 23

28 63.6 18.2 18.2 11

29 50.0 12.5 37.5 8

30 75.0 25.0 0.0 4

31 82.5 5.0 12.5 40

Total 68.1 15.7 16.2 470

1 64.2% 31.0% 4.8% 42

2 60.2 34.0 5.8 103

3 75.0 15.0 10.0 20

4 61.5 28.2 10.3 117

5 55.0 30.0 15.0 20

6 66.7 20.8 12.5 24

7 69.6 17.4 13.0 23

8 75.0 20.0 5.0 40

9 59.1 22.7 18.2 22

10 53.3 26.7 20.0 15

11 75.0 18.7 6.3 16

12 71.8 15.4 12.8 39

13 57.4 35.2 7.4 54

14 65.5 30.9 3.6 55

15 47.1 29.4 23.5 34

16 75.0 16.7 8.3 12

17 69.6 21.7 8.7 23

18 57.9 26.3 15.8 19

19 60.5 23.7 15.8 38

20 72.7 27.3 0.0 11

21 72.7 27.3 0.0 11

22 70.0 20.0 10.0 10

23 43.5 34.8 21.7 23

24 66.7 14.3 19.0 21

25 55.6 22.2 22.2 9

26 68.7 25.0 6.3 16

27 88.2 11.8 0.0 17

28 77.8 11.1 11.1 9

29 28.6 14.3 57.1 7

30 66.7 33.3 0.0 3

31 53.1 34.4 12.5 32

Total 63.1 26.3 10.6 885

1 0.0% 100% 0.0% 1

2 66.7 0.0 33.3 6

3 25.0 75.0 0.0 4

4 66.7 33.3 0.0 15

5 83.3 16.7 0.0 6

6 100.0 0.0 0.0 4

7 75.0 25.0 0.0 12

8 71.4 28.6 0.0 7

9 33.3 0.0 66.7 3

10 57.1 28.6 14.3 7

11 100.0 0.0 0.0 1

12 83.3 0.0 16.7 6

13 50.0 50.0 0.0 8

14 87.5 12.5 0.0 8

15 66.7 25.0 8.3 12

16 75.0 12.5 12.5 8

17 100.0 0.0 0.0 3

18 33.3 66.7 0.0 3

19 77.8 0.0 22.2 9

20 100.0 0.0 0.0 4

21 66.7 33.3 0.0 3

22 33.4 33.3 33.3 3

23 66.7 0.0 33.3 3

24 55.6 22.2 22.2 9

25 50.0 40.0 10.0 10

26 64.3 35.7 0.0 14

27 66.6 16.7 16.7 6

28 100.0 0.0 0.0 2

29 100.0 0.0 0.0 4

30 0.0 0.0 0.0 0

31 83.3 16.7 0.0 6

Total 68.4 23.0 8.6 187

Appendix 4Sentencing Guidelines Compliance by Judicial Circuit: Offenses Against the Person

ROBBERY RAPE OTHER SEXUAL ASSAULT

VIRGINIA CRIMINAL SENTENCING COMMISSIONVIRGINIA CRIMINAL SENTENCING COMMISSION 2007 ANNUAL REPORT...

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