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Va. Expands Use of Sentencing Tool for Judges

By Chris L. Jenkins
Washington Post Staff Writer
Sunday, April 24, 2005; Page C01

RICHMOND -- It used to be that Virginia justices went about sentencing nonviolent criminals the way judges across the country do: They scanned convicts' rap sheets and court files and took into account such general factors as age and history to decide how dangerous felons were to the public and whether they should go to prison.

That was so 20th century.

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For three years, Virginia judges have had the option of using a one-page statistical report that analyzes such characteristics as a felon's sex and marital and employment status. It provides a numerical calculation that quantifies the likelihood that a burglar or drug dealer will commit another crime.

Call it an attempt to predict the future that uses statistics to estimate the threat each offender poses to public safety. The system, controversial in legal circles, stems from years of research and a desire by Virginia officials to determine empirically which criminals are more likely to commit another crime and should go to prison and which felons pose limited risk and could be referred to less-expensive alternatives, such as probation.

With rising prison populations and costs, state lawmakers are set to expand the program this year. Judges will be able to use the scorecards -- or "risk assessments" -- to also help figure out whether criminals who violate the terms of their probation should be sent back to prison for years or diverted to lower-security detention centers for several months.

Lawmakers, who in 2003 asked state officials to study how the program could be expanded, said they hope to cut prison costs by giving judges an extra tool to help them figure out who they can safely divert from longer, more-expensive prison terms. Backers say they hope to divert 1,000 felons a year from prison once the program is fully operational.

"We're saying a lot of these people who would go to prison normally do not represent a significant threat to the public safety," said Richard Kern, director of the Virginia Criminal Sentencing Commission and developer of the scorecard. "Judges need new, intermediate sanctions for this population."

Virginia is the only state that uses the tool, Kern and several national criminal justice experts said.

When the process expands this summer in several circuit courts across the commonwealth, it will work like this: Characteristics of a felon, such as age, employment status or whether recent mental health treatment was needed, can be assigned points.

If offenders tally up 52 points, they could be ordered to serve the mandated amount of time under the state's sentencing guidelines. If the offenders have fewer than 52 points, they could be sent to an alternative detention center.

"They've been able to, with near scientific certainty, distinguish who is going to be a future risk," said Del. David B. Albo (R-Fairfax), chairman of the Virginia State Crime Commission, referring to the work of the sentencing panel. "I was a little uneasy at first, but if you look at the research, it really does hold up."

Messages left with several circuit court judges for comment on the expansion were not returned.

Opponents said the system unjustly punishes some offenders not on the basis of their crime but on characteristics that are beyond their control. It's unfair and constitutionally dubious, they said, to more harshly punish a young, jobless man who steals a car than a married 40-something woman who does the same thing.

"You're punishing people because they belong to a statistical category, not because of the crime they committed," said Kent Willis, executive director of the American Civil Liberties Union of Virginia. The group hopes to challenge the constitutionality of the risk assessments.

But lawmakers say they are on solid legal ground because judges don't have to use the tool.

They also point to the rising cost of imprisonment. On average, it costs the state $22,672 a year to furnish one bed in prison. The annual cost for a bed in an alternative program, which includes detention centers, is $9,447.

"The public pays too much money to go with the same old system of sending people to jails and prisons," said Sen. Kenneth W. Stolle (R-Virginia Beach), chairman of the Senate Courts of Justice Committee.

The practice is based on a study done by the state of thousands of nonviolent offenders after they left prison in late 1990s. Researchers found that men were more than 50 percent more likely to commit a new crime than women were, Kern said. And felons in their twenties were much more likely to commit another crime than those twice their age. Those findings helped develop the weighted scale for each characteristic, Kern said.

Although many in law enforcement have been supportive of the tool, some prosecutors said criminals might see the judicial system as too lenient if judges too often used alternatives to prison.

"If the tool is used as an important, but not exclusive, method, then it becomes a very useful thing," said Robert L. Bushnell, president of the Virginia Association of Commonwealth's Attorneys. "But if we get to the point where we are focusing exclusively on incarcerating only the dangerous people to the exclusion of the nonviolent offender, the problem is that there may be people out there who make a mockery of probation through conduct that doesn't rise to criminal behavior."

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