THE GENERAL ASSEMBLY

Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS

COMMISSION ON SENTENCING

PART VIII. CRIMINAL SENTENCING

[ 204 PA. CODE CH. 305 ]

Proposed Sentence Risk Assessment Instrument

[48 Pa.B. 2367]
[Saturday, April 28, 2018]

 The Pennsylvania Commission on Sentencing (Commission) hereby publishes for public comment a proposed Sentence Risk Assessment Instrument, 204 Pa. Code §§ 305.1—305.9, for use by the sentencing court to help determine the appropriate sentence within the limits established by law. The proposed Sentence Risk Assessment Instrument is set forth in Annex A.

 Act 2010-95 mandates the Commission to ''. . .adopt a Sentence Risk Assessment Instrument for the sentencing court to use to help determine the appropriate sentence within the limits established by law. . .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.'' (42 Pa.C.S. § 2154.7) In addition to considering the risk of re-offense and threat to public safety, Act 2010-95 also permits the risk assessment instrument to be used to determine whether a more thorough assessment is necessary, or as an aid in determining appropriate candidates for alternative sentencing (e.g., County Intermediate Punishment, State Intermediate Punishment, State Motivational Boot Camp, and Recidivism Risk Reduction Incentive).

 On March 19, 2015, the Commission approved for public comment a preliminary Sentence Risk Assessment Instrument, published the same in the Pennsylvania Bulletin on April 11, 2015 (45 Pa.B. 1751), and held three public hearings. The Commission requested comment on the preliminary Sentence Risk Assessment Instrument, including but not limited to the following: (1) the development of the risk assessment instrument and the factors being used; (2) the presentation of the risk assessment information; (3) the use of risk assessment to address re-offense and threat to public safety; (4) the use of risk assessment to determine whether a more thorough assessment is necessary; (5) the use of risk assessment as an aid in determining appropriate candidates for alternative sentencing; and (6) any other comments related to the development and implementation of a Sentence Risk Assessment Instrument.

 On March 16, 2017, the Commission approved for public comment a proposed Sentence Risk Assessment Instrument, published the same in the Pennsylvania Bulletin on April 8, 2017 (47 Pa.B. 1999), and held five public hearings.

 On March 8, 2018, the Commission approved for public comment a revised version of the Sentence Risk Assessment Instrument. This revised Sentence Risk Assessment Instrument is set forth in Annex A.

 In accordance with 42 Pa.C.S. § 2155, the Commission shall publish in the Pennsylvania Bulletin all proposed sentencing guidelines and the Sentence Risk Assessment Instrument and hold public hearings not earlier than 30 days and not later than 60 days thereafter to afford an opportunity for the following persons and organizations to testify:

 (i) Pennsylvania District Attorneys Association

 (ii) Chiefs of Police Associations

 (iii) Fraternal Order of Police

 (iv) Public Defenders Organization

 (v) Law School faculty members

 (vi) Pennsylvania Board of Probation and Parole

 (vii) Pennsylvania Department of Corrections

 (viii) Pennsylvania Bar Association

 (ix) Pennsylvania Wardens Association

 (x) Pennsylvania Association on Probation, Parole and Corrections

 (xi) Pennsylvania Conference of State Trial Judges

 (xii) Any other interested person or organization

 The Commission will hold the following three public hearings to receive comments on the proposed Sentence Risk Assessment Instrument:

Hearing I.

Date:	Monday, June 4, 2018
Time:	9:30 a.m.
Location:	Allegheny County Courthouse, Courtroom 327 436 Grant Street Pittsburgh, PA 15219

Hearing II.

Date:	Wednesday, June 6, 2018
Time:	1:30 p.m.
Location:	Juanita Kidd Stout Center for Criminal  Justice, Courtroom 504 1301 Filbert Street Philadelphia, PA 19107

Hearing III.

