What is an Offense Variable?
When judges are determining a sentence in a criminal case, they consider a lot of different factors. But, for the most part, those factors are a product of the sentencing guidelines that apply in every case. In some states, those sentencing guidelines rely almost entirely on two things: offense variables and prior record variables. This article discusses offense variables (also called “OVs”).
What are offense variables?
Offense variables are factors used to score the severity of the crime a defendant was convicted of. In Michigan, for example, there are 20 offense variables that judges consider:
- OV 1 (MCL 777.31): Aggravated use of a weapon
- OV 2 (MCL 777.32): Lethal potential of weapon possessed or use
- OV 3 (MCL 777.33): Physical injury to victim
- OV 4 (MCL 777.34): Psychological injury to victim
- OV 5 (MCL 777.35): Psychological injury to member of victim’s family
- OV 6 (MCL 777.36): Intent to kill or injure another person
- OV 7 (MCL 777.37): Aggravated physical abuse
- OV 8 (MCL 777.38): Victim asportation or captivity
- OV 9 (MCL 777.39): Number of victims
- OV 10 (MCL 777.40): Exploitation of vulnerable victim
- OV 11 (MCL 777.41): Criminal sexual penetration
- OV 12 (MCL 777.42): Contemporaneous felonious criminal acts
- OV 13 (MCL 777.43): Continuing pattern of criminal behavior
- OV 14 (MCL 777.44): Offender’s role
- OV 15 (MCL 777.45): Aggravated controlled substance offenses
- OV 16 (MCL 777.46): Property obtained, damaged, lost or destroyed
- OV 17 (MCL 777.47): Degree of negligence exhibited
- OV 18 (MCL 777.48): Operator ability affected by alcohol or drugs
- OV 19 (MCL 777.49): Security threat to penal institution or court or interference with administration of justice or emergency services
- OV 20 (MCL 777.49a): Terrorism
For each of these offense variables, a judge will assign points. For example, for offense variable 11 (criminal sexual penetration), MCL 777.41 instructs judges to score OV 11 at 50 points if “[t]wo or more criminal sexual penetrations occurred,” at 25 points if “[o]ne criminal sexual penetration occurred” or at 0 points if “[n]o criminal sexual penetration occurred.”
What if offense variables are scored incorrectly?
Usually, offense variables are calculated by the probation department. If probation makes a mistake, you or your lawyer should try to correct it during the sentencing hearing. Otherwise, you will have to do so on appeal, which is much harder. Most of the time, a judge in a sentencing hearing will hear arguments about OV scoring because they don’t want an appeals court to reverse their sentence.
Another common with OV scoring involves what information probation uses to calculate a score. In a criminal case, the prosecution has to prove your guilt beyond a reasonable doubt. But that’s not the case when it comes to OV scoring. Prosecutors can ask the court to consider conduct at sentencing that wasn’t proved to the jury at trial.
In some states like Michigan, offense variables have a huge impact in the length of your sentence. Understanding each offense variable and making sure that the judge scores them correctly at sentencing is very important for your case.