Sentencing Policies and Practices in Pennsylvania: Four Decades of Change

Sentencing policy, law, and practice in Pennsylvania has many features in common with other states and many distinctive characteristics as well. Pennsylvania was a pioneering state in adopting sentencing guidelines in 1978, along with Minnesota, and adopted guidelines before the US federal courts. Unlike Minnesota and many other states, however, Pennsylvania’s sentencing guidelines cover both felonies and misdemeanors. Also, Pennsylvania’s guidelines represent a middle ground between the complexity of attempting to delineate and control each important ingredient considered at sentencing (as the US Sentencing Commission arguably attempted with the US Sentencing Guidelines) versus the comparatively simple models developed in Minnesota and later Washington, which were seen by the Pennsylvania Commission on Sentencing (PCS) as insufficiently detailed for the Pennsylvania context.

As we will explain, the Pennsylvania sentencing guidelines have undergone several major revisions since being adopted in their initial form in 1982. In 1994 and 1997, the PCS evolved somewhat more complex guidelines compared to the 1982 version. These 1990s revisions of the guidelines featured presumptive nonconfinement in some guideline matrix cells and narrower sentence ranges overall. Further, the PCS incorporated an exchange model of sanctions: intermediate punishments were incorporated into the guideline matrix, and the PCS explicitly directed that the more restrictive intermediate punishments (RIP) were to be used as an equivalent to incarceration.

Like nearly every state, Pennsylvania sentencing law also features mandatory minimum sentences for certain drug trafficking, firearms, and driving under the influence (DUI) offenses, along with a three-strikes mandatory minimum law. The three-strikes law actually prescribes minimum sentences for second and third “strikes,” and only certain violent felonies count as “strikes.” As we describe later, mandatory minimums evolved as a parallel and somewhat competing sentencing structure relative to the sentencing guidelines in Pennsylvania.

Pennsylvania also has long been a life without parole (LWOP) state for first- and second-degree murder convictions, and capital punishment persists in the state. First-degree murder convictions must be sentenced to either LWOP or capital punishment, while second-degree murder convictions receive mandatory LWOP sentences. Third-degree murder and all lesser homicides are covered under the sentencing guidelines. While capital sentences are given in Pennsylvania’s courts, executions of those on death row have been very rare in the past 40 years. Indeed, only three individuals have been executed in the state since 1976: Keith Zettlemoyer (1995), Leon Moser (1995), and Gary Heidnik (1999), all under the governorship of Tom Ridge.

Pennsylvania has some unusual features in terms of its parole and post-incarceration release practices. Those sentenced to state prison must fully serve their minimum terms and may be paroled only after serving their minimums. In other words, there is no “good time” reduction for state inmates. Release from state prison is at discretion of the Pennsylvania Board of Probation and Parole. In fact, according to the PCS 2013–2014 annual report, state inmates serve on average 121 percent of their minimum sentences. On the other hand, release from county jail is at the discretion of the county Court of Common Pleas, and jail inmates may be released by the court prior to serving their minimum sentences. In order to be sentenced to county jail, an offender may not have a minimum of more than 24 months, or a statutory maximum sentence of more than 60 months. Clearly, the distinction between jail and state prison incarceration is highly consequential in Pennsylvania (Holleran and Spohn 2004).

As noted, since 1994 Pennsylvania’s sentencing guidelines have also emphasized intermediate punishments, particularly RIPs. Most of these RIP sanctions especially incorporate drug and alcohol rehabilitation and treatment and are especially targeted toward drug- and alcohol-involved offenders. More recently, the guidelines also emphasized and built in restorative sanctions (e.g., restitution and other monetary costs and sanctions). Relatedly, Pennsylvania has a correctional boot camp, and since the mid-1990s correctional boot camp sentences have been built into certain matrix cells in the guidelines as a sentencing option/trade relative to incarceration. Overall, the implementation, use, and funding of RIP, restorative sanctions, and the correctional boot camp have expanded since 2000.

In this article we first briefly sketch the history and evolution of Pennsylvania’s sentencing guidelines and the parallel development of mandatory minimums. We then describe in more detail the role and use of RIP and correctional boot camp. Then we describe recent developments regarding the PCS’s new legislative mandate to incorporate risk assessment into sentencing and to eventually develop parole guidelines. Finally, Pennsylvania is one of the most empirically researched sentencing jurisdictions in the United States, and we finish with a brief overview of what is known about trends, patterns, and processes of sentencing in Pennsylvania.

This section briefly sketches the early history of the PCS and its sentencing guidelines. An expanded treatment of this history can be found in Chapter 2 of Kramer and Ulmer (2009); and Kramer and Scirica (1986) and Kramer and Lubitz (1985) also provide vital insights into the early history of the PCS and the structuring of its 1980s guidelines. Act 319 of 1978 created the PCS with the mandate of developing and promulgating sentencing guidelines. The stimulus for change in Pennsylvania was not strong concerns with sentencing disparity or a desire to lead in sentencing reform. Instead, the Pennsylvania sentencing guidelines resulted from an attempt to avoid mandatory minimum legislation that would severely restrict judicial discretion, attempted in 1976. With further legislative efforts to pass some sort of sentencing restrictions on the horizon in 1977, a small core of legislators wanted to avoid mandatory minimums and assessed the alternative options.

