For the Defense - Vol. 5, Issue 1 - 14

HURDLES TO PARTICIPATION IN THE STATE DRUG PROGRAM
Eligibility Requirements
* State sentence ("under the jurisdiction of the department") 22
* Length of sentence: total incarceration minimum no more than 2 years
or one serving no more than 5 years who is within 2 years of minimum23
* Convicted of a drug-related offense24
Decision-maker Discretion
* Prosecution does not oppose25
* Judge exercises discretion after consideration of all requisite factors,
including new guidelines, and determines individual is eligible26
* DoC determines by assessment that individual would benefit27
* As before, the treatment facility may refuse to accept a participant28
Exclusions
* No sentencing enhancement of use of deadly weapon29
* No convictions under Act 29 subchapters H or I (SORNA/Megan's Law)30
* Not convicted within 10 years of:
* 18 Pa.C.S. A. § 2502 (re: murder)
* Drug trafficking
* Crime of violence under 42 Pa.C.S.A. § 9714(g)31
* No history of past or present violent behavior32
State Drug Treatment Program
Instead of imposing a sentence of intermediate
punishment, sentencing courts are to make an initial
determination of eligibility for participation in the
State drug treatment program, analogous to the
process for RRRI. The sentencing court must consult
the guidelines for the initial determination, in
addition to other factors, such as the victim's position.
If an individual is fortunate enough to be found
eligible, the Department of Corrections then makes
the ultimate determination of whether an individual
may participate.20
The Justice Reinvestment Working Group and
proponents of Act 115 clearly sought to divert more
inmates into diversionary drug programs and reduce
overall incarceration rates. But a salient aspect of the
scheme may very well be the downfall of that goal:
if the prosecution opposes eligibility, the sentencing
court "shall exclude the person from eligibility."21 Yes,
that's a shall. Although the sentencing court must
consider guidelines to determine whether to impose
restrictive conditions, that consideration apparently
carries no weight in the face of prosecutorial
objection.
Prosecutorial discretion is not the only pitfall to
inclusion. The prosecution may waive eligibility
requirements.33 Even though the sentencing judge
must follow the prosecution's recommendation to
exclude, they may override the prosecutor's waiver
of eligibility requirements.34 Because of this and the
fact that the Department of Corrections makes the

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For The Defense l Vol. 5, Issue 1

final selection for the program, certain prosecutors
may dangle their veto power over the defense
during negotiations, but they cannot guarantee that
eligibility will result in participation.
The State drug treatment program itself runs 2430 months. At least 7 of those months are served in
a state correctional facility, followed by communitybased treatment, outpatient, and supervision.
Expulsion from program results in a return to
incarceration in which persons will be eligible for
parole, but not short sentence parole. Police officers
commissioned under 71 P.S. § 1791 are authorized
to issue warrants, arrest, and return noncompliant
participants to jail. The program will be evaluated on a
three-year basis. More details on the program itself are
available at 61 Pa.C.S.A. § 4105 (formerly pertaining to
State intermediate punishment).
Restrictive Probation Conditions
Access to the program formerly known as County
Intermediate Punishment is now through a sentence of
probation that utilizes restrictive conditions.35 Section
9763 of the Sentencing Code, formerly pertaining
to County Intermediate Punishment, is now entitled
"Conditions of Probation." Act 115 mandates that
the Commission on Sentencing adopt guidelines
for restrictive conditions of probation and that the
sentencing courts consider them, in addition to the
sentencing guidelines.36 Subsection (c) of the provision
sets forth restrictive conditions specific to DUI charges
and Subsection (d) describes restrictive conditions
in general.37 Sentencing judges are authorized to
For the Defense - Vol. 5, Issue 1

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