The Virginia Criminal Sentencing Commission recently approved a comprehensive study to re-examine the state’s Sentencing Guidelines system. The purpose of the study is to rebenchmark the Guidelines so that they reflect current sentencing practices as accurately as possible. Unlike most states, Virginia’s Sentencing Guidelines are based on analysis of historical sentencing data. Among its statutory mandates, the Commission is required by § 17.1-803 to develop guidelines that take into account historical sentencing practices. The Guidelines apply in approximately 95% of felony sentencing events in Virginia’s circuit courts.

In essence, Virginia’s Guidelines are designed to provide judges with a benchmark of the typical, or average, case outcome given the defendant’s current offenses and his or her prior convictions. The rates at which defendants are recommended by the Guidelines for incarceration in jail or prison reflect the rate at which defendants have received those types of dispositions during the period analyzed. The Guidelines are not designed to recommend more or fewer people for incarceration. There is one exception to the historical basis of Virginia’s Guidelines. Pursuant to § 17.1-805, the Guidelines must include enhancements to increase sentence recommendations for defendants with current or prior convictions for violent felonies. The percent enhancements specified in § 17.1-805, which have been in the Code since 1995, are not based on empirical analysis of sentencing data. The 2022 General Assembly passed legislation (House Bill 1320 and Senate Bill 423) that clarifies the Commission’s authority to recommend revisions to the Guidelines based on historical sentencing data, specifically in regards to the size of midpoint enhancements. Rather than the percentages set in current Code (100%, 125%, 300%, or 500%), the legislation authorizes the Commission to set the magnitude of midpoint enhancements based on analysis of actual sentencing data. That aspect of the legislation takes effect on July 1, 2023. The 2022 legislation includes a requirement for the Commission to submit a report by October 1, 2022, documenting the impact on Sentencing Guideline midpoints if the Commission were to recommend changes based solely on analysis of sentencing data. The Commission’s study is underway but not yet complete. Re-analysis of all Guidelines offense groups is a large-scale, multi-year project and work is expected to continue until late 2025 or early 2026. To fulfill the 2022 reporting requirements, the Commission has prepared this informative preliminary report for submission to the Chief Justice, the Governor, and the General Assembly.

The Commission’s decision in 2021 to move forward with a new comprehensive analysis of the Guidelines was based on several factors. These include recent statutory changes by the General Assembly related to larceny, robbery, jury trials, and sentence credits that may be earned by some individuals serving time for felony offenses. It is unclear what impact these statutory changes may have on judicial sentencing practices (or charging practices of prosecutors). It is possible that sentencing patterns may shift over time and any such changes should be examined, thus supporting the need for the new Guidelines study.

In addition to the recent array of legislative changes, the Commission has identified areas of the Guidelines that appear to be out of sync with current sentencing practices. For example, while Virginia’s Circuit Court judges concur with the Guidelines at a high rate overall, data show that judges often depart from the Guidelines in certain types of cases, such cases involving midpoint enhancements required by § 17.1-805. The Commission’s new study will include a detailed examination of these cases and other areas of the Guidelines in which judges, overall, depart at a higher-than-average rate.

To address the critical need for information, the Commission integrated a Case Details Worksheet into the Sentencing Guidelines beginning July 1, 2021. This one-page worksheet will be a vital and essential tool for providing information to the court and to the Commission. It is designed to capture specific elements of the offense(s) in each case, including victim injury, weapon use, value stolen in property cases, and type of drug in narcotics cases that are not consistently available in any criminal justice data system in the Commonwealth. The information is fundamental for the Commission to fully understand sentencing practices in Virginia. Unfortunately, Guidelines forms received by the Commission since its implementation reveal that the Case Details Worksheet, in many cases, is either missing or incomplete. Lack of essential data may hamper or delay the re-analysis project. The Commission has encouraged judges to ensure the worksheet is completed by the Commonwealth’s attorney or probation officer who is preparing Guidelines worksheets for the court.

The Commission currently is in the initial phase of this multi-year project. Thus, the Commission does not yet have results to present regarding the impact on Sentencing Guideline midpoints if the Commission were to recommend changes based solely on analysis of sentencing data. This report discusses the Commission’s methodological approach to the analysis, the structure of the Guidelines, data sources for the study, and the range of recommendations that may result when the extensive and thorough data analysis has reached conclusion.

For this report, the Commission has conducted preliminary analysis of concurrence with, and departures from, the Virginia’s Sentencing Guidelines for a recent five-year period. In Virginia, judicial concurrence with the Guidelines is voluntary. Judges may depart from the Guidelines in any case they feel the circumstances warrant it. Per § 19.2-298.01(B), if the judge orders a sentence which is either greater or less than that recommended by the Guidelines, the judge must file a written explanation of the departure. Concurrence rates with Guidelines recommendations, patterns of departure, and the departure explanations provided by judges provide some insight into current judicial thinking and suggest ways in which the Guidelines may need to be refined. For example, relatively low concurrence with a significant number of downward departures could suggest that the Guidelines for a particular offense may need to be refined downward to better reflect judicial thinking. Conversely, relatively low concurrence with a significant number of upward departures could suggest that the Guidelines for that offense should be refined upward. Analysis of Guidelines concurrence and departures, however, does not indicate definitively the direction in which the Guidelines for a specific offense may be revised when all of the data are collected and analyzed together. Nonetheless, review of Guidelines concurrence and departure patterns, as well as the reasons judges cite when departing from the Guidelines recommendation, is informative. Concurrence rates and departure patterns for felonies covered by the Guidelines system are included in this report beginning on page 27.

Virginia’s circuit court judges concur with the Guidelines at a high rate overall. During FY2018-FY2022, the overall concurrence rate was 81.9%.(*1) In 7.5% of the felony sentencing events, the effective sentence (the imposed sentence less any suspended time) was higher than the Guidelines recommended range, whereas, in 10.7% of the felony sentencing events, the effective sentence was lower than the range recommended by the Guidelines.(*2) When no midpoint enhancements apply, judges concur with the Guidelines in nearly 85% of the cases. When midpoint enhancements do apply, judges comply at a much lower rate – about 71%. When judges depart from the Guidelines in midpoint enhancement cases, they nearly always sentence below the range recommended by the enhanced Guidelines. Analysis reveals that concurrence rates vary somewhat across the 17 Guidelines offense groups. In general, property and drug offenses exhibit higher rates of concurrence than the violent offense categories. When examining departure cases, acceptance of a plea agreement is the most common reason cited by judges for sentencing outside of the Guidelines range for both upward and downward departures.

As noted above, the goal of the re-analysis study is to re-benchmark the Guidelines so that they reflect current sentencing practices as accurately as possible. As the re-analysis project progresses, the Commission will recommend revisions to the Guidelines for certain offenses or offense groups, when such modifications are supported by the data. All recommendations will be based on analysis of recent sentencing practices and will represent the best fit of the available data. Per § 17.1-806, any recommendations adopted by the Commission must be presented in its annual report, due to the General Assembly each December 1. The legislative session provides an opportunity for lawmakers to review the Commission’s recommendations. Unless otherwise provided by law, the changes recommended by the Commission become effective on the following July 1.

Given its size and complexity, the Commission’s re-analysis project will be conducted over the next several years. As of the submission of this report, the Commission plans to have the study fully completed in late 2025 or early 2026.
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(*1) Data for FY2022 are preliminary as of September 9, 2022.
(*2) Percentages may not add to 100% due to rounding.