A Mandatory Minimum Sentence from Louisiana – not what the judge wanted to do, but was forced to impose

Is This Justice?

             Each week, Pennsylvania lawyers and judges receive the judicial decisions from the appellate courts. Before I continue, allow me to provide some background information. Judges at the trial level are not called the appellate court. The trial court in Pennsylvania is the court of common pleas. It is the only court where a record is maintained because we judges, in non-jury trials, or jurors in jury trials, are the finders of facts in each case. In other words, either a jury or a judge tries the case and renders a verdict. All disputes are litigated in the trial courts. This means that all evidence and arguments are presented in each and every trial. What do I mean by stating that we are the only court of record in Pennsylvania? The trial court records testimony, motions, exhibits and rulings on evidence all of which is reviewed by the appellate courts when an appeal is filed.

            Because appellate judges decide the appeals, we must continually learn what the recent law is by promptly reviewing these rulings. The appellate courts interpret the law and tell judges when the law changes.

            In addition to the decisions of the Pennsylvania Appellate Courts, judges also receive a listing of some appellate court cases decided outside the state. It is from this list that I will summarize a case that was decided in Louisiana last year that demonstrates yet again how rigid and unfair mandatory minimum sentences are. The defendant had prior convictions for drug sales and a robbery. Under the Louisiana state habitual offender law, the judge was mandated to sentence him to a term of life without parole. His crime that earned him this punishment: “selling 0.69 grams of marijuana to an undercover police officer, who solicited the sale while the defendant was in his own home minding his own business,” wrote a dissenting judge. The same judge described the case as one involving an “honorably discharged American veteran of Desert Storm, suffering from drug addiction, and unable to get medical help from the U.S. Veteran’s Administration.” State of Louisiana  v. Harris 13-133 (LACt. App, 3^rd Circ., Dec. 11, 2013)

            Desert Storm occurred in 1991. This man is probably in his early 40s, so life for him may be 30 to 40 more years. Is this fair? Who should be sentencing this man, the legislature or a judge?

            Thirty to forty years converts to a loss of well over $1 million to house, feed, and treat this inmate. His medical expenses will increase astronomically as he reaches old age, which in penitentiary prison time is 50 years old and over. Shouldn’t the judge have discretion to impose what is merited under the circumstances rather than just being mandated to impose what he may very well believe is not just?

Kids For Cash: Part II

 

How did the lawyers, court staff, the press, the kids and their parents not bring this continuous crime to light? How could this corrupt policy exist and continue for the 2 judges to be paid $2.6 million? Was it because of our blind acceptance of a tough on crime philosophy in America?

Please bear with me as I summarize.

            The legislative and executive branches have a sentencing “policy” in the form of a law which commands the sentencing judge to impose a minimum jail sentence in certain crimes; and the prosecuting attorney may also choose to exercise the option to command the sentencing judge to impose a minimum mandatory sentence by simply filing a notice of intent to impose this mandated penalty. But the judiciary is prohibited from having any sentencing policy of either always imposing or never imposing a certain sentence. This is because the judiciary shall never predetermine, before the sentencing hearing, what the sentence will be (even though the other 2 branches have the power to, in fact do, tell the judge what, at least, the minimum sentence is.)

          One might ask how a court policy is any different than mandatory minimum sentences or the sentencing commission pre-determining the standard sentence. There is a difference between minimum mandatory sentencing and guidelines of a sentencing commission. With the sentencing commission, the commission itself produces a recommendation or a guideline; it is not mandated, even though its followed in 90% of all sentences imposed each year in Pennsylvania. This is why the commission must be disbanded.

         With minimum mandatory sentencing the prosecutor was given extraordinary power in the balance of the 3 branches. This, however, was not unintended. In the past 40 years the prosecution in general has received much expanded power in several areas, which is another topic for another day. Has the tough on crime atmosphere that allowed the imposition of minimum mandatory sentencing and the sentencing commission and its “guidelines” somehow contributed to the two corrupt judges and their policy of putting almost all juveniles in detention? How did all these many important and responsible people permit this policy to go on and on? Did everybody let them continue day in and day out because they all thought it was okay to severely punish all kids?

