A Mandatory Debate:

REPORT RECOMMENDS CHANGES TO THE STATE'S SENTENCING GUIDELINES

A nearly 30-year debate on mandatory-minimum sentences recently got a
another look with a new report from the Pennsylvania Commission on Sentencing.

The report was authorized by the state Legislature in 2007 and
employed an advisory committee made up of legislators, judges,
district attorneys and public defenders. Commission staff also worked
with faculty and students of Pennsylvania State University in
conducting interviews, surveys, extensive data analysis and studies
to reach its conclusions.

The nearly 500-page report made three major recommendations to the
General Assembly, according to a considerably shorter summary: Allow
courts to use alternative sentencing options to satisfy lower-level,
drug-trafficking mandatory-minimum sentences; amend the drug
trafficking statute to increase the threshold for cocaine possession;
and repeal Drug-Free School Zone mandatory legislation.

State mandatory-minimum laws first enacted in 1982 provided stiff
sentences for certain crimes, such as those committed on public
transportation or with a firearm. The laws were later expanded to
include certain drug and assault offenses.

Mark Bergstrom, executive director of the commission, said the study
was intended to identify whether those mandates are meeting the
intended purposes for their implementation, such as uniformity of
incarceration, deterrence and reduction of recidivism (repeated
criminal activity resulting in incarceration).

The study found neither length of sentence nor imposition of a
mandatory minimum sentence alone was related to recidivism, according
to the summary.

It also found younger offenders, those with a higher number of prior
arrests or convictions and those sentenced to prison were more likely
to recidivate.

Repeat offenders also appeared to be rearrested on similar charges if
they did recidivate, according to the report. Those sentenced for a
drug mandatory, for instance, were more likely to be rearrested for a
drug offense, while those sentenced for a repeat violent offense or
firearms mandatory were more likely to be rearrested for an offense
against a person, according to the report.

The report additionally found about 34 percent of mandatory-eligible
charges never resulted in conviction for a mandatory-eligible
offense, which could be attributed to a lack of evidence, a plea
negotiation or simply a failure to obtain a conviction.

The study found 63 percent of firearms offenders were likely to see
theirs charges reduced, compared to just 39 percent of violent
offenders and 26 percent of drug-delivery offenders. Most charge
reductions involved dropping of charges rather than a reduction in
the severity of the charge for all three offender types, according to
the report.

The report noted courts had failed to report about half of all
mandatory-minimum sentences handed out, however, so sentence length
was used to determine the application of a mandatory sentencing provision.

Bergstrom said with respect to some drug offenses, the purpose of the
sentences seems to have become one of arm-twisting more than anything else.

"If the purpose for the mandates that we looked at was to assist
prosecutors in negotiating pleas, I think we would have found
mandates are successful in that area," he said. "And we recognize
that that can be a useful tool, but we didn't see that as one of the
reasons the mandate was created in the first place."

"What I think most people do not know is that in the vast majority of
cases where mandatory minimums are available in the commonwealth,
they are not utilized for that purpose," said Delaware County Common
Pleas Judge Frank T. Hazel. "They are utilized for plea bargaining
purposes. .. You really haven't seen the impact of mandatory-minimum
sentences in Pennsylvania because of the manner in which it is not used."

But when they are used, said Hazel, it removes the judge's ability to
use discretion in sentencing due to mitigating or circumstantial
factors, as he could attest to.

"The first thing everyone has to understand (is) once a mandatory
minimum is invoked by the commonwealth, generally speaking, the judge
has no choice (but to comply)," he said. "If somebody steals an
appeal because they want to sell it to somebody else, that's a little
different than somebody stealing an apple. A mandatory minimum
eliminates that fact-sensitive issue. If this happens, this happens,
there's going to be no discussion about whether this is a good thing
in this case or a bad thing. It just happens."

Delaware County District Attorney G. Michael Green said that is an
ongoing complaint he and other district attorneys from around the
state hear from time to time.

But Green said putting pressure on "smaller fish" involved in
dangerous drug rings or other illicit activates with the threat of
invoking mandatory-minimum sentences often leads to convictions of
"bigger fish."

