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June 30, 2004

Blakely's (lack of) impact in Pennsylvania

Sylvester Stallone through the character Rocky Balboa taught us that Pennsylvanians know how to take a punch. Additional evidence can be found in this op-ed about the status of Pennsylvania's guidelines in the wake of Blakely. The piece is co-authored by Steven L. Chanenson, Villanova law professor, Federal Sentencing Reporter editor, and member of the Pennsylvania Commission on Sentencing, and State Rep. Frank Dermody, D-Oakmont and chairman of the Pennsylvania Commission on Sentencing. It explains:

[The] U.S. Supreme Court delivered a legal haymaker that has sent the criminal sentencing world reeling.... Various commentators have warned that the Blakely decision will call into question thousands of criminal sentences.... Although Blakely packs the punch of a heavyweight champ for the federal system and many state sentencing systems, it barely laid a glove on Pennsylvania's guidelines....

[Pennsylvania's] guidelines limit the judge's discretion only concerning the minimum sentence. Pennsylvania's guidelines say nothing about the maximum sentence, which can be as high as the statutory maximum. Pennsylvania judges, unlike federal judges, are not required to find facts in order to increase a defendant's maximum sentence. So the Pennsylvania system provides needed sentencing guidance while largely avoiding the problems the Supreme Court discussed....

While the Supreme Court has left some criminal justice systems dazed and their sentencing guidelines in danger of collapse, the Pennsylvania guidelines remain standing.

June 30, 2004 at 10:47 AM | Permalink

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Comments

Regarding the op-ed: The authors clearly have the credentials, but might they be pesenting a one-sided view of PA sentencing guidelines? Consider that though the authors are technically correct as far as I know, with an exception noted later, the implementation of the guidelines changed dramatically under the Ridge administration. The guidelines offer ranges for minimum sentences. It is agreed that there is indeed a definition of a usually rather "generous" statutory maximum which the judge must stay within. Before Ridge, an inmate who did not get into any trouble while incarcerated was routinely paroled at or near his minimum and was on parole until his max expired or he violated. It seems that what made the guidelines meaningful in their original intent was that the minimum sentences bore a direct correlation to the time a convicted defendant spent in prison. Unlike now, where most inmates in PA are currently beyond their minimum, and there is a strong trend that the sentence will be served by incarceration to or near the upper limit of the stated sentence, with little or no time under post-release supervision. This is a change from the original implementation (and intent?) of the guidelines. I believe this is an area for serious study and consideration with respect to Blakely.

The exception: The three strikes law in PA (9714) contains a definition of burglary that requires a judge to find a fact that is expressly prohibitied from being considered by a jury as an element of the crime in Title 18, that of a person being home at the time. The three strikes sentence is 25 to 50 years, whereas the statutory maximum for burglary is 20 years. This is an Apprendi issue without being a Blakely issue in itself. But it is contrary to the op-ed authors' statement that PA judges are not required to find facts in order to increase a defendant's maximum sentence. (Agreed, this is not a Blakely issue, but is an Apprendi issue that PA must address.)

Posted by: Jeannie | Jun 30, 2004 8:02:56 PM

Jeannie is right about PA (I'm there, too). Just be make explicit what is implicit in her note, the terms "minimum" and "maximum" in PA sentencing law mean something entirely different from their meaning in federal law, or in many other states. In PA, all sentences except life are parolable. The judge at sentencing does not *choose* a sentence from a range between the "minimum" and "maximum" set forth in a guideline or statute. Rather, the judge selects a "minimum" AND a "maximum" in each case (with the minimum no more than 1/2 the max), these being the minimum time the defendant must serve before parole eligibility, and the maximum being the most time the defendant can be required to serve, even if not granted parole. Actual release on parole can come at anytime in between, in the discretion of the Parole Board. Neither of these has anything to do with what Blakely, interpreting Apprendi and Ring, calls a "statutory maximum." The PA guidelines propose ranges of time from which the judge should ordinarily choose the "minimum" term to be imposed; the "maximum" of that person's sentence is then usually double the "minimum," although as just noted it can be more.

Posted by: Peter G | Jun 30, 2004 10:04:07 PM

Jeannie, you are certainly right that the parole release issue is important generally. In fact, it is the subject of an article I am presently writing (although a quick, more directly Blakely article will probably push that off a bit). There have been changes in PA Parole Board behavior, particularly since the time the PA guidelines were first crafted. These changes can make (and have made) a very significant – and at times unfair (in my opinion) – difference in time actually served. Nevertheless, I am not sure I can agree that there is a "strong trend that the sentence will be served by incarceration to or near the upper limit of the stated sentence . . . ." Focusing only on state prison parole releases by the Parole Board (county sentences with judicial parole release authority are a different, and often - though not always - more lenient, story), a 2001-ish figure has the overall average time served at about 131% of the minimum sentence. Given that every state prisoner must serve 100% of their minimum sentence and could serve at least 200% of their minimum sentence (and often more), this is not, in my opinion, to or near the upper limit across the board. There are wide variations in Parole Board release behavior based largely on the offense of conviction, which – again in my opinion – is a significant issue that should be explored and addressed. But all of this is beyond the Blakely/guidelines point of the op-ed.

You are also right that the Burglary three-strikes situation presents an Apprendi issue. Members and staff of the PA Commission have proposed a legislative fix in the past and have raised this issue again in the wake of Blakely. I am hopeful that the hubbub around Blakely will encourage the General Assembly to focus on at least this point. Nevertheless, given the non-guidelines/Blakely nature of this issue (which you also correctly observed), and the severe space constraints of the op-ed format (i.e., your post, which included some PA shorthand, was about half the length of the op-ed), the three-strikes angle was not addressed. By the way, the op-ed does state that the PA system "largely" avoids problems that the Supreme Court has discussed. Thanks for the post.

Posted by: Steve C. | Jul 6, 2004 2:18:51 PM

i am a prolee from New York serving a term of five years of Post Release Supervision my question is doesn't PRS mean that the jugde is really sentencing you to a concurrent sentence for one crime?

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Posted by: laptop battery | Feb 17, 2009 10:46:44 PM

in Pa, there is no real maximum end of state sentence.
I served 15 yrs. 4 months of a 12 yrs 6 months to 25 yr sentence, then finally paroled, and was arrested, convicted in Fla of misdemeanor, which board then extended my court imposed max release date another 3 years.

Posted by: Joe Andreoli | Jun 9, 2009 10:47:12 PM

Focusing only on state prison parole releases by the Parole Board (county sentences with judicial parole release authority are a different, and often - though not always - more lenient, story), a 2001-ish figure has the overall average time served at about 131% of the minimum sentence.

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