Mandatory minimums don't reduce recidivism. So why is Pa. weighing bringing them back?

In 2015, the Pennsylvania Supreme Court found the state’s mandatory minimum sentences to be illegal -- with a single, 3-2 ruling eradicating a favorite tool of prosecutors and a longtime target of criminal-justice reformers.

Now, a Montgomery County legislator is on a mission to resuscitate them.

Republican State Rep. Todd Stephens, himself a former prosecutor, introduced the legislation last week after hearing from district attorneys who, he said, "have been yearning to have these restored."

But he’s staring down a broad and unlikely coalition of opponents, including the conservative Commonwealth Foundation, the Pennsylvania ACLU, and the state Department of Corrections. The department links the decline in the state prison population in the last few years partly to the end of mandatory minimum sentences. It estimates that restoring them could cost $19 million in the first year and as much as $85.5 million annually down the road.

The proposal is shaping up as a face-off between proponents of the tough-on-crime thinking that birthed harsh mandatory minimums during the 1980s war on drugs, and a prison-reform movement intent on reversing trends that have swollen the state inmate population from about 7,000 in 1980 to more than 49,000 today. 

Critics point to evidence that mandatory minimums are not effective crime deterrents and do not reduce recidivism. They say judges should be able to consider the circumstances of each case when imposing a sentence. 

But Stephens said they are a vital tool for prosecutors -- particularly in the current war against a scourge of opioids that claimed 900 lives in Philadelphia last year alone. 

He said they are critical in getting low-level drug dealers to cooperate in investigations in order to bring down kingpins. “As a prosecutor myself, I have used the mandatory minimum sentences to do exactly that," said Stephens, who has worked at the Montgomery County District Attorney’s Office and the Philadelphia U.S. Attorney’s Office.

The state’s mandatory minimums — put in place in the 1980s and '90s —came into question after the U.S. Supreme Court’s 2013 decision in Alleyne v. United States. In that case, the court said any facts that trigger a mandatory minimum sentence -- such as the location of a drug crime within 1,000 feet of a school -- must be found by a jury and beyond a reasonable doubt.

In 2015, the Pennsylvania Supreme Court ruled that the state's laws violated that holding, since mandatory minimum-triggering factors here were determined not at trial but at sentencing, and by a lower standard of proof. 

Stephens’ legislation offers a procedural fix that would bring back tough drug-related mandatory minimums, such as two years for drug offenses that involve as little as one or two grams of a controlled substance, and two years for dealing in a school zone. It would also restore mandatory minimums that apply to repeat violent offenders, such as five years if a crime is committed on public transportation or if it involves a (real or fake, loaded or unloaded) gun. 

It does not address the debate over whether the state’s mandatory minimums are effective in the first place —a question the legislature has grappled with, on and off, for a decade.

In 2007, legislators ordered the state Commission on Sentencing to study the issue. Its report, issued in 2009, found mandatories were applied unevenly: 34 percent of offenders eligible for mandatory minimums received charge reductions enabling them to avoid mandatory sentences. It found the sentences, even when applied, did not reduce recidivism. And it suggested they were not an effective deterrent, because only one in three Pennsylvanians surveyed could identify a crime that carried a mandatory minimum sentence.

In particular, the Commission on Sentencing urged the repeal of the school-zone mandatory, which it called “overbroad.” It mapped the 1,000-foot school zones in Pennsylvania and found they covered 20 percent of the state and about 30 percent of Philadelphia.

Bret Bucklen, director of the Bureau of Planning, Research and Statistics at the Department of Corrections, said the department was urging lawmakers to stop the bill.

“We’re lobbying against it because it will turn back the tide of our declining population,” he said. “That’s combined with the fact that there’s no evidence that mandatory-minimum sentences are effective in terms of public safety. A lot of states are questioning their mandatory minimums. We have the advantage of not having them right now, and crime rates have not gone up. So, it doesn’t seem to make sense to bring them back.”

The national lobbying organization Families Against Mandatory Minimums has turned its focus to Pennsylvania in recent weeks.

Its president, Kevin Ring, said Pennsylvania would be moving against a nationwide trend, noting neighboring states like Maryland and Delaware have recently rolled back their mandatory minimums.

He argues that sentencing in Pennsylvania works well even without mandatories.

“Pennsylvania is one of the states that does it right. It has a sentencing commission, judges are given guidelines — and the evidence is there that they follow them 90 percent of the time. It’s sort of a solution in search of a problem, passing mandatory minimums.”

Prosecutors are not swayed by such arguments.

Since the sentencing statute was overturned, more cases in Philadelphia are ending in plea deals, yielding sentences shorter than the mandatory minimums would have been, according to the Philadelphia District Attorney’s Office. From the prosecutors’ perspective, the mandatories had been “keeping the citizens of Philadelphia safe by keeping dangerous offenders in custody longer.” 

Kevin R. Steele, the Montgomery County district attorney, said that without mandatory minimums, investigators have found it more difficult to get low-level drug dealers to cooperate.

“We do not have the tools that we had before to work our way up the ladder to get to the main players that are behind the delivery of these prohibited substances,” he said. “People are just not interested in providing us that necessary information, because they’re not afraid of what’s going to happen to them in court.”

Stephens first tried introducing the language into legislation last year; it easily passed out of the House, but failed in the Senate.

As the state grapples with the heroin epidemic, he said, lawmakers will have to give it a closer look.

“I’m not suggesting mandatory minimums alone are the solution to the drug problem,” he said, “but I do think they’re a part of the solution.”

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