A recent United States Supreme Court case has called into question many mandatory minimum laws in Pennsylvania and may have major impact on criminal law. In Alleyne vs. United States, the Court overturned a federal statute that allowed the trial court judge to sentence a defendant to an enhanced sentence based on facts that were determined by the judge at sentencing rather than the jury during deliberations. The Court stated that any fact that increases the penalty that a defendant faces is an element of the crime and must be determined by a jury. Alleyne vs. United States.

Many mandatory minimum sentence statutes in PA are worded similarly to the federal statute that was struck down in Alleyne vs. United States. Many criminal cases involving drug trafficking or delivery have enhancements that increase the penalty for the offense based on additional facts that are to be determined at the time of sentencing by a judge. For instance, whether the delivery or sale of narcotics was in school zone is one fact. How much the controlled substance weighed could be another fact. Up until the Alleyne decision, judges in Pennsylvania have been determining whether mandatories or enhanced penalties applied at the time of sentencing. Since the Alleyne decision, prosecutors have been trying to get around the Alleyne decision by simply adding the facts that would constitute an enhanced penalty to the jury questionnaire, essentially creating a new crime.

The problem with this approach, as many PA attorneys have pointed out recently, is that prosecutors do not have the authority to create new law. The District Attorney’s Office is a part of the executive branch. Creating law is a task left to the legislative body of government. Attorney’s have begun to argue that because the Alleyne case makes similar PA laws unconstitutional, no mandatories or enhancements can be imposed until the legislature creates new statutes that would comply with the decision in Alleyne. A few judges across the state have agreed and have struck down those statutes effectively ruling some mandatory minimum statutes to be unconstitutional and therefore not applicable.

The PA Supreme court has decided to hear argument on whether certain mandatory minimum statutes and enhancements are still applicable as constituted in PA. However they rule is going to have a major impact on the criminal justice system in PA.

A statistic was recently released that revealed that more than 81,000 children in Pennsylvania have a parent that is state prison. The number is even higher when you include children who have a parent that is in Federal or county prison.

Trying to navigate early life without one parent is tough enough let alone navigating it with a parent in prison. The doubt and stigma that must accompany a child in this situation must be unbearable. Imagine the strain a child must feel having to explain to his friends that their parent is not in his or her life because they are in prison and then having to explain why their parent is in prison. All the obstacles that this person would face would probably increase the likelihood that they themselves will have a difficult life.

The criminal justice system doesn’t do enough to address this problem. When DA’s and Judges are evaluating whether a person should be removed from their home and their families not enough consideration is given to the impact that the incarceration will have on the children left behind. Instead, in a lot of situations, the children just end up being collateral damage.

Recently the U.S. Supreme Court upheld the conviction and sentence of a Luzerne County, PA Court of Common Pleas Judge in the “Kids for Cash” scandal. His sentence was 28 years behind bars. The “Kids for Cash” scandal came about when a few Judges in Luzerne County were accused and convicted of giving out harsh detention sentences to juvenile criminal offenders in order to increase the population at contracted detention facilities. The allegation was that the judges in question would then receive cash kick backs from those facilities.

To some, 28 years behind bars may seem like a harsh sentence for someone who had no prior criminal record but to others the sentence may not have been harsh enough. Judges should not be punished more severely just because they are a judge but this situation warranted a severe sentence because the judge used his position as a judge to commit the crime.

When judges use their position as a judge to commit illegal activity it destroys the public’s trust in the criminal justice system. If the people start to believe that judges are corrupt and can be compromised then the people will cease submitting themselves to the will of authority. We have to remember that laws are only as strong as the public’s willingness to submit to them. The government is only as strong as the public allows it to be. We, the people, agree to be governed. If the population as a whole started to believe that the government or their institutions were corrupted, then the population would no longer agree to be governed and there could be but one conclusion. Anarchy.

For those reasons, anytime there is corruption or criminal activity involving an institution that is fundamental to our continued society, leniency and mercy from the courts should be hard to come by. The courts will feel the need to send a message that abuse of power that undermines the entire system cannot and will not be tolerated.

For many college age adults consuming alcohol before the age of 21 seems like a right of passage. For others, Underage Drinking in Pennsylvania can be a criminal offense with serious collateral consequences.

