Resource Information Help for the Disadvantaged

 “Improving the effectiveness and fairness of
Virginia’s criminal justice system”—RIHD

2016 SESSION  INTRODUCED
HOUSE BILL NO. 1298 Use of discretionary sentencing guidelines.
http://lis.virginia.gov/cgi-bin/legp604.exe?161+sum+HB1298

Offered January 21, 2016  A BILL to amend and reenact § 19.2-298.01 of the Code of Virginia,
relating to discretionary sentencing 4 guidelines; written explanation.
Patron––Herring
Referred to Committee for Courts of Justice

Be it enacted by the General Assembly of Virginia:
That § 19.2-298.01 of the Code of Virginia is amended and reenacted as follows:
§ 19.2-298.01. Use of discretionary sentencing guidelines.

A. In all felony cases, other than Class 1 felonies, the court shall (i) have presented to it the
appropriate discretionary sentencing guidelines worksheets and (ii) review and consider the suitability of the applicable discretionary sentencing guidelines established pursuant to Chapter (§ 17.1-800 et seq.) of Title 17.1. Before imposing sentence, the court shall state for the record that such review and consideration have been accomplished and shall make the completed worksheets a part of the record of the case and open for inspection. In cases tried by a jury, the jury shall not be presented any information regarding sentencing guidelines.
B. In any felony case, other than Class 1 felonies, in which the court imposes a sentence which that is either greater or less than that indicated by the discretionary sentencing guidelines, the court shall file with the record of the case a written explanation of such departure. The written explanation shall adequately explain the sentence imposed to promote fair sentencing.
C. In felony cases, other than Class 1 felonies, tried by a jury and in felony cases tried by the court without a jury upon a plea of not guilty, the court shall direct a probation officer of such court to prepare the discretionary sentencing guidelines worksheets. In felony cases tried upon a plea of guilty, including cases which are the subject of a plea agreement, the court shall direct a probation officer of such court to prepare the discretionary sentencing guidelines worksheets, or, with the concurrence of the accused, the court and the attorney for the Commonwealth, the worksheets shall be prepared by the attorney for the Commonwealth.
D. Except as provided in subsection E, discretionary sentencing guidelines worksheets prepared  pursuant to this section shall be subject to the same distribution as pre-sentence investigation reports  prepared pursuant to subsection A of § 19.2-299
E. Following the entry of a final order of conviction and sentence in a felony case, the clerk of the circuit court in which the case was tried shall cause a copy of such order or orders, the original of the  discretionary sentencing guidelines worksheets prepared in the case, and a copy of any departure  explanation prepared pursuant to subsection B to be forwarded to the Virginia Criminal Sentencing  Commission within five days. Similarly, the statement required by §§ 19.2-295 and 19.2-303 and regarding departure from or modification of a sentence fixed by a jury shall be forwarded to the Virginia Criminal Sentencing Commission.
F. The failure to follow any or all of the provisions of this section or the failure to follow any or all of the provisions of this section in the prescribed manner shall not be reviewable on appeal or the basis of any other post-conviction relief.
G. The provisions of this section shall apply only to felony cases in which the offense is committed on or after January 1, 1995, and for which there are discretionary sentencing guidelines. For purposes of the discretionary sentencing guidelines only, a person sentenced to a boot camp incarceration program 46 pursuant to § 19.2-316.1, a detention center incarceration program pursuant to § 19.2-316.2 or a diversion center incarceration program pursuant to § 19.2-316.3 shall be deemed to be sentenced to a term of incarceration.

“According to the Virginia Criminal Sentencing Commission Annual Reports from FY2007 to FY 2013, no written
reason for departure was provided by judges in more than 3000 cases in which the sentence imposed exceeded the
guidelines recommendation. Thus, it is unclear whether the departure in those cases was due to factors like race,
religion, sexual orientation, economic status, or other considerations that should not play a role in sentencing decisions.”
–Resource Information Help for the Disadvantaged (RIHD), 2016 Position Paper

Send Thank you to  Delegate Charniele L. Herring (D) House District 46 – Chief Patron
Alexandria Virginia 22312.
Email:  DelCHerring@housevirgina.gov
General Assembly: (804) 698-1046 District Office:  (703) 606-9705
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2016 SESSION
·     House Courts of Justice
Sub-Committee: Criminal Law
COMMITTEE MEMBERS:   Bell, Robert B. (Chairman), Albo, Cline, Gilbert,
Miller, Morris, Adams, Collins, Watts, Herring, Mason

