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Photo of Matt M. McClenahen

Pennsylvania Supreme Court Strikes Down School Zone Mandatory Minimum

On Behalf of | Jun 19, 2015 | Pennsylvania

Earlier this week, the Pennsylvania Supreme Court declared Pennsylvania’s school zone mandatory minimum sentence for drug offenses to be unconstitutional in the case of Commonwealth v. Hopkins. This affirmed an earlier Pennsylvania Superior Court decision in Commonwealth v. Bizzel, which had already declared the school zone mandatory minimum to be unconstitutional in 2014. The highly-criticized school zone mandatory created a two to four year mandatory minimum sentence for any drug felony occurring within 1,000 feet of the real property line of any school or university. In densely populated areas, or college towns like State College, entire communities were “school zones.”

The school zone mandatories were most frequently used in marijuana cases, and most of these cases involved the sale of small amounts of marijuana. In cases involving drugs like cocaine, heroin or MDMA, the sentencing guidelines and potential weight mandatory minimums already created sentences harsher than two to four years. By contrast, most people charged with selling or possessing with intent to deliver marijuana are eligible for probation under the Pennsylvania sentencing guidelines. Yet the school zone mandatory trumped the sentencing guidelines and gave prosecutors the power to determine sentences in drug cases rather than judges.

The statutory maximum penalty for a first conviction of delivery of marijuana in Pennsylvania is two and a half to five years of incarceration and a $15,000 fine, while the now defunct school zone mandatory minimum called for a sentence nearly identical to the maximum possible sentence. The school zone mandatory minimum did not automatically apply. Rather, a prosecutor would decide when to deploy this weapon. This essentially gave prosecutors the power to dictate whatever sentence they thought was appropriate, and needless to say, the type of people who become drug prosecutors tend not to be the most empathetic people. As long as the plea offer was less than the mandatory minimum, then the defendant would be forced to accept a sentence far in excess of the usual sentencing guidelines, unless he wanted to risk a trial. And even defendants who had good defenses could be bullied into accepting unfavorable plea agreements in lieu, as the prosecutor would invariably retaliate with a two to four year mandatory minimum if the defendant lost at trial.

One may naturally assume that the Pennsylvania Supreme Court declared the school zone mandatory unconstitutional because the statute blatantly undermined the constitutional separation of powers, by granting sentencing authority to a district attorney rather than a judge. This, however, is not the case. There is nothing at all unconstitutional about the concept of mandatory minimum sentences, although they have been a miserable failure from a policy standpoint. In fact, the Pennsylvania General Assembly has the power to pass a law tomorrow making the crime of furnishing alcohol to minors an ungraded felony, with a mandatory minimum of two to four years, if the offense occurs in a school zone, while preserving the power of judges to select the sentence if the offense occurs outside a school zone.

As absurd and arbitrary as such a mandatory minimum statute would be, it would be less irrational than a two to four year sentence for delivery of a small amount of marijuana in a school zone. Alcohol is a far more criminogenic drug and has far more deleterious effects upon society than marijuana, as denizens of college towns, domestic violence counselors and human resource directors know all too well. That being said, if the General Assembly were to enact such a draconian penalty for furnishing to minors, it must create a constitutionally sound enforcement mechanism.

And it was an unconstitutional enforcement mechanism, which led to the long-overdue demise of the school zone mandatory. Pennsylvania’s school zone mandatory specifically stated that the presence of a school zone was not an element of the offense of either drug delivery or possession with intent to deliver. Accordingly, the Commonwealth was not required to prove beyond a reasonable doubt that the offense occurred in a school zone, and a defendant was not entitled to have a jury determine whether the offense occurred in a school zone. Instead, the Pennsylvania statute imposed a mere preponderance of the evidence burden of proof on the Commonwealth and provided for a judge to decide at sentencing whether the offense occurred in a school zone.

This very type of enforcement mechanism was declared unconstitutional by the United States Supreme Court in Alleyne v. United States in 2013. The majority opinion was written by Justice Clarence Thomas, who does not exactly have a reputation for coddling criminal defendants. In Alleyne, the Supreme Court, building upon prior decisions, held that any fact, which creates a mandatory minimum, is an element of the offense and must be proven beyond a reasonable doubt. Likewise, the Supreme Court held that a defendant is entitled to have a jury decide any fact, which triggers a mandatory minimum.

The Pennsylvania District Attorney’s Association conceded that the enforcement mechanism of the school zone mandatory is unconstitutional, but argued that the unconstitutional enforcement mechanism was “severable” from the perfectly constitutional, substantive provision. Prosecutors argued that the constitutional defect could be cured if defendants would be entitled to have a jury determine the school zone issue with the burden of proof of beyond a reasonable doubt. The Pennsylvania Supreme Court rejected this argument and held that the enforcement and substantive sections are not severable. Without an enforcement mechanism, there is no means of giving effect to the substantive provision. Furthermore, the Pennsylvania Supreme Court cannot re-write the statute to give it a constitutionally sound enforcement mechanism.

In short, Alleyne torpedoed a massive hole in the port side of the mandatory minimum battleship, which brought the whole ship to the bottom of the sea, even though the starboard side remained unscathed. As a result, thousands of cannabis providers, including many college students, will be spared an unjustly harsh sentence. That being said, selling or growing marijuana remains a felony in Pennsylvania, so the war on to end Prohibition is far from over.

Matt McClenahen is a criminal defense attorney in State College, Pennsylvania, home of Penn State University. Over the years, he represented many defendants subject to the now defunct school zone mandatory minimum.

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