It’s been four years since the state Supreme Court invalidated the state’s mandatory minimum sentences for drug offenses, wiping them all from state statues in a 3-2 ruling.
The decision conformed with broader criminal justice reforms sweeping the nation, which sought to remedy the harsh sentencing laws and high incarceration rates that proliferated during the War on Drugs.
This year, though, mandatory minimums could get a fresh hearing in the state Capitol — much to the chagrin of criminal justice reform advocates.
A bill sponsored Sen. Mike Regan, R-York, would establish a five-tier mandatory minimum sentencing structure for the possession of fentanyl, a potent, synthetic opioid present in a growing number of overdose deaths across the state.
Under Regan’s bill, a minimum sentence for trafficking fentanyl would range from two to nine years, depending on the offender’s criminal history and how much of the drug they possessed. Charges would also carry fines ranging from $5,000 to $50,000.
When Regan introduced the bill last year, the chair of the powerful Senate Judiciary Committee was Stewart Greenleaf — a former prosecutor and reformed tough-on-crime legislator who opposed mandatory minimum drug sentences.
As a result, Regan’s bill never got a hearing on Greenleaf’s watch.
That could change this year. The Judiciary Committee’s new chairwoman, Sen. Lisa Baker, R-Luzerne, told the Capital-Star she wants to see more data before making a judgement on Regan’s bill.
But unlike her predecessor, she’s not opposed to mandatory minimum sentencing for some criminal offenses.
Regan already has 21 colleagues in the Senate lined up to support his bill, which criminal justice advocates say would return Pennsylvania to old, ineffective sentencing practices.
Regan contends his bill would deter fentanyl distribution and incentivize treatment for drug-addicted traffickers.
He said harsher sentences could lead more dealers to opt in to the State Intermediate Punishment Program, a long-term treatment alternative to mandatory prison sentences.
Current sentencing guidelines for fentanyl aren’t strong enough, Regan said, to offer an unfavorable alternative to the program.
“If their sentence is hefty, and typically it isn’t, this will incentivize them to get treatment instead of going to jail,” Regan said Friday.
He said the recommendation to create mandatory minimum sentences for fentanyl sales came from the Pennsylvania District Attorneys Association, whose members told him they didn’t have the sentencing tools they needed to fight the fentanyl epidemic.
His bill also has the support of the Coroners Association, the Fraternal Order of Police, and the State Troopers Association, Regan wrote in a Feb. 28 op-ed for the Capital-Star.
Regan knows that mandatory minimum sentences for drug offenses have become anathema to criminal justice reformers in recent years.
But fentanyl is a drug so dangerous, he said, it ought to be an exception to broader criminal justice trends.
“It is literally like a killer being loose,” Regan said Friday. “It is so deadly that I think [we need] drastic measures for deterrence.”
Criminal justice reform advocates say that mandatory minimums don’t deter crime and only lead to unfair sentencing and high prison populations.
“This has been studied time and time again, and decades of evidence show that if you want to stop drug problems, you don’t do it by locking people up for a really long period of time,” Molly Gill, of Families Against Mandatory Minimums, said.
As deadly as fentanyl is, she said, its distribution still doesn’t warrant a harsh mandatory minimum sentence.
Due to the way opioids are processed, some people who deal drugs don’t know that their products contain fentanyl, she said. Other dealers may only sell drugs to support an addiction of their own.
“Undoubtedly it’s a really dangerous drug, but the problem is we focus on drug type and don’t look at person and what role they played in their crime,” Gill said. “Sentences should fit the crime.”
Rather than sharpening sentencing tools, Gill said, Pennsylvania should bolster treatment options and invest in communities ravaged by the opioid trade.
Other opponents of Regan’s bill also say that Pennsylvania already punishes fentanyl dealers harshly, thanks to a 2018 update of the state’s sentencing guidelines.
Current sentencing guidelines call for an individual found guilty of trafficking fentanyl to serve a sentence of six to 15 years. That puts sentencing for fentanyl trafficking on par with guidelines for violent crimes like homicide and rape, said Nyssa Taylor, criminal justice policy counsel with the ACLU of Pennsylvania.
Taylor added that 95 percent of judges comply with sentencing guidelines, based on federal corrections data.
“The idea that our laws don’t punish [fentanyl] is absurd,” Taylor said.
Pennsylvania’s top corrections official is also skeptical that mandatory minimum sentences will achieve anything that Pennsylvania’s current sentencing guidelines don’t.
Corrections Secretary John Wetzel said that prison populations have fallen in Pennsylvania since mandatory minimum sentences were abolished in 2015. Crime is down, too, which suggests that the harsh sentences weren’t powerful deterrents to would-be criminals.
Like Taylor, Wetzel also said that mandatory minimum sentences also grant judges less discretion in sentencing.
“Mandatory minimums are a blunt instrument where sentencing requires precision,” Wetzel said. “I don’t think the juice is worth the squeeze.”
That’s also the view of the U.S. Sentencing Commission, which said in a 2011 report that “strong and effective sentencing guidelines” better serve the purposes of nationwide criminal justice reform.
Pennsylvania’s top-ranking Senate Democrat said he’d be “willing to discuss” ways to allow judges to increase penalties for fentanyl traffickers. But mandatory minimum sentences, he said, likely aren’t the way to do it.
“We have made substantial progress moving away from a criminal justice strategy that has been proven to be unjust and ineffective. I do not want to back track now,” said Sen. Minority Leader Jay Costa, D-Allegheny.
A previous version of this story misidentified Jay Costa’s political party on second reference. This story was also updated to describe a wider range of sentencing possibilities under the bill’s proposed tiered structure.