PHILADELPHIA BAR ASSOCIATION RESOLUTION AGAINST REINSTATEMENT OF MANDATORY MINIMUM SENTENCES

WHEREAS, the Constitutional framework of the United States assigns the task of sentencing to the judicial branch of Government; and

WHEREAS, consistent with the Constitution, the Supreme Court of the United States has regularly held that sentencing courts must "consider the widest possible breadth of information about a defendant" to ensure individualized sentencing;1 and

WHEREAS, legislatively enacted mandatory minimum sentencing regimes undercut the Judiciary's constitutional imperative to impose individualized sentencing; and

WHEREAS, in the 1980s and 1990s, lawmakers around the nation began implementing mandatory minimum sentencing in a wide variety of cases including cases involving drug possession and distribution, the unlawful possession of firearms, and certain sex crime offenses;2 and

WHEREAS, due in large part to the imposition of mandatory minimum sentencing in Pennsylvania, the Commonwealth's state prison population ballooned from 8,000 inmates in 1980 to its current level of 49,000 inmates;3 and

WHEREAS, in addition to the 49,000 inmates currently incarcerated in the Commonwealth's state correctional facilities, thousands more are detained in Pennsylvania's County jails on bail set high primarily because the defendants, if convicted, will be facing mandatory minimum penalties;4 and

WHEREAS, due in large part to the imposition of mandatory minimum sentencing in Pennsylvania, the Commonwealth's Department of Corrections' budget ballooned from $200 million in 1980 to $2.2 billion today;5 and

WHEREAS, in 2015, the Pennsylvania Supreme Court declared that under the U.S. Supreme Court's holding in Alleyne v. United States, 133 S.Ct. 2151 (2013), mandatory sentencing schemes, including mandatory minimum sentencing as implemented by the Pennsylvania Legislature, is unconstitutional where a mandatory sentence is imposed after a judge rather than a jury makes predicate factual determinations using a standard of proof of less than beyond a reasonable doubt;6 and

WHEREAS, in the two years since Pennsylvania's mandatory sentencing structure was overturned by the Pennsylvania Supreme Court in Hopkins, the Commonwealth's crime rate has dropped;7 and

WHEREAS, House Bill 741, Printer's No. 1262 has been recently introduced in the Pennsylvania House of Representatives seeking to reinstate all mandatory sentencing laws that have been declared unconstitutional by the Pennsylvania Supreme Court; and

WHEREAS, House Bill 741, Printer's No 1262 includes the reintroduction of, among other mandatory penalties, mandatory minimum sentences for drug offenses occurring within 1,000 feet of a school or university or within 250 feet of a playground or recreation center; and

WHEREAS, large urban areas such as Philadelphia can have as much as 30% or more of their geographical mass fall within these so-called "drug free zones" resulting in a disproportionate impact of these mandatory minimum sentences on minorities and people of color;8 and

WHEREAS, the Pennsylvania Department of Corrections has determined that House Bill 741, Printer's No. 1262 could cost taxpayers as much as $85.5 million per year;9 and

WHEREAS, the incarceration of tens of thousands of inmates and defendants in our Commonwealth's state and County prison facilities due, in part, to mandatory sentencing schemes, causes a negative economic and social impact on the children and families of incarcerated parents.10

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association opposes the passage of House Bill 741, Printer's No. 1262 and any similar legislation re-imposing mandatory sentencing laws in that these laws do not enhance public safety, will disproportionately affect our City's minority and people of color populations, and will increase the prison population at an extreme cost to taxpayers and to the detriment of individuals who may be needlessly incarcerated, as well as their families and their communities; and

AND BE IT FURTHER RESOLVED that the Philadelphia Bar Association authorizes the Chancellor or the Chancellor's designee to communicate the content of this resolution to members of the General Assembly, the Governor, state and local public officials, other bar associations, and the public at large, and to take such other action as may be appropriate.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: April 27, 2017

1 See Pepper v. United States, 131 S.Ct. 1229 (2011).

2 Academics and criminologists have found that the shift in criminal justice philosophy from treatment to incarceration for drug offenders was one of the factors behind the popularization of drug mandatories. See A 25 Year Quagmire: The War On Drugs and Its Impact on American Society (Sept. 1, 2007), The Sentencing Project.

3 See Pennsylvania Department of Corrections ("Pa. DOC") Monthly Reports, Jan. 2017.

4 See Pa.R.Crim.P. 523(A)(1) ("To determine whether to release a defendant…the bail authority shall consider all available information…relevant to the defendant's appearance or nonappearance at subsequent proceedings…including information about…the nature of the offense charged…and possible penalty….").

5 See Pa. DOC Annual Report 1980; Pennsylvania Budget Proposal 2017.

6 See Commonwealth v. Hopkins, 632 Pa. 36 (2015), 117 A3rd 247 (2015).

7 That mandatory minimum sentencing laws have no measurable impact on public safety is further underscored by a 2009 report by the Pennsylvania Commission on Sentencing finding that mandatory minimums have no influence on the deterrence of crime or on recidivism for people who have been incarcerated. See Dr. Kristofer Bucklen (Director of the Pennsylvania Department of Corrections' Office of Planning, Research & Statistics) & John E. Wetzel (Secretary of the Pennsylvania Department of Corrections), Mandatory Minimums Still Don't Work, Pa. Lawmakers (Mar. 21, 2017), PennLive Op. Ed.

8 In 2007, a study was conducted by the New Jersey Commission to Review Criminal Sentencing. The Commission's Board included the Governor, the State Attorney General, a representative from the State Supreme Court, the Chairman of the State Parole Board, and a representative from the State's County Prosecutors Association, among others. The Commission concluded that the "most dramatic manifestation of the 'urban effect' of drug free zone laws is illustrated through incarceration statistics" showing that "[n]early all inmates (96%) who are imprisoned for a drug free zone crime…are minorities." New Jersey Commission to Review Criminal Sentencing, Supplemental Report on New Jersey's Drug Free Zone Crimes & Proposal for Reform (Apr. 2007) at 7. In Connecticut, almost the entire City of Bridgeport fell within a drug-free zone in 2014. See What Happens When an Entire City Becomes a Drug Free School Zone? (Apr. 14, 2014), ThinkProgress, available at https://thinkprogress.org/what-happens-when-an-entire-city-becomes-a-drug-free-school-zone-46c5cb8760f9.

9 See Mandatory Minimums Still Don't Work, Pa. Lawmakers, supra, PennLive Op Ed.

10 See Ross D. Parke & K. Alison Clarke-Stewart, From Prison To Home: The Effect Of Incarceration and Reentry on Children, Families, and Communities, Office of the Assistant Secretary for Planning and Evaluation, U.S. Dep't of Health & Human Svcs. (2001), available at https://aspe.hhs.gov/basic-report/effects-parental-incarceration-young-children#Short.