Anticipated Hearings/meetings: February 1 Monday February 1 or Wednesday, February 3, 11am (1/2 hour after adjournment), House Room C  –  Let’s move HB12980 out of Sub-committee, normally where bills go to die.  Be ready, willing and able when RIHD rep email, text and/ or call. Sign up at InMateResource@yahoogroups.com or send text “FIX JUSTICE” to (804) 426-4426.

Lillie Branch-Kennedy
Founder/Executive Director
RIHD, Inc. – PO Box 55 – Highland Springs – Virginia 23075
(804) 426-4426
http://www.rihd.org
” Our lives begin to end the day we become silent about things that matter” — Dr.  Martin Luther King, Jr.

 RIHD Sentencing Disparity Resulting from Discretionary Use of the Sentencing Guidelines

The abolition of parole in the 90s brought along the adoption of the sentencing guidelines that prescribe punishment far more severe than what was imposed prior to the abolition of parole (See Va. Code § 17.1-805[1]). While the law makes the use of the guidelines discretionary (See Va. Code § 19.2-298.01[2]), that very law makes it mandatory that courts “shall file with the record of the case a written explanation” of any departure from the guidelines recommendation. Problem is, the very same law provides that the failure to comply with its provision in any manner will not be reviewable on appeal or form the basis of any post-conviction relief. Thus, making the aforementioned mandatory provision meaningless and inutile. The result is that sentences imposed by judges far in excess of the guidelines recommendations, and even on a basis that has no place in sentence consideration, are not reviewable on appeal. So it is the lamentable case in Virginia that a judge with racist inclination may act with impunity under our current laws and throw the book at a defendant merely for his skin color. What is the remedy in our justice system for such a defendant, you may ask? Well, the answer is, None whatsoever! Our current law bars appellate courts from reviewing a trial court’s sentencing decision vis-a-vis the guidelines.

According to the Virginia Criminal Sentencing Commission Annual Reports from FY2007 to FY 2013, no written reason for departure was provided by judges in more than 3000 cases in which the sentence imposed exceeded the guidelines recommendation. Thus, it is unclear whether the departure in those cases was due to factors like race, religion, sexual orientation, economic status, or other considerations that should not play a role in sentencing decisions.

RIHD’s Proposed Remedy: The use of the sentencing guidelines in Virginia is primarily governed by Virginia Code § 19.2-298.01. What we have proposed is to amend subsections B and F of the statute to read as follows[1]: (B) In any felony case, other than Class 1 felonies, in which the court imposes a sentence which is either greater or less than that indicated by the discretionary sentencing guidelines, the court shall file with the record of the case a written explanation of such departure. The written explanation must show a substantial and compelling reason for the departure and must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. Any factor or reason given to justify the departure must not be one that has already been considered in calculating the guidelines recommendation, including such factors and reasons for enhancement in the provisions of Code § 17.1-805. (F) The failure to follow any or all of the provisions of this section or the failure to follow any or all of the provisions of this section in the prescribed manner or the failure to impose sentence within the range recommended by the sentencing guidelines shall be reviewable on appeal. In reviewing the sentence, the appellate court must first ensure that the court made no significant procedural errors and then consider the sentence’s substantive reasonableness under a deferential abuse-of-discretion standard, taking into account the totality of the circumstances. This provision shall be retroactive to all cases where the defendant is presently under the custody of the Virginia Department of Corrections pursuant to felony offense. ——-

Duty Calls! TAKE ACTION TODAY & EVERYDAY 1. Call, email, text and /or visit the following state and/or elected official in SUPPORT for: “it is necessary to amend the law so that the discretionary use of the sentencing guidelines by judges is amenable to appellate review for abuse of discretion. While other injustices will necessarily remain uncorrected due to our flawed criminal justice system (at least not until we establish a comprehensive reform of the system), correcting just these two will be a step in the right direction for Virginia. The state owes a moral duty to correct, at any cost, any and all known injustices that keep our fellow citizens languishing behind bars and separated from their families.

www.rihd.org