[47 Pa.B. 1999]
[Saturday, April 8, 2017]
[Continued from previous Web Page]
Commentary on Annex B This Commentary provides information on the development by the Commission of a proposed Sentence Risk Assessment Instrument for use by the sentencing court to help determine the appropriate sentence within the limits established by law. The proposed Sentence Risk Assessment Instrument, including preliminary risk scales and recidivism rates, is set forth in Annex B.
Risk Assessment Mandate
The Commission has a legislative mandate to adopt a risk assessment instrument to serve as an aide in the sentencing process. To fulfill this mandate, the Commission developed an actuarial risk assessment which will be automatically generated by SGS Web, the Commission's JNET-based sentencing application. During the initial phase of implementation, the risk assessment will be prepared for non-DUI offenders being sentenced following an open plea or trial. For those offenders who are identified as high or low risk by the sentence risk assessment, the Commission recommends, but does not require, that the court seek additional information in the form of a pre-sentence investigation (PSI) report or a fuller risk-needs assessment. Thus, the risk assessment does not make any recommendation regarding the sentence to be imposed. Instead, the assessment is incorporated as an informational tool that targets individuals with risk profiles that are higher or lower than average. Since these individuals are not typical offenders with respect to their risk of reoffending, the court will likely benefit from seeking additional information prior to imposing the sentence. During subsequent phases, the risk assessment will be prepared for those offenders sentenced following negotiated pleas as well as for DUI offenders.
What is Risk Assessment?
A Sentence Risk Assessment Instrument is defined in the legislation as an empirically based worksheet which uses factors that are relevant in predicting recidivism. A risk assessment instrument is often identified with a specific 'generation' of development. First generation assessments were based on training and experience, generally referred to as professional judgement. Subsequent generations were based on actuarial data, focusing on the analysis of factors associated with an increased risk of reoffending. Second generation assessments (risk assessments) rely on static criminal justice and demographic factors, while third generation (risk-needs assessments) include dynamic factors and changing circumstances, such as relationships, employment, and substance abuse. Fourth generation assessments (risk-needs-responsivity assessments or RNR) integrate case management. Based on the legislative mandate and the need for a statewide instrument that could provide reliable and accurate sentence risk information to the court, the Commission developed a second generation instrument, with a Sentence Risk Assessment Summary automatically generated through SGS Web when preparing the sentencing guidelines.
What Information is Considered in the Sentence Risk Assessment Instrument?
The Sentence Risk Assessment Instrument includes 18 different risk scales, each taking into account the seriousness of the current conviction as well as the type of potential re-offense. Nine OGS categories, linked to the sentencing guidelines' offense gravity scores (OGS), are used to weigh the seriousness of the current conviction, so that each risk scale assesses comparable offenders. Two outcome measures are then considered: risk of a re-offense for any type of crime and risk of a re-offense for a crime against a person.1 In all cases, the Sentence Risk Assessment Instrument measures the risk of re-offense within three years of release from incarceration or imposition of community supervision. In order to provide information on the relative risk that an offender will reoffend, the risk scores of all offenders in each offense category are compared, and only those scores outside the middle 68% (typical risk) are identified as high or low risk.
The Sentence Risk Assessment Instrument considers eight static or demographic factors, although not every factor is included in each of the 18 risk scales. Risk factors and scales are based on the most serious offense of a judicial proceeding. Only those factors determined to be statistically significant in relation to risk of re-offense for a specific offense category are included in the corresponding risk scale. The following factors are considered:
• Offender (age)
• Offender (gender)
• Prior Arrests (number of OTNs bound over for trial or resulting in conviction by a minor court)
• Prior Arrests (offense types)2
• Current Conviction (offense type)
• Current Conviction (multiple offenses in judicial proceeding)
• Current Sentencing Guidelines (prior record score)
• Current Sentencing Guidelines (prior juvenile adjudications)
The information used to generate these scales is obtained from the Administrative Office of Pennsylvania Courts and through the Commission's SGS Web application.
Additional information on the development and validation of the Sentence Risk Assessment Instrument may be requested from the Commission of found at: http://pcs.la.psu.edu/publications-and-research/research-and-evaluation-reports/risk-assessment.