He offered a list of 20 mandatory-minimum convictions over the past
seven years that involved informants or witnesses who provided
information and/or testified due to their potential exposure to
mandatory sentences in their own cases, helping bring down major drug
distribution organizations.

"In each of those cases, we were able to pierce those organizations
using the leverage created by mandatory-minimum drug jail sentences
against more minor players to work our way into the middle of the
organization," said Green. "If the committee reviewing these
mandatory minimum jail sentences has a negative opinion of their use
in this way, I have to disagree with the committee and do it vehemently."

Bergstrom repeatedly said the only purpose of the study was to
examine if the way the sentences are being used relates to the
intended purpose.

To that effect, he said, using the sentences as leverage for other
convictions undermines at least one base purpose of mandatory
minimums: If you break the law in this or that respect, you
automatically go to prison for X amount of time.

Green acknowledged that sending messages to the criminal community is
important. But more important, in his view, is giving prosecutors
every available tool to combat crime, including the use of mandatory
minimums as leverage.

Removing that tool, he said, would be "a real detriment to the people
we serve in this community."

Another factor impacting the usefulness of mandatory-minimum
sentences was a lack of knowledge among the citizenry, according to the report.

Only 34 percent of people interviewed could identify a crime where a
mandatory-minimum sentence could be invoked, said Bergstrom.

But Green said even if law-abiding citizens are not fully aware of
the penalties, criminals know full well the triggers for mandatory
minimums. Those sentences are "a tremendous hammer hanging over them
should they be caught," he said, and it's naive to believe otherwise.

The report also suggests raising the threshold of cocaine possession
needed to trigger the mandatory-minimum sentence for trafficking from
2 to 5 grams.

Bergstrom said most of those who receive the mandatory minimum of two
years for trafficking were in possession of the 2 to less-than-10
grams needed to trigger the lowest mandatory-minimum sentence for trafficking.

These are often drug users who support their habits by dealing, he
said, and are more likely to return to prison on a similar drug
charge following their release.

The report suggested that by raising the threshold and allowing those
who are sentenced under this lowest rung to receive some treatment
for addiction, recidivism rates could decrease.

He added that the report suggests that 5 grams could be cumulative
over all arrests for a single individual, so more sophisticated
dealers can't skirt the edge of sentencing laws by always carrying
slightly less than the trigger amount.

Green said he did not necessarily disagree with that finding, but
that it warrants further study. He said in current cases where it is
clear to the prosecutor's office that the seller is also an addict,
the mandatory minimum is not typically invoked.

Bergstrom said one portion of the report garnering a lot of attention
is a recommendation to repeal a mandatory-minimum sentence of two
years for selling drugs within 1,000 feet of a school.

Because of the large radius of the drug zone, Bergstrom said the
mandate does not appear to be used for its stated purpose, ostensibly
as a deterrent to commit drug crimes near or involving school children.

The zones also apply to unmarked school bus stops, he said, and
because they cover huge swaths of metropolitan areas due to the
prevalence of schools there, can lead to uneven applicability across the state.

He added that there are provisions already in sentencing guidelines
that allow for an additional one to three years imprisonment for
selling drugs in a school zone.

Beyond simple protection for school children, Green said there are
other factors involved with drug dealers in school zones that need to
be taken into account, however -- specifically, firearms.

"In most of these drug cases that we've investigated -- and I'm
talking about drug cases involving street-level drug dealers -- when
they are in communities in Delaware County in school zones, they are
carrying quantities of drugs that are significant and because they do
that, usually that individual or an associate is armed," said Green.
"Once you introduce firearms into a neighborhood community near a
neighborhood school ... you create a real likelihood that an innocent
person is going to be injured and possibly killed as a result of use
of those firearms."

But the report also found there was substantial attrition for
firearms offenses, further eroding the stated purpose of the mandates.

"If all of a sudden only a small percentage of people arrested for
something that's mandatory receive that sentence, it undermines the
threat of the mandate," said Bergstrom. "If you believe in mandatory
minimums, if you think they have deterrent values, you're really
undermining the ability of the mandatory-minimum sentences to play that role."

State Rep. Greg Vitali, D-166, of Haverford, who authored the study's
enabling legislation, said judges also need to have more options in
the sentencing process.