Date:	Wednesday, June 13, 2018
Time:	3:00 p.m.
Location:	Pennsylvania Judicial Center 601 Commonwealth Avenue Harrisburg, PA

 Persons or organizations wishing to testify before the Commission are asked to contact the Commission no later than 48 hours prior to the hearing (Cathy Dittman at 814.863.5729 or CWD2@PSU.EDU) and bring 30 copies of any written comments to the public hearing. Written comments from persons or organizations not wishing to testify at one of the three public hearings should be submitted no later than Friday, June 1, 2018 to: Mark H. Bergstrom, Executive Director, Pennsylvania Commission on Sentencing, P.O. Box 1200, State College, PA 16804-1200.

 The Commission will evaluate the Sentence Risk Assessment Instrument set forth in Annex A after consideration of the testimony and written comments received. The Commission anticipates adoption of the Sentence Risk Assessment Instrument during its meeting on June 14, 2018 at the PA Judicial Center, 601 Commonwealth Avenue, Harrisburg, PA. All Commission meetings are open to the public. Any Instrument adopted by the Commission is submitted to the General Assembly for review by way of publication in the Pennsylvania Bulletin. Upon adoption, the Sentence Risk Assessment Instrument will become effective 90 days after publication in the Pennsylvania Bulletin unless rejected by concurrent resolution of the General Assembly.

PRESIDENT JUDGE SHEILA A. WOODS-SKIPPER, 
Chair

Commentary on Annex A

 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 risk scales and recidivism rates, is set forth in Annex A.

Risk Assessment Mandate

 The Commission is mandated by statute to adopt a risk assessment instrument to serve as an aid in the sentencing process. To fulfill this requirement, the Commission developed an automated actuarial risk assessment instrument as a module within SGS Web, the Commission's JNET-based sentencing application. During the initial phase of implementation, the court is required to consider the Sentence Risk Assessment Summary for non-DUI offenders being sentenced for a felony offense following an open plea or trial. For those offenders who are identified as high or low risk by the Sentence Risk Assessment Instrument, the Commission recommends, but does not require, that the court seek additional information in the form of a pre-sentence investigation (PSI) report containing risk and needs information or a fuller risk-needs assessment. Thus, the risk assessment does not recommend a sentence to be imposed, but rather serves as a tool that identifies individuals with risk profiles that are higher or lower than average. Since these individuals are not typical offenders with respect to their risk of recidivism, the court will likely benefit from seeking additional information prior to imposing the sentence. During the subsequent phase, the court will be required to consider the Sentence Risk Assessment Summary for all offenders, including those sentenced for misdemeanor offenses following an open plea or trial, and all those sentenced following negotiated pleas for non-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 are based on training and experience, generally referred to as professional judgement. Subsequent generations are based on actuarial data, focusing on the analysis of factors associated with an increased risk of recidivism. 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 10 different risk scales and two outcome measures. Nine of the scales assess the risk of recidivism for any crime or recommitment to the PA Department of Corrections (DOC) for a technical violation. These nine scales are linked to the sentencing guidelines' offense gravity scores (OGS) and are used to weigh the seriousness of the current conviction, so that each risk scale assesses comparable offenders. A tenth scale assesses the risk of a re-offense for a crime against a person.¹ In all cases, the Sentence Risk Assessment Instrument measures the risk of recidivism 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 recidivate, the risk scores of all offenders in each OGS category are compared; only those scores outside the middle 68% (typical risk) are identified as high or low risk.

 The Sentence Risk Assessment Instrument considers seven static or demographic factors, although not every factor is included in each of the 10 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 recidivism for a specific OGS category are included in the corresponding risk scale. The following factors are considered:

 • age

 • gender

 • number of prior convictions

 • prior convictions offense types²

 • current conviction offense type

 • multiple current convictions

 • 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.

How Accurate is the Sentence Risk Assessment Instrument?

 The risk assessment scales provide measures of relative likelihood of recidivism. The risk scales are not perfect predictors, and are not determinative of future outcomes, but are instead additional tools that may provide a more accurate assessment of an individual's relative risk. In general, the risk assessment scales constructed by the Commission have accuracy rates of around 60%—85%, depending on the measure used and the risk scale in question. Accuracy rates for the scales are provided in each Sentence Risk Assessment Summary.