The risk scales and recidivism rates included with the Sentence Risk Assessment Instrument use Pennsylvania arrests obtained from the Administrative Office of Pennsylvania Courts. The Commission is re-analyzing these data to remove any arrests dismissed by a minor court. Upon completion, the Commission will publish revised risk scales and recidivism rates and hold a public hearing to receive comment before final adoption of the Sentence Risk Assessment Instrument.
How is the Sentence Risk Assessment Instrument Used?
Threat to public safety is an important consideration in the sentencing guidelines and is demonstrated through the linking of sentence recommendations to the seriousness of the conviction as well as an offender's criminal history and criminal behavior. The sentence risk assessment score or category is not intended to be used by the court as an aggravating or mitigating factor per se. Rather, consistent with the legislation, the Commission recommends the Sentence Risk Assessment Instrument be used to determine when the court should order a PSI report and/or a RNA or RNR assessment. Additional information may assist the court in determining an appropriate and individualized sentence, including the suitability of various sentencing alternatives and programs and the duration and intensity of supervision.
The recommendation for additional information should apply to offenders determined to be in one of the following risk categories: high risk of re-offense for any crime or for a crime against a person; or low risk of re-offense for any crime or for a crime against a person. This targeting of cases for additional information is consistent with the core principles of offender risk management: match the level of service to the offender's risk to re-offend; assess criminogenic needs and target them in treatment; and structure the sentence to address the learning style, motivation, abilities and strengths of the offender.
It is also consistent with the Rules of Criminal Procedure: ''the pre-sentence investigation report shall include information regarding the circumstances of the offense and the character of the defendant sufficient to assist the judge in determining sentence'' (Pa.R.Crim.P. Rule 702(A)(3)). The Pennsylvania Superior Court held: ''Having been fully informed by the pre-sentence report, the sentencing court's discretion should not be disturbed. This is particularly true in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there the court will presume also that the weighting process took place in a meaningful fashion.'' (Com. v. Best, 120 A.3d 329)
A Phased Implementation Plan
Considering the difficulties of adding a new procedure to an existing process, and the resources that may be required to prepare additional information prior to sentencing, the Commission has adopted a multi-phase approach.
The Commission has scheduled five public hearings to receive comment on the instrument as designed and the implementation plan. The hearing dates and locations are listed in the introduction to this publication. The proposed Sentence Risk Assessment Instrument is set forth in Annex B, including risk scales and recidivism rates found at § 305.6(a) and (b) and § 305.7(a) and (b). The Commission will publish revised risk scales and recidivism rates and hold a public hearing to receive comment before final adoption of the Sentence Risk Assessment Instrument. Upon final adoption, unless rejected by concurrent resolution of the General Assembly, the Sentence Risk Assessment Instrument will take effect. As proposed in this document, the Sentence Risk Assessment Instrument will apply to sentences imposed on or after July 1, 2018, but during the initial phase will be limited to non-DUI offenders with convictions obtained through an open plea or following a bench or jury trial.
• Phase I (2018)
o Limited to non-DUI offenders with convictions obtained: 1) through an open plea or 2) following a bench or jury trial.
o Requires review of SGS Web-generated Sentence Risk Assessment Summary.
o Recommends preparation of additional information (PSI report and/or 3rd or 4th generation risk assessment) for those offenders determined to be high risk or low risk.
• Phase II (to be determined)
o Expands Phase I process to include all other convictions.
Annex B
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART VIII. CRIMINAL SENTENCING
CHAPTER 305. SENTENCE RISK ASSESSMENT INSTRUMENT (Editor's Note: The following chapter is new and printed in regular type to enhance readability.)
Sec.