At this time, the Joint Council on Criminal Justice, chaired by Judge Richard Conaboy, decided to study sentencing reform options with the goal of assisting key legislators in determining the best approach for Pennsylvania. A conference was held where panels presented the pros and cons on mandatory minimums, legislatively set presumptive guidelines, and sentencing commission–authored sentencing guidelines. With the shadow of mandatory minimums looming, sentencing guidelines seemed like a good compromise, where sentencing experts could develop guidelines for judges and avoid the severe judicial restraints inherent in mandatory minimums. In this context, legislation was introduced in the 1977 session of the Pennsylvania General Assembly to create a sentencing commission to write sentencing guidelines.

This legislation faced several problems. First, although the final vote on establishing a sentencing commission and sentencing guidelines was unanimous, this vote did not reflect consensus behind any particular direction of sentencing reform. Reportedly, many members of the General Assembly took little interest, and those who did take an interest were more concerned about too much leniency in sentencing, especially the perceived leniency of the Philadelphia judiciary (though there was at the time no research documenting this perception).

Pennsylvania diverged from Minnesota and other jurisdictions that directed commissions to take into account the prison capacity in developing the guidelines. The decision not to have prison population capacity limits and representatives from corrections on the Commission indicated that the state legislature in particular was not willing to be constrained by questions about the potential impact of the guidelines on corrections. This view was maintained well into the 1990s, when Executive Director John Kramer proposed to legislators that the Secretary of Corrections and the Chair of the Board of Probation and Parole be added to the PCS, a proposal that was quickly rejected. However, around 2010, legislation was proposed and passed that would broaden the Commission’s mandate to write parole revocation and release guidelines and that would add the Secretary of Corrections and the Chair of the Board of Probation and Parole to the Commission as Ex Officio PCS members.

Second was the debate about who should be represented on the PCS as members. The initial bill proposed a fifteen member commission composed of eight legislators and seven judges. But this was viewed as too large a body to work together and reach consensus. By May of 1978, when the legislation was being debated on the floor of the House, the membership of the Commission was reduced to thirteen with legislative representation reduced to four and judicial appointments from seven to six. As the debate continued, the governor was given three appointments, including a district attorney, a defense attorney, and a criminologist or law professor, and the six judicial appointments were further reduced to four, leaving the Commission at eleven members.

The final vote on the legislation was unanimous in both the House and Senate. The purpose of the guidelines was, according to legislation, to alleviate two major problems with sentencing: (a) the problem of “judge-shopping,” which, in some counties, resulted in soft or lenient sentences even for repeat offenders of crimes of violence, and (b) the lack of uniformity in sentences in all counties of the Commonwealth (Senate Journal, p. 1075, November 14, 1978.)

After an initial version of the guidelines was rejected by the state legislature in 1981, guidelines were adopted and implemented in 1982. Figures 1 and 2 show the 1981 (rejected) and 1982 (adopted) guidelines, respectively.

Mandatory minimum sentences are found in almost every state and the federal system. The mid-1980s was marked at the national level by the dramatic and hardening reactions to drug offenses. Pennsylvania was no different, and the legislature sought increasing penalties for drug crimes. The PCS, seeing increasing pressure for sentences targeting drug trafficking, in 1989 developed a separate set of guidelines for drug offenses, with letter designations for separate offense severity rankings, outside the typical 1 to 10 offense severity ranking at the time.

From the 1982 guidelines on, the sentencing recommendations under the guidelines were not set to track the mandatory minimums. This is in contrast to the US Sentencing Commission, which incorporated the federal mandatories into the US Sentencing Guidelines as statutory “trumps.” Rather, the PCS determined that there were justifications for the guidelines to establish penalties different from (and generally more lenient than) mandatory minimums. The Commission argued in a legislative hearing on mandatory minimums early in the 1980s that the guidelines were appropriately independent of the legislatively adopted mandatory minimums because they represented more complex and comprehensive sentencing standards. Further, the Commission raised the issue of proportionality, so important to the construction and the fairness of the guidelines. To adjust the guidelines to be commensurate with mandatory minimums would either distort and “ratchet up” all sentences under the guidelines or else violate the guidelines’ ranking principles by placing offenses targeted for mandatory minimums at a higher rank in some cases than the Commission had ranked the offenses. This created a dilemma, however, because keeping the guidelines separate and different from than the mandatory minimums effectively codifed a source of sentencing disparity (see Kramer and Ulmer 2009; Ulmer, Kurlychek, and Kramer 2007). Moreover, this arrangement enhanced a form of prosecutorial discretion over sentencing, because prosecutors determined whether to file a motion to impose the mandatory minimum or let the guidelines provide the sentencing recommendation (Kramer and Ulmer 2009).

