The Virginia Criminal Sentencing Commission is required by Virginia Code § 30-19.1:4 to prepare fiscal impact statements for legislation that could potentially increase the population in state adult correctional facilities. This provision also requires the Department of Planning and Budget (DPB), in conjunction with the Department of Juvenile Justice (DJJ), to prepare an impact statement for legislation that may increase the population of juveniles committed to the state.

Senate Bill 1335, introduced during the 2023 General Assembly, would have significantly changed the current requirements for preparing certain impact statements. Ultimately, Senate Bill 1335 was passed by indefinitely with the understanding that the Chair of the Senate Finance and Appropriations Committee would send a letter referring the matter to the Sentencing Commission for study. The Sentencing Commission received a letter from the Senate Clerk’s Office, dated March 24, 2023, communicating this request. House Bill 1914, also introduced during the 2023 Session, was nearly identical to Senate Bill 1335; however, House Bill 1914 was not referred for study.

Current statutory requirements for corrections impact statements were adopted by the General Assembly in 2002. Pursuant to § 30-19.1:4, the corrections impact statements must provide estimated operating costs associated with any bill that would result in a net increase in the state adult correctional population (also known as the state prison population or state inmate population). Under this same provision, an impact statement must include estimated operating costs for any bill that would result in a net increase in the population committed to DJJ (these are juveniles committed to the custody of the state and typically held in the state’s juvenile correctional facilities). Any impact statement required by § 30-19.1:4 also must include an analysis of the impact on local and regional jails, state and local pretrial and adult community probation agencies, and local juvenile detention facilities.

The Sentencing Commission uses a computer simulation model to estimate the additional number of inmates who will be in the state inmate population for each year of the six-year projection period, as well as any change in number of individuals held in local and regional jails each year, should the legislation be enacted. While the Sentencing Commission calculates the impact on adult corrections populations, the estimated impact on the confined juvenile populations is provided by Virginia's Department of Juvenile Justice(*1) and, for the convenience of legislators, a combined statement is submitted to the General Assembly.

Pursuant to § 30-19.1:4, for each law enacted that would result in a net increase in the state inmate population or the population committed to DJJ, a one-year appropriation must be made. The appropriation amount must be equal to the estimated increase in operating costs for the year with the highest estimated operating costs during the six years following enactment of the legislation.(*2) Thus, § 30-19.1:4 requires an appropriation for one year of additional operating costs; it does not require an appropriation equivalent to the estimated increase in operating costs for all six years of the projection period. The identified appropriation amount must be printed on the bill itself.(*3)

As required by § 30-19.1:4, if the agency preparing the impact statement does not have sufficient information to project the impact, the fiscal impact statement must state this, and the words "cannot be determined" shall be printed on the face of the bill. Since 2009, language in the Appropriation Act has mandated that, if the Sentencing Commission does not have sufficient information to estimate the impact, the Commission must assign a minimum fiscal impact of $50,000 for the state prison impact (see Item 52 of Chapter 1 of the Acts of Assembly of 2023, Special Session I). In such instances, the $50,000 minimum impact must be printed on the face of the bill and the provisions of § 30-19.1:4(H) apply, meaning an appropriation is required. In 2023, the Sentencing Commission could not quantify the impact for approximately 80% of the bills sent to the Commission for corrections impact statements. If insufficient data are available, the Sentencing Commission will nonetheless provide as much relevant information as possible in the impact statement. The goal is to provide legislators with supplemental information that may be useful as they consider the bill. It is important to note that, because the Sentencing Commission is not responsible for preparing the juvenile corrections impact statement, the $50,000 minimum fiscal impact does not apply to bills for which the impact on the juvenile correctional system cannot be determined.

SENATE BILL 1335 AND HOUSE BILL 1914 (2023 GENERAL ASSEMBLY)

Senate Bill 1335 and House Bill 1914 would have changed the current requirements for corrections impact statements, specifically for any bill that proposes a new felony offense. Under the proposals, the default state prison impact appropriation amount must be calculated by using the formula specified in the legislation. In essence, the formula generates the average number of prison admissions per offense defined in a particular felony class (e.g., average number of prison admissions associated with a Class 5 felony offense).(*4) The legislation then specifies that the estimated number of affected offenders must be multiplied by twice the per capita cost for housing inmates as reported by the Virginia Department of Corrections (DOC). As proposed, this amount would replace the minimum fiscal impact of $50,000 for bills proposing new felony offenses. The formula specified in Senate Bill 1335 and House Bill 1914 may not accurately reflect the rate at which a particular offense or type of offense would generate new prison admissions. Moreover, the proposed formula does not address sentence length or length-of-stay in the state prison population during the projection period. Thus, it does not account for the “stacking effect" associated with admissions to DOC who will serve multiyear sentences.

