Commission asks: Is a crime worse if a child sees?

If Matthew R. Nash is convicted of this summer's Virginia Beach carjacking, he could get additional prison time for the mere fact that a toddler in the back seat became a witness to the event.

Some judges have begun tacking on additional months or years of prison time when a crime occurs in the presence of a child, even though there's nothing in sentencing guidelines that requires it.

The state is now trying to figure out how often crimes occur in front of children in anticipation of possible legislation to require additional incarceration if children witness crimes.

For the study, the Virginia Criminal Sentencing Commission asked commonwealth's attorneys to supply data on crimes committed in the presence of children, but it has been slow going.

Only 11 jurisdictions reported cases through the first six months of the year, which has skewed the current data. Suffolk reported 17 cases, more than any other jurisdiction that has submitted information so far. Bigger cities such as Virginia Beach and Norfolk have yet to send any data, nor have any other Hampton Roads jurisdictions. The next highest jurisdiction was Martinsville, with 11 cases. Most other localities reported only one, two or three.

Commission Director Rick Kern said the study is still in its infancy and has no deadline.

"I'm told by some commonwealth's attorneys that they're already overworked and that tracking the data is too much effort," Kern said.

But he said it's a fairly simple process. He has set up a page on the commission's Web site that prosecutors can use to record the offender's name, date of birth, court of conviction and the sentencing date. Commission staff will then pull each file to determine whether the defendant received an enhanced sentence.

Virginia Beach Commonwealth's Attorney Harvey Bryant said his office is collecting the data and will eventually input it.

He said his office has found four cases since May involving crimes witnessed by children. One was a drug case, two were robberies, and the fourth a domestic assault.

"We argue those things in an effort to get the court to take that into account in sentencing," Bryant said.

The commission embarked on the study, believed to be one of the first in the country, after getting increased reports of judges imposing greater sentences in crimes that occur in front of children. The commission wants to determine exactly how often it happens.

"I think it's part of a whole package that's presented when sentencing a defendant," Suffolk Commonwealth's Attorney Phil Ferguson said. "If you're committing a crime in front of children, then you're teaching children that it's OK to commit criminal acts."

Defense attorneys typically object to such sentencing enhancements because it's not an aggravating factor under the state's sentencing guidelines.

Norfolk attorney James Broccoletti said he's seeing it more often, particularly in drug cases. He said he had a murder case several years ago in which a jury and judge imposed additional time for the defendant, Ericka Parks, because she shot and killed another woman in front of the victim's baby. He called the 25-year prison term "extremely harsh."

"It does have an impact," he said.

The study will include offenders who commit felonies in front of any child younger than 18 or where the child was used to participate in the crime, such as a larceny or a drug deal, and whether the judge considered that an aggravating factor.

The commission is expected to present updated numbers at its next meeting, Sept. 21, in Richmond.

The study was initially suggested by state Sen. Henry Marsh, a Richmond Democrat and commission member, but it's unclear whether a particular incident prompted the review. Marsh did not return calls for comment.

Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com