It is no secret that college students consume alcohol. Studies show that 80% of college students consume alcohol. The problem is that few of these kids/young adults who are under 21 know the consequences and long term damage to their reputation that can come with an Underage Drinking criminal conviction.

For starters, an Underage Drinking conviction in Pennsylvania will result in a 90 day license suspension. Regardless of whether the person was caught drinking walking down the street or in their home they would get a 90 day license suspension. Many are surprised to learn that a person could lose their privilege to drive for committing a criminal infraction that has nothing to do with driving. Unfortunately most people don’t realize this until after they have either pled guilty or been found guilty and receive a notice from Penndot a month later advising that they have to turn their driver’s license in and begin serving a suspension.

Secondly, the conviction itself can become a blemish on a person’s record and prevent or hinder their ability to obtain certain employment opportunities. Employers in certain industries like teaching or child care may shy away from a potential employee who they feel may have alcohol issues. A DUI conviction or an Underage Drinking conviction could be a signal to the potential employer that the person has a drinking problem. The employer may not be willing to take a risk on someone that they don’t feel that they can trust.

If someone is facing an Underage Drinking charge in Pennsylvania, they should consult with a Pennsylvania criminal attorney as soon as possible to discuss their options.

The trial of Kerry Kennedy, daughter of Robert Kennedy, got under way in New York today. Kennedy is accused of Driving Under the Influence of a drug. The drug in question is the sleep aide, Ambien, which she was prescribed. Her defense in the case is that she mistakenly took the pill believing that it was something else, an involuntary intoxication defense.

Kennedy is not the first to be charged with this type of offense. Cases are popping up all over the country where people have taken Ambien and went to bed and woke up at a police station or in a hospital having no memory of ever getting behind the wheel of a car.

In Pennsylvania, “sleep driving” is a growing concern and has led to numerous DUI arrests. “Sleep driving” may or may not be defense to a criminal offense for DUI. There have been a few instances in Pennsylvania where an involuntary intoxication defense has been successful after evidence was presented that the defendant consumed Ambien and involuntarily drove their vehicle but the defense is not one that is widely accepted across the state.

The bottom line is that people need to be aware that when they are legally taking a sleep aide like Ambien or Lunesta, they are potentially putting themselves at risk that they could end up in a situation where they are “sleep driving” and end up with a DUI arrest and conviction.

On February 15th, 2014 a Florida jury found Michael Dunn guilty on three counts of Attempted Murder and were hung on whether Dunn murdered 17 year old Jordan Davis. If a jury is hung on a particular charge in a criminal case, after a certain period of time a judge can declare a mistrial, which is what happened in this case. Dunn’s defense for his actions on the night of the shooting was that he was acting in self defense when he shot 10 times at the vehicle that Jordan Davis and three of his friends occupied. So what does it mean that the jury found him guilty of attempting to murder Davis’s friends but could not reach a decision on the murder itself? There are a couple of ways to interpret the verdict.

One possibility is that the jury did not buy Dunn’s claim of self defense and believed that he was not justified in the killing of Davis but could not agree on whether the verdict should be First Degree Murder or a lesser included offense like Second Degree Murder or Manslaughter. Even if the jury concluded he was guilty of the death, if all 12 could not agree to the level of culpability it would result in a hung verdict. Even if 11 jurors felt that Dunn was guilty of First Degree Murder and one juror thought that he was only guilty of manslaughter it would result in a mistrial.

Another possibility is that the jury was split on whether or not Dunn was justified in the killing of Davis, meaning that it is possible that at least some members of the jury believed Dunn was acting in self defense when he shot and killed Davis. The obvious question that would arise from that conclusion is “Why would the jury convict on attempted murder if they thought Dunn was acting in self defense?” One has to remember that Dunn fired off three or four shots as the teenagers were trying to leave the parking lot. It is possible that at least some members of the jury believed that Dunn was acting in self defense from a perceived threat from Davis when he fired the first three or four shots but was not acting in self defense when he continued to shoot at the entire car as the teenagers were pulling away. This theory is supported by the fact that one of the questions the jury asked yesterday was “If we determine deadly force is justified against one person is it justified for the others?” There would be no reason to ask this question if the jury was unanimous in their belief that Dunn did NOT act in self defense. Clearly by this question being raised, one can conclude that at least some members of the jury believed that Dunn was justified in his use of deadly force against Davis. Dunn does not contend that any of the other teenagers made any threats or did anything threatening, so the “others” the jury referenced in their question would have to refer to Davis’s friends, leaving Davis as the person they felt deadly force was justified against.

