(26) The Virginia legislature mandated a statistical approach (27) and the VCSC followed course.
In pursuit of the legislated goal, the VCSC studied a random sample of roughly 1500 fraud, larceny and drug offenders who had each been incarcerated and released between July 1, 1991, and December 31, 1992.
Interestingly, the VCSC reports that "[a]n error that results in diverting an offender who then reoffends (false negative) is considered the more serious because it can endanger public safety." (66) However, "[t]his common practice results in unfair constraints being placed on low-risk offenders and wasted departmental resources." (67)
(74) In the National Center for State Courts' ("NCSC") review of the VCSC's approach, it found a 24.3% recidivism rate (versus a 31.5% correct detection rate) among those scoring below the threshold for recommended alternative sanctions.
The statistical approaches employed by the VCSC are not intended to make predictions about individuals.
Under the VCSC results, younger offenders are more likely to recidivate within a short timeframe.
Race was the only factor explicitly considered and rejected by the VCSC. (92) As the NCSC reported, "[a]lthough race was strongly significant in the analysis, the Sentencing Commission viewed race 'as a proxy for social and economic disadvantage,' and decided to exclude it from the risk assessment worksheet." (93) The VCSC saw race as "'standing in'" for other factors, including "economic deprivation, inadequate educational facilities, family instability, and limited employment opportunities, many of which disproportionately apply to the African-American population." (94)
The VCSC has provided no further explanation about its appeal to "social and economic disadvantage." Surely, this cannot be the true reason for excluding race.
(96) According to the NCSC, the VCSC basically took this approach.
This Part will discuss the major methodological choices made by the VCSC and the consequences that result therefrom.
(101) The reference to "risk" led the VCSC to choose "risk assessment"--where the public's safety is preeminent--over "needs assessment"--where the offender's interests are invoked.
The VCSC developed the original model based on a study of 2013 fraud, drug, and larceny offenders as they were released from incarceration.