RECOMMENDED BEST PRACTICES

The Center on Budget and Policy Priorities (CBPP) has developed a list of recommended best practices for the preparation of fiscal impact statements or fiscal notes. Regarding corrections impact statements, Virginia follows nearly all of the best practices suggested by the CBPP, as shown in Figure 1 on numbered page 4. Areas in which Virginia does not fully comply with CBPP’s recommended best practices are discussed below.

CBPP recommends that states prepare impact statements or fiscal notes for all or substantially all bills. For corrections impact statements, Virginia follows this recommendation in part. While Virginia Code requires corrections impact statements for all bills that may increase the state prison population (increase costs), the CBPP recommends that states also produce impact statements for bills that may reduce costs for the state, such as a bill that would decrease the prison population.(*5) Although not required by Code, the Sentencing Commission, when requested to do so, will prepare statements for bills that are expected to reduce the prison population.

CBPP recommends that states designate a nonpartisan agency to prepare impact statements. In a 2015 report, the CBPP indicates that fiscal impact statements in Virginia are prepared in an office of the Executive Branch that is involved in the development of the Governor’s budget, which CBPP suggests may result in partisan fiscal notes.(*6) In Virginia, corrections impact statements are not handled in that manner. By statute, Virginia’s corrections impact statements are prepared by the Sentencing Commission, a judicial branch agency with no role in budget development. For this reason, Figure 1, found on numbered page 4, which is specific to the process for corrections impact statements, indicates that Virginia fully complies with this recommendation.

Furthermore, CBPP recommends that states update impact projections as legislation is amended or otherwise modified. The CBPP, in its 2015 report, indicates that fiscal impact statements in Virginia are not updated when legislation is amended or modified.(*7) That is not the case for corrections impact statements in Virginia. The Sentencing Commission updates the corrections impact statement whenever a bill is amended or modified as it proceeds through the legislative process. Figure 1 on numbered page 4 reflects that Virginia fully complies with this recommendation specifically in regards to corrections impact statements.

Finally, the CBPP recommends that states produce fiscal impact statements in a consistent format, following an established set of guidelines. The Sentencing Commission generates corrections impact statements for the General Assembly in a standardized format for all bills reviewed. Virginia’s Sentencing Commission has developed internal documents with written procedures for calculating impacts; however, the Commission currently does not have an explanatory document available for outside parties, as suggested by the CBPP.

MULTI-STATE STATE REVIEW

According to information provided by the National Conference of State Legislatures in 2021(*8), 17 states including Virginia have statutes that specifically require impact statements on legislation that would affect the corrections population.(*9) In addition to the states listed in the National Conference of State Legislatures document, Louisiana, Maryland, and Pennsylvania were examined for the purposes of this report. The Sentencing Commission examined the requirements for each of the 19 other states and what each state typically includes in its corrections impact statements. Findings of the multi-state review are provided below.

• Virginia is not unique in having the state’s Sentencing Commission prepare corrections impact statements, as sentencing commissions or councils in several states are designated for this function.

• Of the 19 states reviewed, the Sentencing Commission could find only one other state where an appropriation is required based on the amount specified in the impact statement. In addition to Virginia, Colorado has a statutory requirement to appropriate sufficient funds to cover increased costs. Colorado, however, recently suspended this requirement until July 1, 2025. In all the other states, the impact statement appears to be advisory only and there is no requirement that the legislature appropriate any funds.

• The Sentencing Commission could not identify another state among those reviewed with statutory requirements for impact statements related to the juvenile justice system.

• Unlike Virginia, most states examined include capital costs in the impact statements for at least some bills (e.g., if a bill is likely to increase the need for prison beds by a specified number or more).

