For the Defense - Vol. 5, Issue 1 - 12

On December 18, 2019, Governor Wolf signed into
law two pieces of legislation associated with a second
phase of Pennsylvania's Justice Reinvestment Initiative.
This article provides an overview of changes introduced
through the larger of the two bills, Act 115.1 Lauded
by many legislators and the governor as a significant
step in criminal reform, the Act contains some welcome
shifts towards alternatives to incarceration and
presumptive parole for eligible short sentences but
also a very unwelcome reintroduction of mandatory
minimums. Other additions include the incorporation
of the recently-approved risk-assessment instrument
into various stages of sentences and supervision,
mandated garnishment of inmate funds, and an
overhaul of probation supervision redirecting both
finances and administration to counties who may or
may not be equipped to implement the new practices
with uniformity and in keeping with the stated goals
of the initiative. Some of the reforms that won't be
found in Act 115 include caps on probation, medical
parole, additional funding for indigent defense, or
a significant overhaul of pretrial detention-all of
which and more provide continued opportunities for
legislative and judicial advocacy in 2020.
Below are highlights of some salient provisions
from Act 115 of which practitioners and their clients
should be aware:

NEW MANDATORY MINIMUMS
Where victim is under 16:
18 PA.C.S. § 2702(A)(1) AND (4) (re: Agg. Assault)
- minimum 2 years.

Oh yes, they did. A last-minute amendment to
SB 501 brings back mandatory minimums for those
convicted of certain crimes against minors. Although
press releases from Harrisburg discuss these minimums
as attaching to sexual crimes against minors, the
enumerated offenses include, inter alia, aggravated
assault, which does not include a sexual component.
Act 115 follows years of bipartisan efforts to
develop evidenced-based criminal reform in keeping
with national trends. That work, and related funding
was channeled into a 2017 Report by the bi-partisan
Justice Reinvestment Working Group,2 which made
six major categories of policy recommendations. The
return of mandatory minimum sentences was not one
of them. The incorporation of mandatory minimums
into Act 115 appears in stark contrast to the databased approach touted by the Justice Reinvestment
Initiative's progenitors. Politics appear to have trumped
the bipartisan hive-mind tasked with analyzing
effective methods of reducing recidivism, however,
and the amended bill passed. The new mandatory
minimum sentences can be found in 42 Pa.C.S.A. § 9718,
Sentences for Offenses against Infant Persons.
The Commonwealth has an appellate right to
challenge sentences that fail to apply the mandatory
minimum after proper determination of an enhancing
element.3 But persons may still be eligible for boot
camp and the State drug treatment program.4

18 PA.C.S. § 3121(C) and (D) (re: Rape of Child)
- minimum 10 years.

For those wondering, the relevant accompanying
part of the statute was amended to address the
rulings in Alleyne and Hopkins.5 Facts that trigger
the imposition of the minimum, excluding prior
convictions, must be submitted to the finder of fact
and proven beyond a reasonable doubt.6 Defense
counsel is thus tasked with identifying arguments
beyond Alleyne to challenge the new minimums.
Such arguments can be found in instances where
the Commonwealth fails to provide notice of the
applicability of the mandatory minimum prior
to the conviction.7 The eleventh-hour addition
of a controversial provision that does not have a
demonstrable nexus to the stated purpose of the Act
also begs the question of whether the Act satisfies
the single subject rule. Among other things, that rule
"proscribe[s] the inclusion of provisions into legislation
without allowing for 'fair notice to the public and to
legislators of the existence of the same.'"8

18 PA.C.S. § 3125(A)(7) (re: Agg. Indecent
Assault < 13) - minimum 5 years.

Short Sentence Parole

18 PA.C.S. § 3125(B) - (re: re: Agg. Indecent
Assault < 13) - minimum 10 years.

I want to be excited about Act 115's short sentence
parole provision in spite of the multiple exclusions
contained therein, I really do. The best part of this

18 PA.C.S. § 3121(A)(1), (2), (3), (4) AND (5)
(re: Rape) - minimum 10 years.
18 PA.C.S. § 3123 (re: IDSI) - minimum 10 years.
18 PA.C.S. § 3125(A)(1) - (6) (re: Agg. Indecent
Assault) - minimum 5 years
Where victim is under 13:
18 PA.C.S. § 2502(C) (re: Murder)
- minimum 15 years.
18 PA.C.S. § 2702(A)(1) (re: Agg. Assault)
- minimum 5 years.
Age of victim incorporated in elements:

The Return of Mandatory Minimum
Sentences

For The Defense l Vol. 5, Issue 1

For the Defense - Vol. 5, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 1