Given an offender convicted of a crime for which the prosecutor can choose to apply the mandatory minimum, the outcome of whether he receives a mandatory minimum is solely a product of prosecutorial discretion. While mandatory minimums always apply for murder 1 and 2 charges, the prosecutor must make a motion to apply the mandatory for other cases, including all drug-related mandatory minimums and Pennsylvania’s second/third strikes mandatory provisions. First, the prosecutor decides whether to charge an offense that is eligible for a mandatory minimum. Then the prosecutor decides whether to move for the application of the mandatory minimum. If the prosecutor so moves, and the offender is convicted, then the court must sentence accordingly (42 Pa. C.S. 9714[d]). If the prosecutor does not pursue the mandatory, the offender is sentenced pursuant to the Pennsylvania sentencing guidelines, which are almost always lower than the mandatory minimums. Thus, in Pennsylvania, guidelines and mandatory minimums have been two alternative sentencing structures. However, as we describe later, a 2015 Pennsylvania Supreme Court case has thrown the future of Pennsylvania’s mandatory minimums into some doubt.

The key enforcement mechanism for sentencing guidelines rests with the appellate review process. Under Pennsylvania’s guidelines, both downward departures and upward departures can be appealed by the prosecution or defense, respectively. For a fuller treatment of the history and issues related to appellate review of sentencing in Pennsylvania, see Kramer and Ulmer (2009), which the following discussion draws on substantially, as well as on Tamilia and Hare (2000), Hobbs (1996), and Del Sole (1993).

In Pennsylvania, the judge is required to consider the guidelines and to provide a “contemporaneous written statement” supporting the sentence when he or she sentences above or below the standard range. Act 319 creating the Commission established that sentences could be reversed when the guidelines were erroneously applied, a sentence in the guidelines was “clearly unreasonable,” or when a sentence outside the guidelines was unreasonable (42 Pa.C.S. sec. 9781). Further, section 9781(b) allows appeals “at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.” In the 1980s, the PCS decided that it did not have the authority to state any clarification or guidelines for appellate review.

There have been two general phases to appellate review, with the first starting in 1982 and ending in 1988, the pre-Devers era (i.e., before the important Commonwealth v Devers decision). The second was the post-Devers phase.¹ According to Tamilia and Hare (2000), there were two opposing conceptions of appellate review of sentencing. One conception strongly respected judicial discretion. The other position, less deferential of judicial discretion, wanted sentencing judges to carefully document their sentencing decisions, appellate courts to hold sentencing judges accountable for their decisions, and to closely hold judges to the guidelines’ purposes to reduce sentencing disparity. Tamilia and Hare argue that during the pre-Devers era the superior courts reviewed guideline appeals under the approach that judges’ discretion would be carefully reviewed and held to a reasonable standard on review of their decisions.

Regarding guideline sentences, a distinction is made between procedural and substantive review. Procedural review focuses on whether the sentencing court went through the proper procedures, such as considering the guidelines, calculating and applying the guidelines correctly, applying written justification for a sentence, and so on. In substantive review, the appellate court analyzes the justifications provided by the sentencing court for the sentence. During the pre-Devers period, the superior courts conducted both types of review. Thus the pre-Devers superior court moved strongly to fulfill the Commission’s goal of creating a common law of sentencing.

Hobbs (1996) reports that between 1982 and 1988 there were 321 appeals filed with the superior court related to the discretionary aspects of sentencing. In this time period, the Pennsylvania Superior Court did not generally defer to the lower court judges, but this came to an end with the Pennsylvania Supreme Court’s 1988 ruling in Commonwealth v. Devers (352 Pa. Super, 505 A.2d 1030). The Devers ruling established a “presumption of reasonableness” (Hobbs 1996:951) when a judge has a presentence report.

The Devers decision effectively eliminated substantive review of judges’ sentencing discretion in Pennsylvania, moved appellate review of sentencing toward procedural review, and, arguably, undermined the guidelines’ ability to reduce sentence disparity (Kramer and Ulmer 2009). In sum, the Pennsylvania Supreme Court has determined that “absent a manifest abuse of discretion, judges’ sentencing discretion shall be left undisturbed” (Commonwealth v. Devers, 1988, our emphasis). This “manifest abuse of discretion” standard provides for only minimal enforcement of the guidelines by the appellate court (Del Sole 1993). Thus, in Pennsylvania, there is little threat of departure sentences being appealed on substantive grounds and, if appealed, remanded for resentencing. This sets the presumption not in favor of the guideline, but in favor of local sentencing discretion.

