Stiff Sentences For Selling Heroin Near An Elementary School

Posted in Felony Drug Delivery / Possession with Intent to Deliver,General on January 12, 2015

A 61-year-old woman was arrested after she allegedly sold heroin to undercover police officers in the Philadelphia area. According to the Philly.com article, the woman’s home sits on a 1.7 acre lot, but her property is only 150 feet from an access road to the New Eagle Elementary School. Precisely where the delivery of the drug occurred on the property could substantially impact the sentence that the woman receives if she is convicted of the felony drug charge.

Sentencing in Pennsylvania Drug Delivery Cases

Fortunately for this woman, the Pennsylvania Supreme Court held that the drug-free school zone law is unconstitutional and thereby cannot be used to impose a 2-year minimum sentence for a drug delivery that occurred within so many feet of a school or college and university. While the school zone mandatory sentencing law is no longer in play here, prosecutors still may be able to argue that the woman should receive a more severe sentence pursuant to the “School Enhancement” found in § 303.9 and § 303.10 of the Pennsylvania sentencing law. The enhancement is not a mandatory sentence, meaning a judge is not required by law to impose a particular sentence. An enhancement increases the recommended sentencing range that the judge is required to consider in determining the appropriate sentence.

The “School Enhancement” substantially increases the recommended sentence in a drug delivery or possession with intent to deliver case that occurred within 250 feet of the real property of a “public or private elementary or secondary school.” While the terms elementary and secondary school cause most people to believe that the enhancement applies to elementary, middle, and high schools, the Centre County District Attorney’s Office has argued that universities and colleges should fall under the definition of a “secondary school” and have sought to impose the sentencing enhancement in cases involving Penn State students distributing marijuana to one another. The good news is that the Bellefonte judges in Centre County have rejected the prosecutor’s argument and refuse to impose enhanced sentences for deliveries occurring around college campuses.

How is the “School Enhancement” for Drug Deliveries Imposed?

When a person is convicted or pleads guilty to an offense in Pennsylvania, the case proceeds to the sentencing phase, and the judge is required to consider a recommended minimum sentencing range that is set forth by law. The sentencing range is primarily based upon the severity of the charge and the person’s criminal history. When the charges involve the distribution or possession with intent to deliver drugs, the type of drug and quantity involved impacts the severity of the charge and thereby impacts the recommended sentencing range. Possession With Intent to Deliver less than two pounds of marijuana carries a recommended sentence of probation up to one month in jail if the person has no prior record score. If the person delivered less than one gram of heroin, the person faces a recommended sentence of three to twelve months in jail. If the prosecution believes that an enhancement is applicable to a sentence, then the prosecution must present evidence at a sentencing hearing. At a sentencing hearing, the burden of proof is not beyond a reasonable doubt as it is at trial, and a person does not have a right to have a jury consider an enhancement issue. The issue is determined by the sentencing judge by a preponderance of the evidence standard. The lower burden of proof along with relaxed rules of evidence makes it easier for a prosecutor to present evidence to justify imposition of a sentencing enhancement. The “School Enhancement” adds twelve months to the bottom of the sentencing recommendation and twenty-four months to the upper end. Therefore, in the example of a heroin delivery of less than one gram that occurred within 250 feet of a school increases to fifteen months to thirty-six months in jail.

Many prosecutors across the state are advocating that the legislature revise the drug-free school zone law to return the mandatory minimum sentencing scheme. Prosecutors often tell the public that the law is needed to protect children at schools. The problem is that the public is not aware of the “School Enhancement” that already is in place and can be used in the same manner to protect young children. The primary different between the mandatory sentence and the enhancement is that the enhancement does not apply to colleges and universities, and with mandatory sentences, the prosecutors have more power than the judges. Sentences should generally be determined by a judge, not a prosecutor. Hopefully the legislature leaves the drug mandatory sentences alone and focuses on other societal needs.