Examination of MandatoryExamination of Mandatory Minimum Sentences

Pennsylvania Commission on Sentencing

Examination of MandatoryExamination of Mandatory Minimum Sentences in

Pennsylvania

1National Association of Sentencing Commissions (August 2, 2011)


Mandatories within Pennsylvania’s discretionary systemMandatories within Pennsylvania s discretionary system

• Legislative basis for guidelines & mandatories

• Indeterminate sentencing system

• Types of mandatories• Types of mandatories

• Viable alternatives to mandatories

• Competition & co‐existence

• Promoting research & reform

• Study on the use and impact of mandatory minimum sentences (HR12)



Legislative basis for guidelines & mandatoriesLegislative basis for guidelines & mandatories

• Two competing philosophies (1970’s)…• Frustration with lenient sentences; interest in restricting

judicial discretion• Opposed to mandatory sentences; interest in preserving

judicial discretion

• Sentencing commission (1978) viewed as compromise…• Constrain and preserve judicial discretion • Consistent with but separate from legislation• Consistent with but separate from legislation • Provide viable alternatives to mandatories

• Evolved into parallel (competing) sentencing structureEvolved into parallel (competing) sentencing structure• Mandatories are not a baseline• Guidelines consider more factors, permit departures

(advisory guidelines, weak appellate review)( y g , pp )




Legislative JournalEstablishment of sentencing commission (1978)…

• The purpose of the amendment is to make criminal sentences more rational and consistent, to eliminate unwarranted disparity i i d i h f d di i iin sentencing, and to restrict the unfettered discretion we give to sentencing judges. (Rep. Anthony Scirica)




Legislative JournalDrug trafficking mandatory (1988)…

• This bill is more about deterrents than punishment because it establishes if you do sell to a minor or if you are a big‐time d l ( h ) h ki d f l ff hdealer… (these are) the kind of people we want to get off the street and be imprisoned without a chance for probation. (Sen. Stewart Greenleaf)

• It is time to get some of these drug dealers off the roads. (Sen. Clarence Bell)




Legislative JournalRepeat violent offender mandatory (1995)…

• The whole structure of this bill (repeat violent offender mandatory) is aimed at incarcerating those, incapacitating those h i h i k i d h lik l iwho are in their peak crime years, and who are likely to commit

crimes of violence, who if they are on the streets are likely to victimize us. (Sen. David Heckler)

• What it does is carve out 10 very specific areas of violent criminal behavior , and we say to the people of Pennsylvania that if individuals are goig to commit thse violent offenses repeatedly,individuals are goig to commit thse violent offenses repeatedly, that they are going to be subject to mandatory minimums which will lock them up well into their sixties, perhaps into their seventies, and very likely for the rest of their lives. (Rep. Jeffery Piccola)



Indeterminate sentencing systemIndeterminate sentencing system

• Confinement sentences• Minimum term & maximum term imposed• Minimum term linked to guidelines and/or mandatory• Maximum term at least double minimum; cannot exceed

statutory maximum based on conviction

• Mandatory establishes shortest minimum term offender may receive; court has no authority to impose shorter minimum term

• The sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory penalty of this section.penalty of this section.

• In most cases, offender required to complete minimum term before being eligible for parole; no right to paroleg g p ; g p



Types of mandatoriesTypes of mandatories

• No notice mandatory• Mandatory provision is an element of the crime• Proven at trial beyond a reasonable doubt• Conviction requires imposition of minimum term no less than

mandatoryl i id b hi l hil ( )• Example: Homicide by vehicle while DUI (F2, max = 10 years)

(minimum = 3 years)(consecutive sentences if multiple victims)

• Prosecutorial notice mandatory• Prosecutorial notice mandatory• Mandatory provision is a sentencing factor (McMillan)• Determined at sentencing based on preponderance of evidence• reasonable notice of the Commonwealth’s intention to… reasonable notice of the Commonwealth s intention to

proceed under this section shall be provided after conviction and before sentencing.

• Example: Rape (victim < 16 years of age)(F1, max = 20 years) p p ( y g )( , y )(minimum = 10 years)



Viable alternatives to mandatoriesViable alternatives to mandatories

• Mitigation through legislation (institutional role of Commission)• Dispositional alternatives

• County Intermediate Punishment (DUI)(33.8%)• State Intermediate Punishment (DUI, drug‐trafficking)

• Durational reductionsi i l ( i h )• State Motivational Boot Camp (six months)

• State Intermediate Punishment (two years)• Recidivism Risk Reduction Incentive (1/4 min; 1/6 min)

• Mitigation through guidelines (legislation; notice mandatories)• Dispositional departures

• County Intermediate Punishment (RIP/D&A)County Intermediate Punishment (RIP/D&A)• Durational reductions

• Reasonable alternatives (avoid cliff, provide discretion)• Sentencing enhancements (DWE, Y&S)g ( , )



Competition & Co‐existenceCompetition & Co‐existence

• Drug Trafficking• Drug Thresholds (cocaine: 2 grams; 2.5 grams; 5 grams)• Treatment Alternatives (CIP, SIP, Treatment Courts)

• Drug Delivery in School Zoneh & h l h ( h )• Youth & School Enhancement (12‐36 months)

