Project’s Study Finds Wide Discrepancy in Sentencing

Courts Vary on Punishment for Low-Risk Offenders
Virginia Criminal Justice Policy Reform Project
April 9, 2018

A first-of-its-kind survey of state judges found wide discrepancies in alternative sentencing for low-risk offenders. Those are the key findings in the first set of studies from the University of Virginia School of Law’s Virginia Criminal Justice Policy Reform Project, presented Monday to the Virginia Criminal Sentencing Commission.

The report was co-authored by Professor Brandon Garrett; empirical research librarian Alexander Jakubow; Anne Metz of UVA’s Institute of Law, Psychiatry and Public Policy; and Professor John Monahan.

“It is the first large-scale survey of judges on the use of risk assessment that we are aware of,” Garrett said.

The sentencing commission was tasked in 1994 to develop an instrument to identify low-risk offenders and divert them from prison after Virginia abolished parole. The Law School’s reform project analyzed how the state’s Nonviolent Risk Assessment program, which focuses on alternative sentencing for low-risk offenders, has been working since its inception in 2002.

Under the initiative, drug or property offenders who are less likely to commit new crimes are recommended for alternative interventions, including non-incarceration and rehabilitative options such as outpatient drug or mental health programs.

A state worksheet evaluating offenders’ criminal histories and characteristics with a points system helps determine the recommendation for an alternate intervention. Half of the low-risk offenders don’t receive jail time, the report found, and the most common alternative sentence is supervised probation. The state easily met its goal of diverting 25 percent of low-risk offenders; the report found 42 percent had received alternative sentences.

However, because the assessment is nonbinding, the reform project’s report found that alternative sentencing varies widely among circuit courts and individual judges. The survey found about 80 percent of judges were familiar with the risk assessment, and half always or nearly always consider it. Also, the rate of low-risk alternative sentencing ranged from 7 to 85 percent for judges, and 22 to 67 percent for circuit courts.  

Despite the inconsistency, judges overwhelmingly agreed that the risk of future crimes should be a factor in sentencing and most believe that more availability of alternative sanctions would change sentencing practices. Yet 60 percent of judges oppose requiring a written reason for declining to impose an alternative sanction.

“The findings on the use of alternative sentencing for low-risk offenders in Virginia raise new questions about how risk assessment is used in practice,” Garrett said.

The report suggests that further guidance to judges and additional resources to support alternative sentences could accomplish the assessment program’s goals.

The Virginia Criminal Justice Policy Reform Project was established in 2017 to research and encourage the adoption of policies aimed at improving the fairness of criminal adjudication, preventing wrongful convictions, reducing recidivism and costs, diverting low-risk offenders from jail or prison, and easing societal re-entry for the formerly incarcerated. 

Through a related seminar, students research and write papers on such issues as improving interrogation policies, the use of mental health dockets in criminal adjudication, and bail and discovery reform.

The new project’s first year of work is supported by a $145,000 gift from the Charles Koch Foundation.

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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