The ACLU of Virginia has filed an amicus brief in the Virginia Court of Appeals arguing that a tool used to guide judges in the sentencing of sex offenders is unconstitutional because it results in longer sentences to defendants based on their age, employment history and level of education. Virginia is apparently the first state in the nation to employ such a system.
Adopted by the Virginia Sentencing Commission in 2001, the risk assessment guidelines are based on studies showing that certain offenders are more likely to repeat their crimes once they have served their sentence. Judges are not required to use the “risk score” system, but those who do may give high scoring offenders sentences up to three times the norm.
The ACLU does not object to some of the factors used in rating sex offenders for longer sentences. Factors such as the defendant’s relationship with the victim, location of the offense, criminal history and prior incarceration may be legitimately used, under some circumstances, to determine length of sentences. But age, employment, and education are unrelated to the crime should not be held against offenders.
“Under these guidelines, a person in his early thirties with an eighth grade education and a poor work history could serve twice the sentence of a high school graduate in his mid-thirties who has been gainfully employed, even if the crimes they commit are absolutely identical in every way.” said ACLU of Virginia executive director Kent Willis.
“Since when do we give longer sentences to defendants because they are young, unemployed and not very well educated,” added Willis. “The risk assessment tool undermines fundamental fairness in the criminal justice system and results in sentences based, to some extent, on the class to which the offender belongs.
“Theses are sentences divined from nothing more than statistical correlations. Using the same logic, if the Crime Commission discovered that people who like hotdogs and drive Buicks are more likely to recidivate, judges will soon be giving them longer sentences, too.”
The amicus brief was filed on behalf of Christopher Drew Brooks, who at age 19 engaged in consensual sex with a 14 year-old girl. Brooks pled guilty to carnal knowledge with a person between the ages of 13 and 15. However, because he was under 35 years old and not regularly employed, Brooks was given a high-risk score and a sentence of one year and six months. Had Brooks been 36 years old, the recommended sentence would have been no prison time.
A copy of the amicus brief can be found here.  The Virginia Court of Appeals ruling can be found here.

Contacts: Kent Willis, Executive Director, ACLU of Virginia, 804-644-8022 Rebecca K. Glenberg, Legal Director, ACLU of Virginia, 804-644-8022

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