Posted by Perry de Marco, Sr. on 20 October 2014

For many years our Criminal Trial Courts have been imposing mandatory sentences in various types of cases, especially drug cases. In short a Mandatory Sentence takes all discretion away from the sentencing Judge and forces him or her to impose a specific sentence dictated by the state legislature. These laws enacted by our State Legislature were intended to combat the “drug problem” in our state. The result was much stiffer sentences for certain defendants in drug cases. The truth of the matter is that the drug problem was never solved. It only got worse and although the laws may have been politically popular at the time that they were enacted, no one ever publicized the cost to the tax payers of warehousing people well beyond any sensible point of rehabilitation. Most importantly these ill conceived laws took sentencing discretion away from the Sentencing Judge contrary to centuries of American Jurisprudential History. Eventually, Judges complained, lawyers complained, and District Attorneys admitted candidly that the Commonwealth was being forced to go through the work and unnecessary expense of a jury trial with many of these defendants because the Defendants would rather take their chances by taking their cases to trial rather than enter into a sensible non-mandatory negotiated sentence. The district attorney always controlled the decision on wether or not to request the mandatory sentence but understandably used it as a tool to force a defendant to accept a particular sentence which in most cases was not much less that what the mandatory sentence would have been.
In Pennsylvania, this all changed in a recent decision by our Superior Court, which was filed on August 20, 2014, Commonwealth of Pennsylvania v. James Newman. Newman was charged with possession with intent to deliver cocaine. The mandatory sentence in his case was triggered by the fact that at the time of the search of his apartment the police also found a firearm in close proximity to the drugs. Ultimately he received a mandatory sentence of 5-10 years in the state prison. Newman appealed the mandatory aspect of his sentence to the Superior Court which following the dictates of prior decisions issued by the Supreme Court of the United States, found the Pennsylvania Mandatory sentencing procedure unconstitutional, reversed the sentence and remanded his case back to the Sentencing Judge for re-sentencing without any consideration of the mandatory sentence. The District Attorney, in their appellate response attempted to fashion a means by which the Superior Court, might “cure” the constitutional issues with the sentencing protocol however the Superior Court rejected those proposals as well, deciding that any attempted cure was a Legislative function and not a Judicial function.
So where does the issue stand at this point? Well it is possible that our Supreme Court may weigh in on this decision. A decision to reverse the Superior Court would undoubtedly be in conflict with the decisions of the Supreme Court of the United States upon which the Newman case was decided. Also, the State Legislature may decide to undertake the issue and attempt to re-enact mandatory sentencing laws that conform with the Constitutional mandates. I for one who have represented defendants in drug cases for nearly forty years propose that we consider the following indisputable facts. No one can deny that drugs have wreaked heartache and devastation in our society. I know of no family that in one way or another does not have a relative or friend or acquaintance that has not been to some extent involved with drug abuse. This is no longer an “inner city”problem. It is a problem that affects every locale and aspect of our society. No matter how many defendants go to jail for drug offenses and no matter how long they spend behind bars, there is always someone right behind them who is ready, willing and able to take their place in the drug business. Sadly, anyone who wants to buy any type of drug in any city or town of our country can get it with relative ease. Kids can buy drugs easier then they can buy alcohol. Keep in mind also that these drug mandatories, do not only apply to a drug and gun cases as in Newman, they are also applicable to the weight of the drug that a person possesses, wether it be prescription drugs or even marijuana, a drug that is on its way to being totally legalized! The answer is to leave the sentencing decision with the sentencing Judge where it belongs. The answer is not to waste our increasingly limited money and resources in order to pay to warehouse drug defendants but rather to drastically change our entire focus to teach, train and educate Americans, especially our children to never get involved with drugs in the first place. We are obviously not doing this in any effective way. Mandatory Sentences are certainly not the answer.