Pubdate: Sun, 18 Aug 2013
Source: Daily Local, The (PA)
Copyright: 2013 Daily Local News - a Journal Register Property
Contact:  http://www.dailylocal.com/
Details: http://www.mapinc.org/media/4704
Authors: Michael P. Rellahan and Michael N. Price
Page: A1

LENIENCY FOR DRUG OFFENSES

Attorney General's Comments Draw Mixed From County Officials About How
to Punish Low-Level Crime

Last week's announcement by Attorney General Eric Holder that federal
prosecutors will no longer pursue mandatory minimum sentences against
low-level, nonviolent drug offenders led to a debate over the
effectiveness of such punishments at the local level.

On the one side are prosecutors and police officers, who see mandatory
sentences as necessary tools to protect the public from serious
criminals and guard against lenient sentences.

On the other side are judges and defense attorneys, who say mandatory
sentencing guidelines take decision making out of judges' hands and
treat all offenders alike, despite the individual nature of their
crimes or backgrounds.

"I think they are one of the worst ideas in the centuries of
Anglo-American jurisprudence," said John "Jack" Merrick, Chester
County's chief public defender, who has practiced law in the county
since the 1960s.

"Every big case started with a small case," countered Chester County
District Attorney Tom Hogan. "You use it to get cooperation, and you
also use them to apply it to the real bad guys,"

In Pennsylvania, a myriad of mandatory sentences are used for both
violent and nonviolent crimes, starting with life in prison without
the possibility of parole for first- and second-degree murder.

The majority come for those who are arrested and convicted for driving
under the influence. Beginning in the 1980s, even DUI first-offenders
were subject to 48 hours behind bars, although there later came
alternative sentencing programs that would exchange prison time for
counseling and community service. Today, state law provides that some
repeat DUI offenders can be sentenced to more than a year behind bars
in a state prison.

In Chester County, first offenders who are denied admission into the
alternative sentencing program spend 72 hours at the county prison's
correctional center. The prison, which was severely overcrowded in the
1990s in part because of the number of inmates serving DUI mandatory
sentences, added cell space and as of June had about 200 fewer inmates
than its maximum capacity.

Those facing drug charges have a set tier of mandatory sentences they
may be subject to, depending on the type of drug they are caught
selling and its weight.

A person caught with 2 grams of cocaine faces a mandatory one year in
prison for a first offense, but three years for a second offense.
Meanwhile, someone convicted of having two pounds of marijuana faces a
first-offense mandatory of one year. Those found with 2 grams of
prescription pills like Oxycondone or Percocet face mandatories of two
years.

Child sexual abuse cases, the prosecution of which has increased
dramatically in the past 20 years in Pennsylvania, carry very stiff
mandatory sentences. Someone convicted of having oral sex with a
14-year-old, for example, is subject to a 10-year minimum mandatory even 
if the sexual contact was not forced.

The threat of mandatory sentences also is used in the county as
negotiating leverage by prosecutors to convince defendants to plead
guilty to charges instead of demanding a trial. In recent cases, for
example, a mandatory sentence of five years in state prison was waived
by the county District Attorney's Office in exchange for a guilty plea
by a Westtown man accused of selling a stolen gun and prescription
pills.

Members of a county drug ring with ties to Mexico were also given
breaks from the mandatory jail time they faced in exchange for guilty
pleas, although most all those who pleaded guilty were still sentenced
to state prison.

A veteran Chester County narcotics detective, who spoke about the
issue under the condition of anonymity, said local investigators see
mandatory sentences as a valuable tool. There are state mandatory
sentences for a variety of offenses, but local law enforcement also
often transfer cases to federal prosecutors when they feel a local
sentence won't be stiff enough.

"We use them as a tool," the detective said. "We want to get real drug
dealers."

Law enforcement must prove a defendant intended to "deliver" the drugs
in order to land a mandatory sentence. According to the detective,
investigators are vigilant to make sure they don't "create" drug
dealers when conducting undercover operations.

"It's important that we don't abuse them (mandatory sentences)," he
said. "If I've never heard of the guy before, or if you can't tell me
a lot about them and their operation, I'm not buying from him. I could
create drug dealers all day.

"It's as much as an investigative tool as a prosecutorial tool," he
said. "Are you getting the bang for your buck? That's what we use it
for. We definitely use them, and they're definitely
advantageous."

Even as he spoke about the value that state mandatory sentences have
for local investigators, the detective said he did not necessarily
disagree with Holder's stance that they have resulted in a culture of
perpetual incarceration for many in the nation's inner cities, most of
whom are racial minorities.

"The federal system is definitely flawed," he said, referring to the
perceived racial biases that were part of Holder's argument against
mandatory sentences. "Why should crack get walloped and coke doesn't?
It's the same base product."

In addition to calling into question the racial equity of the judicial
system, mandatory sentences remove an important human element from a
defendant's right to a fair trial, defense attorneys argue.

