Critics of mandatory sentences argue they are ineffective and costly
By Riley Yates
The (Allentown) Morning Call
ALLENTOWN, Pa. (AP) - When the Bethlehem drug dealer was arrested last year, police found heroin and marijuana in his apartment, where he kept most of his stash in the closet of his toddler's bedroom.
Vice investigators seized more than $3,000 worth of drugs and uncovered papers linking 23-year-old Tarik J. Davis to the Crips gang. They also discovered a loaded 12-gauge shotgun under his bed.
Davis went to trial in September and a Northampton County jury convicted him of all charges, agreeing that he was selling drugs out of the Rodgers Street home. But the way his case went from there speaks to a silent revolution that has been sweeping through Pennsylvania's legal system in the past two years.
Under get-tough laws enacted largely in the 1990s, Davis' case would have carried two separate mandatory minimum sentences aimed to show that drug dealing will not be tolerated. One, for mixing drugs and a gun, calls for a five-year prison term. The other, for the sheer amount of heroin Davis had, could have tacked on another three years.
But under a series of appellate court rulings, those mandatories and many like them have been thrown out as unconstitutional by the state Superior Court. Little noticed outside legal circles, those developments could prove to be a sea change, rolling back once politically popular statutes that critics have increasingly questioned as ineffective and costly.
Assistant District Attorney Tatum Wilson, who prosecuted Davis, calculates that the four- to eight-year prison term he received is half of what he may have gotten if his mandatories were still on the table. Without them, prosecutors have lost a "very powerful plea bargaining tool," Wilson said.
"Literally, I woke up one morning while I'm preparing for trial and suddenly it was not available anymore," Wilson said.
Defense attorneys welcome the court decisions, which come as calls to repeal mandatory minimums through the political process in Harrisburg have won little traction, even amid studies that have cast doubt on their worth.
"Mandatory minimums simply do not work," said James Swetz, a Stroudsburg attorney who was until recently the president of the Pennsylvania Association of Criminal Defense Lawyers. "Unfortunately, you have too many legislators who pander to the public with 'lock them away and throw away the key.' "
Such full-throated arguments are not what the Superior Court has been deciding. Rather, the issue before it has been a seemingly obscure question of procedure with immense ripple effects.
The catalyst is a 2013 U.S. Supreme Court ruling that found any fact that triggers a mandatory minimum - the presence of a gun, the amount of drugs a defendant possessed - must be determined by a jury beyond a reasonable doubt. That runs counter to the method Pennsylvania uses with many of its mandatories, which leave those findings in the hands of judges using a lower standard of evidence.
In 2013, there were 842 cases in which defendants were sentenced under mandatory minimums that are now in dispute, the most widely used of which were for trafficking drugs (334 cases) or selling them near a school (199 cases), according to data from the Pennsylvania Commission on Sentencing.
Those numbers are, if anything, underreported, said Mark Bergstrom, the commission's executive director. And they do not take into account the times in which prosecutors used the threat of a mandatory minimum to win a plea bargain with a greater sentence than they might otherwise have gotten, he said.
Statistics from 2014 show a drop in mandatories that appears to track the court decisions. Last year, there were 512 cases in which the disputed mandatories were invoked, a 39 percent decrease, including 237 cases for trafficking drugs and 77 school-zone cases.
Since the rulings, some trial judges - including the judge in Davis' case - have tried to fix the statutes by rewriting the questions they submit to jurors to decide. But the Superior Court has thrown out those efforts, finding they improperly stray into lawmaking that is the role of the Legislature, not the judiciary.
Though the Superior Court's decisions are the law of the land today, the legal battle isn't over.
A day after Davis was found guilty in an Easton courtroom, the state's highest court heard arguments in Philadelphia in a closely watched case that is expected to answer whether such mandatory minimums can be preserved.
The case involves Kyle J. Hopkins, a 24-year-old Chester County man who was charged in 2013 with dealing heroin in a school zone. Before his trial, his defense attorneys challenged the two-year mandatory minimum he faced, with the judge agreeing that it was unconstitutional.
That led the Chester County district attorney's office to appeal directly to the Supreme Court, arguing that the statute can be resuscitated. All it takes, the office said, is a verdict slip that asks jurors whether Hopkins dealt drugs within 1,000 feet of a school, as is required for the mandatory to be imposed.
The Supreme Court has yet to rule, with more than 75 related cases on hold pending its opinion.
