Fighting For Important Causes In State And Federal Courts
BY TERESA ANN BOECKEL
Daily Record/Sunday News
Updated: 07/10/2010 11:27:54 PM EDT
York County’s district attorney likes having the option; defense lawyers would like to see the mandatory minimum repealed.
Most of the City of York falls within a drug-free school zone, so an adult convicted of even a first-time offense could face time in state prison.
It’s up to the district attorney whether to invoke mandatory minimum sentences of two to four years for drug offenses that occur within 1,000 feet of school property.
If the district attorney does so, a judge must hand down that sentence — whether or not he or she agrees with it.
The law doesn’t distinguish whether it’s someone selling drugs in a house within the drug-free school zone during the middle of the night, or a drug dealer selling to children near a school.
The Pennsylvania Commission on Sentencing is recommending that legislators repeal the drug-free school zone mandatory sentences and let judges to determine the sentence based on already-existing guidelines that would include increased time.
Some, however, say they want to see defendants receive the stiffest penalty possible.
The commission said mandatory sentences are used inconsistently across the state, said Mark Bergstrom, executive director of the commission. Some district attorneys invoke it every time. Others rarely use it, he said.
In addition, there’s no required link between the drug deals and the school zone, Bergstrom said. The zone extends 1,000 feet from the edge of the school property, so it includes people living blocks away.
Another tool in the arsenal
York County District Attorney Tom Kearney said his office determines
whether to invoke the mandatory sentence based on the facts of the case. It’s a tool in his arsenal that he likes to have.
Kearney said he wants to punish anyone who commits a crime, but he’s more interested in using that type of sentencing on dealers than sending an 18-year-old high school student upstate because he got caught up in something.
“I like the flexibility the legislation has provided to me,” he said. “What we want to get are the bad guys.”
However, Kearney said he can understand the concern about the lack of consistency in the use of drug-free school zone mandatory sentences across the state.
If someone commits the same crime both York and Adams counties, but they’re treated differently in each county, Kearney said, he can see some justification in the sentencing commission being concerned about that.
“At the end of the day, I believe it’s a political decision,” Kearney said.
Legislature unlikely to change law
In general, legislators will need to address mandatory minimum sentences for first-time, non-violent offenders because the state prison population keeps going up while crime has been decreasing, state Rep. Eugene DePasquale, D-West Manchester, said.
However, he cautions against lessening any offense in a school zone because it puts children in danger.
State Rep. Seth Grove, R-Dover Township, said the intent of the law is to make sure that drug dealers don’t set up shop, and the 1,000 feet helps to protect the sanctity of that area.
“It’s to protect the kids going to school,” he said.
Dallastown Area School District Supt. Stewart Weinberg said the drug-free school zones help to keep drugs off of school property, and he’s not interested in lessening the penalties.
If someone’s dealing at 2 a.m. out of a house, what’s going to stop that person from doing it when school is in session, he asked.
If the penalties are lessened, “you’re not helping me create a safe environment for students and staff,” Weinberg said.
Grove said he’s not sure the votes are there to change the law.
Defense attorneys would like to see repeal
Two local defense attorneys, however, said the mandatory minimum drug-free school zone sentences can be unfair, and they hope the legislature will repeal it.
“It just takes too much power away from the judge,” defense attorney Richard Robinson said.
Robinson said he represented a student at Franklin & Marshall College in Lancaster County who was selling marijuana in his dorm room to some friends. The student did not have a prior history.
The district attorney threatened to invoke the mandatory minimum, which would have sent the student to state prison for two years. At the end of the day, the student received probation.
“They have a hammer over your head,” Robinson said.
Defense attorney Christopher Ferro said he agrees that it takes the discretion out of a judge’s hands to judge each defendant on the merits of the facts.
It’s an arbitrary distinction of where the school zone is, and it doesn’t really take into account whether there were minors involved.
“It’s justice by tape measure, which makes no sense,” he said.
One of the most unfair aspects is that the law disproportionately affects defendants in urban areas because of the number of school buildings.
“It’s almost impossible to go anywhere in York City, and you’re not in a drug-free school zone,” he said.
READ THE REPORT
To read the Pennsylvania Commission on Sentencing’s 2009 annual report, visit http://pcs.la.psu.edu/