Into the 1990s and 2000s, tensions still persisted between superior courts’ attempts to engage in substantive sentencing review and the standard set by the Supreme Court in Devers. For example, in Commonwealth v. Diaz (867 A.2d 1285 [2005]), the court ruled that chronic depression did not warrant reduction of sentence for burglary, and in Commonwealth v. Stewart (867 A.2d 589 [2005]), it found that the trial court abused its discretion when it enhanced the sentences based on charges that were nolle prossed. In Commonwealth v. Mola (838 A.2d 791), the superior court found that the trial court abused its discretion when court declared that it would give the statutory maximum to “anybody convicted of a drug offense,” finding that imposing a predetermined standardized sentence on all drug offenders was an abuse of discretion. While these cases suggest a return to a more substantive review, the shadow of Devers severely constrains the superior court’s substantive review.²

In the early and then mid-1990s, the PCS undertook significant revisions of the sentencing guidelines. A key evolution of the Pennsylvania guidelines in 1994 and 1997 was the PCS’s articulation of explicit sentencing purposes attached to its five guideline levels. The 1994 and 1997 revised guidelines are shown in Figures 3 and 4.

In effect, these purposes and levels were the Commission’s explicit codification of its views about key focal concerns of punishment: moral blameworthiness, community protection, and practical constraints/consequences (Steffensmeier, Ulmer, and Kramer 1998; Kramer and Ulmer 2009). The guidelines expressed the Commission’s view that its goals varied from restorative sanctions for the least serious offenders to incapacitation/retribution for the most serious offenders. For alternatives to incarceration, the PCS established a simple two-category classification based on the extent of offender monitoring provided. The less severe category of sanctions was labeled “restorative sanction.” The PCS defined this as nonconfinement sentencing options that (a) are the least restrictive in terms of constraint of the offender’s liberties, (b) do not involve the housing of the offender (either full- or part-time), and (c) focus on restoring the victim to preoffense status. Examples of these programs were community service programs, probation, outpatient treatment, and drug-testing programs.

However, probably the most prominent feature of the guidelines from 1994 on has been the emphasis on RIPs. RIP sentences were viewed as rehabilitative alternatives to retributive penalties, alternatives that would in turn protect the community by hopefully reducing recidivism and that would address key practical constraints such as limited prison and jail capacity.

A key goal of the PCS in the 1990s was to reduce the reliance on incarceration for the “mid-range” offenses—that is, those offenses that fall between offense severity (OGS) levels 6 and 9 in the 1994 guidelines and OGS 6 and 8 in the 1997 guidelines. The 1994 changes targeted providing intermediate punishment alternatives to county incarceration sentences and referred to these as level 3 offenders. In the 1997 changes, the Commission created a level 4 that expanded intermediate punishments to target offenders in many guideline ranges that called for state incarceration sentences, thus seeking to divert some offenders from state prison.

The PCS had two primary focal concerns in mind in creating these levels. First, it wanted to identify sentencing alternatives that would be more effective at rehabilitating offenders than traditional incarceration. Second, it wanted to maintain fairness such that similar offenders were treated similarly in terms of the severity of their sentence. The PCS (1997:9) defined RIP “as programs that provide for strict supervision of the offender.” The concept of RIP was developed to cover alternatives to incarceration that house the offender full- or part-time, significantly restrict the offender’s movement, monitor the offender’s compliance with the program(s), or involve a combination of programs that serve similar purposes (42 Pa. C.S. section 303.12). Examples of RIP sanctions include drug and alcohol treatment, house arrest with electronic monitoring, boot camps, or combinations of sanctions that provided for sufficient surveillance and sufficient offender accountability to be equivalent to incarceration.

The state initially provided $7 million in support of the RIP guidelines. Eligibility for funding required that counties develop a county intermediate punishment program plan that would assess available and needed correctional resources, review current procedures, and develop goals and objectives for effective utilization of correctional resources (42 PA.C.S. 9806). By the 2007 state budget, the state legislature’s support for RIP sentences had grown to $15 million.

Drug and alcohol treatment–based restrictive intermediate sanctions (D&A RIPs) have been in use in Pennsylvania since 1994. D&A RIPs consist of a variety of county-based sanctions that range from less to more restrictive (e.g., attending AA meetings, in-house drug treatment). The state made these sanctions available in an effort to provide the courts with an alternative sentence for addicted offenders who would have normally received a sentence of county jail or a short prison stay. A 2006 study (Kramer, Williams, and Williamson 2006) showed that offenders who successfully complete their D&A RIP sentences were 24 percent less likely to be rearrested than those who completed traditional sentences. Despite promising results, RIPs remain underutilized in Pennsylvania, with about 24 percent of eligible offenders receiving an RIP sentence in 2014 (PCS 2015a).