While Vitali said he believes those who commit violent crimes and
high-level drug dealers should go to jail for a long time, but
sentencing should be based on three factors: the gravity of the
offense, the prior record of the defendant and the circumstance of each case.

Vitali believes judges should given more flexibility than that
provided by the provisions, such as blending incarceration with drug
or mental health treatment programs (known as "intermediate
punishment") in an attempt to further reduce recidivism.

According to the report, many rehabilitative alternatives are
currently under used. But use of state intermediate punishment (SIP)
and county intermediatepunishment programs, in lieu of total
confinement, could save taxpayers $6,101 and $9,194 per offender, respectively.

"If you can cut down on the recidivism rate, you'd cut down
dramatically on the population problems," said Hazel. "Do mandatory
minimums have some place in the penal system? I guess they do. Are
they a panacea for all the problems we face? Absolutely not. In some
cases, they compound the problems."

Hazel said a significant number of the mental heath institutions in
Pennsylvania have been closed down, so people who should be receiving
treatment for mental illness are instead landing in jails
ill-equipped to address those issues.

Prison Superintendent John Reilly, who oversees the county-owned
George W. Hill Correction Facility in Thornbury, said the prison
screens each arriving inmate for addiction and/or mental health
issues, and every inmate must be seen by a medical doctor sometime
within the first two weeks of incarceration.

Some of these are entered into the prison's drug and alcohol
treatment program as part of their sentence, he said, while others
might volunteer of their own accord.

Reilly said his county prison isn't really affected by state
mandatory-minimum sentences, though he does see his share of repeat
drug offenders finding their way back to the facility because of
their addiction.

"They've had multiple opportunities to address their addiction, but
refuse because the addiction is much more powerful than whatever
resolve they can (muster)," said Reilly. "It is one of the dilemmas
we face as a criminal justice system. What do we do with these people?"

Reilly said the prison has received 8,152 "commitments" in 2009, as
of Oct. 31. Of those, 2,010 arrived with some drug, alcohol or mental
health condition, said Reilly. Dual diagnoses, meaning some
combination of the three, accounted for 770 of those cases.

When a defendant comes before a prosecutor with a laundry list of
past offenses in tow, said Reilly, they might be inclined to throw
the book at the guy.

And that might be entirely proper, said Reilly, a former prosecutor
in the Delaware County District Attorney's office, but suppose that
inmate has been a chronic substance abuser for 20 years and requires
a liver transplant or monthly dialysis, all at taxpayer expense?

"I think the first problem that we're always confronted by is the
majority of our drug and alcohol abusers suffer from some sort of
chronic medical condition, whether its asthma, kidney disease, liver
disease, HIV, Hepatitis C," said Reilly. "There is generally some
chronic problem that requires what I would describe as extraordinary
care, so it places a great burden on the medical staff."

In October alone, the prison saw 1,115 "sick call" encounters
involving nurses or physician assistants, he said. There were another
724 physician encounters, 261 psychiatric encounters and 275
psychological encounters.

Hazel heads up a new Mental Health Treatment Court Program instituted
in the county last year, which puts certain repeat female offenders
through a two-year treatment program with an aim of getting their
lives back on track.

Treatment Court Coordinator Linda Barbera said the court draws from a
variety of resources, and is a collaborative effort involving
prosecutors, public defenders, probation officers, social workers and others.

There have been 31 women in the program to date, said Barbera, though
seven have failed out due to new arrests or failure to follow program protocol.

"The program is very intensive," she said. "How they've responded to
the program -- their lives are coming together. They really have
taken to Judge Hazel. They recognize he is concerned and cares for
them, and that is significant for a lot of these people who have
burned every bridge possible in their past and they don't have the
support systems that you and I have. It's our hope that they mend
those bridges."

Vitali, meanwhile, said he would begin using the report to drum up
support for the Legislature to "clean up" the Pennsylvania Crimes Code.

"I think the reality is we want to really be reserving our
corrections resources for repeat violent offenders and high-level
drug dealers. I think you can make very good arguments from a
budgetary perspective and a public safety perspective with regard to
these recommendations.

"You only have so many correction dollars to go around and in times
like these, those dollars are more and more difficult to come by, so
I think these tough economic times really will cause the Legislature
to look a little closer at incarceration."