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2007 - Virginia Criminal Sentencing Commission

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Legislative Impact Analysis for
the 2007 General Assembly
Code of Virginia В§ 30-19.1:4

The Virginia Criminal Sentencing Commission must
prepare a fiscal impact statement for any bill which
would result in a net increase in the population of
offenders housed in state adult correctional
facilities.


Current law became effective July 1, 2000.
Effective July 1, 2002, the impact statement must:
• Include analysis of the impact on local and
regional jails as well as state and local
community corrections programs;
• Detail any necessary adjustments to the
sentencing guidelines.
2
Code of Virginia В§ 30-19.1:4

The amount of the estimated increase in operating
costs identified in the Commission’s impact
statement must be printed on the face of the bill.

For each law enacted that results in a net increase
in the prison population, a one-year appropriation
must be made.
• Appropriation is equal to the highest single-year
increase in operating cost for the six years
following the effective date of the law.

Appropriations per В§ 30-19.1:4 are deposited into
the Corrections Special Reserve Fund.
3
Legislative Impact Analysis

The requirement for an impact statement includes,
but is not limited to, those proposals that:
• Add new crimes for which imprisonment is
authorized;
• Increase the periods of imprisonment
authorized for existing crimes;
• Raise the classification of a crime from a
misdemeanor to a felony;
• Impose minimum or mandatory terms of
imprisonment; or
• Modify the law governing release of prisoners.
4
Legislative Impact Analysis

The necessary appropriation is calculated by:
• Estimating the net increase in the prison
population likely to result from the proposal for
the six years following enactment;
• Multiplying the highest single-year figure by the
cost of holding a prison inmate for a year
(operating costs, not to include capital costs);

For 2006, the annual operating cost per prison
inmate was $25,709.
• This figure is provided each year by the
Department of Planning and Budget.
5
2007 General Assembly – 263 Impact Analyses Completed
Type of Legislative Change
% of Analyses
Expansion or Clarification of Crime
44.9%
New Crime
33.1%
Increase Felony Penalty
12.2%
Mandatory Minimums
11.8%
Misdemeanor to Felony
10.6%
Increase Misdemeanor Penalty
1.5%
Death Penalty
0.8%
Presumptive Denial of Bail
0.8%
Normative Modification of Guidelines
0.8%
Percentages do not add to 100% as proposed legislation
can involve multiple types of changes.
Multiple analyses may be performed on each bill, depending on the
number of amended and substitute versions that are adopted.
6
Type of Offenses in Proposed Legislation

Sex Offenders and Offenses (68 analyses)
• Established mandatory minimum sentences for
many child porn crimes
• Increased restrictions on SOR offenders
• Increased penalties for several sex crimes
• Expanded number of SOR offenses
• Expanded those needing to register with SOR
7
Type of Offenses in Proposed Legislation

Illegal Aliens (30 analyses)
• Expanded immigration extortion
• Targeted human trafficking
• Defined a new crime for being an illegal alien
in Virginia
• Defined a new felony for DWI by an illegal
alien in Virginia
8
Type of Offenses in Proposed Legislation

Gang crimes (18 analyses)
• Defined gang-related terrorism
• Expanded gang predicate crimes
• Defined new gang offenses in conjunction with
proximity to children
9
Proposal to Raise Misdemeanor to a Felony

House Bill 1864 (Stalking)
• The proposal amends § 18.2-60.3 by increasing
the penalty for a second or subsequent
conviction from a Class 1 misdemeanor to a
Class 6 felony.
• The proposal was left in Senate Finance
Committee.
10
Proposal to Add Mandatory Minimum Sentences

Senate Bill 1234 (Methamphetamine)
• The proposal adds § 18.2-248.03 to create a
felony with mandatory, minimum penalties for
violations related to manufacturing, selling, giving,
distributing or possessing with intent to
manufacture, sell, give or distribute 28 grams or
more of methamphetamine.
– For 28 grams or more, the mandatory
minimum sentence would be 3 years.
– For 227 grams or more, the mandatory
minimum sentence would be 5 years.
• The proposal was left in House Appropriations
Committee.
11
Proposal to Create New Crime

House Bill 2978 (Maiming with operating
watercraft while intoxicated)
• The proposed legislation adds § 18.2-51.5 to
make it a Class 6 felony for a person to
operate a watercraft while intoxicated in a
manner that shows reckless disregard for
human life and causes serious bodily injury
resulting in permanent and serious
impairment to another.
• The bill passed and is awaiting the
Governor’s signature.
12
Proposal to Expand an Existing Crime

House Bill 1923 (Sex offender registration of
those found not guilty by reason of insanity)
• The proposed legislation amends § 9.1-901
to require those found not guilty by reason
of insanity for offenses that, if found guilty,
would require registration with SOR to
register.
• Failure to meet registration requirements
could lead to felony convictions.
• The bill passed and is awaiting the
Governor’s signature.
13
The Iterative Process of Legislation

House Bill 2749 (Child pornography and the Sex
Offender Registry)
• Introduced: $1,322,375
• House Appropriations Committee Substitute:
$1,194,404
• Engrossed bill: $1,194,404
• Senate Courts Committee Substitute: Cannot
be determined
• Conference Committee Substitute :
$1,238,469
• Enrolled bill: $ 1,238,469
14
House Bill 2749/Senate Bill 1071
House Bill 2749/Senate Bill 1071