            Perhaps what happened in Luzerne was tough on crime being carried to a new level - put every kid in detention to crack down on crime. Perhaps that’s how the 2 juvenile court judges got away with it at least for a couple of years.  Perhaps what happened in Luzerne County was simply unchecked power at work. Rather than the executive, judicial, and legislative branches checking each other, there is a breakdown in the balance of powers by only one branch, as with a king or dictator, being a kingdom unto itself with unbridled discretion, wielding unchecked power.

            It could be that fear of retaliation for anyone who was to question what the juvenile court judge was doing. This fear could manifest against the whistleblower in the form of political retaliation: being voted out of the office, or fired, or one’s job made too difficult to continue. Fear could also raise its ugly head if the retaliation is in the form of abuse of the legal process to sue or arrest the person in retaliation for asking questions. Or was the retaliation feared violence to the questioner and his family?

            One thing is for sure, it is essential that systems that are big, complex and important as the criminal justice and legal system, or the war on drugs, and/or sentencing itself must be reviewed and studied constantly. We should never pass a powerfully impacting law that shakes the constitutional foundation of any of these systems or concepts without a close follow-up review to measure the effort. Such a review must be meaningful, one that will be strongly considered for possible modification or even cancelation of the law that passed mandatory minimum sentencing or created the commission of sentencing if it did more harm than good or if it was totally ineffective. Otherwise, it is just good politics, lip service used to pass the new law and create the change. It merely sounds and looks good, but it actually makes matters worse.

           For instance, the Pennsylvania legislature itself had the concept of implementing a sentencing commission in the state studied prior to the law passing in 1982. The study findings determined that sentences in Pennsylvania will double as a result of the creation of the commission. It was passed anyway – regardless of the negative predictions. Sadly it is not only on the books as law but it’s been very alive and well for 32 years with an annual budget of more than $1.9 million. We must consider voiding existing laws more than passing new ones. We’re a society that passes tough laws at the drop of a hat. Whenever a heinous crime occurs the legislature passes a law making that crime, which already is on the books as a crime with a maximum punishment already, a new crime. And everybody feels better because something, anything, was done that makes no difference except too often to do more harm than good.   

            In conclusion, when something tragic such as the details of the Kids For Cash film or a disappointing outcome such as the Treyvon Martin case is realized, citizens must do their best to learn from these debilitating errors by studying all aspects of the events and urge lawmakers to pass laws that never allow something like this to happen again. With mandatory minimum sentencing, there is not much of a difference between the district attorney always imposing a mandatory minimum sentence in school zone drug cases and the judge or court having a policy that everybody gets this or doesn’t get that sentence. The constitutionality of mandatory minimum sentencing will one day be raised in a case that will merit finding the concept unconstitutional. But until that happens, the taxpayers must know how detrimental this is, what it costs and that it too must be removed as law along with the sentencing commission as soon as possible.

 

 

Kids For Cash: Part I

            This terminology is known in both criminal and juvenile justice circles throughout the world for something that occurred in Luzerne County, Pa. in 2008. I am sad to report that Kids For Cash is a succinct description of the scheme of two trial court judges assigned to juvenile court who concocted it to receive kickbacks of cash for each child detained in a privately-owned detention center located nearby.

            Former Judges Mark A. Civarella, Jr. and Michael Conahan were convicted in federal court of taking $2.6 million, illegally, paid for their commitment of kids as young as 10 to the detention center. Every child committed requires that the county be billed for needed services to the tune of $150 or day or more. Ciavarella was sentenced to 28 years in federal prison and Conahan got 17 years.

            A juvenile detention center is comparable to an adult prison. Both involuntarily detain the defendant while the case is pending. Juvenile detention is three to five times more expensive for taxpayers than adult prisons.

            Kids For Cash is now a full-length documentary funded by the MacArthur Foundation. It premiered in early February 2014 in Philadelphia. 

            The ‘powers to be’ called for the Pennsylvania legislature to fund a complete study to learn what action could be taken to prompt reforms. Funding was granted and study members were appointed. Immediately after the release of the report of the Inter-branch Commission on Juvenile Justice on May 27^th, 2010, elected officials and many professional organizations called for implementation of every one of the commission’s recommendations. This has been done.