305.1. Preliminary provisions. 305.2. Sentence Risk Assessment Instrument methodology. 305.3. Sentence Risk Assessment Instrument standards. 305.4. Sentence Risk Assessment Instrument procedures. 305.5. Sentence Risk Assessment Instrument recommendation—general. 305.6. Offense types. Classification of prior arrests and current convictions, including inchoates. 305.7(a). Risk Scales by Offense Gravity Score (OGS); Risk of Re-Offense for Any Type of Crime (Preliminary). 305.7(b). Risk Scales by Offense Gravity Score (OGS); Risk of Re-Offense for A Crime Against a Person (Preliminary). 305.8(a). Recidivism Rates by Risk Score and Offense Gravity Score (OGS); Risk of Re-Offense for Any Crime (Preliminary). 305.8(b). Recidivism Rates by Risk Score and Offense Gravity Score (OGS); Risk of Re-Offense for A Crime Against a Person (Preliminary). 305.9. Sentence Risk Assessment Summary (Sample). § 305.1. Preliminary provisions.
(a) Authorization.
(1) As authorized by 42 Pa.C.S. § 2154.7 (relating to adoption of risk assessment instrument), 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.
(2) The Sentence Risk Assessment Instrument may be incorporated into the sentencing guidelines under 42 Pa.C.S. § 2154 (relating to adoption of sentencing guidelines).
(3) The Sentence Risk Assessment Instrument may be used to determine whether a more thorough assessment is necessary and to order a presentence investigation report.
(4) The Sentence Risk Assessment Instrument may be an aide to help determine appropriate candidates for alternative sentencing.
(b) Definitions. For the purposes of this chapter:
(1) ''Actuarial risk assessment.'' A statistical method of estimating the risk of re-offense; the probability of reoffending is related to the proportion of offenders in a risk category who reoffend.
(2) ''Arrest.'' A charge for a misdemeanor or felony offense in Pennsylvania not dismissed by a minor court. An arrest does not include out-of-state, federal or foreign charges.
(3) ''Common Pleas Case Management System (CPCMS).'' A web-based application operated by the Administrative Office of Pennsylvania Courts which serves as the source of data for determining number of prior arrests and associated offense type.
(4) ''DUI offender.'' An offender for whom the most serious offense of the judicial proceeding is DUI. The Sentence Risk Assessment Instrument does not apply if DUI is the most serious offense of the judicial proceeding. The Sentence Risk Assessment Instrument does apply if DUI is an offense other than the most serious offense in the judicial proceeding.
(5) ''Judicial proceeding.'' A sentencing hearing in which all offenses for which the offender is convicted are pending before the court for sentencing at the same time. A judicial proceeding may include multiple OTNs.
(6) ''Magisterial District Judge System (MDJS).'' A web-based application operated by the Administrative Office of Pennsylvania Courts which serves as the source of data for determining minor court disposition of misdemeanor and felony charges following preliminary arraignment.
(7) ''Minor courts.'' A court of limited jurisdiction with authority to preside at preliminary arraignments and preliminary hearings, dismiss complaints, conduct trials and/or accept guilty pleas for misdemeanors, and hold cases for trial in the courts of common pleas. This includes Philadelphia Municipal Court and Magisterial District Judges.
(8) ''Negotiated plea.'' An agreement to the sentence, including an agreement which limits the discretion of the judge when sentencing.
(9) ''Offense against a person.'' An offense involving a crime of violence under 42 Pa.C.S. § 9714, an offense under the Crime Victims Act (18 P.S. § 11.103), or an offense defined as a danger to persons under Title 18, Article B.
(10) ''Offense gravity score (OGS).'' An assignment in the sentencing guidelines reflecting the seriousness of a conviction offense. The OGS assigned to the most serious offense in the judicial proceeding (and if more than one, then the offense with the longest statutory maximum, then the most recent arrest date, and then the offense entered first in SGS Web) is used to determine the risk factors and associated values to be included in the risk scales.
(11) ''Offense tracking number (OTN).'' A unique identifying number assigned to an entire set of charges for an arrest. An OTN is generally assigned by the court at the time of arraignment.
(12) ''Offense types.'' The classification of prior arrests and current convictions, including inchoates, as provided follows:
i. Murder;
ii. Danger to person:
1. felonies;
2. misdemeanors;
iii. Sexual:
1. felonies;
2. misdemeanors;
iv. Burglary;
v. Property;
1. felonies;
2. misdemeanors;
vi. Public administration;
vii. Public order;
viii. Firearms;
ix. Other weapons;
x. Drug:
1. felonies;
2. misdemeanors;
xi. DUI;
xii. Vehicle;
xiii. Abscond;
xiv. Domestic;
xv. Other.
