Pennsylvania Code
Title 204 - JUDICIAL SYSTEM GENERAL PROVISIONS
Part VIII - CRIMINAL SENTENCING
Chapter 305 - SENTENCE RISK ASSESSENT INSTRUMENT
Section 305.1 - Preliminary provisions
Universal Citation: 204 PA Code ยง 305.1
Current through Register Vol. 54, No. 44, November 2, 2024
(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 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) "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 the
number of prior convictions and associated offense type following a final
disposition by a minor court.
(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)
"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, 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.
(9) "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.
(10) "Offense types."
The classification of prior convictions and current convictions, including
inchoates, as provided follows:
(i)
Murder;
(ii) Danger to person:
(A) felonies;
(B) misdemeanors;
(iii) Sexual:
(A) felonies;
(B) misdemeanors;
(iv) Burglary;
(v) Property:
(A) felonies;
(B) misdemeanors;
(vi) Public administration;
(vii) Public order;
(viii) Firearms;
(ix) Other weapons;
(x) Drug:
(A) felonies;
(B) 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.
(11) "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.
(12)
"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
resulting in a conviction. Re-offense does not include out-of-state, federal or
foreign charges or technical violations.
(13) "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 judgment," 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.
(14) "Risk category." The relative risk of
recidivism as compared to other offenders, based on the Sentence Risk
Assessment Instrument:
(i) "Typical risk
offender." An offender with a risk score of 5 points or greater but less than
12 points who shares characteristics with offenders at typical risk of
recidivism. This middle category contains approximately 78% of
offenders.
(ii) "Low risk
offender." An offender with a risk score less than 5 points who shares
characteristics with offenders at lower risk of recidivism. This low category
contains approximately 18% of offenders.
(iii) "High risk offender." An offender with
a risk score of 12 points or greater who shares characteristics with offenders
at higher risk of recidivism. This high category contains approximately 4% of
offenders.
(15) "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.
(16)
"Risk scale." Measures of the outcomes derived from statistical models used to
determine the relative risk to recidivate based on identified
factors.
(17) "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.
(18) "Sentence Risk Assessment Instrument."
The actuarial tool, adopted by the Commission and deployed through SGS Web,
used to identify cases for which the guideline sentence form includes the
notation "Additional Information Recommended." The Instrument uses factors that
are relevant in predicting recidivism to estimate risk.
(c) Findings and Purposes.
(1)
Findings.
(i) As defined in statute,
42 Pa.C.S. §
2154.7(e), the term "risk
assessment instrument" means an empirically based worksheet which uses factors
that are relevant in predicting recidivism.
(ii) The following concerns regarding
proposed instruments were consistently raised during public hearings:
(A) Distrust of a risk assessment instrument
for use at sentencing due to concerns about data quality, including the impact
of differential treatment throughout the criminal justice system resulting in
racial bias, and the construction and validity of any instrument;
(B) Concerns related to the impact of
actuarial data on individualized sentencing, including the labeling of
offenders based on risk category, the prospect of increased punishment for high
risk offenders, and the impropriety of providing information on prognostic risk
without including information on criminogenic needs and
responsivity.
(iii) The
Commission analyzed issues related to data quality, construction and validity,
including the impact of race and gender, during the development of the
instrument.
(A) Race is excluded from the
instrument, as is county, which many commentators viewed as a proxy for race.
The Commission undertook other steps to reduce racial impact, including using
convictions rather than arrests. In the final analysis, the accuracy of the
instrument is similar across race. To the degree there is a difference in
accuracy, Black offenders are favored. This moderate bias in the form of
under-estimation of risk for a minority group appears to be accepted in the
risk assessment field; these findings are not inconsistent with other
demographic impact assessments of risk instruments.
(B) Gender is included in the instrument as a
risk factor. The ratio of males to females in the sample is 80%/20%. Removing
gender has the greatest impact on females, reducing the accuracy of the
instrument in predicting female recidivism and incorrectly resulting in fewer
females classified as low risk and more females classified as high risk.
Removing gender or retaining gender has no impact on the accuracy of predicting
male recidivism, because males account for the overwhelming majority of
offenders in the sample.
(iv) As part of the Evidence-Based Practices
Strategic Plan, the County Chief Adult Probation and Parole Officers
Association of Pennsylvania has been working with counties to adopt and
validate risk and needs assessment tools and to provide training for use in
guiding effective supervision and treatment strategies for community
corrections.
(v) Research supports
the finding that judges tend to over-estimate risk of offenders at sentencing,
and that professional judgement informed by actuarial data is more accurate
than either alone. Research on the use of information on prognostic risks and
criminogenic needs to inform supervision strategies for drug offenders supports
the use of intensive treatment and supervision, consistent with the alternative
sentencing programs identified in the statute, for high risk/high needs
offenders, and consideration of reduced duration and intensity of supervision
for low risk/low needs offenders.
(vi) Under Pennsylvania's Rules of Criminal
Procedure, Rule 702, the sentencing judge may order a pre-sentence
investigation (PSI) report at any time, but shall place on the record the
reason for dispensing with a PSI in the following instances: when incarceration
of one year or more is possible; when the defendant is less than 21 years of
age; or when the defendant is a first-time offender. The Commission found that
PSI Reports were ordered in less than one third of all cases, and at varying
rates and of varying quality across counties, but rarely included information
on criminogenic needs or responsivity. Other assessments and evaluations,
including those for drug and alcohol dependency, mental illness, and for sexual
offenders, were also ordered.
(2)
Purposes of sentence risk
assessment instrument.
(i) To
identify individuals, determined to be low risk or high risk using the
Commission's sentence risk assessment instrument, for whom additional
information may assist the court in determining candidates for alternative
sentencing, such as state intermediate punishment, state motivational boot
camp, county intermediate punishment, recidivism risk reduction incentive;
appropriateness for problem-solving courts; and the duration and intensity of
community supervision or other programs or services.
(ii) To assist courts in determining whether
a more thorough assessment is necessary and to order a PSI Report as provided
in Pa.R.Crim.P. Rule 702(a) or a psychiatric or psychological evaluation as
provided for in Pa.R.Crim.P. Rule 702(b), or to request any other assessment or
information on criminogenic needs and responsivity to consider prior to
sentencing; and in determining whether to dispense with a PSI Report.
(iii) Similar to the sentencing guidelines
adopted by the Commission, a recommendation to obtain additional information
based on the sentence risk assessment instrument is advisory.
(iv) The Commission supports the values of
transparency and responsiveness in the development and use of empirically-based
risk assessment instruments. Information on the development and validation of
the sentence risk assessment instrument, including the risk factors, scales and
recidivism rates, and all internal and external reports related to construction
of the instrument and predictive validity, are published.
(v) The Commission expressly disavows the use
of the sentence risk assessment instrument to increase punishment, and
expressly disavows the use of county risk assessments tools at sentencing that
are not designed for use at sentencing, are not transparent or employ static
factors rejected by the Commission.
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