how we do it

bringing smart justice to Pennsylvania

Sentencing Reform

Table of contents:

Mandatory minimum sentencing is used when an individual is convicted of a specific crime that by law requires that person to serve a minimum amount of prison time. The problem is, the threat of serving a mandatory minimum sentence can be an incentive in causing an individual to strike a plea deal even though they may be innocent.

What's more, mandatory minimums have been shown time and again to disproportionately impact people of color in communities that are over-policed, as well as individuals who have committed low-level offenses like drug charges.1

The Pennsylvania Supreme Court struck down most of Pennsylvania’s mandatory minimum sentencing laws in 2015.2 Since 2017, some lawmakers in Harrisburg have been trying to pass a bill re-establishing mandatory minimums, in line with the court’s ruling.3 A version of this bill may have its best chance yet to pass in 2019.

Mandatory minimums also cost taxpayers more money. If the Pennsylvania legislature successfully reimplements mandatory minimums, the law could cost Pennsylvania taxpayers up to $85 million annually.4

Finally, mandatory minimums do not deter crime. A 2009 report from the Pennsylvania Commission on Sentencing found that most Pennsylvanians could not name a single offense that carried with it a mandatory minimum sentence.5    

Judges should have the discretion at sentencing to determine the appropriate length of a sentence, based on the individual circumstances of a case, not a blanket mandate by the legislature.  

A risk assessment instrument (RAI) is a tool used by judges in court proceedings. As of January 2019, the Pennsylvania Commission on Sentencing is devising an RAI for judges to use at sentencing that would consider a number of different factors and purportedly give the judge a measurement of risk as to whether the individual before them will commit a crime in the future.6

Pennsylvania is a world leader when it comes to mass incarceration, and this tool would make this terrible problem worse. Here’s how the Pennsylvania Commission on Sentencing’s proposed risk assessment tool will lead to MORE —not less— incarceration.

The Problem with Pennsylvania's proposed Risk Assessment Instrument
The tool’s “high risk” label is little better than a coin flip.

A “high risk” label for general recidivism has only 52% accuracy - in other words, that person labeled “high risk” shares traits with 48% of others who committed NO future crime.7 A “high risk” label is essentially no better than a coin toss, hardly reliable data for a judge to rely upon when depriving someone of their liberty.

The tool doesn’t make individualized predictions.

This tool does not and cannot make accurate predictions about an individual human being. Nobody should be sentenced simply because they share some traits with other individuals.

These “risk” labels are based almost entirely on criminal justice data, which is rife with racial disparities.

Of the seven factors the tool considers, five deal with conviction (number and type convictions). The other two factors are age and gender.8 People and communities of color are over-policed across the state, and Pennsylvania’s racial disparities are such that black men are nine times more likely to be imprisoned than white men.9 Relying upon a tool that weights this criminal justice data so heavily will only perpetuate this racism.  

The tool relies heavily on age without disclosing this to the sentencing judge.

At sentencing, judges will often consider young people capable of reform and worthy of leniency. The sentencing commission’s RAI places a heavy weight on age, but this fact is not clearly disclosed to the sentencing judge. A sentencing judge will only see the label “high risk” and may not understand that the 19-year-old before them is “high risk” simply because that person is 19.

Alternatives to Risk Assessment instruments at sentencing

The legislature originally asked the sentencing commission to create a tool that would help divert people to alternative sentencing options. The commission should have used this mandate to create a tool that ameliorates, not exacerbates, this problem.

We will continue to work to ensure that judges are not bound by the inaccurate and unfair results of skewed data and should instead have the discretion to make individual judgments at sentencing. We will also continue to urge the legislature to work towards solutions that lessen, not deepen, the incarceration crisis in Pennsylvania.

Life WithouT Parole

Pennsylvania is one of only six states that deny any opportunity for parole to individuals serving life sentences. Consequently, in 2012, the state had the second-largest population of individuals serving life-without-parole sentences in the country.10

In 2016, 5,478 individuals in the Pennsylvania prison population were serving a life sentence, accounting for 11 percent of the prison population.11 This is an increase of 26 percent from 2006.12 In 2016, the average age of those serving life sentences in Pennsylvania was 47.5 years.13

The Pennsylvania General Assembly can amend the state’s criminal code to significantly reduce high maximum sentences across the board, in particular for drug offenses,assault, robbery, and burglary.

Stakeholders, including the courts and district attorneys, can also work to increase the availability and use of shorter-term incarceration programs, a number of which are already on the books, such as State Intermediate Punishment, Boot Camp, Recidivism Risk Reduction Incentive, and County Intermediate Punishment.

Read more solutions in our Blueprint for Smart Justice - Pennsylvania.

Sources:

1. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/miscellaneous/15-year-study/chap4.pdf
2. https://www.mcall.com/news/breaking/mc-pa-mandatory-minimum-20170404-story.html
3. Id.
4. Id.
5. http://pacrimestats.info/PCCDReports/RelatedPublications/Publications/Publications/Pennsylvania%20Comission%20on%20Sentencing/PCS2009Annual%20Report.pdf
6. https://www.philly.com/news/risk-assessment-sentencing-pennsylvania--20181212.html
7. Id.
8. https://www.publicsource.org/predictive-tool-potential-for-criminal-behavior-pa-judges-sentencing/
9. https://www.sentencingproject.org/the-facts/#detail?state1Option=Pennsylvania&state2Option=0
10. https://www.sentencingproject.org/wp-content/uploads/2015/12/Life-Goes-On.pdf
11. Pennsylvania DOC Annual Statistical Report, 2016.
12. Pennsylvania DOC Annual Statistical Report, 2006; Pennsylvania DOCAnnual Statistical Report, 2016.
13. Pennsylvania DOC Annual Statistical Report, 2016.