Mandatory minimum sentences could be struck down in Pa.

The state Supreme Court is currently deciding what to do with the statutes.

A sign posted outside the W.S. Peirce Middle School at 24th and Christian streets
Mark Stehle

Pennsylvania prosecutors could soon lose one of their favored tools, much to the delight of criminal-justice reform advocates.

Judges across the state have recently ruled that many mandatory minimum sentencing statutes are unconstitutional, a quiet revolution in the criminal-justice system instigated by a 2013 U.S. Supreme Court decision. The state Supreme Court is currently deciding what to do with the statutes, heralded by prosecutors as a key crime-fighting tool and excoriated by critics as tying judges' hands and fueling prison population growth.

The problem, according to the U.S. Supreme Court, is not with mandatory minimums per se, but with how some of them are imposed.

In June 2013, the Court ruled in Alleyne v United States that the facts giving rise to a mandatory minimum sentence must be determined by a jury, beyond a reasonable doubt, and not by a judge applying the lower standard of preponderance of evidence. Justice Clarence Thomas, writing for a 5-4 majority (in opposition to fellow conservatives on the court) found that "when a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury."

For example, if a jury had previously convicted a defendant of dealing drugs, a judge would then decide whether or not he was in possession of a gun, triggering a mandatory minimum. Under the new ruling, the question of whether or not a defendant had a gun, a distinct offense, must be decided by the jury. The right to a trial by jury, Thomas noted, is a basic constitutional protection enshrined in the Sixth Amendment.

In the wake of Alleyne, defense lawyers across the state made the case that numerous Pennsylvania mandatory minimums were unconstitutional since they explicitly require judges, and not juries, to determine whether an offense triggering the sentences had occurred.

In August, the state Superior Court struck down a statute imposing a mandatory minimum sentence in drug cases where a firearm is recovered on a dealer, an accomplice, or in the vicinity. Other rulings followed, striking down statutes mandating minimum sentences for drug dealing within 1,000 feet of schools, by drug weight, crimes of violence with a gun, and crimes of violence near public transit.

Those statutes and more will fall if the state Supreme Court rules against mandatory minimums in the current case, Commonwealth v. Hopkins. Many expected the Court to rule before the new year. For unclear reasons, it has not.

District attorneys are fighting to preserve the laws. They concede that provisions instructing judges to determine facts triggering a mandatory minimum are now barred. But they contend that the state Supreme Court can simply strike down those parts of the law and require juries to make the determination instead.

"The remainder of the statute stands alone, it does not have to be rewritten, and the rules of procedure do not have to be rewritten to accommodate it, and the legislature does not have to act," Chester County Chief Deputy District Attorney Nicholas Casenta argued before the court in September.

Defense lawyers and the Superior Court have disagreed: striking those provisions requiring judges to determine underlying facts, they say, means that no enforcement mechanism would remain and that the entire law is thus rendered inoperable. In legal terms, prosecutors argue that the various portions of the law are "severable;" defense lawyers say they are not.

Defense lawyer Leonard Sosnov argued to the court that letting the laws stand would amount to the judiciary deciding to "ignore the plain and unambiguous language of a statute of the legislature and substitute our own contrary and inconsistent procedures to sustain the statute."

"There's a lot at stake because if the statutes aren't severable it means that these several mandatory minimum statutes can't be applied at all against defendants in Pennsylvania," Sosnov, a professor at Widener University School of Law and an expert on state constitutional criminal procedure, tells City Paper.

Mandatory minimums require that judges impose a minimum sentence for certain drug, gun and violent offenses, and are credited for helping to fuel the massive increase in the increase in the number of prisoners here and around the country. Pennsylvania's prison population has grown from 8,582 in 1980 to more than five times that number today.

Mandatory minimum defenders say the laws ensure that criminals face certain and severe punishment and help deter future crimes. Pressed in oral arguments as to why so many judges disagree, Casenta said, "I'll give you my flip answer first: They don't like mandatories."

Critics say the measures strip judges of their discretionary power to consider a particular case's specifics. They also complain that the statutes confer undue power to prosecutors by depriving defendants facing harsh mandatory sentences of their right to a trial. Guilty pleas become many defendants' only rational choice, thus creating arbitrary and unjust outcomes.

As for prosecutors, "they love these things because a mandatory minimum transfers the power to decide sentences from judges to prosecutors," says Wesley Oliver, Associate Professor and Criminal Justice Program Director at Duquesne University School of Law. "Mandatory minimums are awful as a general matter because we believe that judges as neutral parties are better able to figure out what the appropriate sentence is. Whereas the mandatory minimum says, why don't we let the advocate on one side of the courtroom decide what the appropriate sentence should be?"

