For the Defense - Vol. 9, Issue 2 - 16

Included in the text of the guidelines, is the statement that the
prosecution has the burden of proof in determining prior offenses
for consideration in the PRS, based on a preponderance of evidence.
Lapsing Provisions
While the 7th
For adult convictions:
* POG4: removed following the completion of a 25-year
crime-free period (gap);
* POG3: removed following the completion of a 15-year
crime-free period (gap);
juvenile adjudications, the 8th
Edition included a lapsing provision for certain
Edition has expanded what prior
adjudications may lapse; all prior adjudications are eligible to lapse
based on rules linked to the POG. Keep in mind, while adjudications
are considered in the determination of the PRS, the Commission
does not include adjudications for POG1 offenses. New to the 8th
Edition are lapsing provisions for prior adult convictions. With the
inclusion of adult lapsing provisions, conviction offenses may lapse
from consideration in the PRS.
Lapsing is defined as the removal from the determination of
the PRS certain prior adjudication or conviction offenses. The
Commission employs two lapsing provisions to determine whether
a prior offense lapses. Lapsing of prior offenses in the PRS falls
solely under the sentencing guidelines framework. It is important
to note, while a prior offense may lapse from consideration in the
determination of the PRS, this does not mean the prior conviction
is removed from the person's criminal history (e.g., expungement).
Two lapsing provisions are included in the 8th
Edition, " decay " and
" gap. " To understand these provisions, attention must be given to
§ 303a.1(d) (relating to definitions).
" Decay " involves the removal from the determination of
the PRS certain prior offenses following a prescribed period of
time, while " gap " allows for the removal following a prescribed
crime-free period. The distinction of crime-free is an important
factor in identifying what prior offenses may lapse from
consideration. Crime-free provisions are linked to the POG as
explained below (lapsing in application).
Crime-free is defined as the period following a conviction
and sentence and subsequent release to the community and the
completion of a prescribed period of time without commission of a
new felony or misdemeanor, for which the person pleads guilty or
nolo contendere or is found guilty. For non-confinement sentences
(and juvenile adjudications), release to the community begins
on the date of sentencing (or adjudication). For confinement
sentences, release to the community begins on the date of
initial release on parole, or release following completion of the
confinement sentence, whichever is earlier.
Lapsing in Application
For juvenile adjudications, based on POG and age of juvenile at
the time of the offense:
* POG4: persons 16 or older at the time of the offense,
are removed following the completion of a 15-year
crime-free period (gap);
* POG4: persons aged 14 or 15 at the time of the offense,
are removed following the completion of a 10-year
crime-free period (gap);
* POG3: removed following the completion of a 10-year
crime-free period (gap);
*
POG2: removed from the PRS for persons aged 25 or
older at the commission of the current offense (decay);
and
* POG1: are not considered in the PRS, so there is no
lapsing policy for these offenses.
16 For The Defense l Vol. 9, Issue 2
* POG2: removed following the completion of a 15-year
crime-free period (gap); and
*
POG1: removed following completion of 10 years since
the conviction date of the offense (decay).
Excluding Other Prior Offenses
While certain prior offenses may lapse from the PRS, other prior
offenses are routinely excluded from consideration when those
offenses are used to increase the statutory grade of a subsequent
offense (e.g., retail theft), or if the prior offense increases the
statutory maximum of a subsequent offense (e.g., certain drug
felonies). In previous editions of guidelines, the Commission
excluded prior offenses that resulted in an increased grade,
however, under the 8th
Edition, the policy was expanded to include
Edition, the Commission
circumstances when there are increases in statutory maximums.
Additionally, in rebuilding the 8th
undertook an extensive review of driving under the influence (DUI)
offenses, revising the assignment of offense gravity scores (OGS).
This effort took into consideration the increase in grade of the
current DUI offense (based on the number of prior DUI offenses)
and the associated mandatory minimum punishment scheme. This
is relevant because prior DUI offenses are not considered in the
PRS when the current conviction offense is a DUI; otherwise, DUI
offenses may be considered in the PRS.
How is the final PRS category determined
1. Review an individual's criminal history.
2. Select the most serious prior adjudication or
conviction offense as determined by the POG, remove
adjudications or convictions based on lapsing rules or
remove other excluded offenses.
3. Total the number of prior adjudications and convictions
contained in that POG.
* For example, a person may have prior offenses
in their criminal history that consist of one POG1
offense and two POG2 offenses. Under the rebuilt
8th
Edition PRS, only the most serious prior offense
and the number of like seriousness are considered.
In this instance, you would consider the two POG2
offenses, because they are more serious than the
POG1 offense.
4. Lastly, you determine the specific PRS category
(PRS 0 - 4) based on the number of previous
adjudications and convictions in the POG (see table
provided in § 303a.13).
Prior Record Score Category Descriptions
As noted, the Commission reduced the number of PRS categories
from eight (7th
Edition) to five (8th
Edition). The rebuilding of the
PRS section of the guidelines aims to achieve numerous goals,
such as streamlining and simplifying the application of the policy,
reducing the impact a prior criminal history has on the sentence
recommendation for less serious offenses, while providing
opportunities for the exclusion of offenses from consideration for
good behavior. And finally, an overarching goal of the new PRS
is to reduce disproportionality as it relates to race and ethnicity
due to arrest and conviction rates for minority populations in the
criminal justice system.
For the Defense - Vol. 9, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 9, Issue 2
