of previous convictions – there
is little empirical evidence to
suggest that offending while
on pre-trial release or while on
probation or parole is a reliable
predictor of subsequent
re-offending.”
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If custody status were to be excluded from the criminal history score or defined more narrowly (for example by excluding pre-trial release), the fact that the offense was committed while the offender was under court order may still play a role. The offender committing an offense while on parole may be revoked to prison, or may receive a sentence consecutive to the current sentence. The consequence is that removing or restricting custody status from the criminal history score may yield greater disparity and potentially greater sentence severity for offenders. Commissions contemplating removing custody status from the criminal history equation would need to consider these possible outcomes.
2. Distinguishing Different Categories of
Custody Status
Another policy question is whether custody status enhancements should be differentiated according to the nature of the order violated or the timing of the new offense – that is, did the new offense occur early or late in the previously imposed order? For the sake of operational simplicity and consistency, custody status enhancements are insensitive to potentially important variation between offenders, and also between different forms of legal status. Yet, fresh offending may vary in its significance depending upon whether the offender was on probation or parole or on pre-trial release. An offender living in the community on probation or parole is serving a sentence; committing a fresh offense seems clearly aggravating. But this justification does not apply to defendants on bail, for whom the presumption of innocence remains in effect. The offender who offends while on probation or parole is aware of his previous conviction which has given rise to the current sentence. The defendant on bail has yet to be convicted.
Similarly, the significance of the current offense could vary depending on whether it was committed very early or very late in the probation or parole period. Offenders who commit an offense near the end of a previous sentence may be less culpable and a lower risk than those who re-offend very early in the previous order. Although re-offending occurs in both cases, the offender who commits an offense immediately after beginning probation may be more culpable (and possibly a higher risk) than one who re-offends near the end of the previous sentence. Commissions might consider whether convictions occurring near the expiration of a probation or parole period should carry less weight in terms of the custody status enhancement.
Incorporating considerations such as the timing of the fresh (i.e., current) offense, or distinguishing between post-conviction and pre-trial would complicate criminal history calculations. Commissions would need to balance the utility of weighting custody status against the disadvantages of a more complex method of calculating criminal history scores. Finally, the seriousness of the fresh conviction may call into question the imposition of a custody status enhancement. For example, conviction for a low seriousness crime while on parole may trigger a custody status enhancement which is disproportionate in light of the gravity of the latest offense. Rather than adopt a generic approach which assigns additional liability no matter what kind of legal status is being infringed, custody status could be limited to violations arising post-conviction. In Minnesota for example, an offender who commits a new felony while on pre-trial diversion or pre-trial release from another charge does not acquire an additional custody status point.20
3. Considering the Weight of Custody
Status
Another important policy question concerns the weight that custody status should carry at sentencing. In some jurisdictions it carries the same or almost as much weight as a prior adult felony conviction. For example, in Minnesota,21 prior felonies attract different numbers of
criminal history points, depending upon their severity level. For example, a prior felony at Severity Level 1 or 2 attracts half a criminal history point whereas a Severity Levels 9 to 11 prior attracts two criminal history points. Custody status attracts a single criminal history point – the equivalent weight of a single prior felony at Severity Levels 3 to 5.22 It is worth considering whether the enhanced risk
or blameworthiness arising from committing a crime while on probation or parole is the equivalent of a prior felony of this level of seriousness. As a general rule, aggravating factors at sentencing seldom carry the same weight as the base offense.23
Elsewhere, custody status carries significantly less weight than independent prior offending. For example, in North Carolina, custody status carries a single prior record point. This may be compared to the ten points assigned for a Class A felony, and nine points for a Class B1 felony. In other words, in that state, custody status carries a small fraction of the aggravating power of a prior felony. Commissions may consider conducting research to determine empirically whether custody status should be accorded the same, or less weight than a single felony (see validation, below).
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4. Validating Custody Status as a Criminal
History Enhancement
How might these various policy options be evaluated? Throughout this Sourcebook we urge Commissions to consider conducting empirical validation exercises for all dimensions of criminal history. With respect to custody status, this would involve collecting data to determine the degree to which this circumstance is a significant predictor of subsequent offending.24 The U.S. Sentencing
Commission provided a good example of such research when it examined the validity of “recency” criminal history points. The Commission determined that “including recency in the criminal history calculation has minimal predictive power.”25 A similar exercise would establish the
relative power of custody status as a predictor, and the results would serve to guide Commissions in determining whether their custody status enhancement was too powerful or too weak.
Validation exercises help determine the weight particular dimensions of criminal history should carry. Future research could also resolve the question of whether there is a differential risk associated with the various categories of custody status. For example, is committing an offense while on pre-trial release associated with a higher or lower risk of re-offending than release post-conviction? Once this is established, Commissions could determine whether they need to incorporate custody status as a component of criminal history (if they do not already do so). On a crime prevention rationale, these two forms of custody status (pre-trial and post-conviction) would only result in a differential enhancement if one category was associated with a higher re-offending rate. Empirical trends regarding the relationship between custody status and re-offending are therefore critical to the risk-reduction justification. Finally, Commissions might wish to clarify whether custody status enhancements are justified by higher risk or higher culpability (or both), as this will determine how the enhancement is operationalized.