October 20, 2016 (Fault Lines) — Pennsylvania sentencing law has been on the wrong side of history for a long time.
Pennsylvania’s system was indirectly responsible for the long trip to Apprendi-land that marked the past 15 years of the Court’s sentencing jurisprudence.
Way back in 1986, in McMillan v. Pennsylvania, the Court upheld the validity of a Pennsylvania statute that imposed a mandatory five-year prison sentence if a judge found, by a preponderance of the evidence, that a defendant had committed a particular offense while possessing a firearm.
But that decision did not sit well with the Court. In Apprendi v. New Jersey, the Court carved out an exception to the McMillan rule if a judge-found fact increased the maximum available sentence. The Court figured that a person’s Sixth Amendment right to a trial by jury would be violated if a defendant faced a jump in the maximum possible sentence based on a judge-found fact. This led to the famous holding, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Of course, if the statutory maximum couldn’t be raised by judge-found facts, shouldn’t that mean that the statutory minimum couldn’t either? Amazingly, it took two more Supreme Court cases, and another 12 years to finally come to that conclusion. In Alleyne v. United States, the Court finally overruled McMillan, and held that “the principle applied in Apprendi applies with equal force to facts increasing the mandatory minimum.”
While all this was going on, Pennsylvania kept right on sentencing people based on the green light it was given in McMillan. Lots of statutes in Pennsylvania impose mandatory minimum sentences based on aggravating factors that need only be found by a judge and not proven to a jury. This includes drug quantity, the presence of firearms, the age of a victim, etc.
It’s perhaps hard to say how many defendants were actually harmed by McMillan, but we can look at some statistics. In 1997 Pennsylvania imposed 784 mandatory minimum sentences. By 2007 it was 1676. The averages suggested a steady rate of growth in the intervening years.
In 2012, the last full year that McMillan controlled, there were 995 mandatory minimum sentences imposed in the Commonwealth.
Once Alleyne finally came into effect, the number appeared to drop significantly. By 2015, the numbers had fallen to a total of 362.
Perhaps the drop in numbers is unreleated to Alleyne and perhaps each and every person sentenced under the McMillan scheme would have been given the same sentence today. The correlation between Alleyne and the drop in sentences imposed doesn’t really prove anything. It just provides an idea of what kind of impact Alleyne might have had.
All of that aside, Alleyne’s impact in Pennsylvania was encouraging for opponents of mandatory minimums sentences. Confronted with this judicial mandate of fairness, the Pennsylvania legislature is now well on its way to instituting an Alleyne “fix.”
On October 17th, at the end of the legislative session, the legislature overwhelmingly passed a bill to amend all of the mandatory minimum sentences that were invalidated by Alleyne. All that’s left is for the Governor’s signature.
The bill has essentially two components. First, the bill has an Alleyne fix where it requires any enhancing element to be submitted to a jury with the other elements of the applicable offense. Second, the bill specifically provides the prosecution with a right to appeal a judge’s refusal to apply a mandatory minimum term that is justified by a jury finding.
This bill is a terrible idea because it is a naked effort to take discretion from judges and put out back in the hands of prosecutors. Initially, it is worth keeping in mind that this is a solution without a problem. Even after Alleyne, there was nothing stopping a judge from imposing the same sentence that had previously been mandated. If the judge felt like the sentence was appropriate, she could just impose it anyway, regardless of the jury finding, so long as she did not reach the statutory maximum. Moreover, if a prosecutor, really really wanted to get a mandatory minimum, he could always ask for a special finding from a jury or make the enhancing fact part of a plea allocution, and then force the judge’s hand. That apparently happened 362 times in 2015.
What the bill really does is prevent judges from deciding that a particular case is not appropriate for a mandatory sentence. It even specifically empowers prosecutors to appeal uncooperative judges.
Mandatory minimums are bad for lots of reasons. They are unfair, overly punitive, and often apply in discriminatory fashion. Pennsylvania finally had a chance to move past them by just letting Alleyne be the last word. Instead, we have this.
Notify me of follow-up comments by email.
Notify me of new posts by email.
By submitting a comment here you grant this site a perpetual license to reproduce your words and name/web site in attribution.