A detailed description of the offense types is located at § 305.6.
(13) ''Open plea.'' An agreement to plead guilty to one or more charged offenses without any agreement to the sentence.
(14) ''Pre-sentence investigation (PSI) report.'' A report, authorized by the Rules of Criminal Procedure (Pa.R.Crim.P. Rules 702-703), that includes information regarding the circumstances of the offense and the character of the defendant sufficient to assist the judge in determining sentence.
(15) ''Recidivism.'' A re-offense, defined as a re-arrest for a felony or misdemeanor in Pennsylvania within three years of the imposition of a sentence to the community or within three years of release from confinement. Re-arrest does not include out-of-state, federal or foreign charges. A re-arrest dismissed by a minor court is excluded.
(16) ''Risk assessment instrument.'' An empirically based worksheet which uses factors that are relevant in predicting recidivism. A risk assessment instrument is often identified with a specific 'generation' of development:
i. 1st generation. ''Professional judgement,'' with assessments based on training and experience;
ii. 2nd generation. ''Risk assessment,'' an actuarial assessment of static criminal justice and demographic factors used to estimate risk of re-offense;
iii. 3rd generation. ''Risk-needs assessment (RNA),'' an actuarial assessment of static and dynamic factors and changing circumstances, such as relationships, employment, and substance abuse, used to estimate risk of re-offense and to assess criminogenic needs to be addressed through treatment and supervision;
iv. 4th generation. ''Risk-needs-responsivity (RNR) assessment,'' an actuarial assessment of static and dynamic factors used to match the level of service to the offender's risk to re-offend; assess criminogenic needs and target them in treatment; and structure the sentence to address the learning style, motivation, abilities and strengths of the offender.
(17) ''Risk category.'' The relative risk of re-offense as compared to other offenders in the same OGS category, based on the Sentence Risk Assessment Instrument:
i. ''Typical risk offender.'' For each risk scale, an offender with a risk score within one standard deviation above and below the mean (average) risk score who shares characteristics with offenders at typical risk of re-offense. This is the middle 68% of offenders, and is represented by a box in the graphics contained in the Sentence Risk Assessment Summary.
ii. ''Low risk offender.'' An offender with a risk score greater than one standard deviation below the mean who shares characteristics with offenders at lower risk of re-offense;
iii. ''High risk offender.'' An offender with a risk score greater than one standard deviation above the mean who shares characteristics with offenders at higher risk of re-offense.
(18) ''Risk factors.'' The variables obtained from AOPC or Commission data and determined to be statistically significant in relation to risk of re-offense. Risk factors selected by the Commission and included in the Sentence Risk Assessment Instrument include:
i. ''Age.'' The age of the offender calculated using date of birth as reported on guideline sentence form and the date the case was bound over for trial.
ii. ''Gender.'' The sex of the offender reported on the guideline sentence form.
iii. ''Prior arrest.'' The number of unique OTNs associated with arrests occurring before the date of the current offense, with data provided by AOPC. Only OTNs having a felony or misdemeanor bound over for trial or resulting in a finding of guilt by a minor court are included. Arrests dismissed by a minor court, juvenile arrests, and out-of-state, federal and foreign arrests, are not included.
iv. ''Prior arrest offense type.'' Based on prior arrest data provided by AOPC, all offense types identified for any felony or misdemeanor charges bound over for trial or resulting in a finding of guilt by a minor court.
v. ''Current conviction offense type.'' Based on Commission data, the offense type of the most serious offense of the judicial proceeding.
vi. ''Multiple current convictions.'' Based on Commission data, the total number of conviction offenses in the current judicial proceeding.
vii. ''Prior record score (PRS).'' An assignment in the sentencing guidelines reflecting the number and seriousness of prior convictions and juvenile adjudications. Based on Commission data, the PRS calculated for the most serious offense of the judicial proceeding is used in the risk scales.
viii. ''Prior juvenile adjudication.'' Based on Commission data, any juvenile adjudication included in the prior record score for the judicial proceeding is used in the risk scales.
