End Notes
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1 See Richard S. Frase, Just Sentencing: Principles and Procedures for a Workable System, 181–187, 201–202 (2013). See also Paul Gendreau,
Tracy Little, & Claire Goggin, A Meta-Analysis of the Predictors of Adult
Offender Recidivism: What Works? 34 Criminology 575 (1996) (meta-
analysis of 131 studies. showing that an offender’s risk of committing future crimes generally increases in proportion to the number of crimes committed). However, there does not appear to have been much research on whether multiple current offenses are associated with the same degree of heightened risk, a higher degree, or a lower degree in comparison to multiple prior convictions. One difference between these two types of repeat offending is that multiple current offenses are more likely to have been committed in a short space of time, which may suggest a lower risk of reoffending than multiple offenses committed over a longer period of time – the latter indicate persistent criminality, unlike a series of crimes committed in a “spree” or in response to situational factors not likely to reoccur. On the other hand, current offenses are almost always more recently-committed than previously-sentenced offenses; recent crimes suggest an “active” offender, whereas older crimes may reflect different life circumstances, younger age, and a higher risk of offending than the offender currently poses. As for retributive rationales, there has likewise been little discussion of whether multiple current offenses add the same increment of culpability as the same number and type of previously-sentenced crimes.
2 See, e.g., Wash. Rev. Code § 9.94A.589 (2014); Minn. Sentencing
Guidelines § 2.B.1.e (2014).
3 Multiple current offenses can also sometimes directly increase the
recommended guidelines sentence by application of rules that permit aggregation of the dollar or drug amounts of multiple current crimes into a single figure (e.g., five small thefts within a defined time period are treated as one big theft). See, e.g., Minn. Stat. § 609.52, subd. 3(5) (2014) (aggregation of dollar amounts for thefts committed within a six-month period); U.S. Sentencing Guidelines Manual § 3D1.2(d) (2014) (listing crimes eligible for aggregation due to the total amount of harm or loss, the drug or other contraband amounts, or another “measure of aggregate harm”).
4 See, e.g., Del. Code Ann. tit. 11 § 3901(d) (2014) (giving judges broad
discretion to choose either concurrent or consecutive sentences except for a list of crimes where consecutive sentencing is mandatory).
5 Minn. Sentencing Guidelines § 2.B.1.e (2014). The court must use a
criminal history score of 0 or 1 for each offense sentenced consecutively to another. Id. §§ 2.F.1.b and 2.F.2.a.
6 Wash. Rev. Code § 9.94A.589 (2014).
7 U.S. Sentencing Guidelines Manual § 3D1.4 (2014).
8 E.g., Alabama Presumptive & Voluntary Sentencing Standards Manual
34-35 (2013) (on the drug prison sentence length worksheet, points are added to the offender’s total score for all offenses being sentenced at the same time); Fla. Criminal Punishment Code: Scoresheet Preparation Manual 8, 24 (2014) (step II awards points for each additional offense being sentenced at the time of the primary offenses).
9 Utah Adult Sentencing & Release Guidelines 8 (2014).
10 See, e.g., Kan. Stat. Ann. § 21-6819(b)(4) (2014) (limiting the total prison
sentence in a case involving multiple convictions arising from multiple counts to no more than twice the base sentence); Utah Adult Sentencing & Release Guidelines 8 (2014) (if sentences are ordered to run
consecutively, 40% of the recommended stay for the shorter sentence is added to the length of the longer sentence).
11 See, e.g., Alabama Presumptive & Voluntary Sentencing Standards
Manual 35 (2013) (prison durations for drug crimes).
12 See U.S. Sentencing Guidelines Manual § 3D1.4 (2014). See generally, id. at § 4A1.2 (section 4A1.2(a)(1) defines “Prior sentence” as “a sentence
imposed prior to sentencing on the instant offense, other than a sentence for conduct that is part of the instant offense; but few currently-sentenced crimes would have already received a separate sentence because, under Sec. 3D1.4, multiple current offenses are generally combined and entered into a formula that can raise offense severity by up to five levels).
13 See Fla. Criminal Punishment Code: Scoresheet Preparation Manual 24
(2014) (the “Additional Offense(s)” section of the Criminal Punishment Code Scoresheet adds points for any current offenses); See also id. at
8–10(criminal history score only counts convictions for crimes committed prior to the “primary” offense, which is the one with the most severe recommended sentence; however, all “additional offenses” being sentenced add to the total offense-offender point total).