• The majority of states examined prepare impact statements for bills that may decrease the prison population or otherwise reduce or offset costs. In Virginia, the Sentencing Commission and the Department of Juvenile Justice are currently required to produce impact statements only if the legislation could result in a net increase in the state prison or juvenile correctional center populations, thereby increasing costs. Although not required, the Sentencing Commission, when requested to do so, will produce impact statements for bills expected to reduce the state’s prison population.

• The majority of states reviewed include other system costs, not just prison operating costs, in their impact statements (e.g., court caseload, prosecutor and/or indigent defense costs).

• The projection period used in Virginia (six years) is roughly in the middle of projection periods used in other states, which generally ranges between two and ten years.

• When the estimated impact cannot be quantified, the impact statements in other states vary. Some states, as in Virginia, simply note that the impact cannot be determined, with some including an explanation as to why. Other states base the impact estimate on some sort of assumption (e.g., if 10 offenders were convicted of the proposed offense). In other states, the impact statement includes information as to the cost for each additional conviction or each additional prison admission.

• Of the 19 other states examined, the Sentencing Commission could not identify a state that specifies a formula for estimating impacts in statutory language, as proposed by Senate Bill 1335 and House Bill 1914.

POSSIBLE OPTIONS FOR THE GENERAL ASSEMBLY

Should the General Assembly desire to revise the requirements, process, or methods by which corrections impact statements are prepared in Virginia, there are alternatives that could be considered. A number of these are listed in Figure 2 beginning on numbered page 6.

CONCLUSION

As requested by the Senate Finance and Appropriations Committee, the Sentencing Commission has examined matters related to Virginia’s requirements for corrections impact statements and the processes and methods currently used. The Sentencing Commission also reviewed the changes proposed in Senate Bill 1335 and House Bill 1914. Virginia, at present, follows nearly all of the recommended best practices for fiscal impact statements established by the Center on Budget and Policy Priorities. Perhaps most unique about Virginia is the requirement for an appropriation in the amount specified in the corrections impact statement. Of the 19 other states examined, the Sentencing Commission could identify only one other state with an appropriation requirement; however, that state (Colorado) recently suspended that requirement. In reviewing the 19 other states, the Sentencing Commission found considerable variation in the types of information captured in corrections impact statements; however, most states included information beyond what is currently required in Virginia. As noted above, the Sentencing Commission could not identify a state with a formula for estimating impacts included in statutory language, as proposed by Senate Bill 1335 and House Bill 1914.

Should the General Assembly desire to change the current requirements, processes, or methods used for adult or juvenile corrections impact statements in Virginia, a number of options exist. Legislation to amend § 30-19.1:4 or the Appropriation Act would be required in most instances. The Sentencing Commission makes no specific recommendations regarding Virginia’s corrections impact statements and will continue to produce statements per requirements specified by the Virginia General Assembly.
_________________________________________________
(*1) Although referenced in § 30-19.1:4, the Department of Planning and Budget has not played an active role in the development of impact statements for bills affecting the confined juvenile populations.
(*2) "Operating costs" means all costs other than capital outlay costs.
(*3) While the estimated appropriation is printed on the face of the bill, it is not codified if the bill passes.
(*4) Not all existing or proposed felonies fit within the felony classes established in the Code of Virginia (Class 1 through Class 6 felonies are defined in § 18.2-10). Approximately 20% of felonies are “unclassed" (i.e., the penalty ranges do not fall into the established felony classes). The nature of unclassed felonies varies considerably and maximum penalties for unclassed felonies range from one year to life.
(*5) Center for Budget and Policy Priorities. (2012). Improving Budget Analysis of State Criminal Justice Reforms: A Strategy for Better Outcomes and Saving Money. Retrieved from https://www.cbpp.org/research/improving-budget-analysis-of-state-criminal-justice-reforms-a-strategy-for-better-outcomes
(*6) Center on Budget and Policy Priorities. (2015). Better Cost Estimates, Better Budgets: Improved Fiscal Notes Would Help States Make More Informed Decisions. Retrieved from https://www.cbpp.org/research/better-cost-estimates-better-budgets
(*7) Ibid
(*8) National Conference of State Legislatures. (2021). Corrections Impact Statements. Provided in email from Amanda Essex to Catie Robertson. 4 August 2023.
(*9) Other than Virginia, these states are: Arkansas, Colorado, Connecticut, Illinois, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nevada, North Carolina, Ohio, Oregon, Rhode Island, South Carolina and Texas.