In 2005, in an effort to expand RIPs, the Legislature created a state intermediate punishment (SIP) program aimed at drug-involved, nonviolent offenders who would normally receive a short prison sentence (SIP Program Act 112 of 2004).³ This intense step-down program moves offenders from a short prison stay to a community-based therapeutic community and finally to an outpatient addiction treatment facility over the course of two years. A judge may sentence an offender to the program, or the Pennsylvania Department of Corrections (DOC) may recommend incoming offenders for participation (pending a sentence conversion). Research shows that those who complete the two-year program have a significantly lower recidivism rate compared to similarly situated offenders sentenced to state prison.⁴ Despite this only about 4 percent of eligible offenders received SIP sentences since the program’s inception (PCS 2013). Thus, while the program appears to reduce recidivism, its underutilization minimizes any effect on the state prison population.

Pennsylvania’s State Motivational Boot Camp Program has served as an alternative to incarceration since 1992. Established through Act 215 (Motivational Boot Camp Act 1990), this six-month program is meant to serve as a shorter, more rehabilitative setting for younger offenders who would have normally received a short prison term. ⁵ The program targets offenders who commit offenses that normally result in state incarceration but who score no higher than 11 on the OGS scale. Recommendation for boot camp participation is made either by the sentencing judge or the DOC once the offender is incarcerated. Participation in the program is voluntary and requires an application for admission. Upon completion of the program, offenders are released to intensive parole supervision. The program’s requirements (age, sentence type, offense) restrict the number of people eligible. Since its inception, boot camp has averaged 480 admissions a year. While research has failed to consistently show a reduction in recidivism for offenders who complete boot camp compared with those who complete a traditional sentence, boot camp offenders serve, on average, a sentence that is 16 months shorter.

From 1997 to the late 2000s, there were only minor changes to the guidelines and no changes to the basic matrix.⁶ However, one very important policy change did take place—the decision in 1998 to release sentencing data identified by the sentencing judge. Historically, the PCS had recorded the monitoring data by the judge but had not generally released this information. However, in the late 1990s, the Commission revisited this issue as a result of some key legal challenges (Bergstrom and Mistick 2003). Thus, to avoid such challenges, the Commission decided in 1998 that the information it collected was public information, and it therefore decided to release the information to the public. The PCS determined that release of the information was consistent with the fact that adult court records are public information and the Commission, as a publicly funded agency, should release it.

Since 2008 the focus of the Commission has been to integrate some major legislative and judicial mandates into the guidelines and align the guidelines with county and state correctional processes. First, the state legislature has mandated the adoption of the Recidivism Risk Reduction Incentive (RRRI) Program—which allows for sentences below the guideline minimum—prompted the development of a risk assessment instrument for use at sentencing and mandated the development of parole (and re-parole) guidelines and recommitment ranges for state paroling authorities, as well as resentencing guidelines at the county level. Second, in a surprising and important development, in the summer of 2015, the Pennsylvania Supreme Court ruled most of the state mandatory minimums unconstitutional, prompting the Commission and the legislature to redouble their efforts on reworking the structure of mandatories and enhancements. The Commission has therefore focused on integrating sentencing enhancement into the guidelines, which serve as alternatives to mandatory minimum sentencing.

In 2008 the Pennsylvania State Assembly passed legislation to institute the RRRI Program aimed at reducing prison populations and recidivism among nonviolent offenders (Implementation of Places of Confinement Act 81 of 2008). The program allows eligible offenders who complete assigned correctional programs to serve a reduced minimum sentence (PCS 2015a). The determination of whether the offender is eligible for an RRRI sentence is made by the sentencing judge. In these cases, the court imposes two separate sentences: the standard minimum and maximum sentence, and an RRRI sentence with a reduced minimum. For the most recent year data were available (2012–2013), 27 percent of offenders admitted to state prison had an RRRI sentence (although this was about half of all those eligible), and about 63 percent of these offenders were released before the expiration of their regular minimum. Analysis conducted by PCS showed that the overall recidivism rate was the same for RRRI offenders who successfully completed their programming and were let out before their minimum compared to similarly situated non-RRRI releases (before the program was implemented). However, RRRI offenders had slightly fewer arrests and slightly more technical violations after release. Thus it appears that offenders let out early under the RRRI program free up space in the DOC and do not pose a greater danger to the public.

Legislature Act 95 of 2010 required the PCS to develop a validated risk assessment tool for use at sentencing (Recidivism Risk Reduction Incentive 2010). The legislature’s goal was for judges to use a risk assessment instrument to sentence offenders within the sentencing guidelines—de-incarcerating lower risk offenders and keeping higher risk offenders incapacitated longer. Since 2010, the PCS has conducted a series of studies to identify factors associated with risk of recidivism for convicted offenders, as well as a study on how to best convey this risk information to judges. Number of prior arrests and age of the offender proved to be the two most important factors in predicting risk (PCS 2014a).⁷ A sample risk assessment instrument was released in 2015, with a separate risk scale for each OGS.⁸ The Commission is currently working with the courts and the legislature to determine how this instrument will be used in practice. The results of the risk assessment can be used purely to provide more information to the judge, as part of aggravating or mitigating sentencing factors, or as a codified element of the guideline ranges. The instrument is expected to be in use in at least some of these ways by late 2016 (Mark Begstrom, PCS Executive Director, personal communication, July 20, 2015).

