Some surprising results have turned up in two new studies of a tool created to keep room in Virginia prisons for violent, repeat criminals by diverting “low risk” offenders to community-based programs.
Thousands of people convicted of qualifying property and drug crimes and assessed as low-risk offenders are not being steered away from prison, while many deemed higher-risk are being diverted, according to the Virginia Criminal Justice Policy Reform Project at the University of Virginia School of Law.
The reports focus on Virginia’s Nonviolent Risk Assessment questionnaire, and the findings will be presented to the Virginia Criminal Sentencing Commission on Monday.
One report examines how the tool works in practice, and the other looks at how circuit court judges across the state view the risk assessment tool.
“Virginia has been recognized as a national model for the adoption of risk assessment. But we found that there are many thousands of very low risk people who are eligible for alternative sentences, who are not receiving it,” said Brandon L. Garrett, a professor at the law school.
Garrett added, “We also found enormous inconsistency between judges and courts. And many judges were not open to considering low risk in sentencing.”
The project found that the use of the VNRA varied widely across the state and among judges, most of whom felt that the risk of future crime should figure into the fashioning of a sentence.
But it was also found that a significant minority of judges do not consult the VNRA.
The Virginia General Assembly created the Virginia Criminal Sentencing Commission as a key part of the state’s sweeping “truth in sentencing” effort that ended parole for crimes committed on or after Jan. 1, 1995.
The lawmakers ordered the sentencing commission to develop an empirically based risk-assessment instrument that could identify nonviolent offenders otherwise headed for prison who could be diverted to alternative sanctions such as jail, probation, release, community service, substance abuse or mental health treatment, and electronic monitoring.
The goal was to maintain room in prisons for dangerous, violent repeat offenders who would be receiving longer sentences. The VNRA was adopted for statewide use in 2002.
The goal, which has been met every year, is to divert 25 percent of the “lowest-risk, incarceration-bound, drug and property offenders” to non-prison sanctions.
The VNRA form considers the background of the offender, their age, gender, prior convictions, if any, and other issues. Those assessed are scored as low or higher-risk offenders. That information is used by judges to help fashion sentences, a process that also includes Virginia’s criminal sentencing guidelines and judicial experience.
The study looked at the year that ended June 30, 2017, during which 8,443 offenders were identified as eligible to be assessed by the VNRA.
Of that number, 3,396, or 40.2 percent, scored in the low risk category of offenders and, of that number, 1,433, 42.2 percent, received an alternative sentence, the project found. More than 23 percent — or 941 — of those who scored in the higher risk category also received an alternative sentence.
Information on about 12 percent of those eligible for VNRA assessment was not available — either the form was not filled out or not shared by the judge with the sentencing commission. Of that number, almost 40 percent received alternative sentences.
Supervised probation was the most commonly imposed prison alternative followed by jail time, restitution, unsupervised probation, substance abuse treatment and other sanctions. Almost half of those receiving alternative sentences also received jail time.
The alternative sentencing rates for the state’s 31 circuit court districts ranged from a low of 19 percent to a high of 54 percent. Individual judges’ rates ranged from 11 percent to 65 percent.
The project’s survey of the state’s 161 circuit court judges drew responses from more than half of them. Of that number, 4 out of 5 agreed that sentencing not only should be based on the seriousness of past crimes but also on the risk of future crime.
Nevertheless, remarks from some of the judges included: “I support the use of risk assessments [provided that] the risk assessment is used to reduce and not to increase incarceration,” and, “Frankly I pay very little attention to the [VNRA] worksheets. Attorneys argue about them, but I really just look at the guidelines. I also don’t go to psychics.”
One impediment to more prison diversions cited by judges was the limited availability of alternative sanctions.
The Virginia Criminal Justice Policy Reform Project at the University of Virginia School of Law is supported by a $145,000 gift from the Charles Koch Foundation.