 The Commission developed a separate risk assessment scale for predicting risk of recidivism for a crime against a person, which includes Personal Injury Crimes such as simple assault. As compared to general recidivism, recidivism for a crime against a person is rare. The average recidivism rate for a crime against a person for all offenders is 11%, with those at low risk at less than 4%. High risk predictions for a crime against a person did not meet an acceptable level of predictive accuracy, with many of the individuals identified as high risk not recidivating for a crime against a person. However, the accuracy among low risk offenders is 96% (4% recidivated, 96% did not).

 The Commission has made publicly available information related to risk assessment scale accuracy in the form of three commonly-used metrics: area under the curve statistics, positive predictive values, and negative predictive values. Overall, the accuracy of these scales is consistent with other risk assessment instruments used in the criminal justice context.³ Additional information on the development and validation of the Sentence Risk Assessment Instrument may be requested from the Commission or found at: http://pcs.la.psu.edu/publications-and-research/research-and-evaluation-reports/risk-assessment.

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. 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 containing risk and needs information or an RNA or RNR assessment. Additional offender-specific information, but not the risk assessment score or category alone, 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 at high risk of general recidivism or at low risk of general recidivism. In addition, in cases in which an offender is determined to be at high risk of general recidivism but at low risk of recidivism for a crime against a person, additional information is included in the Sentence Risk Assessment Summary. 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 recidivate; 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 has 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.

 Upon 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 January 1, 2019, but during the initial phase will be limited to non-DUI offenders with a felony conviction obtained through an open plea or following a bench or jury trial.

 • Phase I (2019)

 o Limited to non-DUI offenders with a felony conviction 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 (2020)

 o Expands Phase I process to include all other convictions for non-DUI offenders.

Annex A

TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS

PART VIII. CRIMINAL SENTENCING

CHAPTER 305. SENTENCE RISK ASSESSMENT INSTRUMENT

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 Convictions and Current Convictions, Including Inchoates.
305.7(a).	General Recidivism Risk Scales by Offense Gravity Score (OGS).
305.7(b).	Recidivism for a Crime Against a Person.
305.8(a).	General Recidivism Rates by Risk Score and Offense Gravity Score (OGS).
305.8(b).	Recidivism Rates for a Crime Against a Person by Risk Score.
305.9(a).	Sentence Risk Assessment Summary (General Recidivism).
305.9(b).	Sentence Risk Assessment Summary (Crime Against a Person).

§ 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 aid 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 recidivism; the probability of recidivating is related to the proportion of offenders in a risk category who recidivate.

 (2) ''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 convictions and associated offense type.

 (3) ''Conviction.'' An offense for which a defendant pleads guilty or nolo contendere, is found guilty following a bench or jury trial, or is accepted for participation in an authorized diversion program, including Accelerated Rehabilitative Disposition (relating to Pa.R.Crim.Proc. Chapter 3), Probation without verdict (relating to 35 P.S. § 780-117) or Disposition in lieu of trial or criminal punishment (relating to 35 P.S. § 780-118).

 (4) ''Disposition.'' The procedure used during the trial phase to obtain a conviction, and the presence or absence of an agreement during the sentencing phase.

 i. Trial Phase

 1. ''Bench Trial.'' A trial with no jury in which the judge decides the facts and determines the verdict.

 2. ''Guilty Plea.'' A plea made by the defendant in confessing to one or more charged offenses.

 3. ''Jury Trial.'' A trial before a jury in which the jury decides the facts and determines the verdict.

 4. ''Nolo Contendere Plea.'' A plea made by the defendant in accepting a guilty determination to one or more charged offenses without admission of guilt.

 ii. Sentence Phase

 1. ''Negotiated plea.'' An agreement to a sentence which limits the discretion of the judge, including an agreement to a specific sentence or to a sentence range.

 2. ''Open Plea.'' A sentence without an agreement to a specific sentence or to a sentence range.

 (5) ''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.

 (6) ''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.

 (7) ''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 the number of prior convictions and associated offense type following a final disposition by a minor court.