            I must state with pride that our juvenile court system in Berks County has never experienced any signs of anything even remotely related to any scandal. The procedural and substantive rights of our youth and their families are paramount, and I say with honor that they always will be. In fact, there really was no need for drastic legislation to correct the problem because throughout Pennsylvania the law is being followed and every child’s procedural due process rights are protected. The new regulations insure that those protections continue and that such a terrible event does not happen again. So how could it happen?

            Could it be that the average person is in support of a tough, no-nonsense approach to punishment that meant that every kid gets time in detention? This mirrors what exists now in criminal court, where more adults go to jail with much longer sentences. It can be tagged as zero-tolerance; perhaps it is mandatory minimum sentencing that equates to at least some time spent in jail.

            Judges are prohibited from having any policy for mandatory minimum sentencing where everybody in that class or category receives the same minimum sentence. That’s because judges must sentence on an individual basis considering the law, evidence and arguments in each specific case. A judge’s personal or court policy of a defendant getting pre-determined jail time, probation or any other sentence, as a policy, is in violation of due process rights and thus will be struck down on appeal.

Next week Part II of Kids For Cash, how did they get away with it for so long that Judges could receive $2.6 million in kickbacks for systematically putting kids in detention?

Seventeen Years Later, The Problem Is Far Worse...Why Does History Repeat Itself?: Part II

 

So what did our symposium accomplish? It shed light on the fact that all futile attempts have not worked. Disbanding the sentencing commission and repealing mandatory minimum sentencing stand as the two logical solutions to slaying the monster, but legislators are afraid to vote for this reform. In other words, their “buck passing” efforts to find another approach at reform have put taxpayers and citizens in a worse position today than 17 years ago!

            What is keeping legislators from embracing real change?

Last week, when I wrote and published Part I in the blog, it was exactly 17 years after the Reading Eagle published my op-ed piece in March 1997. The subject of the viewpoint was prison overcrowding caused by removing sentencing discretion from the judiciary. In 1982, when the Pennsylvania Commission on Sentencing was created in Pennsylvania, the legislator’s own study from the previous year concluded that the length of sentences in the state would double as a result of the commission’s implementation! Guess what? That’s what happened.  In fact, Pennsylvania’s state penitentiary population tripled in just 15 years between 1982 and 1997 when it had not even increased in the 40 years before 1980.

The state’s department of corrections prison population showed no increase whatsoever in state prison population between 1940 and 1980. Each year it averaged 7,000 inmates. Today it is seven times greater than it was in 1980. What caused these distressing results?

Only two years after the 1982 effective date for the commission to begin its work, Pennsylvania began the greatest new prison construction epidemic in its history, opening 16 new prisons in the 14 years beginning, ironically, in 1984. The keystone state had only a total of 11 prisons in its history prior to 1984!

            The April 5, 1997 symposium was held at Albright College. It was attended by Senator Stewart Greenleaf, chairman of the very same Senate Judiciary Committee which just finished its study of prison overcrowding and alternative sentencing. Sen. Greenleaf, a republican from Montgomery County, is the longest serving Pennsylvania senator to date. Tom Caltigerone, a Berks County democrat, was present as well, as was Berks County state senator, the late  Michael A. O’Pake. Today, Tom is the longest serving Pennsylvania representative in the house. He, along with Sen. Greenleaf speak often to voters and colleagues about this problem and the need for alternative punishments, which are the same solutions I endorse. But the opposite of alternative punishment is 1) mandatory minimum sentencing, where judges have no discretion and 2) the Pennsylvania Commission on Sentencing, which, because of direct and indirect pressure,  motivates judges to follow the guidelines. Pennsylvania judges sentence consistent with the guidelines and recommendations of the Pennsylvania Commission on Sentencing in 90 percent of all sentences. The commission’s guidelines have become gospel.

            Until we eliminate mandatory minimum sentencing and the Pennsylvania Commission on Sentencing, this problem will continue to get worse.

