It’s expensive, does not reduce crime, and destroys due process. So why pass it?

By Elizabeth Randol, Legislative Director, ACLU of Pennsylvania

Lancaster County District Attorney Craig Stedman resorted to fear mongering to push for a mandatory sentencing bill to pass the state Senate. Screenshot via PA Senate.

On May 18, the Senate Judiciary Committee held a joint hearing to consider House Bill 741, a proposal to reinstate mandatory minimum sentences in Pennsylvania. Clocking in at five hours, the hearing included testimony from 17 people affiliated with 14 organizations, agencies, and institutions, representing an array of expertise and insights.

At the hearing, I spoke on behalf of ACLU-PA, which has long opposed mandatory minimum sentences. From our perspective, the decision to oppose HB 741 was clear cut.

Not only are mandatories ineffective, they have done exactly the opposite of their intended purpose: They decrease certainty in sentencing, have no deterrent effect on criminal behavior, and have no causal relationship to reductions in crime. They alsoincrease the likelihood of recidivism, and directly contribute to mass incarceration while costing taxpayers a lot of hard-earned cash: Reinstating mandatory minimums in Pennsylvania would likely cost $20 million in its first year.

Those reasons don’t begin to touch due process principles. Historically, our adversarial system entrusts discretionary power to judges who function as the neutral arbiter between two opposing sides, weighing the arguments and considering the facts of each individual case before rendering a decision. Our system assigns the job of judging to judges. But because mandatories are tied to specific crimes, control over mandatory sentencing decisions shifts from the judges (the neutral arbiters) to the prosecutors (one of the adversaries) who have singular and unreviewable authority to decide what charges to pursue.

But central to ACLU-PA’s opposition to mandatory minimums is their obvious contribution to racial injustice. Study after study exposes patterns of uneven and unequal application of mandatory sentences, disproportionately imposed on low income people of color. Mandatory sentencing schemes exacerbate and compound existing racial disparities in our criminal justice system.

Most of us who testified at last week’s hearing offered some combination of these arguments — that mandatory minimums are ineffective and costly; that they exacerbate racial disparities; and that they run roughshod over civil liberties. But running counter to the steady flow of evidence-based, rational arguments were the insistent protestations of HB 741’s proponents. A video recording of the hearing can be found here.

In a raised voice, around the 167 minute mark, Lancaster County District Attorney Craig Stedman made a bold appeal to fear. “Kids are gonna be raped,” Stedman said, because we’ve reduced mandatory sentences. He went on: “I don’t know who it’s gonna be, but it’s gonna happen. And it’s gonna happen more than once.”

During an exchange with Carnegie Mellon University professor Al Blumstein, a giant in the field of criminal justice, Senator Randy Vulakovich pressed him on why there’s no justice for victims. Unconvinced by Prof. Blumstein’s response, he then puzzled around the 96 min mark over why our system doesn’t allow victims to determine the punishment for their perpetrators.

Another senator faced down Dr. Bret Bucklen, the director of research and statistics at the Pennsylvania Department of Corrections. After establishing that Dr. Bucklen “looks at numbers most of the time” and “hasn’t sat with anyone whose son has succumbed to heroin addiction” as part of his job, the senator declared that he was “offended by his testimony” because it was inappropriate to “keep throwin’ numbers” around when human lives are at stake. Invoking “what the public wants and what the people are demanding” in terms of justice, the senator transformed the will of the people into a torch-wielding tyranny. And in a crescendoed finale, he drew a line in the sand and pitted people vs. facts, refusing to “take numbers over human turmoil and suffering.”

Earlier this year, HB 741 was voted out of the House — a first step toward making this indefensible bill into law. The May 18 joint hearing was the next step in that process. If questions and statements to the committee are any indication, Pennsylvania may well be on its way to reinstating policies that are blatantly regressive, that clearly run counter to all available evidence, and that will exact a steep price from Pennsylvanians.

House Bill 741 is an invitation to regress — a way to re-adopt outdated and ineffective “public safety” measures that disproportionately damage communities of color, and concentrate unreviewable power in the hands of prosecutors.

Please call your senators and urge them to vote no on HB 741.

IN OTHER NEWS

(Criminal justice news that could use a second look.)

Room with a view — of the execution chamber at the State Correctional Institution at Rockview, just northeast of State College, Pa. Photo from the Pa. Department of Corrections via Philly.com.

  • Philly.com: “What will happen to Pennsylvania’s death penalty?”

“Pennsylvania isn’t the only state in limbo over the death penalty, as debate has raged over the probability of an innocent person being executed and the propriety of lethal injection as an execution method. Capital punishment is authorized in 31 states, but only seven have carried out executions — 31 of them — since the start of 2016, according to Amber Widgery, a capital punishment policy specialists at the National Conference of State Legislatures. ‘There are people in the world who think that no one innocent has ever been executed, and others who think it happens all the time,’ Widgery said. There are also some who don’t believe you have to constitutionally execute a criminal painlessly, she said, and others who classify lethal injection as cruel and unusual.”

  • The Baffler: “How Larry Krasner’s Victory Sounded from the DJ Booth: Finally, Philadelphia has a decarceration DA candidate, even in Jeff Sessions’s America”

“It was so fucking beautiful. We wanted this. We needed this. I heard it in every cheer, saw it every face, and felt it in every hug. The race had been looking good, but even so, we surprised ourselves. Conventional wisdom said our candidate was unelectable, but here was proof that a politics of dignity for all can win — and win big. On May 16, Krasner garnered more votes than the second and third place finishers combined, and hundreds of people turned up for his election-night party. We packed into the courtyard and community room of the John C. Anderson Apartments, one of the first LGBTQI mixed-income housing projects in the country, to celebrate a historic primary victory that should now, in a city where registered Democrats outnumber Republicans seven to one, set the stage for general election success in November.”

  • Institute for Justice: “Grandmother Who Lost Her Home Because Her Son Sold Marijuana Wins Pennsylvania Supreme Court Case”

“‘This is one of the most important civil forfeiture decisions issued by a court and the most important ever issued in Pennsylvania,’ said Jason Leckerman, a Partner at Ballard Spahr, which handled the case. ‘The court has set forth a comprehensive constitutional framework for analyzing forfeiture claims that should substantially curb forfeiture proceedings in Pennsylvania and is likely to influence other state courts considering these issues.’” More from Reason: “Court to Grandma: You Shouldn’t Lose Your House Just Because Your Dumb Son Sold Some Weed There”

  • ACLU-PA: “My graduation from a ‘segregation academy’”

“It was otherwise a mostly good experience, both while I attended CFA and this weekend’s celebrations. Unfortunately, over the course of the weekend, I saw only one other alumnus of color. Then as now, there were folks who appeared a bit leery of me, but most were very cool. Someone at the event asked me if my experience at CFA had informed my decision to become a civil rights lawyer. The truth is that it was not just CFA but my entire experience growing up in the south. And given the current state of things in N.C and beyond, there remains a lot of work to be done.”

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.