"Our whole system is based on fair judges imposing fair sentences,"
said Merrick, the chief public defender. "(Mandatory sentencing
schemes) take the judging away from the judges, and makes them fit a
matrix. It hampers them, and keeps them from fashioning sentences that
fit the facts of a crime"

"We have to trust our judges," he said.

Merrick said that with mandatory sentences, criminal defendants can be
pressed by prosecutors into accepting a negotiated prison term that
might be less than what a judge would have imposed had the defendant
pleaded guilty and thrown himself on the "mercy of the court."

"It has a chilling effect on the defendant's right to trial," he said.
"Time and time again a person will not risk going to trial because of
the possibility of facing a mandatory sentence."

But local law enforcement officials downplayed the concerns over
racial prejudice and defendant manipulation in the use of mandatory
sentences.

In an interview with the Daily Local News last week, Hogan, who
previously worked as a federal prosecutor, and First Assistant
District Attorney Michael Noone expressed concerns that Holder's new
stance was sending the wrong message, that law enforcement is becoming
"soft on crime."

"We could care less what color people are, we just follow the dope,"
Hogan said, suggesting that the perceived biases in drug
investigations have more to do with poverty rates than with race
issues. The prosecutors also argued that the stiffer penalties for
crack were instituted because there is simply more violence associated
with that form of the drug than there is with powder cocaine.

The prosecutors said the District Attorney's Office has internal
mechanisms in place to analyze each individual case to determine if
mandatory sentences are appropriate. Waiving mandatory sentences in a
case where they could be used requires an internal review process,
they said.

Hogan made it clear that mandatory sentences are good for the
community.

"When certain guys get off the street you can see things quiet down,"
the DA said.

Hogan pointed to a high profile drug-related shooting in Coatesville
during his time as a federal prosecutor that resulted in the death of
one man and the wounding of another. The surviving victim, Scotty
Mayo, had about 10 grams of crack cocaine on him at the time of the
shooting, and Hogan used the threat of a mandatory 10-year federal
prison sentence to leverage Mayo into testifying against the shooter,
Khalief London, resulting in a murder conviction.

Noone also made an effort to clarify that mandatory sentences are not
used against those charged with simple possession, many of whom are
users with serious addiction problems. Instead, those sentences are
used to punish dealers profiting off those addictions.

"These are people who are profiting off the addictions of others,"
Noone said. "These are criminals who are making money by selling
poison to addicts."

Former Common Pleas Court Judge Howard F. Riley Jr., who served as a
trial judge in the county for two decades before retiring in 2012, is
one jurist who has bristled at the concept of mandatory sentences for
non-violent street crimes.

In an e-mail exchange last week, Riley said he had watched news
accounts of Holder's remarks, and had mixed feeling about them.

"I am not in favor of mandatory sentences," he told the Daily Local
News. "They infringe on a judge's discretion. However, they came about
because of a small number of judges in various areas of the
Commonwealth, who abused their discretion. They consistently imposed
unusually light sentences for which stronger sentences were
appropriate. It frustrated law enforcement, victims and the public in
general thereby fostering a huge demand for mandatory sentences."

Riley argued judges should have the discretion to waive mandatory
sentences.

"Mandatory sentences rarely fit the crime," he said. "In my experience
they are usually either too harsh or too light. There is no need for
mandatories with good judges. The problem is without them, there is no
way to keep poor judges from imposing disproportionately light sentences."

Riley recalled a case he presided over in the mid-1990s that
illustrated how mandatory sentences come into play in real-life situations.

An 18-year-old senior from Coatesville Area Senior High School was
tried on an armed robbery charge in which he stole another student's
lunch money. He faced a mandatory five-year state sentence because he
used a gun, even though Riley recalled it being an inoperable pellet
gun.

"The young man was no angel, but he was motivated enough to attend
summer school so that he could graduate," he said. "He had brought the
pellet gun to school for use as a prop in a student production of the
play, 'Our Town.' He didn't need five years in the state
penitentiary.

"Had the (assistant district attorney) prosecuting the case not
exercised good judgment and waived the mandatories I would have had no
choice except to impose them," Riley said. Instead, he sentenced the
young man to nine months in county jail.

In addition to his opinion that police use mandatories as an unfair
bargaining chip, Merrick argued that sending increasing number of
defendants to prison for five or 10 year stretches "is a tremendous
expenses for society. To house an inmate costs what it would cost to
send the same person to college for a year."

As a consequence of mandatory sentences, "our prisons are stuffed,"
and crime rates continue apace.

But local officials like Hogan said that state mandatory sentences are
not going anywhere anytime soon, and argued that prosecutors will
continue to use them judiciously as a tool to pursue large-scale
investigations and overcome the "don't snitch" mentality that is
prevalent in many of Chester County's high crime areas.

"We will always be smart with using the tools we have," he said.
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