Seventeen Years Later, The Problem Is Far Worse…Why Does History Repeat Itself?: Part I

            Editor’s note: The following was written in conjunction with preparations for a communitywide symposium on criminal justice to be held at Albright College on April 5, 1997. The symposium garnered 25 different community sponsors supporting the study and intelligent discussion of mandatory sentencing, overcrowded prisons and the increased costs of housing the inmates.

Prioritizing prison outcomes requires wisdom of Solomon (published 3-20-97, Reading Eagle)

By Jeffrey K. Sprecher

Justice has always been rich in symbolism. We see the scales of justice and know that facts are weighed carefully, one against the other, until the right course emerges. We read the biblical account of King Solomon and learn the importance of seeing beyond superficial motivations.

            In fairness, it takes the wisdom of Solomon to understand some of the logic of our current criminal justice system. Consider the contradictions inherent in these statistics: Despite the addition of 10,000 beds in recent years, our state prisons currently are operating at 154 percent capacity.

            Two out of three state inmates are classified as nonviolent, yet they are housed, at great cost to the taxpayers who have already been victimized by their criminal conduct, behind thick concrete walls and steel bars.

            Sentencing policies aimed at punishing drug kingpins have resulted in a torrent of users and low-level operatives filling limited state prison cells while drug sales continue to flourish in both urban and rural areas.

            Last summer, the state Senate Judiciary Committee completed a study on prison overcrowding and alternative sentencing. In reporting its recommendations, the committee noted that prison overcrowding rarely evokes a sympathetic public response, but with state spending nearing the $1 billion-a-year mark, the issue needs to be addressed.

            Criminal justice issues are especially difficult for elected officials. By taking the sensible approach to policies that enhance public safety – instead of vengeance – these lawmakers run the risk of being branded soft on crime. So, it was a bold and courageous move for the committee to recommend items such as expanded use of alternatives to incarceration for nonviolent offenders, drug treatment as a sanctioning tool for abusers, and restoration of judicial discretion in sentencing offenders who currently warrant mandatory minimum terms.

            These are all steps in the right direction. Overwhelmingly, it seems past policies were shrouded in myths: Put more people in prison and the crime rate will come down; make sentences longer and criminals will be deterred; build more prisons and the public will feel safer. Taxpayers have paid dearly to implement these policies and have seen none of the promised results.

            The violent crime rate in Pennsylvania has been relatively constant for the past 50 years, virtually unaffected by the tripling of the prison population over the last 15 years. And, still, opinion research tells us that the public feels unsafe – a perception that seems to stand apart from the statistics.

            We, as citizens, need to take the time to examine the trade-offs in this issue. We probably all want the system to punish, deter, rehabilitate, incapacitate, restore both victims and communities, save money and more. We need to prioritize those outcomes because every one of them comes at the expense of another.

            Then we can be in a position to appreciate the wisdom of committee chairman Sen. Stewart Greenleaf, who concluded, “If we take the initiative to set up a systematic program of review and supervision through alternative sentencing programs for nonviolent state-level offenders, we will have the assurance of control and, ultimately, public safety.

            “Expensive prison space must be held for those who are truly violent and career criminals. This problem has transcended party lines and social ideologies; it is a matter of practicality and fiscal responsibility.”

            The weight of this logic clearly tips the scales toward Solomonesque reforms that are at once tough and smart. I implore the careful study of this timely issue.

            Jeffrey K. Sprecher is a Judge of the Berks County Court of Common Pleas. (3-20-97)

Dr. David McFarland, president of Kutztown University, put it simply when he asked: why are we spending more money on prisons than college education? It is apparent that the issues of the past 17 years have not disappeared, but have actually become worse today. For instance, state spending of $1 million for the annual prison budget that I referenced in the article has climbed to a staggering $2 billion being spent per year today. 

 ……

 

            What a dilemma. The symposium was held because even elected officials acknowledge that the justice system was in need of repair. After all, the United States incarcerates more people at a higher rate than any other country on earth! We must continue to identify the causes of the problem and offer solutions; however, law makers must no longer be afraid to implement the needed changes – disbanding the Pennsylvania Commission on Sentencing and repealing the mandatory minimum sentencing laws – because their opponents will accuse them of being soft on crime. The problem has been identified and its solution suggested, but they refuse to implement the reforms that will truly make a difference. The monster continues to grow uncontrollably; new prisons are built to house the influx of inmates who have increasingly longer sentences to serve. Ten thousand new beds were added and the system still operated at 154% capacity, noted the state senate judiciary committee’s study. Which was published less than a year before our symposium in 1997. The monster remains on the loose.