(19) ''Risk scales.'' Measures of the outcomes derived from statistical models used to determine the relative risk to re-offend based on identified factors. The development of 18 separate risk scales provides relative comparison of risk by OGS and outcome measure.
(20) ''Sentencing Guidelines Software Web Application (SGS Web).'' A JNET-based application operated by the Commission which includes the modules for Sentencing Guidelines and for the Sentence Risk Assessment Instrument. SGS Web serves as the source of data for determining an offender's age, gender, current offense type, prior record score, multiple current convictions and juvenile adjudication, as well as determining the most serious offense of a judicial proceeding.
(21) ''Sentence Risk Assessment Summary.'' A report, generated through SGS Web, that provides information on an offender's relative risk of re-offense and identifies high risk and low risk offenders for whom the preparation of additional information is recommended.
§ 305.2. Sentence Risk Assessment Instrument methodology.
(a) Development and validation.
(1) The Commission conducted two studies using two large samples: offenders sentenced during 1998—2000 (n=101,498) to allow for a three-year tracking period for those sentenced to prison for a lengthy period of time; and offenders sentenced during 2004—2006 (n=131,055) to provide a more recent time period as well as improvements in data quality. Additional information on the development and validation of the Sentence Risk Assessment Instrument is available from the Commission.
(2) The Commission developed risk scales for all offenders, except those with DUI as the most serious offense of the judicial proceeding. Rather than develop one risk scale, risk scales were developed for nine OGS categories (OGS 1 through OGS 8, and a collapsed OGS 9-14). This decision was made for the following reasons:
i. the large difference in the number of offenders by OGS;
ii. the difference in the recidivism rates by OGS, which was a non-linear relationship;
iii. the difference in the type of offense by OGS; and
iv. the use of OGS risk scales controlled somewhat for the seriousness of the current offense.
(3) In developing the risk scales, the following analyses were conducted:
i. bivariate analyses to determine which factors were related to recidivism;
ii. multivariate logistic regression to determine which factors best predicted recidivism while holding all factors constant;
iii. rotation of all categories for factors that were multi-categorical to ensure that reported differences were real and not due to particular comparison category;
iv. Receiver Operating Characteristic (ROC) analysis, which plots the true positive rate (i.e., how many people were predicted to recidivate and did recidivate) against the false positive rate (i.e., how many people were predicted to recidivate but did not recidivate);
v. block testing analysis, adding one factor at a time, to determine how well the scale performed with and without a certain factor;
vi. comparison of how well the OGS-specific scales performed compared to the full sample scale; and
vii. validation of the final scales with both samples.
(b) Risk factors and scales—general.
(1) Based upon the analyses conducted by the Commission, the following factors were found to be predictive of recidivism, and thus, used in the risk assessment scales:
i. age;
ii. gender;
iii. prior arrest;
iv. prior arrest offense type;
v. current conviction offense;
vi. multiple current convictions;
vii. prior record score;
viii. prior juvenile adjudication.
(2) For each of the OGS risk categories, two scales were developed and validated:
i. risk of re-offense for any offense;
ii. risk of re-offense for an offense against a person.
(3) Preliminary risk scales for risk of re-offense for any offense are located at § 305.7(a). Preliminary risk scales for risk of re-offense for an offense against a person are located at § 305.7(b).
(c) Recidivism rates—general.
(1) The Sentence Risk Assessment Instrument provides the probability of re-offense based on the proportion of offenders in the development and validation samples who re-offended. Offenders identified as high risk or low risk were found to be significantly different in risk of re-offense than the typical offender in the same OGS category.
(2) Preliminary recidivism rates by risk score and OGS for risk of re-offense for any offense are located at § 305.8(a). Preliminary recidivism rates by risk score and OGS for risk of re-offense for an offense against a person are located at § 305.8(b).
§ 305.3. Sentence Risk Assessment Instrument standards.
(a) The court shall consider the Sentence Risk Assessment Instrument in determining the appropriate sentence for non-DUI offenders with open pleas to, or who were found guilty following a bench or jury trial of, felonies and misdemeanors.