At the end of the day, unless members of the jury start doing interviews, all anyone can do is speculate as to why the jury reached the verdict that they reached. I would conclude based on the particular jury question referenced above that the deadlock was not whether Dunn was guilty of First or Second Degree Murder or Manslaughter but whether Dunn was acting in self defense or not when he killed Davis.

UPDATE: February 19th, 2014

Juror number 4 who sat on the Dunn jury confirmed in an interview that the jury was deadlocked on whether Dunn was acting in self defense when he killed Davis. Two jurors were undecided, two felt he was acting in self defense and the rest of the jury believed he was guilty of murder.

Living in a world where information can be found at the touch of a button, having a criminal record is more detrimental now than it ever has been. In years past when someone committed a crime and served their sentence they had a better opportunity to put their past behind them and try to start a new life on the right track. Now a criminal conviction is almost like receiving a life sentence as the arrest and conviction will follow someone well beyond the term of their sentence.

In Pennsylvania all arrest and convictions of misdemeanor and felony crimes and some summary convictions are recorded and maintained by the Pennsylvania State Police Central Repository. Those convictions are then forwarded on to the FBI so that convictions in Pennsylvania will be known to potential employers or law enforcement in other states when they are doing a background check to determine a person’s criminal record.

Some people have the misconception that their Pennsylvania criminal conviction will automatically be expunged after after a certain period of time has elapsed. This may be true in some other states but not in Pennsylvania. In Pennsylvania, a person is not eligible for an expungement of their criminal record on a misdemeanor or felony conviction unless they are 70 years old and have been crime free for the previous ten years or they have been deceased for three years. For the majority of people with criminal records, the need to erase their past indiscretion is immediate and they simply cannot afford to wait until they are 70 years old to start anew. For example, a person who commits a misdemeanor theft in Pennsylvania at the age of 18 would still have that criminal conviction hanging over them when they were 48 (30 years later), even if they had never committed another crime in their life and had been a model citizen. At the age of 48 they would still have to wait another 22 years before they would eligible to get their record cleared through the expungement process.

Up until 2008, even summary convictions in Pennsylvania could not be cleared through the expungement process. A person with a minor charge of retail theft (shoplifting) would be required to carry that conviction around with them and their only avenue to getting their record cleared would have been trough a Governor’s Pardon, which is a process that could take numerous years. That changed in 2008 when the Pennsylvania legislature decided to change the law to allow for expungement of summary convictions after five years had elapsed and the individual demonstrated that they had committed no further crimes in that time period.

Would people be in favor of an approach to criminal expungements for misdemeanors and felonies that was similar to that applied to summary convictions? What if the legislature allowed an expungement for misdemeanors after 10 years or for felonies after 15 or 20 years if a person has remained crime free during that time? Wouldn’t the general public be ok with someone having an opportunity to move on with their life free of restraint after paying their debt to society?

In this information age that we live in it is important to consider how a criminal record can effect a person long after their debt has been paid. People who have the hope of something better will be less likely to reoffend. Offering an opportunity for a cleared history to someone convicted of a misdemeanor or felony could provide that hope.

The Pennsylvania state legislature has been trying to pass a law that would require first time Driving Under the Influence (DUI) offenders to have an ignition interlock device placed on their car. Currently ignition interlock devices are not required until after a second conviction for DUI. Ignition Interlock devices require the driver to blow into a machine on their steering wheel and produce a negative reading for alcohol before the car can become operable. The general public likely would not have a problem with first time DUI offenders having to equip their vehicles with this device before it can become operable. Clearly this would prevent a lot of accidents and deaths, which is the purpose of the law. But what the legislature should also consider is swapping out one first time DUI punishment for another.

Currently, a person convicted of a first offense DUI in Pennsylvania with a Blood Alcohol Concentration (BAC) of .10 or higher will lose their license for one year. A loss of license would be detrimental to most people who live and work in Chester County, Delaware County, Montgomery County or any of the other suburban counties that surround Philadelphia where public transportation is limited. If the idea is to protect the public from people who drive drunk, ignition interlock would address that concern more than a license suspension could. Where a license suspension does not physically prevent a person from getting into their car and driving intoxicated, an ignition interlock device would do just that and allow the person to continue working and take care of their basic needs.