In 2010 the Commission also undertook the task of developing state parole and re-parole guidelines, state recommitment ranges, and resentencing guidelines following revocation of probation and county intermediate punishment (responding to Prison Package Acts 81-84 of 2008).⁹ In Pennsylvania, parole at the state level is determined by the Board of Probation and Parole, a cabinet-level, independent state agency. Once an offender has served their minimum sentence, the Board has wide discretion regarding when offenders are released and how long they will be recommitted if parole is revoked. Efforts are now in place to make the parole-granting process more transparent at the sentencing stage and to better integrate the sentencing and parole decisions. The Commission has worked with the Board to develop recommitment ranges and will work to develop parole/re-parole guidelines for approval by the state assembly. At the county level, the Commission has collected statewide data to determine how long offenders serve in jail and the typical sentences for revocation of county punishments (jail, probation, intermediate punishment). Judges largely follow the guidelines during resentencing; however, the Commission plans to make re-sentence-specific guidelines in the next two years (Mark Begstrom, PCS Executive Director, personal communication, July 20, 2015).

On June 15, 2015, the Pennsylvania Supreme Court ruled that nearly all of the state’s drug- and gun- related mandatory minimum laws are unconstitutional because they do not meet the requirement that the element of the crime subject to the mandatory be proven beyond a reasonable doubt during trial (Commonwealth of Pennsylvania v. Hopkins 165 Pa. Super. Ct. 563. 2015; http://law.justia.com/cases/pennsylvania/supreme-court/2015/98-map-2013.html). Judges can still use sentencing factors to increase a sentence but only within the minimum and maximum sentences set by law (Yates 2015). The political climate in Pennsylvania has followed that of the nation as a whole, and support for mandatory minimums lacks the fervor it once had. The legislature is expected to rewrite some of the more politically popular mandatory minimum laws to conform to the 2015 ruling; however, other more controversial laws are unlikely to be revived. As part of this reorganization, the Commission is focused on promoting and expanding sentencing enhancements as an alternative to state mandatory minimums. These enhancements provide for longer sentences for serious and violent offenders based on factors of the crime. However, the final decision as to whether to apply an enhancement remains with the judge, and he or she may refuse to do so given an adequate explanation (PCS 2009).

When it comes to sentencing, Pennsylvania was among the most researched court jurisdictions in the United States in the 1990s and 2000s. We can only touch on this body of research and refer readers to specific studies for more details.

According to the Uniform Crime Report (US Department of Justice 2014), Pennsylvania arrests have hovered between 415,000 and 500,000 since 1990. In 2013 approximately 441,000 people were arrested—the majority (80 percent) were arrested for a Part II offense, such as simple assault and DUI (PCS 2014a). The ratio of serious violent, serious property, and Part II offenses has remained steady since 1990. Despite the narrow variation in yearly arrests patterns, the number of reported sentences doubled from 1996 to 2013 (PCS 2013). In 2013 approximately 148,000 sentences were recorded in the state.¹⁰

About 82 percent of all sentences are disposed of through a negotiated guilty plea and about 14 percent through a nonnegotiated guilty plea. Thus, in line with other states, less than 3 percent are convicted through a trial (approximately 1 percent through a jury trial and 1 percent through a bench trial; PCS Report 2013).

Probation remains the most common sentence, with 40 percent of all offenders receiving it in 2013. Fines were assessed in 44 percent of all sentences—a sentencing trend that appears to be on the rise in Pennsylvania, as well as the rest of the country. The percentage of people sentenced to incarceration has declined from a high of 60 percent in 1990 to 43 percent in 2013. Since 2001, the ratio of people sentenced to state prison has remained the same (approximately 13 percent), while the overall number of sentences and felony offenses has increased (PCS 2015b). The number of felonies sentenced to state incarceration has also remained steady at approximately 34 percent. However, since the 2008 Correctional Reform Act, which took away some judicial discretion to determine place of confinement, a larger percentage of non-DUI offenders sentenced to short incarceration sentences (i.e., a maximum of two to five years) have received state incarceration (78 percent in 2008 to 85 percent in 2013).¹¹ The average sentence length for both county and state incarceration has remained relatively stable since 2001. For county incarceration, the average minimum is three and a half months, and for state incarceration the average minimum is a little over three years (PCS 2014b). Offenders serving their sentence in county jail are generally paroled at or before their minimum, while those in state prison serve about 120 percent of their sentence.

After a decades’ long upward trend, the prison population has slowed growing in Pennsylvania. In 2014 there were 50,756 inmates housed under DOC control—down from a peak of 51,638 in 2011. Similarly, for the first time in almost two decades, Pennsylvania saw a marked decrease in recidivism from 2012 to 2013 (Alexandersen 2015; Bell et al. 2013). The six-month and one-year recidivism rates are now at 19 percent and 35 percent, respectively, compared to 24 percent and 40 percent the previous year.