            So what did our symposium accomplish? It shed light on the fact that all futile attempts have not worked. Disbanding the sentencing commission and repealing mandatory minimum sentencing stand as the two logical solutions to slaying the monster, but legislators are afraid to vote for this reform. In other words, their “buck passing” efforts to find another approach at reform have put taxpayers and citizens in a worse position today than 17 years ago!

            What is keeping legislators from embracing real change?

            Next week in Part II, a reminder of the effectiveness of the symposium.

Have We Won The War On Drugs?

With a 43 year long war on drugs, one would think the United States has exceeded its goal in decreasing illegal narcotic activity in the country. The answer is no, despite a trillion dollars spent and the arrest of a hundred million citizens. In fact, the drug problem is worse today. One example that succinctly proves this fact is heroin.

Officials right to crack down on prescription painkillers

(published in The Washington Post on 3-15-14)

“…At the same time, there is a key difference between this heroin epidemic and previous ones, as [U.S. Attorney General] Holder noted: It is related to the abuse of chemically similar legal drugs, prescription opioids, whose use, both legitimate and illicit, has exploded in recent years. Properly administered, these painkilling drugs can bring patients necessary relief. Diverted to unintended and unauthorized use, as they too often are, these highly addictive drugs function, in many cases, as a gateway drug to heroin.”

“…The reason, experts on addiction note, is that heroin already was cheaper and more accessible than prescription medicines.

The government’s crackdown, such as it has been, did not prevent doctors from writing an estimated 241 million prescriptions for opioids in 2012, which was down 2 million from 2011 but still 97 million more than in 2002, according to data from IMS Health that first were reported in the Milwaukee Journal Sentinel.”

…..

Painkillers and Heroin: Which drug is more prevalent and affordable?

            In mid-March 2014, U.S. Attorney General Eric Holder, in his weekly video, warned of an urgent and growing public health crisis. The abuse of legal painkillers, categorized as prescription opiates, can lead to the use and addiction to heroin. How? States and the federal government have recently prioritized the war on opioid abuse. This has led to the reduced supply of pain killers, forcing addicts to seek other medication; and as I’ve written previously, heroin is a poor man’s pain killer. The rising death rate for heroin abuse, both locally and throughout the country, sadly has been rising. Thats not very good evidence of us winning any war on drugs.

Does The Punishment Fit The Crime?

In the March 2014 edition of the American Bar Association Journal, these disturbing statistics appeared. As of 2012, in the United States of America:

1)     3,278 people were serving life sentences without parole.

2)     79% (2,586) were sentenced for non-violent, drug-related crimes.

3)     20% (656) were convicted of non-violent property offenses

Ethnicities of 3,278 non-violent lifers

·       65% (2,131) are African American

·       18% (584) are Caucasian

·       16% (524) are Latino or Hispanic

From: A Living Death: Life Without Parole For Non-violent Offenses, American Civil Liberties Union, 2013 (November).

            Does it make the numbers far worse when you ponder the following question? How many of the 3,278 human beings sentenced to life without parole were sentenced by a judge whose hands were tied by a mandatory minimum sentence or sentencing guidelines from which he/she did not think he could or should deviate?

Guns: Chicago 2012 - 3,066 shootings, 503 murders

In 2012, the city of Chicago led the nation in recorded homicides. Please pause for a moment and ponder these numbers – 3,066 shootings and 503 murders in 365 days. These stifling figures constitute an average of nearly 10 shootings and 1.5 murders per day. It is also worth noting that these are the incidents reported to the police.

With that many documented shootings, the number of murders could easily have doubled since every shooting is potentially fatal – even those intended only to deliver a message or warning. Of the two or three dozen murder trials I have handled in 22 years, a gun was used as the murder weapon in almost every case. Sadly, many people carry a gun today, especially in the city. I have repeatedly heard the people arrested for gun possession explain to me in court that because of the abundance of firearms on the street, they need it for their own protection. My on the job experience bears this out. Everybody has a gun.