14 Minn. Sentencing Guidelines § 2.B.1(e) (2014). (multiple current offenses
are sentenced in the order in which they occurred; when concurrent sentences are imposed, as each offense is sentenced it is included in the criminal history on the remaining offense(s) to be sentenced); see
generally id. at § 2.F.1(b) (different rules apply when multiple current
offenses are sentenced consecutively).
15 Utah Adult Sentencing & Release Guidelines 8 (2014).
16 Prior convictions or adjudications are those entered “prior to the present
sentencing event,” including those in cases pending sentencing before a different judge or in another jurisdiction, even if the offenses took place after the instant offense. Va. Sentencing Guidelines Gen’l Instructions 27 (2014). However, any additional offenses sentenced in the present sentencing event add points to the total offense-offender score. See id., Gen’l Instructions 10-13; see, e.g., id. Assault 8-9, Burglary/Dwelling 2-3.
17 Wash. Rev. Code § 9.94A.589 (2014) (with certain exceptions, “the
sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for purpose of the offender score”).
18 Alabama Presumptive & Voluntary Sentencing Standards Manual 23,
57 (2013) (judge may sentence consecutively, but the total sentence for all counts cannot exceed the sentence selected for the most serious offense).
19 Ark. Code Ann. § 5-4-403 (2014) (the statute provides a presumption of
concurrent sentencing, but allows the court to sentence consecutively upon recommendation of the jury or on its own motion).
20 Del. Code Ann. tit. 11 § 3901(d) (2014) (giving judges discretion to
choose either concurrent or consecutive sentences except for a list of crimes where consecutive sentencing is mandatory).
21 D.C. Voluntary Sentencing Guidelines Manual § 6.2 (2014).
22 See U.S. Sentencing Guidelines Manual § 3D1.1 (2014) (multiple
counts of a similar nature are typically grouped together, increasing the severity level of the most serious offense; consecutive sentences are awarded when required by statute); id. § 5G1.2 (there is a presumption that multiple counts are to run concurrently; consecutive sentences are awarded in only specific circumstances).
23 Fla. Criminal Punishment Code: Scoresheet Preparation Manual
14 (2014)(stating that a sentencing court may impose a sentence concurrently or consecutively).
24 Kan. Stat. Ann. § 21-6819(b)(2014).
25 When consecutive sentences are imposed the total amount of time to be
served must fall within the overall guidelines range for those offenses or the sentence is a departure. Md. Sentencing Guidelines Manual § 13.5 (April 2013). However, in most cases that overall range will be increased to authorize fully consecutive sentencing (a range consistent with fully concurrent sentencing is only recommended where the offenses are ranked at category III or lower and arise out of a single criminal event that did not involve different victims). Id. ch. 9.
26 Mass. Sentencing Guidelines 26–28 (1998).
27 Mich. Comp. Laws. § 769.1h (2015).
28 Minn. Sentencing Guidelines § 2.F (2014).
29 N.C. Gen. Stat. § 15A-1340.15.
30 Or. Admin R. 213-012-0020(2)(b); Or. Rev. Stat. § 137.123 (2015)
(for crimes committed while incarcerated consecutive sentencing is mandatory; where multiple crimes arise from the same continuous and uninterrupted course of conduct consecutive sentencing is only permitted if certain standards are met; in all other cases consecutive sentencing is discretionary).
31 Commonwealth v. Perry, 883 A.2d 599, 603 (Pa. Super. Ct. 2005).
32 Tenn. R. Crim. Pro. 32(c).
33 E.g., Utah Code Ann. § 76-3-401 (West 2014); Utah Adult Sentencing &
Release Guidelines 8 (2014).
34 Va. Code Ann. § 19.2-308 (2014).
35 Wash. Rev. Code § 9.94A.589 (2014).
97
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: CRIMINAL
HIST
ORY
SCORES
AND
RECIDIVISM
RISK
INTRODUCTION
This chapter examines the extent to which criminal history enhancements and other offense- and offender-based sentencing factors do, or could, accurately and efficiently predict recidivism risk. Part 1 explains why this issue is so important. Part 2, drawing on the more detailed analyses in other chapters, summarizes the ways in which guidelines systems have directly or indirectly incorporated positive and negative risk-related factors into their guidelines. In addition
to the number and seriousness of prior convictions, risk factors such as the remoteness in time of a prior conviction, crime-free “gap” periods, and the offender’s custody status at the time of the current offense are often included in the guidelines criminal history score. Alternatively, some guidelines systems allow these and other assumed risk factors to be considered as grounds for departure after the recommended sentence has been computed based solely