I believe that it is undisputed that the current drug-related mandatory minimum sentences in Pennsylvania, like the "drug-free school zone" and "drug trafficking," are unconstitutional. The laws as written do not require a prosecutor to actually charge a person with the mandatory, and prosecutors are not required to prove applicability of the drug mandatory sentences to a jury with a beyond a reasonable doubt standard. The U.S. Supreme Court issued a ruling which requires that such mandatory sentences be proven to a jury beyond a reasonable doubt. Clearly, the Pennsylvania drug sentencing laws as written violate what the U.S. Supreme Court has said is required.
While judges across Pennsylvania have agreed that the mandatory drug sentencing laws are unconstitutional, the judges have disagreed over whether or not the unconstitutional portions of the law can be ignored so that laws can still be used by prosecutors. The issue is called severability. Some judges have ruled that the drug mandatory sentencing laws cannot be used because the law does not work if the unconstitutional portions are severed. Other judges, including a Centre County judge, have ruled that the unconstitutional portions of the school zone and drug trafficking laws can be severed, so such laws can be used by local prosecutors as long as the issue is presented to a jury. In the short term, this meant that prosecutors in some counties still used the mandatory sentences while other prosecutors could not. For example, if a Penn State student gave a small amount of marijuana to a friend on the University Park Campus in Centre County, the student would be charged with a felony offense of Delivery and face a 2-year mandatory minimum sentence under the school zone mandatory. However, if the student traveled about 30 minutes and distributed marijuana at the Altoona Campus, the student would not face the 2-year school zone mandatory because Blair County ruled that the law was unconstitutional.
Superior Court Rules Drug Mandatory Sentences are Unconstitutional, Cannot be Used
Pennsylvania criminal defense lawyers have been waiting for an appellate court to issue a precedential opinion that would unify the law across the state on whether or not the drug-related mandatory sentences were constitutional. The Superior Court recently issued an opinion answering that question, and the answer was that the unconstitutional portions of the laws could not be severed, so the laws cannot be used by prosecutors. This means that the Superior Court adopted the rationales of the majority of counties that previously ruled that the laws could not be used and rejected the reasoning of the minority of county judges that permitted the laws continued use.
With the drug-free school zone law being declared unconstitutional, I am hoping that the Centre County District Attorney's Office will change how they prosecute felony drug charges. The prosecutor currently threatens to send first-time offenders to state prison for 2 years. I understand that selling small amounts of marijuana is illegal, and I agree that illegal activity must be prosecuted. However, I do not believe that a person who sold a small amount of marijuana should be convicted of a felony charge and sent to state prison. If such an offense happened in Philadelphia, the person may be eligible to participate in a diversionary program that would allow for the dismissal and expungement of the charges.
Is selling marijuana to a person more egregious than a person selling alcohol to a minor? Centre County handles many cases in which Penn State students hold underage drinking parties. In such cases, the person would be charged with a misdemeanor offense of Furnishing Alcohol to a Minor. If the furnisher were a first-time offender, the person could probably participate in a first-time offender program called ARD that would allow for the dismissal and expungement of the charges upon completion of the program. Even if the person were convicted, the person would likely face a probationary sentence, meaning no jail time. So a person that sells alcohol illegally may avoid a criminal record completely, but a person that sells a small amount of marijuana graduates from Penn State with a felony conviction after serving 2 years in state prison. Does this make sense to anyone? Hopefully with the school zone law being declared unconstitutional, the handling of marijuana delivery cases in Centre County will be drastically altered so that Penn State students that commit relatively minor infractions are not graduating with felony records after having spent time in prison.