 (8) ''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.

 (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), an offense requiring registration under 42 Pa.C.S. § 9799.14, 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 offense, then the offense with the highest OGS, longest statutory maximum, longest incarceration maximum, 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 related to a conviction. An OTN is generally assigned by the court at the time of arraignment.

 (12) ''Offense types.'' The classification of prior convictions 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. Other.

 A detailed description of the offense types is located at § 305.6. Any unlisted offense, or any new or amended offense, will be assigned an offense type by the Commission based on the current equivalent offense type.

 (13) ''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.

 (14) ''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; or a recommitment to the PA Department of Corrections for a technical violation within three years of release from confinement. Re-offense does not include out-of-state, federal or foreign charges.

 i. ''General recidivism.'' A re-offense for any crime, 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; or a recommitment to the PA Department of Corrections for a technical violation within three years of release from confinement. Re-offense does not include out-of-state, federal or foreign charges.

 ii. ''Recidivism for a crime against a person.'' A re-offense for a crime against a person, defined as a re-arrest for a felony or misdemeanor crime against a person in Pennsylvania within three years of the imposition of a sentence to the community or within three years of release from confinement. Re-offense does not include offenses other than a crime against a person, and does not include out-of-state, federal or foreign charges.

 (15) ''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.

 (16) ''Risk category.'' The relative risk of recidivism 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 or below the mean (average) risk score who shares characteristics with offenders at typical risk of recidivism. This middle category contains approximately 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 recidivism;

 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 recidivism.

 (17) ''Risk factors.'' The variables obtained from AOPC or Commission data and determined to be statistically significant in relation to the risk of recidivism. Risk factors selected by the Commission and included in the Sentence Risk Assessment Instrument include:

 i. ''Age.'' Based on Commission data, the age of the offender calculated using date of birth as reported on guideline sentence form and the date the Sentence Risk Assessment Summary is generated.

 ii. ''Gender.'' Based on Commission data, the sex of the offender reported on the guideline sentence form.

 iii. ''Number of prior convictions.'' Based on prior conviction data provided by AOPC, the number of unique OTNs associated with Pennsylvania convictions occurring before the date the Sentence Risk Assessment Summary is generated.

 iv. ''Prior conviction offense type.'' Based on prior conviction data provided by AOPC, all offense types identified for any felony or misdemeanor convictions.

 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, more than one current conviction offense in the current judicial proceeding.

 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. This may include prior juvenile adjudications that lapse for purposes of the calculation of the Prior Record Score.

 (18) ''Risk scales.'' Measures of the outcomes derived from statistical models used to determine the relative risk to recidivate based on identified factors. The development of 10 separate risk scales provides relative comparison of risk by OGS and outcome measure. A detailed description of the risk scales is located at § 305.7(a) and (b).

 (19) ''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 conviction offense type, multiple current convictions and prior juvenile adjudications, as well as determining the most serious offense of a judicial proceeding.

 (20) ''Sentence Risk Assessment Instrument.'' The actuarial tool, adopted by the Commission and deployed through SGS Web, for the sentencing court to use to help determine the appropriate sentence within the limits established by law. The Instrument uses factors that are relevant in predicting recidivism to estimate risk.

 (21) ''Sentence Risk Assessment Summary.'' A report, based on the Sentence Risk Assessment Instrument and generated through SGS Web, that provides information on an offender's relative risk of recidivism 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 a study using offenders sentenced during 2004—2006 (n=131,055) to allow for a three-year tracking period for most offenders, while taking advantage of improvements in data quality and a more recent time period. 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. For risk of general recidivism, 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; and

 iii. the use of OGS risk scales are intended to control for the type and 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 other factors constant;

 iii. rotation of all categories for factors that were multi-categorical to ensure that reported differences were real and not due to a 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. comparison of how well the OGS-specific scales performed compared to the full sample scale; and

 vi. 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. number of prior convictions;

 iv. prior conviction offense type;

 v. current conviction offense type;

 vi. multiple current convictions;

 viii. prior juvenile adjudication.

