In 1982, PA's General Assembly passed the first mandatory minimum sentencing statutes for certain violent offenders. Since then, Pennsylvania has adopted mandatory minimum sentences for DUI offenses (1983), narcotics offenses (1988), a "Three Strikes" law for repeat violent felony offenders (1995), and sexual offenses. Most mandatory sentencing provisions require the prosecutor to only give notice of its intent to seek a mandatory sentence before the sentencing date. These "notice mandatory provisions" were written to only require proof of the elements that trigger a mandatory sentence by a preponderance of the evidence to the judge. For example, if a person is convicted by a jury of possession with intent to deliver (i.e. drug dealing), the prosecutor would only have to establish to a judge at the sentencing hearing that it's more likely than (i.e. 50.1%) not that the transaction occurred within 1,000 feet of a school zone for a two-year mandatory minimum sentence to apply.

However, in the landmark case of Alleyne vs. United States, the US Supreme Court held that facts increasing the mandatory minimum sentence are elements of a crime, and must be submitted to the jury and proven beyond a reasonable doubt. Using that previous example, a jury would now have to determine that the prosecution has proven, beyond a reasonable doubt, that the drug transaction occurred within 1,000 feet of a school zone for the mandatory sentence to apply.

The problem in Pennsylvania lies in the fact that the "burden of proof" provisions of the mandatory sentencing statutes are unconstitutional as written. Prosecutors throughout the state have essentially asked the courts to disregard the burden of proof language and let them present the mandatory sentencing elements to juries.

However, courts in Allegheny, Blair, Bucks, Chester, Montgomery and Philadelphia counties have declared that Pennsylvania's notice mandatory provisions are unconstitutional and cannot be enforced as written. Specifically, in the Blair County opinion of Commonwealth v. Weyant/Morgan, the court held that it's the legislature's role to re-write the statutes, and that adopting an alternative scheme for enforcing mandatory sentences would, “offend the separation of powers that exist between the branches of government.”

Furthermore, in the Derr/Williams opinion, the Lycoming County Court of Common Pleas has held that, "where a legislative scheme is determined to have run afoul of constitutional mandate, it is not the role of the Court to design an alternative scheme which will pass constitutional muster.” citing Heller v. Frankston, 475 A.2d 1291, 1296 (Pa. 1984).

The "notice mandatory minimum" sentences are enforced at the discretion of prosecutors, and are routinely used to force the criminally accused into unfavorable plea agreements. Mandatory sentences are not applied uniformly, do not deter crime, lead to overcrowding of our jails and prisons with non-violent offenders (at an approximate cost of $35,000/yr), and infringe upon the role of our judiciary to adequately punish offenders.

If you or a loved one are charged with a drug crime and are facing a mandatory sentence as a result, call the Zuckerman Law Firm today at 412-447-5580.