Pennsylvania Superior Court Holds Drug Free School Zone Mandatory Sentence Unconstitutional

Posted in General on January 12, 2015

Many of the drug-related mandatory minimum sentences are being challenged across the state and across the country following the Alleyne decision that was issued by the U.S. Supreme Court. The Pennsylvania Superior Court had issued opinions that drug-related mandatory sentencing laws were unconstitutional, but because the court did not expressly rule on the drug-free school zone mandatory, Centre County prosecutors continued to seek imposition of the mandatory sentences. As Pennsylvania criminal defense attorneys had expected, the Superior Court put the constitutionality of the school zone issue to rest in Commonwealth v. Bizzel and held that the law could not be used by Pennsylvania prosecutors. The issue is currently being considered by the Pennsylvania Supreme Court, and I am hopeful that the highest Pennsylvania court will affirm the decision of the Superior Court and thereby finally put the nail on the coffin for mandatory minimum sentencing laws for drug offenders.

What is the Pennsylvania School Zone Law?

Pennsylvania has numerous mandatory minimum sentencing laws that are applicable in felony drug cases involving the delivery, possession with intent to deliver, or manufacture of controlled substances. One of the mandatories, commonly called the drug-free school zone, imposes a sentence of 2 years in a state correctional facility if a person is convicted of delivery, possession with intent to deliver, or manufacturing a controlled substance within 1,000 feet of a school or 250 feet of a recreational facility. Regrettably, the definition of “school” includes colleges and universities, so the mandatory minimum sentence is often used by prosecutors in cases involving college students, such as those at Penn State and Lock Haven. The law is used by prosecutors to put non-violent, first-time offenders in jail. A college student that sold a small amount of marijuana to a high school friend or fraternity brother often faces a more severe sentence when compared to a drunk driver.

Probation Without Verdict Program

The Pennsylvania legislature has enacted a law in the drug code that allows for a first-time offender program to be used in drug cases. The program, often called Probation Without Verdict (PWOV), as set forth at 35 P.S. § 780-119, is similar to the Accelerated Rehabilitative Disposition (ARD) program that is commonly used for first time offenders of DUI, Furnishing Alcohol to Minors, Possession of a Fake ID, and other non-violent misdemeanor charges. Under PWOV, the participant in the program must enter a conditional guilty plea to the charges and receive a punishment or sentence from the court. The sentence would include a period of supervision by the probation department, routine drug testing, completion of drug counseling, community service, and payment of costs and fees.

If the PWOV participant violated the conditions of the program or failed to complete its requirements, then the judge changes the conditional guilty plea to an actual guilty plea, and the case then proceeds directly to the sentencing phase. At that point, the participant blew his chances of avoiding a criminal record, and the judge will impose an appropriate sentence. If the participant successfully completed the program without any violations, then the charges would be dismissed and thereafter expunged. The PWOV program promotes rehabilitation but still holds the offender responsible and accountable. Instead of saddling the small amount of marijuana dealer with a felony conviction that may result in a loss of school loans and an inability to obtain future employment, the PWOV program allows the person to avoid a long-term criminal record and move forward with a law abiding life.