Philly420: Mandatory minimum sentences revived in Pa.

Growing some marijuana plants? Cooking up a batch of weed brownies? Selling a joint out of your stash? You could face a mandatory prison sentence in Pennsylvania.

As the rest of the country relaxes cannabis laws, the Keystone State retains some harsh laws on the books related to what are now legal activities in other jurisdictions. For instance; cultivating a single marijuana plant is considered a felony here.

For some offenses, the penalties could be getting more severe.

House Bill 1601 sponsored by Rep. Mike Vereb (R-Montgomery) and Rep. Ron Marsico (R-Dauphin) seeks to restore mandatory minimum sentences in the commonwealth. It was originally crafted to deal with violent crimes. But the bill has ended with many of the provisions specifically relating to marijuana offenses. It is moving fast in Harrisburg.

The structure of most mandatory minimums was struck down by a U.S. Supreme Court ruling in 2013 called Alleyne vs. United States. Prior to the ruling judges could impose a minimum sentence without having a jury consider all elements of the crime at hand.

HB1601 seeks to re-instate these sentences by changing some wording in the statute. Ultimately such provisions tie the hands of judges who might dole out less prison time or even probation over incarceration.

"Mandatory minimums have been on the books for 30 years," says Rep. Marsico, "we are just correcting the procedural defects," following the Supreme Court decision.

"We've found there's been a good reason for these mandatory minimums because of numerous lenient sentences across the commonwealth," said Marsico.

An amendment by Marsico also toughens up offenses that occur within Drug Free School Zones. This policy is a federal law implemented by states. Drug Free School Zones encompass an area within 1000 feet of schools, campuses or daycare centers and within 250 feet of playgrounds or recreation centers.

"This is not about possession. This is about dealing or distributing drugs in a school zone." said Marsico, "This is to keep drug dealers away from schools and away from our kids."

Writing about the issue earlier this year, Daniel Denvir at the City Paper  pointed out that about 30 percent of Philadelphia is within a Drug Free School Zone.

A 2005 report by the New Jersey Sentencing Commission called for such zones to be reduced in size. The report cited an "urban effect" that ended up with 96% of those imprisoned under the school zone laws being black or Hispanic. The N.J. commission called for mandatory minimums to be removed completely.

Andy Hoover, legislative director of the American Civil Liberties Union of Pennsylvania pointed out that the school zone laws don't necessarily catch people dealing to minors.

"Large areas of cities end up covered by these laws based on the definition of the school zone and playgrounds," said Hoover, "There's no designation for who's involved or time of day or whether or not it's within school hours."

Practically speaking that means an adult resident could be a block away from a school at midnight selling a half-gram bud to an adult buddy in his apartment and get two years in state prison.

Hash oil, a popular trend among consumers, could land people into hot water, too.

Patrick Nightingale, a criminal defense attorney in Pittsburgh, pointed out another scenario.

"Someone blasting their own butane hash oil for personal use near a school would trigger mandatory for 'manufacturing'," said Nightingale, "Technically it would be the same with edibles."

That's right, if a prosecutor felt so inclined someone could spend two years in prison for baking up some enhanced brownies a few blocks from a school. No sale needed.

HB 1601 does reduce some sentences such as cultivating cannabis, for instance. Growing marijuana is considered "manufacturing' a drug under state law.

Rep. Mike Vereb said in an email that his bill would completely eliminate the mandatory minimum for the first offense of cultivating between 10 and 21 marijuana plants. Right now, it can net two years in prison. A second offense for that many plants would go down to one year in prison.

In court, a plant can mean anything in size from a seedling to a shrub.

Many underground medical marijuana patients grow their own. It is safer than using street dealers and far more cost effective. Scores of parents whose children suffer from severe epilepsy in Pennsylvania already make their own hash oils and edibles at home. Although a medical marijuana bill is pending, these patients and their families face dire consequences if they are caught.

Rep. Vereb noted that all minimums for marijuana cultivation would be going down. Still, tending a personal cannabis garden with more than 51 plants will result in a minimum of three years in prison. No school zone needed.

"District Attorney's do have discretion," noted Marsico, "They can ask for a mandatory minimum depending on the circumstances."

Nightingale, who is a former Allegheny County assistant prosecutor, said that D.A.s often use the threat of a harsh sentence to pressure defendants into plea deals. He has seen 60-year-old U.S. Navy vet in Fayette County plea to five years in prison for growing marijuana at home. The vet wasn't cultivating in a school zone.

Nightingale questioned if prosecutors should be trusted with such broad discretion.

"Unfortunately, prosecutors often lack appropriate experience to be vested with the sole power relative to the use of mandatory sentences."

"It quite literally often comes down to the particular personality of the county D.A.," said Nightingale, "That is not justice. That is arbitrariness, or worse."

Just last week President Obama held a landmark meeting at the White House with 120 members of law enforcement who were seeking solutions to mass incarceration. Eliminating strict minimum sentences, especially for non-violent drug crimes, was a part of that discussion. Obama also released 6,000 non-violent drug prisoners who were sentenced under federal mandatory minimum guidelines.

"If those people want to protect drug dealers they can," said Marsico of Obama's move.

The ACLU-PA's Andy Hoover noted that HB 1601 seemed to be ignoring the national conversation.

"The bill is completely against the trend," said Hoover, "Everyone recognizes that the policies of the 1980s and 1990s have failed. We've completely bloated our prisons with drug offenses."

There are about 50,000 inmates in Pennsylvania, 25 percent of them are serving time for drug offenses.

Rep. Joanna McClinton (D- Phila.) opposed sections of HB 1601. She noted during a floor speech this week that it costs $35,000 per year to house a single inmate in a Pennsylvania prison.

"I wish I could tell you that since mandatory minimums took place that there were no drugs being sold in the communities I represent, " said McClinton in the speech.

Rep. McClinton went on to decry the provisions related to drugs.

"When are we going to start treating people as people and stop funding prisons and start educating people so that they have a way out?" she said.

Hoover noted that South Carolina had a sharp reduction in the prison population by getting away from minimums.

"The U.S. Supreme Court gave us a golden opportunity to reform," said Hoover, "But what this legislature has done for the last 6 years, they have nibbled around the edges. You don't get deep reductions in prison populations without steeper reforms."

Chris Goldstein is associate editor of Freedom Leaf magazine and board member at PhillyNorml. Contact him at chris@freedomisgreen.com.