In Pennsylvania, more law means less justice. That needs to change | Opinion

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By Nyssa Taylor

At a budget hearing several years ago, John Wetzel, the secretary of the Pennsylvania Department of Corrections, told state legislators that increases in prison populations and in the corrections budget are caused by the General Assembly’s habit of creating new crimes and new penalties in every legislative session. A “death by a thousand cuts,” Wetzel called the legislature’s rapid expansion of Pennsylvania law.

In Pennsylvania, as in the rest of the country, crime rates have dropped significantly in recent decades. Yet, even as crime drops, Pennsylvania lawmakers continue to pass legislation that is already covered in the existing criminal code. We don’t need additional crimes or penalties, but that’s what lawmakers do every year.

To quantify that trend, the ACLU of Pennsylvania has published a new report detailing the expansion of the crimes code of Pennsylvania and how it drives mass incarceration across the commonwealth. In Pennsylvania, more laws mean less justice.

In 1972, Pennsylvania enacted the modern crimes code, succinctly categorizing all criminal behavior into 282 offenses. Since that time, the Legislature has made countless unnecessary changes and additions. By 2010, the criminal code contained 636 offenses.

Today, there are more than 1,500.

The endless expansion of the crimes code has very real world consequences. For district attorneys who prosecute crimes, these new laws are a boon that allows them to bring numerous charges for a single crime. When faced with a host of charges for a single crime, a person is much more likely to take the plea deal offered by the prosecutor. In other words, the rapid expansion of the criminal code contributes to the expansion of prison and jail populations in a state already reeling under a mass incarceration crisis.

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If elected officials, including legislators and prosecutors, are serious about addressing our mass incarceration crisis, they must deal with this problem of a bloated, ever-expanding crimes code. Our report outlines a number of ways that this can be achieved.

First, lawmakers must stop passing legislation that adds new criminal offenses.

The 1972 crimes code gives law enforcement all the tools necessary to protect public safety. Most of our statutes are written broadly enough to allow them to be applied to a variety of different situations. Except for marital rape and the addition of a few drugs to the controlled substances list, almost all relevant criminal behavior has already been criminalized for centuries. Pennsylvania has no need for more assault, theft, trespass, or fraud laws. Most “new” crimes address behavior long covered by existing laws.

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Second, any new law should require an existing crimes comparison statement. Lawmakers are already required to include a “fiscal note” on all legislation to calculate the cost to taxpayers.

Any proposed expansion of the crimes code should be accompanied by an “existing crimes comparison statement” – a description of all related offenses currently in existing law and a demonstration that those preexisting offenses do not already criminalize the conduct in the proposed criminal legislation.

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Finally, the Pennsylvania General Assembly should recodify the crimes code. The Legislature should create a dedicated task force to review the current code, drop all unnecessary and duplicative offenses, and reset the grades of all offenses in a way that truly reflects the appropriate seriousness of the crime.

As noted above, the steady addition of new and expanded offenses in the crimes code has real-world consequences. Prosecutors use duplicative offenses to overcharge defendants, coercing them into giving up their right to a public trial. Prosecutors use this leverage to force defendants to accept plea bargains in the vast majority of all criminal cases.

Lawmakers in Harrisburg may not agree on much, but legislators from both parties should stand united against the unnecessary expansion of the crimes code. The General Assembly churns out new criminal offenses and stiffer penalties for existing crimes every year. This happens despite the fact that crime in Pennsylvania is at historic lows.

The ACLU of Pennsylvania urges lawmakers to think carefully before they add any new or expanded offenses to the crimes code.

Law enforcement in Pennsylvania already has enough tools to protect public safety. There are serious negative consequences to continually expanding the crimes code.

Instead of adding laws, legislators should focus on creating policies and programs that ease, not exacerbate, mass incarceration. These should include probation and parole reform and significant investment in reentry and diversionary programs.

We can and must do better. Reform starts at the Capitol.

You can find the full report at aclupa.org/MoreLawLessJustice.

Nyssa Taylor is the Criminal Justice Policy Counsel for the ACLU of Pennsylvania.

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