 (2) Scales were developed and validated for two outcomes measures:

 i. for each OGS risk category, risk of general recidivism;

 ii. for all OGS categories combined, risk of recidivism for a crime against a person.

 (3) Risk scales for general recidivism are located at § 305.7(a). A risk scale for recidivism for a crime against a person is located at § 305.7(b).

 (c) Recidivism rates—general.

 (1) The Sentence Risk Assessment Instrument provides the probability of recidivism based on the proportion of offenders in the development and validation samples who recidivate. Offenders identified as high risk or low risk were found to be significantly different in risk of recidivism than the typical offender in the same OGS category.

 (2) Recidivism rates by risk score and OGS for general recidivism are located at § 305.8(a). Recidivism rates for recidivism for a crime against a person are located at § 305.8(b).

§ 305.3. Sentence Risk Assessment Instrument standards.

 (a) Effective January 1, 2019, the court shall use the Sentence Risk Assessment Instrument to help determine the appropriate sentence for non-DUI offenders with open pleas to, or who were found guilty following a bench or jury trial of, one or more felonies.

 (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) Effective January 1, 2020, the court shall use the Sentence Risk Assessment Instrument to help determine the appropriate sentence for all non-DUI offenders who plead guilty or nolo contendere to, or who were found guilty of, felonies and misdemeanors. 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 considered by the court prior to sentencing for every judicial proceeding as required by this section.

 (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 containing risk and needs 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 prior to sentencing. The Sentence Risk Assessment Summary shall be made part of the record.

§ 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 all guideline sentence forms prior to sentencing 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 is available.

 (2) For judicial proceedings for which the preparation of a Sentence Risk Assessment Summary is required prior to sentencing:

 i. use SGS Web to obtain a copy of the Sentence Risk Assessment Summary;

 ii. if the OGS used in the risk scales does not match the OGS for the most serious offense of the judicial proceeding, repeat preparation of guideline sentence forms (see § 305.4(a)(1));

 iii. if the risk categories identified in the Sentence Risk Assessment Summary do not match the risk categories identified on the guideline sentence forms, repeat preparation of guideline sentence forms (see § 305.4(a)(1));

 iv. a copy of the Sentence Risk Assessment Summary shall be presented to the court for consideration prior to sentencing.

§ 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 and needs information, or the preparation of an 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 containing risk and needs information 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 (General Recidivism) is located at § 305.9(a). An example of a Sentence Risk Assessment Summary (Crime Against a Person) is located at § 305.9(b).

§ 305.6. Offense Types. Classification of Prior Convictions and Current Convictions, Including Inchoates.

 

 

§ 305.7(a). General Recidivism Risk Scales by Offense Gravity Score (OGS).

 

§ 305.7(b). Recidivism for a Crime Against a Person.

 

§ 305.8(a). General Recidivism Rates by Risk Score and Offense Gravity Score (OGS).

 

 

§ 305.8(b). Recidivism Rates for a Crime Against a Person by Risk Score.

 

§ 305.9(a). Sentence Risk Assessment Summary (General Recidivism).

 

§ 305.9(b). Sentence Risk Assessment Summary (Crime Against a Person).

 

 

[Pa.B. Doc. No. 18-632. Filed for public inspection April 27, 2018, 9:00 a.m.]

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¹  An offense against a person is defined as a crime of violence under 42 Pa.C.S. § 9714; an offense under the Crime Victims Act (18 P.S. § 11.103); an offense requiring registration under 42 Pa.C.S. § 9799.14, or an offense defined as a danger to persons under Title 18, Article B.

²  Offense types include: murder, danger to person (felonies/misdemeanors), sexual (felonies/misdemeanors), burglary, property (felonies/misdemeanors), public administration, public order, firearms, other weapons, drug (felonies/misdemeanors), DUI, and other.

³  John Monahan and Jennifer L. Skeem, Risk Assessment in Criminal Sentencing, Annu. Rev. Clin. Psychol., 12:489-513 at 500 (2016) (discussing AUCs typically in the range of .65 to .71 for risk assessment tools).

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