Under current Pennsylvania law, a first time DUI offender with a BAC or .10 or higher may be eligible for a occupation limited license (work license) after serving 2 months of their one year suspension. Obviously it is better to be able to drive to work for 10 months of your suspension rather than the full 12, but can most people who are working to support a family afford not to be able to drive to their place of employment for a full month? Again swapping out a license suspension for an ignition interlock requirement would both protect society and alleviate the stress on the first time DUI offender.

As the Superbowl approaches and the backgrounds of some of the participants are revealed, most people were shocked to learn that Bronco receiver Demaryius Thomas has a grandmother who is serving a life sentence in prison for drug distribution. What was shocking was not that his grandmother was in prison, but the fact that she was serving a life sentence for a non violent crime.

Unfortunately this type of situation is not an isolated event and occurs in every state in the country, including Pennsylvania. Drug crimes in Pennsylvania are treated more severely than some crimes of violence. For instance, a person with no prior record who burglarizes someone’s home or assaults someone and seriously injures them will likely get less time in jail than someone who is growing marijuana in their home. Most people would agree that the person who is breaking into someone’s house or assaulting someone is committing the more egregious crime, but our sentencing laws don’t reflect society’s views.

Prescription Fraud has quickly become one of the most oppressive sentences that a person can receive. Many of the people who are committing these crimes become addicted to Vicodin or Oxycontin through no fault of their own as they are trying to deal with pain from a serious injury. The addiction caused them to take desperate measures in order to cope with the pain, including writing fake prescriptions in order to continue to get the drugs after their doctors stop prescribing them. The likely sentence in Pennsylvania for someone with no prior record who obtains at least 100 pills through this type of fraud is a minimum of 2 years in the state prison. To compare, someone with no prior record who commits the violent crime of robbery will likely serve a sentence that is less than a year in the county prison.

Pennsylvania Drug sentences can also become oppressive when law enforcement allow a suspect to commit multiple drug sales or deliveries before they make an arrest. Law enforcement in Pennsylvania purposely allow their target to continue to operate so that when they finally make an arrest the person can be sentenced on each and every sale to a separate and consecutive jail sentence. For drug delivery crimes, the penalty increases if a person has a prior offense for the same crime. Not a prior conviction, but a prior offense. So if the police watch a suspect sell drugs on three different days before they make their arrest, that person if convicted would be looking at increased penalties on the 2nd and 3rd sale because the first sale would be considered a prior offense even though there was only one arrest made.

There is no other crime that I can think of where law enforcement watch the crime happen but intentionally choose not to make an arrest. Imagine the police watching a violent home invasion occur or a sexual assault and declining to make an arrest so that the person could commit one or two more home invasions or assaults before making the arrest. The public would be outraged. Of course, the counter argument here would be “Well of course the public would be outraged but the police would never let that happen because the person committing that crime is dangerous and needs to be removed from the streets.” But that argument would expose the irony inherent in the way we sentence drug offenders compared to other offenses. The urgency in which society wants to apprehend someone is usually reflected in the severity of the sentence someone receives for that crime. There is no urgency from society to take a drug offenders off the streets even when those crimes are witnessed by the police but yet some of the most lengthy sentences handed out in Pennsylvania are for drug offenders.

It’s time to take a look at the sentences being imposed on drug offenders in Pennsylvania. Does it seem fair that people are serving years and decades in prison for non violent crimes when rape offenders and and other violent offenders are back on the streets in less time?

Recently the National Transportation Safety Board (NTSB) recommended that the legal limit for Blood Alcohol Concentration (BAC) that would constitute a criminal offense for Driving Under the Influence (DUI) be lowered from .08 to .05. Currently every state sets their legal limit at .08, including Pennsylvania, but it seems probable that most, if not all, states will eventually accept this recommendation based on past precedent. The last time the NTSB made a recommendation to lower the legal limit for DUI offense from .10 to .08, all states eventually accepted that recommendation with Pennsylvania enacting the .08 limit in 2003.