Among them is that of Andrew Gesslein II, an Allentown bouncer who is serving five to 10 years for fatally shooting a man at a city club. In 2013, a Lehigh County jury found Gesslein guilty of the voluntary manslaughter of 23-year-old rapper Michael Randolph, but Judge Robert Steinberg later threw out the verdict as an injustice and ordered Gesslein to receive a new trial.
In December, the Superior Court restored Gesslein's conviction after an appeal by the district attorney's office. But it tossed the mandatory five-year term that prosecutors had invoked to tie Steinberg's hands at sentencing, given that a gun was involved in the crime.
The loss of such mandatory minimums could prove to be a short-lived phenomenon if the Supreme Court overturns the existing decisions. But if they are upheld, it would throw the issue to the statehouse, which could decide to rewrite the statutes in a way that passes constitutional muster.
In the Senate, the chairman of the powerful Judiciary Committee is Sen. Stewart Greenleaf, R-Montgomery, a former prosecutor who helped write many of the state's drug mandatories in the 1990s. But he has come to publicly question their wisdom, given crowded prisons and ever-expanding corrections budgets.
Greenleaf said he now believes that many mandatories are inequitable and fail in their intended purpose.
"If they were effective and they were doing something, I'd say keep them," Greenleaf said. "The issue is fairness and justice."
In the House, it is too early to say how mandatory minimums would be approached if the state Supreme Court comes out against them, said Tom Dymek, executive director of that chamber's Judiciary Committee.
"It is hard to tell until the issue is joined," Dymek said, though he called the "concept of" mandatory minimums popular among House lawmakers.
Prosecutors openly worry over the fate mandatories could face if tossed back to Harrisburg.
"That is a fear, that it is effectively going to go quietly into the night and we're going to have a more liberalized notion of sentencing," said Wilson, the assistant district attorney who prosecuted Davis, who is the younger brother of one of Easton's most notorious killers, Ali E. Davis.
The elder Davis is serving life in prison for the 2007 gangland murders of three people.
Ed Andres, the defense attorney for Tarik Davis, did not return a phone call seeking comment about his case, which is on appeal.
Lehigh County District Attorney Jim Martin said he believes the state's justices will resurrect at least some of the mandatories.
"I have more confidence in our Supreme Court than I do in our Legislature at this point," Martin acknowledged.
If the change is lamented by one side, it is celebrated by the other.
"In reality, it has put the discretion back in the hands of the judges," said Allentown defense attorney Eric Dowdle, who called some mandatory minimums "absolutely draconian."
Sentencing should be "done on a case-by-case basis, where the individual is sentenced and not the act itself," added Gary Asteak, an Easton defense lawyer.
Dowdle and Asteak said prosecutors are overstating the impact the court rulings have had on their ability to punish the worst criminals. Judges, they said, are still able to impose harsh sentences on those who deserve them, while sparing those who don't.
"You have judges who know the score," Dowdle said.
More debate
At least nine mandatory minimums are under question. Though most involve drugs, others seek to combat violent crime. Among them are enhanced penalties for sex offenses against children, and mandatories for violence involving a firearm or while on public transportation.
Not all mandatories are affected, since many were already decided solely by the jury, as the U.S. Supreme Court required. First- and second-degree murder convictions still bring automatic life sentences. Homicide by vehicle while drunk still carries a three-year term. Manufacturing methamphetamine can come with a two-year mandatory.
Also, the federal decision recognized an exception for mandatories that involve a defendant's criminal history. Determinations for those mandatories can stay in the hands of judges, meaning that repeat offender statutes such as the state's three strikes law remain constitutional.
Bergstrom, of the sentencing commission, said the court rulings could be a chance to improve those mandatories that appear to remain popular - ones directed against violent crime - while scrutinizing those that don't.
In 2009, Bergstrom spearheaded a study of mandatory minimums that questioned their impact on public safety and recommended the repeal of the two-year penalty for drug dealing in school zones, finding it was "overbroad" and went beyond the goal of keeping drugs away from children.
The report didn't sway the Legislature to get rid of that law. But the court decisions could do what Bergstrom's 490-page study could not, a reality that isn't lost on him.
It also isn't lost on the head of Northampton County's drug unit, Assistant District Attorney Patricia Mulqueen, who laments the quiet disappearance of such levers.
"I would love to hear the dialogue if it was in the Legislature," Mulqueen said. "If people decided we don't want to have mandatory minimums, great, that's what the republic is all about. But I'm not sure if we've had that discussion yet."
Expect to hear it once the state Supreme Court rules, one way or the other.
Published: Mon, Jun 01, 2015
