Updated 5:20 p.m. April 11
The Pennsylvania House voted Wednesday to reinstate mandatory minimum sentences for crimes including possession of drugs, violent offenses against children and seniors and failing to register as a sex offender.
The bill, introduced by Republican Rep. Todd Stephens of Montgomery County, passed the House 122-67 and now moves to the Senate. Rep. Dom Costa, who was once Pittsburgh’s police chief, is a co-sponsor and supporter of the bill, but Pittsburgh’s other Democratic representatives — including Dan Frankel, Ed Gainey and Jake Wheatley — are not.
In a statement, Frankel noted that the bill did not go through the hearing process and said “mandatory minimum sentences disproportionately affect minorities and those unable to afford the best representation. These sentences tie the hands of judges and remove any discretion for the judge to fully consider all of the aspects of a given case, including the wishes of a victim, who may actually prefer leniency in some cases.”
On the House floor, Wheatley said “locking people up artificially” doesn’t “make people safer,” while an impassioned Gainey said “mandatory minimums do not work.”
“We had mandatory minimums all through the ’90s and 2000, and guess what? All we got was a bigger drug line,” Gainey said. “We had more drugs on our street than ever before, but we want to say this will improve public safety. How can we look at our constituents and tell them that we’re telling them the truth when the … data says that the only thing this [bill] will do is increase cost? We got to do better than that.”
How Pa. got here
The invalidation, however temporary, of mandatory minimums in Pennsylvania began with a 2013 U.S. Supreme Court ruling. In Alleyne v. United States, the majority of justices found that if a fact leads to an increase in a mandatory minimum sentence, then that fact must go before a jury, not a judge. In the Alleyne case, for example, a determination that the defendant “brandished” a gun would have added two years to the minimum sentence.
That was the key to a 2015 ruling by the Pa. Supreme Court. Three of the five justices in Commonwealth of Pennsylvania v. Hopkins found a state law directing judges to determine if a drug distribution crime occurred in a drug-free school zone — which would trigger a two-year mandatory minimum — was unconstitutional. The ruling invalidated Pennsylvania’s mandatory minimums, but did not finish them off for good.
Just months after the ruling, Republican representatives introduced a bill to revive mandatory minimums for violent offenses. Non-violent drug offenses were added during the committee process, according to the ACLU. That legislation, House Bill 1601, was voted out of the House 143-54, but didn’t get a vote in the Senate. Stephens also introduced a mandatory minimums’ bill last session, House Bill 1632, which was approved by the House 165-31. The bill applied only to violent offenses committed with firearms.
Both last session’s bills and this session’s House Bill 741 seek to remedy the issues raised by the Pa. Supreme Court by requiring that “any enhancing element must be proven beyond a reasonable doubt at trial on the underlying offense and must be submitted to the fact-finder [most of the time, a jury] for deliberation together with the underlying offense.”
The Pa. Department of Corrections estimates that H.B. 741 will cost the state $19 million to implement in the first year and $47.3 million over approximately five fiscal years. The worst-case-scenario estimate is $85 million.
All Republican representatives from Allegheny County who voted Wednesday did so in favor of the proposal. They were joined by three Democrats: Dom Costa, Tony DeLuca and William Kortz.
Four Allegheny County Democrats in the House — Paul Costa, Dan Deasy, Adam Ravenstahl and Harry Readshaw — voted in favor of the mandatory minimum bill 1601 in 2015 (Readshaw was also a co-sponsor), but voted against this session’s legislation. Readshaw was unavailable to comment Thursday; the other representatives’ offices did not respond to an email request for comment.
Additionally, five Allegheny County Democrats who voted against H.B. 1601 and H.B. 741 supported Stephens’ 2015 bill to reinstate mandatory minimums for offenses committed with firearms: Frankel, Frank Dermody, Marc Gergely, Joseph F. Markosek and Dan L. Miller.
“My position is that in some cases — specifically violent crime committed with a firearm — a mandatory minimum may be acceptable,” Frankel said in a statement. “But on the drug bill, H.B. 1601 last session, I voted NO on the bill and made an unsuccessful motion to recommit the bill to the Judiciary Committee.”
A spokesman for Markosek said via email the representative voted in favor of the firearms bill because it had a narrower focus than H.B. 1601 and had no financial impact. “Joe voted against last week’s H.B. 741 because he believes broad-brush mandatory minimums do not work and cost taxpayers too much money,” the spokesman said.