These bills:
• Increased penalties and added mandatory
minimum penalties for certain offenses related to
child pornography and online solicitation of minors
(§§ 18.2-374.1, 18.2-374.1:1, 18.2-374.3)
• Expanded the requirements for offenders who must
register or re-register with the Sex Offender and
Crimes against Minors Registry (SOR) to include
the offender’s e-mail address and instant
messaging, chat or other Internet communication
names (§§ 9.1-902, 9.1-903, 9.1-912).
16
House Bill 2749/Senate Bill 1071
Offense(s)
Victim’s Age
Current Penalty
Proposed Penalty
Use of a communication
system to solicit minors
with the intent to take
indecent liberties with a
child (Proposed
В§ 18.2-374.3C)
Less than 15
years old
Class 5 felony
(1 to 10 years)
1st conviction and offender is less than
7 years older than victim:
Class 5 felony (1 to 10 years)
(no mandatory minimum)
1st conviction and offender is at least
7 years older than victim:
Imprisonment 5 to 30 years
Mandatory minimum: 5 years
2nd conviction and offender is at least
7 years older than victim:
Imprisonment 10 to 40 years
Mandatory minimum: 10 years
Use of a communication
system to solicit minors
with the intent to take
indecent liberties
(Proposed
В§ 18.2-374.3D)
15 to 17
years old
None
1st conviction and offender is at least
7 years older than victim:
Class 5 felony (1 to 10 years)
(no mandatory minimum)
2nd conviction and offender is at least
7 years older than victim:
Mandatory minimum: 1 year
Note: There are no proposed penalties
if the offender is less than 7 years
older than the victim.
House Bill 2749/Senate Bill 1071
Offense(s)
Victim’s Age
Current Penalty
Proposed Penalty
Accosting or enticing a
minor to be the subject of
child pornography –
В§ 18.2-374.1(B1)
Less than 15
years old
Class 5 felony
(1 to 10 years)
1st conviction and offender is less than
7 years older than victim:
Imprisonment 5 to 30 years
(no mandatory minimum)
1st conviction and offender is at least
7 years older than victim:
Imprisonment 5 to 30 years
Mandatory minimum: 5 years
Producing or attempting to
produce child
pornography –
В§ 18.2-374.1(B2)
Participating in the filming
or production of child
pornography В§ 18.2-374.1 (B3)
2nd conviction and offender is at least
7 years older than victim:
Imprisonment 15 to 40 years
Mandatory minimum: 15 years
15 to 17
years old
Class 5 felony
(1 to 10 years)
1st conviction and offender is less than
7 years older than victim:
Imprisonment 1 to 20 years
(no mandatory minimum)
1st conviction and offender is at least
7 years older than victim:
Imprisonment 3 to 30 years
Mandatory minimum: 3 years
2nd conviction and offender is at least
7 years older than victim
Imprisonment 10 to 30 years
Mandatory minimum: 10 years
House Bill 2749/Senate Bill 1071
Offense(s)
Victim’s Age
Current Penalty
Proposed Penalty
Financing or attempting to
finance child pornography
(Proposal moves from
В§ 18.2-374.1C to
В§ 18.2-374.1B4
Less than 15
years old
Class 4 felony
(2 to 10 years)
1st conviction and offender is less than
7 years older than victim:
Imprisonment 5 to 30 years
(no mandatory minimum)
1st conviction and offender is at least
7 years older than victim:
Imprisonment 5 to 30 years
Mandatory minimum: 5 years
2nd conviction and offender is at least
7 years older than victim:
Imprisonment 15 to 40 years
Mandatory minimum: 15 years
15 to 17
years old
Class 4 felony
(2 to 10 years)
1st conviction and offender is less than
7 years older than victim:
Imprisonment 1 to 20 years
(no mandatory minimum)
1st conviction and offender is at least
7 years older than victim:
Imprisonment 3 to 30 years
Mandatory minimum: 3 years
2nd conviction and offender is at least
7 years older than victim
Imprisonment 10 to 30 years
Mandatory minimum: 10 years
House Bill 2749/Senate Bill 1071
Offense(s)
Victim’s Age
Current Penalty
Proposed Penalty
Selling, giving,
distributing, transmitting,
etc., child pornography
(Proposal moves
from В§ 18.2-374.1B4 to
В§ 18.2-374.1:1C)
Less than 18
years old
Class 5 felony
(1 to 10 years)
1st conviction:
Imprisonment 5 to 20 years
(no mandatory minimum)
2nd conviction:
Mandatory minimum: 5 years
2006 Commission Recommendations

In 2006, the Commission conducted a special study
of offenses involving child pornography and
online/electronic solicitation of minors.

In its 2006 Annual Report, the Commission
recommended to the 2007 General Assembly that
offenses defined in §§ 18.2-374.1, 18.2-374.1:1
and 18.2-374.3 be added to the sentencing
guidelines beginning July 1, 2007.

The General Assembly did not take action to counter
the implementation of the Commission’s
recommendations.

In many cases, the new mandatory minimum penalties
will “trump” the guidelines recommendation.
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