Rendell Signs Prison Reform Package Into Law

Pa. joins other states in adopting risk assessment in sentencing

Pennsylvania Law Weekly
November 15, 2010

Last month, Gov. Edward G. Rendell signed into law a prison reform bill. In part, Act 95 of 2010, formerly known as Senate Bill 1161, directs the Pennsylvania Commission on Sentencing to develop a risk assessment instrument for use by judges in sentencing criminal offenders. The law was sponsored by state Sen. Stewart J. Greenleaf, R-Montgomery, and was recently touted by the GOP House Caucus as being able to identify criminals who are "at a lower risk to reoffend and who may be recommended for alternative sentencing programs instead of additional prison time, such as county and state intermediate punishment programs."

The specific language of Act 95 provides:

(a) General Rule — The commission shall adopt a sentence risk assessment instrument for the sentencing court to use to help determine the appropriate sentence within the limits established by law for defendants who plead guilty or nolo contendere to, or who were found guilty of, felonies and misdemeanors. The risk assessment instrument may be used as an aide in evaluating the relative risk that an offender will reoffend and be a threat to public safety.

(b) Sentencing Guidelines — The risk assessment instrument may be incorporated into the sentencing guidelines under section 2154 (relating to adoption of guidelines for sentencing).

The National Conference of State Legislatures reported that at least five states in 2009 adopted some form of risk assessment procedure with regard to sentencing. Florida is utilizing a risk assessment instrument for purposes of prison diversion programs. Illinois has authorized the development of risk assessment for purposes of sentencing. Tennessee is including a risk assessment tool in its pre-sentence reports. Washington is using risk assessment for purposes of placement in residential drug treatment. North Carolina is considering risk assessment when imposing community-based punishment.

State appellate courts have upheld the use of risk assessment tools at sentencing. This summer, the Indiana Supreme Court ruled in Malenchik v. Indiana , that "offender assessment instruments are appropriate supplemental tools for judicial consideration at sentencing" and "legitimate offender assessment instruments do not replace but may inform a trial court's sentencing determinations ... the trial court's consideration of the defendant's assessment model scores was only supplemental to other sentencing evidence that independently supported the sentence imposed."

Virginia has been utilizing risk assessment information at sentencing since 1994. In fact, for many years Virginia was the only state using risk information at the time of sentencing.

Former Virginia Gov. George Allen was elected in 1994. Soon after taking office he and the legislature created the Virginia Criminal Sentencing Commission and charged the commission with increasing prison stays for violent offenders and placing 25 percent of otherwise incarceration-bound nonviolent offenders in alternative forms of sanctioning.

Virginia's sentencing scheme was not just about diverting nonviolent low risk offenders. It was also about "incapacitating" high-risk offenders. In the process of creating new sentence guidelines the sentencing commission studied thousands of prison terms and determined the actual time served for specific offenses and then set sentence ranges based on those findings. Dr. Richard Kern, director of the Virginia Criminal Sentencing Commission, suggested the next step was to weed out those offenders "who we are afraid of" from those "we were just ticked-off at." For those feared, longer prison sentences. For those that merely annoyed, diversion to alternative punishment.

The higher the assessment score, the less likely the offender will be diverted from prison. First, all violent offenders and anyone convicted of distributing more than one ounce of a controlled substance were eliminated from consideration for diversion. The remaining offenders were administered an assessment prior to sentencing.

The risk assessment, because of its heavy reliance on age, gender and juvenile criminal records, had the effect of increasing the assessment score for young, male offenders. Older, nonviolent career criminals tend to score lower on the assessment. The result is consistent with research that indicates that the most violent segment of the population is 16 to 24 year-olds.

The Virginia sentence guidelines are utilized to control prison growth while incapacitating violent and criminally active young offenders. The recidivism rate for those diverted from prison is 12 percent as compared to those sent to prison who recidivate at a rate of 38 percent.

The guidelines also provide for increasing the length of sentences for violent sex offenders. A specific risk assessment was devised for sex offenders. After studying prior sex offenders and their recidivism rates, the commission recommended sentence guidelines for sex offenders. The sentencing judge could use the risk assessment score to determine a moderate, high risk or very high risk sex offender and increase the upper end of the guideline range by 25, 50 or 100 percent. In effect, the guidelines enabled the sentencing judge to incapacitate the offenders who pose the greatest risk to society.

Virginia's sentencing scheme has saved millions of dollars and enhanced public safety. Virginia's success is evident no matter what is used as a barometer. First, a look at a Vera Institute report, The Continuing Fiscal Crisis in Corrections , is instructive. While Pennsylvania's correction costs increased by 4.49 percent in 2009, Virginia's decreased by 1.3 percent. Only two states, West Virginia and Wyoming, had a greater percentage increase in correction costs than did Pennsylvania.

Second, a Pew Center on the States' report, 2010 Prison Count, found that Pennsylvania's prison population increased by 4.3 percent in 2009, while Virginia's decreased by 1.3 percent.

Most importantly, Virginia's violent crime rate in 2009 was 226 violent crimes per 100,000 people, the state's lowest number since the mid-1960s. In 2009, Pennsylvania had 380 violent crimes per 100,000 people.

Virginia's innovative sentencing scheme appears to have addressed two lofty goals, reduce prison population and incapacitate the worst of the worst. Virginia's focus on empirical risk assessments at the front end of the punishment process is a smart approach to fiscal responsibility, public safety and offender accountability.

Now, Pennsylvania has an opportunity to make an impact on public safety as well. It is imperative that policy-makers remember that risk assessment tools can be relied on to divert low risk offenders to places other than prison, as well as have a role in incapacitating the worst of the high risk offenders.