Conformity to the guidelines has remained around 90 percent for the past decade.¹² In 2012 74 percent of sentences were in the standard range, 7 percent in the aggravated range, and 8 percent in the mitigated range. Out of the 10 percent of departures, 7 percent were below and 3 percent were above the guideline recommendations. The highest departure rates, both below and above, were found for serious offenses. The most common reason for departure was a plea agreement (PCS 2014b).

Demographic characteristics of offenders have remained consistent throughout the years (PCS 2014b). In 2013 the majority of offenders sentenced were white (72 percent) and male (78 percent), and about half were younger than 30. About a quarter of the offenders were black, and only 1 percent were Hispanic.

Several studies were published in the 1990s on racial, gender, and age disparity in sentencing under Pennsylvania’s guidelines. These showed moderate overall in/out disparity affecting black defendants, with African American defendants facing 25 percent to 50 percent greater odds of overall incarceration (depending on the study and model specification) and especially pronounced odds of state imprisonment (see Kramer and Steffensmeier 1993; Ulmer 1997; see also Holleran and Spohn 2004). As mentioned, county jail and state prison incarceration carry quite different consequences for early release and parole. Up until the very recent advent of RRRI sentences, county jail inmates could be released prior to the minimum sentence at the discretion of the sentencing court, whereas state inmates had to serve all of their minimum sentences and typically served 20 percent to 30 percent more.

Studies showed more modest racial sentence length disparity and generally showed black defendants receiving incarceration terms about three to four months longer than whites, depending on the study and model specification (Kramer and Steffensmeier 1993; Steffensmeier et al. 1993; Ulmer 1997). A pair of studies also examined disparity in guideline departures, generally finding moderate racial disparity in dispositional departures (i.e., receiving a nonincarceration sentence when the guidelines call for incarceration), with black defendants having about 40 percent reduced odds of receiving this form of leniency (Kramer and Ulmer 1996; Ulmer 1997). Studies also showed very consistent sentencing advantages (i.e., more lenient sentences) for women across nearly all types of sentencing outcomes (Steffensmeier et al. 1993, 1995, 1998; Kramer and Steffensmeier 1993; Kramer and Ulmer 1996; Ulmer 1997).

Further research refined the examination of sentencing disparity based on extralegal social status characteristics such as race, age, and gender. This research first revealed complex patterns of age differences in sentencing, with an inverted U-shape relationship between age and sentencing severity (Steffensmeier et al. 1995). The youngest offenders (under 19) and oldest offenders (over 50) received the most lenient sentences, while the most severe sentences were meted out to young adults, those aged 22 to 29. Next, research revealed substantial sentencing differences between race/gender/age subgroups, with young black males being the most likely of any group to be incarcerated and the group that received the longest sentences (Steffensmeier et al. 1998; see also Auerhahn 2007). In addition, comparisons of specific counties showed quite substantial differences between specific counties, and between small, medium, and large counties, in levels of overall sentence severity, race disparity, plea rewards/trial penalties, and departure likelihood (Ulmer and Kramer 1996; Ulmer 1997).

Research on Pennsylvania sentencing in the 2000s replicated most findings and extended themes from research of the 1990s. The following are some of the major findings of Pennsylvania sentencing research in the 2000s. First, Hispanic male defendants experience levels of sentencing disadvantage comparable to or even greater than black males (Steffensmeier and Demuth 2001; Kramer and Ulmer 2002, 2009; Ulmer and Johnson 2004; Ulmer et al. 2015). Second, more sophisticated and in-depth examination of between-county differences in sentencing revealed that sentencing severity and levels of racial and ethnic disparity varied greatly between county courts (Britt 2000; Ulmer and Johnson 2004; Kramer and Ulmer 2009; Ulmer et al. 2015). More lenient sentencing overall was associated with court caseloads, large county size, the percentage of blacks in the county (Ulmer and Johnson 2004; Kramer and Ulmer 2009), and even county religious diversity (Ulmer et al. 2008), while county jail space, small county size, and county religious homogeneity in combination with county percentage of Republicans were associated with greater sentence severity (Ulmer and Johnson 2004; Ulmer et al. 2008). Levels of race and ethnic disparity may be sensitive to the racial and ethnic context of counties, since Ulmer and Johnson found that blacks and Hispanics received longer incarceration sentences in counties with greater black and Hispanic populations. However, Kramer and Ulmer (2009) did not find this pattern.

Third, sentences vary significantly between judges under the guidelines, as does the propensity to depart from them. In what is probably the most thorough treatment of the role of judge characteristics on sentencing to date, Johnson (2005; 2006) examined court contextual and interjudge variation in sentences in Pennsylvania. He found that between-judge variation accounted for 6 to 7 percent of overall sentencing variation. This seemingly modest between-judge variation, however, is not the whole story. He also found that black and Hispanic judges sentenced all offenders, and particularly minority offenders, more leniently than white judges. Furthermore, male judges sentenced female offenders more leniently.

