Va.’s sentencing plan proves to be a success

In this era of perpetual campaigns, candidates often stake their future on draconian, reactionary crime-fighting legislation to get a boost in the polls. Political rhetoric is always subject to skepticism, but occasionally something powerful grows out of the political bravado.

During the 1993 race for Virginia governor, George Allen trailed his opponent by 29 points in the polls. His campaign needed a jolt, so Allen proposed abolishing parole for violent offenders. Allen’s ambitious proposal ignited his campaign and swept him to victory.

After his dramatic victory, Allen not only followed through on his pledge to abolish parole, he also radically altered the entire Virginia sentencing scheme.

In Virginia, the parole board was perceived as a “release valve” for the prison system. Offenders were being sentenced to what appeared to be harsh penalties but served only a fraction of the sentence. The remedy was “truth in sentencing” legislation. Allen and the legislature established a sentencing scheme that provided for flat sentences in which offenders were expected to serve no less than 85 percent of the total sentence imposed.

Allen and the legislature then created the Virginia Criminal Sentencing Commission and charged the commission with increasing prison stays for violent offenders and placing 25 percent of otherwise incarceration-bound nonviolent offenders in alternative forms of sanctioning.

To aid in the creation of new sentence guidelines. the commission studied thousands of prison terms and determined the actual time served for specific offenses and then set sentence ranges based on those findings. Dr. Richard Kern, executive director of the Virginia Criminal Sentencing Commission, suggested the next step was to weed out those offenders “who we are afraid of” from those “we were just ticked-off at.” For those feared, longer prison sentences. For those that merely annoyed, diversion to alternative punishment.

Virginia is the only state to utilize a risk assessment for purposes of sentencing. First, all violent offenders and anyone convicted of distributing more than one ounce of a controlled substance were eliminated from consideration for diversion. The remaining offenders are administered an assessment prior to sentencing.

The higher the assessment score, the less likely the offender will be diverted from prison. The risk assessment, because of its heavy reliance on age, gender and juvenile criminal records, has the effect of increasing the assessment score for young, male offenders. Older, nonviolent career criminals tend to score lower on the assessment. The result is consistent with research indicating that the most violent segment of the population is 16 to 24 year olds.

The Virginia sentence guidelines are utilized to control prison growth while incapacitating violent and criminally active young offenders. The recidivism rate for those diverted from prison is 12 percent as compared to those sent to prison who recidivate at a rate of 38 percent.

Violent sex offenders

The guidelines also provide for increasing the length of sentences for violent sex offenders. Using a risk assessment devised specifically for sex offenders, the sentencing judge could determine that a defendant was a moderate, high risk or very high risk sex offender and increase the upper end of the guideline range by 25, 50 or 100 percent. In effect, the guidelines enabled the sentencing judge to incapacitate the offenders who pose the greatest risk to society.

Virginia’s sentencing scheme has saved millions of dollars and enhanced public safety. In the last dozen years, the United States has witnessed a 26 percent increase in incarceration rates, but Virginia has realized an increase of only 6 percent while its crime rate is slightly lower than the national average.

With more than 2.2 million people incarcerated nationwide and an up-tick in violent crime in 2005 and 2006, jurisdictions across the country would do well to rethink how they punish offenders. Virginia’s innovative sentencing scheme appears to have addressed two lofty goals, reduce prison population and incapacitate the worst of the worst. Virginia’s focus on empirical risk assessments at the front end of the punishment process is a smart approach to fiscal responsibility, public safety and offender accountability.

X Matthew T. Mangino is the former district attorney of Lawrence County and a featured columnist for the Pennsylvania Law Weekly. He can be reached at matthewmangino@aol.com.