Casenta did not respond to repeated requests for comment and an interview with the Philadelphia District Attorney's Office could not be scheduled by press time.

*

The Pennsylvania General Assembly passed the state's first mandatory minimums in 1982, covering repeat offenders, offenders visibly carrying a firearm during the commission of a crime, and offenses committed on public transit. In the years that followed, the legislature passed mandatory minimums applying to driving under the influence, drug dealing and sex offenders.

No Pennsylvania mandatory minimum has attracted as much scrutiny as the drug-free school zone statute, which requires a two-year-minimum sentence for drug dealing offenses within 1,000 feet of a school. The measure is ostensibly supposed to harshly punish drug dealing that impacts children. In reality, it has an arbitrary impact on defendants in big cities like Philadelphia where, according to the Pennsylvania Commission on Sentencing, at least 30 percent of land is within 1,000 feet of a school.

A drug deal made in a rowhouse two blocks from a school building does not necessarily have any particular relevance to school children. But it does suggest that a non-white Philadelphian arrested for drug dealing is by virtue of geographical happenstance more likely to trigger a longer sentence than a rural or suburban white counterpart.

It is unclear how the Supreme Court will rule, or when. Former Justice Seamus McCaffery heard the oral arguments but resigned in the wake of a major scandal involving him and other officials circulating sexually explicit emails. Former Chief Justice Ron Castille retired at the end of last year. Since no ruling was issued before Jan. 1, he will not cast a vote.

Castille gave Sosnov a notably hard time in oral arguments (in part because he seemed to incorrectly suspect that Sosnov had some link to a death-penalty unit of the Defenders Association of Philadelphia, against which he has long been waging an unusual campaign). But he also harshly criticized mandatory minimums in a 2012 dissent. "Put simply," he wrote, "mandatory minimums are automatic, indiscriminate and blunt provisions that deny trial courts the ability to calibrate punishment to correspond to a defendant's actual criminal conduct and circumstances."

It is unclear which side will benefit from his absence.

Since the U.S. Supreme Court and Pennsylvania Superior Court rulings question not mandatory minimum sentences themselves, but the method through which they are often imposed, the state legislature could pass new statutes mandating the exact same sentences but giving juries, and not judges, the power to determine whether the crime was committed.

"The legislature could reenact mandatory minimum sentencing statutes, but they'd have to give all the other constitutional protections you get for any other criminal offense," says Sosnov. "But they may choose not to do that, though. You have sentencing guidelines...the difference there is that judges have to pay heed to the sentence guidelines but in appropriate circumstances can deviate."

Defense lawyers hope that if the court strikes down the law, the legislature will leave it alone. After all, prosecutors can still rely on plenty of statutes to send convicted criminals away for sentences far lengthier than those that prevail in much of the world.

Judges and defense lawyers have harshly criticized mandatory minimum sentences for giving prosecutors unfair power and stripping defendants of their right to a trial: if a district attorney wields the threat of a draconian sentence, defendants, including innocent ones, can be motivated to plead guilty in exchange for a lesser charger. A judge or jury cannot impose a mandatory minimum unless a prosecutor decides to ask the judge to do so, says Sosnov. The result has been that most mandatory-eligible cases involved some kind of plea agreement, according to a lengthy 2009 report from the Pennsylvania Commission on Sentencing.

"Having a mandatory sentence hanging over a defendant's head chills the right to trial," says James Temple, an attorney at the Defender Association of Philadelphia.

Those defendants convicted at trial — meaning they may have rejected a plea deal —were more likely to have a mandatory minimum sentence imposed, according to the Sentencing Commission. The result can also seem arbitrary: more serious violent or firearm offenses were more likely to receive a mandatory sentence, but those convicted of dealing larger quantities of drugs were less likely to receive them than those dealing in smaller amounts.

The Sentencing Commission also suggested that mandatory minimum sentences might not effectively deter crime, echoing national research on the subject: most prisoners surveyed said that they were unaware of the sentence prior to committing their crime and that the sentence ended up being longer than they would have anticipated. In addition, receiving a mandatory minimum sentence did not appear to have an impact on recidivism, though numerous other factors did, such as the type of crime committed, and the age and criminal history of the offender.

The Sentencing Commission criticized drug dealing mandatory minimums, and called for the repeal of the drug-free school zone statute. The state Supreme Court might beat legislators to the punch.