            Please ponder a second question: How many times have you lost your temper in life? Anger has probably enabled you on one or more occasions to have the requisite intent necessary to exhibit the motive, ill will or intense passion that has revealed itself many times in homicide cases. At this point, there is only one contributing circumstance needed to move from intent to completion. How do alcohol, drugs and mental health issues increase the risk of violent action? How about intense and continuous stress, friends or acquaintances with a hair trigger temper or a propensity for violence – what affect do they have on the final result. Simply the wrong people, places and circumstances – these are the factors that spur violence.

            I am not addressing the person who plans and “lies in wait” to take a life. Premeditation[1] or intent can arise in an instant; it doesn’t have to be intended, at least for a specific period of time. [2]

            My aim is to bring attention to the great number of murders committed under unplanned circumstances - an argument with a spouse, relative or even a stranger that gets out of hand. In regards to intimate relationships, how close does a person who is going through a divorce or separation get to have the requisite intent to kill? I learned long ago that love and hate are deeply rooted emotions, but that they are often not found on opposite ends of the continuum. They are not polar opposites, but exist next to one another. There are times when they join forces, making it difficult to tell the two apart. “Was that one love? Was this one hate?”

In the annals of mankind, you don’t hate a stranger who you don’t at least know by personal experience or by reputation, stereotype, perception or fear. The worst crimes in history have taken place during civil wars, acts of genocide, religious differences, racial prejudice, ethnic cleansing and wars with neighbors who hate each other. People with knowledge of these things teach us directly, as well as indirectly, who to fear. The media in all its forms contributes greatly to our perception of those people – those who are different from us. We quickly learn who to be careful around and who to avoid.

 My point can be concluded with the fact that the criminal homicide laws in Pennsylvania have five different levels or degrees of murder, and only first degree includes the premeditated intent to kill. Second degree murder encompasses killings that happen during a felony, like a burglary, robbery or rape. There is no premeditated intent to kill; but the crime went terribly awry and resulted in murder. The third category includes all other forms of killing, where there were no other crimes committed and there is no evidence of pre-meditation. Voluntary homicide is the fourth category. It also excludes the intent of malice, and is not felony murder. In fact, it is not even considered murder. It is defined by acting under intense provocation or being blinded by rage. Involuntary manslaughter, which is the fifth category, is also not considered a felony murder under law. It is distinguished from manslaughter because it is not committed by blind rage or intense provocation. It is a crime of criminal negligence such as dumping a load of stones at a construction site without looking to see if anyone is in the path of danger.

There are also many examples where shootings have occurred over trivial things - fighting over a parking space, being cut off in traffic or other forms of road rage. In addition to the wrong people, places and circumstances one is confronted with, timing is also a factor in this issue. [3]

It seems logical that if there were not so many hand guns available, these conflicts might not be so quickly resolved with finality. These resolutions with a gun involved are usually final. We can’t turn back the clock, but we can as a society cut the finality of the tragedy by striving to prevent the availability of the deadly weapon. Then perhaps a cooling off time will be in place in which case the potential killing might be avoided and the whole incident be a warning to take positive action as an alternative to violence.

---

[1] Two young friends went to a night club. One cheated in line ahead of the rest. The guy in line, for some bizarre reason, got “goosed” by the man behind him. He told his friend, who immediately walked back to his car, got his gun, returned and shot the “gooser.” Fortunately the victim lived. This was an actual case before me.

[2] I recently read this on the internet: “I don’t like making plans for the day because then the word “premeditated” gets thrown around the courtroom. (from someecards.com)

[3] Consider the man walking down the street in the middle of the night when he is approached by another man. The first person became a defendant because he used a knife to fight off the aggressor. He countered the momentum of the intruder with deadly force, however he could have greatly reduced or eliminated the likelihood of such a confrontation even happening by walking on the same street at 3 p.m. instead of 3 a.m.  Was he looking for trouble by walking around that time of day with a knife? He claimed he wasn’t looking for trouble, but wanted to be protected if needed. It is a matter of freedom versus responsibility to avoid dangerous and risky people, places, things and times of day or night.