(b) The Sentence Risk Assessment Instrument does not apply to sentences imposed as a result of the following: accelerated rehabilitative disposition; disposition in lieu of trial; direct or indirect contempt of court; violations of protection from abuse orders; negotiated pleas; or revocation of probation, intermediate punishment or parole.
(c) The Sentence Risk Assessment Instrument shall apply to all sentences imposed on or after July 1, 2018. Amendments to the Sentence Risk Assessment Instrument shall apply to all sentences imposed on or after the effective date of the amendment.
(d) A Sentence Risk Assessment Summary shall be generated and reviewed by the court for every judicial proceeding in which a conviction for felonies and misdemeanors is obtained through an open plea or following a bench or jury trial, except when DUI is the most serious conviction offense of the judicial proceeding.
(e) In every case in which a court of record imposes a sentence for a felony or misdemeanor, and a Sentence Risk Assessment Summary is required to be considered, the court shall make as a part of the record, and disclose in open court at the time of the sentencing, the offender's risk category. In every case in which an offender is identified as high risk or low risk, the court shall record on the guideline sentence form whether the court ordered a PSI report including risk-needs-responsivity information to be prepared or whether the court ordered an RNA or RNR assessment to be completed. This information shall be electronically transmitted to the Pennsylvania Commission on Sentencing in the manner described in § 303.1(e).
(f) Unless otherwise provided by the Commission, the JNET-based Sentencing Guidelines Software Web application (SGS Web) shall be used at the court's direction to generate a Sentence Risk Assessment Summary. The Sentence Risk Assessment Summary shall be made part of the record and electronically submitted to the Commission via SGS Web no later than 30 days after the date of sentencing.
§ 305.4. Sentence Risk Assessment Instrument procedures.
(a) For each judicial proceeding, the procedure for generating a Sentence Risk Assessment Summary using the SGS Web-based Sentence Risk Assessment Instrument shall be as follows:
(1) Prepare guideline sentence forms using SGS Web as required by § 303.1(e):
i. create a Judicial Proceeding;
ii. complete the Prior Record Score module;
iii. complete the Offense module, including all offenses for which the offender has been convicted and are pending before the court for sentencing at the same time;
iv. upon completion of the Offense module, a Sentence Risk Assessment Summary may be requested.
(2) For judicial proceedings involving a non-DUI offender with an open plea or who was found guilty following a bench or jury trial:
i. use SGS Web to submit a request for a Sentence Risk Assessment Summary, which will be generated automatically through an overnight process and available through SGS Web to the user;
ii. confirm that the OGS used in the risk scales is the same as the OGS for the most serious offense of the judicial proceeding;
iii. confirm that the risk categories identified in the Sentence Risk Assessment Summary match the risk categories identified on the guideline sentence forms.
§ 305.5. Sentence Risk Assessment Instrument recommendation—general.
(a) The risk score for the offender and the associated risk category is calculated based on the most serious conviction offense in the judicial proceeding. The Sentence Risk Assessment Summary provides information on the risk of the offender relative to other offenders in the same OGS category.
(b) Typical risk offenders. For offenders who are identified as typical risk, the Commission makes no additional recommendation. The risk category is included on the guideline sentence form which is required to be submitted to the Commission via SGS Web within 30 days of sentence.
(c) High risk or low risk offenders. For offenders who are identified as high risk or low risk, the Commission recommends the court obtain additional information prior to sentencing. This includes the ordering of a PSI report that contains risk-needs-responsivity information, or the preparation of a RNA or RNR assessment. Any order related to this recommendation shall be recorded on the guideline sentence form and submitted to the Commission via SGS Web within 30 days of sentence.
(d) The sentence risk assessment score or category is not intended to be used by the court as an aggravating or mitigating factor. Additional information obtained through a PSI report or an RNA or RNR assessment may assist the court in determining an appropriate and individualized sentence, including the suitability of various sentencing alternatives and programs as well as the duration and intensity of supervision.
(e) An example of a Sentence Risk Assessment Summary is located at § 305.9.
[Pa.B. Doc. No. 17-569. Filed for public inspection April 7, 2017, 9:00 a.m.]
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