By phone, Miller said he’s been “sliding away” from mandatory minimums as a whole. What concerns him the most, he said, is the systematic issue that mandatory minimums disproportionately affect people of color. Miller said he’s done “a fair amount of reading” on the subject, including Michelle Alexander’s book on mass incarceration, “The New Jim Crow.”
“I’m not sure that we are accomplishing much by doing mandatory minimums,” Miller said, later adding that he plans to take a consistent, firmer stance on the issue moving forward.
This is how Allegheny County’s Harrisburg delegation voted on those bills.
|PA Representative||Party||Vote on reinstating mandatory minimums 2017 (H.B. 741)||Vote on reinstating mandatory minimums 2015 (H.B. 1601)||Vote on reinstating mandatory minimums for firearms offenses 2015 (H.B. 1632)|
|Robert F. Matzie||Democrat||Didn’t vote||Yea||Yea|
|Jake Wheatley Jr.||Democrat||Nay||Nay||Nay|
|Joseph F. Markosek||Democrat||Nay||Nay||Yea|
|Daniel J. Deasy||Democrat||Nay||Yea||Yea|
|Anthony M. DeLuca||Democrat||Yea||Yea||Yea|
|Marc J. Gergely||Democrat||Nay||Nay||Yea|
|William C. Kortz II||Democrat||Yea||Yea||Yea|
|Dan L. Miller||Democrat||Nay||Nay||Yea|
|Anita Astorino Kulik||Democrat||Nay||Not in office||Not in office|
|Harold A. English||Republican||Yea||Yea||Yea|
|John Maher||Republican||Didn’t vote||Didn’t vote||Didn’t vote|
|Mark Mustio||Republican||Didn’t vote||Yea||Yea|
Bringing mandatories back
While legislators are split on the bill, there’s one group that seems uniformly for it: district attorneys.
Allegheny County’s district attorney, Stephen A. Zappala Jr., held a press conference in late March with Washington and Butler counties’ district attorneys as well as Rep. Dom Costa to explain their support for the bill. The Pennsylvania District Attorneys Association has also endorsed the legislation.
The bill would institute mandatory minimums, ranging between two and five years, for crimes including:
- Offenses committed with firearms
- Certain drug offenses committed with firearms
- Offenses committed on public transportation
- Offenses against people older than 60
- Offenses against infants
- Failure to comply with registration of sexual offenders
- Offenses committed while impersonating a law enforcement officer
“There’s very little disagreement between law enforcement,” Zappala said, on the categories of crimes with proposed mandatory minimums.
The bill would also reinstate a two-year mandatory minimum sentence for people convicted of selling or intending to sells drugs to a minor — including marijuana. Zappala noted cannabis’ dual status in the state, as both a recognized medical tool and a schedule 1 drug.
“There seems to be a disconnect in that regard,” he said.
But Zappala added that, under the mandatory minimum bill, “There’s a distinction between somebody who’s in the business of drug trafficking and somebody who’s addicted to drugs.”
H.B. 741 also brings back a mandatory minimum sentence for drug offenses committed within 1,000 feet of a school or 250 feet of a playground or recreation center. “I can’t think of a need to have a safer environment than our schools,” Zappala said.
That Zappala would highlight this provision is particularly concerning to the ACLU of Pennsylvania, which opposes the bill and mandatory-minimum-sentence policies.
Elizabeth Randol, legislative director for ACLU-PA, said the drug-free school zone provision “encourages and fosters an unequal application of the law” as it “disproportionately affects people living in cities.”
It means that two people who committed the same crime could get different sentences based on whether they live in a dense, urban area rather than a suburban or rural location.
At the press conference, Zappala said mandatory minimums can serve as a deterrent to crime. But in a memo opposing the legislation, Randol highlighted a 2009 report by the Pennsylvania Commission on Sentencing that found “neither the length of sentence, nor the imposition of the mandatory sentence per se, was a predictor of recidivism.” That information was highlighted in an op-ed co-authored by Pa. DOC Secretary John E. Wetzel, who opposes the bill.
States like Idaho and Nebraska are moving toward eliminating mandatory minimum sentences for certain offenses, Randol said, and reinstating them moves Pennsylvania “from neutral right into reverse on this issue.”
“We have an opportunity to be a very interesting and perhaps a good control test case by the mere fact that those have been invalidated,” she said. “This [bill] would put us behind where many other states have moved.”