• Visibly Possessed Firearm• Deadly Weapon Enhancement (possessed used)• Deadly Weapon Enhancement (possessed, used)

• Repeat Violent Offender • Offense Gravity Score (OGS 9‐14)Offense Gravity Score (OGS 9 14)• Prior Record Score (Four‐point offenses; REVOC)



Promoting Research & ReformPromoting Research & Reform

Approach #1…• House Resolution 613 of 2004 – to study the use and impact of

mandatory minimum sentences on the criminal justice system in the Commonwealth (within six months)

• At the direction of the House Judiciary Committee and with the support and oversight of an advisory committee appointed by the Chairman ofand oversight of an advisory committee appointed by the Chairman of the Judiciary Committee

• Lessons learned… time & resources, autonomy, objectivity

h 2Approach #2…• House Resolution 12 of 2007 – to study the use and impact of mandatory

minimum sentences on the criminal justice system in the Commonwealth (within two years)(within two years)

• Report to the House of Representatives on its activities, findings and recommendations.

• Lessons learned… data driven & inclusive process, incremental progress



House Resolution 12 Study – Drug Trafficking & School ZoneHouse Resolution 12 Study – Drug Trafficking & School Zone

Existing school mandatory provisions…• Trafficking drugs to minors (1 year)• Trafficking drugs in a school zone (2 years)• Trafficking drugs to minors in a school zone (3 years)

FindingsFindings…• Drug‐free school zone mandatory is irregularly applied and

overbroad geographically; does not provide a nexus with risk to minors, and has the least utility of the mandatory statutes studied.

• Definition of ‘school zone’ differ across various applications. Lack of consistency undermines the purposes of certainty and deterrence.

• Race and county was found to be related to use of school zone and drug trafficking mandatories.drug trafficking mandatories.

• The impact of a school zone may differ substantially when comparing urban and rural jurisdictions.

• Neither length of sentence nor the imposition of the mandatory t l di t f idi i i f th t disentence alone was a predictor of recidivism in any of the studies.



4,701 drug delivery arrests; 3,365 arrests within 1000 feet of school property (72%);34 school zone mandatory sentencesy



Drug‐Free School Zone (18 Pa.C.S. §6317)Drug Free School Zone (18 Pa.C.S. §6317)

100 feet 250 feet

16

100 feet 250 feet

National Association of Sentencing Commissions (August 2, 2011)


Drug‐Free School Zone (18 Pa.C.S. §6317)Drug Free School Zone (18 Pa.C.S. §6317)

500 feet100 feet500 feet 1,000 feet

17

500 feet100 feet

National Association of Sentencing Commissions (August 2, 2011)


House Resolution 12 – Drug Trafficking & School ZoneHouse Resolution 12 – Drug Trafficking & School Zone

Recommendations…• Repeal two‐year drug‐free school zone mandatory in favor of

sentencing guidelines’ youth and school enhancement (with zone reduced to 250 feet).

• Amend definition of ‘school zone’ for one‐year and three‐year mandatories, reducing zone from 1000 feet to 250 feet andmandatories, reducing zone from 1000 feet to 250 feet and removing colleges and universities.

• Encourage posting of ‘drug free zone’ signs at boundaries to school zones.A h i i d i i i i• Authorize sentencing court to order participation in county intermediate punishment to satisfy mandatory minimum for drug trafficking to minors.

Reaction…Reaction…• As an elementary school teacher, I am shocked and alarmed that

you would consider the rights of the convicted drug sellers over the lives of our children… Now we will have the drug sellers on school

t b th ’t h t f l th j il tproperty because they won’t have to fear a lengthy jail term.



House Resolution 12 – Incremental ProgressHouse Resolution 12 – Incremental Progress

Act 95 of 2010 (SB 1161, PN 2241)…• Requires Commission to consider criminal behavior (risk to public

safety) in developing sentencing guidelines.• Requires the Commission to develop a risk assessment instrument

for use at sentencing, and to incorporate consideration of risk into sentencing guidelines.sentencing guidelines.

Senate Bill 100 (PN 1329)…• Authorizes sentencing court to order participation in county

intermediate punishment to satisfy mandatory minimum for drug trafficking (first tier) and to clarify eligibility for boot camp.

• Amends definition of ‘crimes of violence;’ expands eligibility for CIP, BC, SIP & RRRI; review of place of confinement.BC, SIP & RRRI; review of place of confinement.

Sentencing Guidelines• Review thresholds & assignments for PWID cocaine, etc.• Review Y&S enhancement



Thank youThank you…

Mark H Bergstrom Executive DirectorMark H. Bergstrom, Executive DirectorPennsylvania Commission on SentencingE-mail: [email protected]: http://pasentencing.usg

Capitol Complex University Park Campus408 Forum Building 009C Brumbaugh Hall408 Forum Building 009C Brumbaugh HallP.O. Box 1045 P.O. Box 1200Harrisburg, PA 17108-1045 State College, PA 16804-1200

Phone: 717.772.2150 Phone: 814.863.4368Fax: 717.772.8892 Fax: 814.863.2129


Examination of MandatoryExamination of Mandatory Minimum Sentences

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