Fourth, several studies have examined how mode of conviction affects sentencing, that is, sentencing differences between types of guilty pleas and types trials. This research exhibits some limitations in that studies typically use data on convicted offenders only, which presents issues of selection and potential missing-variable bias absent data on the likelihood of acquittal. Still, one overarching lesson from these recent studies is that Pennsylvania’s sentencing guidelines seem to provide a discretionary framework within which to differentially reward guilty pleas and punish trials. Johnson (2003) found that mode of conviction moderated the role of race/ethnicity in predicting guideline departures, with blacks and Hispanics experiencing different odds of receiving downward or upward departures, depending on their modes of conviction (nonnegotiated pleas, negotiated pleas, bench trials, or jury trials). In addition, Ulmer and Bradley (2006) and Kramer and Ulmer (2009) looked at trial penalties for serious violent offenders and less serious offenders. They found that defendants were substantially penalized if they were convicted by trial relative to those with negotiated or open guilty pleas. The size of this trial penalty, however, varied greatly between counties and their courts. Furthermore, this jury trial penalty varied depending on the seriousness and type of offense (more severe offenses had lesser trial penalties); defendant criminal history (offenders with more substantial criminal histories actually experienced less of a trial penalty); race (blacks experienced greater trial penalties); and court contextual characteristics such as court community size (larger trial penalties in larger courts), local violent crime rates (the higher the crime rate, the greater the trial penalties), and the size of local black populations (greater trial penalties in counties with larger black populations).

Fifth, sentencing under the Pennsylvania guidelines has changed substantially over time, and some of these changes reflect purposes of the PCS and its guidelines. Overall, levels of racial disparity were lower in the late 1990s, 2000s, and early 2010s compared to the late 1980s and early 1990s (Kramer and Ulmer 2009; Ulmer et al. 2015). In addition, the use of RIP sentences, restorative sanctions, and other alternatives to incarceration have increased substantially since these were built into the guidelines and endorsed by the PCS and others in the mid-1990s, and the use of these alternatives seems to have diverted primarily those who otherwise would have been incarcerated (Kramer and Ulmer 2009; Kramer et al. 2006; PCS 2011). In addition, guideline conformity was greater, and departures fewer, in the 2000s than in the 1980s or 1990s.

Finally, another major direction of sentencing research in the 2000s and 2010s has been focused on mandatory minimums. The use of mandatory minimum sentences has remained controversial in Pennsylvania and has prompted several pieces of research (Ulmer, Kurlychek, and Kramer 2007; PCS 2009). As noted, in Pennsylvania the decision to charge someone with a mandatory eligible offense and the decision to apply a mandatory minimum sentence to a crime rests with the prosecution. Thus we noted that mandatory minimum laws give prosecutors a significant amount of bargaining power, because they are almost always longer than the guidelines’ recommendation and trump the guidelines. However, a 2009 PCS study found that less than half of all convictions eligible for a mandatory actually receive it. The study also raised some issues with the current mandatory minimum laws—mainly that they failed to target high-risk and dangerous offenders and that receiving a mandatory sentence had no effect on post-release recidivism. Furthermore, the PCS found that only about a third of Pennsylvanians surveyed could correctly name a mandatory eligible offense. Overall, the study showed that mandatory minimum laws are used inconsistently and lack discernible deterrent effects. An earlier study by Ulmer et al. (2007) looked at what factors affect the prosecutorial decision to impose a mandatory minimum law in Pennsylvania. They found substantial variation in the application of the minimum among mandatory-eligible cases. Prosecutors were more likely to impose a mandatory minimum for offenders who went to trial, for male offenders, and in cases when the mandatory minimum was closer to the guideline sentence. Furthermore, while mandatories were not disproportionately applied to all minority defendants¹³, they disproportionately affected minority defendants—who make up 70 percent of offenders eligible for a mandatory. The PCS has since lobbied the General Assembly to repeal and/or reduce a variety of mandatory sentences and to increase reliance on existing sentencing options. With the 2015 Commonwealth v Hopkins decision, it is unclear what the future status of Pennsylvania’s mandatory minimums will be.

Overall, Pennsylvania has been the site of dynamic and fascinating policy developments and empirical inquiries in criminal sentencing for the past 40 years. The state’s divergent mixture of local social contexts and its demography, political history, and complex sentencing policy landscape will likely ensure that such developments will continue. Meanwhile, not only have the PCS and its sentencing guidelines become institutionalized into the fabric of the state’s criminal justice system, the PCS’s purview has even expanded to include the examination and advising of post-sentencing decisions, even as the future of Pennsylvania’s mandatory minimums have recently become uncertain.