Assembly gets judges’ sentencing numbers

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When legislators meet Friday, Dec. 12, to interview judges seeking re-election, expect to hear about numbers.

The circuit  judges’ compliance rates with Virginia’s voluntary sentencing guidelines, to be exact.

Members of the Courts of Justice committees of the Senate and the House of Delegates will convene Dec. 12 to determine if judges merit another term on the bench.

For circuit judges, the senators and delegates will have the benefit of a report released Oct. 30 by the Virginia Criminal Sentencing Commission.

The report details the eight-year record of the judge, noting the percentage of cases in which a sentence was in compliance with Virginia’s voluntary guidelines. It also notes the number of times the judge’s sentence was lower (termed mitigation) or higher (termed aggravation) than the guidelines.

The compliance report prompted fireworks at the re-election interviews in 2013, when one judge, Lynchburg Circuit Judge James W. Updike Jr., had to defend a mitigation percentage that some legislators found too lenient. Updike later was re-elected.

At last year’s interviews, Del. Ben Cline, R-Lexington, noted that the Assembly did not expect total compliance, but legislators generally wanted the number of “ups and downs,” that is, higher and lower sentences, to balance out.

There are four circuit judges set to interview with the Courts committees:

• Norfolk Circuit Judge Karen J. Burrell
• Charlottesville Circuit Judge Cheryl V. Higgins
• Portsmouth Circuit Judge Johnny E. Morrison and
• Fredericksburg Circuit Judge Gordon F. Willis.

Mary Kate Felch of the Assembly Division of Legislative Services said that two other judges – Amherst County Circuit Judge J. Michael Gamble and Prince William County Circuit Judge Richard B. Potter – had been included in the commission’s study, but they were retiring.

Burrell’s sentencing was within the guidelines 82.3 percent of the time during 2007-2014, and her ups and down are almost in equipoise – 8.9 percent to 8.8 percent, respectively.

Higgins notched an 84.3 percent compliance rate. Her ups were 7.2 percent, versus downs of 8.5 percent.

Morrison had the largest number of downs of the group, with 10.4 percent of his sentences below the guidelines, with 5.7 percent above. His overall compliance rate was 83.9 percent.

Of the four, Willis had the lowest compliance rate – he was within the guidelines 75.8 percent of the time. But this lower figure is due to the fact that his sentencing was above the voluntary guidelines 17 percent of the time. He was under the guidelines in 7.2 percent of the cases.

During the 2013 interviews, several senior senators urged colleagues on the panel not to base their re-election decisions solely on the numbers.

Indeed, Sentencing Commission Director Meredith Farrar-Owens cautioned the same thing in her cover letter to the Assembly:

“[I]t is not necessarily valid to interpret differences in guidelines compliance and departures and draw conclusions about judicial harshness or leniency.

“Variations in the availability of alternative sentencing options across the Commonwealth, variability in the mix of felony cases heard within our circuits and courts, and differences in local plea bargaining practices all play a role in shaping guidelines compliance rates,” Farrar-Owens said.