VIRGINIA CRIMINAL SENTENCING COMMISSION Proposed Topics for Possible

VIRGINIA CRIMINAL SENTENCING COMMISSION Proposed Topics for Possible Guidelines Revisions September 8, 2014

Proposals for New Guidelines Offenses n Proposals reflect the best fit for the historical data. n Proposals are designed to closely match the historical rate of incarceration in prison and jail. n Current guidelines worksheets serve as the base for scoring historical cases, but the points assigned to those factors may be different for the new offense and new factors may be added. 2

Suggestions for New Guidelines Offenses n Distribution of Schedule IV drugs (§ 18. 2 -248(E 2)) n Strangulation resulting in injury or bodily wounding (§ 18. 2 -51. 6) n Obtaining identifying information with intent to defraud, 2 nd or subsequent conviction (§ 18. 2 -186. 3(D)) n Receiving, buying, or selling stolen credit card or credit card number (§ 18. 2 -192 (1, b), (1, c), and (1, d)) 3

Distribution of Schedule IV Drugs (§ 18. 2 -248(E 2)) n The penalty for distribution of a Schedule IV drug was increased from a Class 1 misdemeanor to a Class 6 felony in 2005. n Generally, Schedule IV drugs have less potential for abuse and dependency compared to Schedule III drugs. Many of these drugs are accepted in medical treatment (e. g. , managing seizures, anxiety, and insomnia). 4

Distribution of Schedule IV Drugs (§ 18. 2 -248(E 2)) n Many Schedule IV drugs have a depressant effect on the central nervous system. n Schedule IV drugs include: Valium, Xanax, Darvocet, Ativan, and other tranquilizers and sedatives. 5

Distribution of Schedule IV Drugs (§ 18. 2 -248(E 2)) n According to a recent study, the use of benzodiazepines (Schedule IV drugs) is especially problematic in PTSD patients who also have substance-abuse disorders or mild traumatic brain injuries. The Department of Defense and the Veteran’s Administration guidelines especially caution their use with patients suffering from combatrelated PTSD because more than half of such patients abuse alcohol or drugs. Source: Stars and Stripes http: //www. stripes. com/news/sedatives-still-used-for-ptsd-treatment-despite-warnings-1. 215000 (accessed September 4, 2014) 6

Distribution of Schedule IV Drugs (§ 18. 2 -248(E 2)) FY 2012 – FY 2013 52 Cases Percent Median Sentence No Incarceration 38. 5% NA Incarceration Up to 6 Months 50. 0% 1. 8 Months Incarceration More than 6 Months 11. 5% 1. 1 Years Disposition Note: Data reflect cases in which this offense was the primary (or most serious) offense at sentencing. Source: Supreme Court of Virginia, Circuit Court Case Management System (CMS) 7

Strangulation (§ 18. 2 -51. 6) Any person who, without consent, impedes the blood circulation or respiration of another person by knowingly, intentionally, and unlawfully applying pressure to the neck of such person resulting in the wounding or bodily injury of such person is guilty of strangulation, a Class 6 felony. (Effective July 1, 2012) 8

Strangulation (§ 18. 2 -51. 6) n Strangulation under § 18. 2 -51. 6 is not currently covered by the guidelines. n In some cases, users have incorrectly prepared the guidelines using the Class 6 felony of unlawful wounding. n Staff have received numerous requests to add this offense to the guidelines. 9

Style Weekly July 9, 2013 10

Obtaining identifying information with intent to defraud, 2 nd or subsequent conviction (§ 18. 2 -186. 3(D)) n Section 18. 2 -186. 3, defining identity fraud offenses, was added to the Code of Virginia in 2000. n One of the five felony offenses in this Code section is currently covered by the guidelines. − Added in 2006 11

Identity Fraud (§ 18. 2 -186) Obtain identifying info. with intent to defraud Sell or distribute, obtain identifying info. intent to defraud § 18. 2 -186. 3(A) Class 1 misd. with § 18. 2 -186. 3(B) Class 1 misd. Obtain identifying info. to avoid arrest or impede investigation § 18. 2 -186. 3(B 1) Class 1 misd. Obtain identifying info. of 5 or more people § 18. 2 -186. 3(D) Class 5 felony Obtain identifying info. of 50 or more people § 18. 2 -186. 3(D) Class 4 felony Obtain identifying info. with intent to defraud, 2 nd § 18. 2 -186. 3(D) or subsequent Class 6 felony Use of identifying info. to defraud, results in detention of victim § 18. 2 -186. 3(D) Class 5 felony Use of identifying info. to defraud, financial loss greater than $200 § 18. 2 -186. 3(D) Class 6 felony Covered by current guidelines 12

Receiving, buying, or selling stolen credit card or credit card number (§ 18. 2 -192 (1, b), (1, c), and (1, d)) n Section 18. 2 -192 was last modified in 1985. n One of the four felony offenses in this Code section is currently covered by the guidelines. − Covered by truth-in-sentencing guidelines when implemented in 1995 13

Credit Card Offenses (§§ 18. 2 -192 and 18. 2 -194) Covered by current guidelines Theft of credit card or credit card number § 18. 2 -192(1, a) Felony 1 - 20 years Receive stolen credit card or credit card number with intent to use or sell § 18. 2 -192(1, b) Felony 1 - 20 years Sell or buy stolen credit card or credit card number § 18. 2 -192(1, c) Felony 1 - 20 years Receive 2 or more stolen credit cards within 12 months § 18. 2 -192(1, d) Felony 1 - 20 years Possession of two or more signed credit cards § 18. 2 -194 Felony 1 - 20 years This offense could also be included in the analysis 14

Proposals for Revisions to Existing Guidelines Offenses n Proposals are designed to maximize compliance and balance mitigation and aggravation rates to the extent possible. n Current guidelines worksheets serve as the base for scoring historical cases, but the points assigned to those factors may be adjusted and new factors may be added. 15

Burglary Offenses (§§ 18. 2 -89, 18. 2 -91, and 18. 2 -92) n Examine importance of: − − Whether a person was present in the structure at the time of the offense − n Time of day of the offense Victim injury This analysis would require a special study, as additional case details would need to be collected. 16

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Proposed Topics for Possible Guidelines Revisions n Approval to proceed with proposed analyses n Suggestions from Commission members for other topics 18