Criminal Process

You can get in trouble for WHAT?! A description of some lesser known (but actually punishable) crimes in Pennsylvania.

arrested man hands close up

         In light of the recent ACLU lawsuit in Allegheny Township, where a PA man was charged for hanging the American flag upside down with the letters A.I.M. on it, many readers were probably surprised to learn flag desecration is an actual criminal offense in Pennsylvania. Under the Criminal and Vehicle Code, certain criminal acts are obvious: driving under the influence (DUI), possession of marijuana, assault, theft, etc. With almost all crimes, there is intent – or a mens rea – to commit these offenses. Most people know they are breaking the law when committing any one of these punishable offenses.

         With some situations, an individual may try to avoid breaking the law, but is still committing a crime. For example, a person can be arrested for DUI without driving, so long as he or she was “in actual physical control of the movement” of a car. This would include a scenario where an individual leaves a party and falls asleep in the front seat of a car to sleep off the alcohol rather than drive home.  While this person isn’t technically driving, he or she is still breaking the law and can be found guilty of DUI. In this situation, similar to the flag desecrator, ignorance of the law is not a defense.

          Below is a list of crimes punishable in Pennsylvania (sometimes up to TWO years in prison!) that most people probably don’t know exist:

          18 PA.C.S. 7104: Fortune Telling. This statute punishes a number of genie-like acts, including using cards or tokens to predict future events, using charms, spells and necromancy, administering love potions, putting bad luck on a person or animal, and even “consulting the movements of the heavenly bodies.”  There is a reason that spiritual businesses will put up signs that read For Entertainment Purposes Only: otherwise, fortune tellers face up to one year in jail!

          18 PA.C.S. 2904: Interfering with Child Custody. Custody matters are civil, and judges have the ability to sanction/find contempt against parents in Family Court. However, at times custody disputes can be criminal. Any person who knowingly or recklessly takes a child away from the child’s parent’s custody for less than 24 hours and (1) the child is subject to a valid custody order; (2) the person has some form of custody under said order, and (3) the parties do not leave the state, commits a Second Degree Misdemeanor. Under this scenario, a parent who disregards a custody order and fails to return a child to the other parent can face charges, including two years in prison and hefty fines.

          18 PA.C.S. 5103: Unlawfully Listening to Jury Deliberations. In keeping with the sanctity of jury secrecy, Pennsylvania punishes any person who, in any manner and for any purpose, intentionally listens to jury deliberations. With the manner and purpose irrelevant, this “curiosity killed the cat” crime is punishable by up to one year in jail.

          18 PA.C.S. 3015: Nonpayment of wages. A defense to prostitution is trafficking or sexual coercion. But, that doesn’t mean a victim can’t get paid for what he or she is owed. This law specifically prohibits human traffickers from not paying their trafficked victims. In this context, a pimp who fails to pay his or her prostitute for “services” rendered commits a Third Degree misdemeanor if the amount owed is less than $2,000 or a Third Degree Felony if the amount owed is more than $2,000.

          18 PA.C.S. 7509: Furnishing Drug Free Urine. Got a probation meeting coming up and need to get a clean sample? Selling, giving, or dealing in clean urine, and subsequently attempting to pass off clean urine during a drug test, is a Third Degree Misdemeanor in Pennsylvania. The statute doesn’t limit punishment of clean urine sellers/users to criminal contexts only – thus, whether the urine is used to avoid probation violation or employment eligibility, it’s illegal.

          18 PA.C.S. 5904: Public Exhibition of Insane or Deformed Person. Although circus freaks were a popular source of entertainment in the past and states elsewhere, they’re likely criminal in Pennsylvania. Any person who publicly exhibits “an insane, idiotic or deformed person, or imbecile” for money or other reward is guilty of a Second Degree Misdemeanor. The terms “insane, idiotic and imbecile” are not defined under the law, and to this day remain open to interpretation.

          18 PA.C.S. 6708: Failing to Return Library Book. Pennsylvania takes its education seriously – serious enough that any person who retains public library material after being given written notice commits a summary offense. Since a summary offense is punishable up to 90 days in jail, any person willfully committing this offense better chose a book they literally can’t put down!

          18 PA.C.S. 3303: Failing to Prevent a Catastrophe. Negligent and reckless acts by landlords, construction companies, business owners, nightclubs and homeowners are some of the most litigious areas of law. These acts can also be punished criminally. A person who recklessly fails to take reasonable measures to prevent or mitigate a catastrophe is guilty of a Second Degree Misdemeanor. A common example includes business owners blatantly disregarding dangerous structural or other defects on their premises. Thus, while a business owner knows he can face civil litigation, he probably doesn’t know he can face criminal prosecution as well.

          18 PA.C.S. 6503: Posting Advertisements on Property of Another. If you ever noticed utility poles, highway fences or bridges plastered with stickers, ads, or other signs, you’ve likely witnessed a crime. In Pennsylvania, it is illegal to post, paint, stick or stamp an ad, sign, card or poster on any property belonging to the state, local government or property of another without permission, and is punishable as a summary offense. While trying to promote a local art show or selling your bike, if you want to avoid being a criminal, don’t even think about posting without permission!

          As you can see, fortune tellers and library thieves are not too welcomed into the state of Pennsylvania. Although these crimes are rarely prosecuted, they are still illegal acts. Until the Legislature repeals or the Courts strike down these statutes, the law remains. In the surprising, yet still possible, event you or a relative have been arrested for any of the above, be sure to consult an attorney at Skinner Law Firm to discuss your options. Contact us today at (610) 436-1410 or (610) 565-3320.

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Pennsylvania’s New Record Sealing Law: What You Need to Know if You Have a Criminal Record

 

erase

On February 16, 2016, Governor Wolf signed into law Senate Bill 166, an expansion to Pennsylvania’s dissemination of criminal information laws. Although the law has been widely described as an expansion of the current expungement law, it is, rather, an entirely new statute. The new statute takes effect on November 14, 2016.

Under the new statute, 18 Pa.C.S. 9122.1, an individual with a certain criminal record may petition the court for an Order for “limited access” (i.e. sealing).

If granted, no criminal justice agency (including police stations, jail and prison facilities, probation departments and district attorneys’ offices) may disseminate information about the individual’s criminal conviction to anyone or any agency.

With some exceptions, most misdemeanors of the second and third degree will be expungeable when the new law takes effect in October of 2016.

Another benefit under the new law is that individuals can successfully refuse to disclose information about the sealed case to non-criminal justice agencies. This includes employment applications, which was a major factor pushing the bill into law.

Sealing an Criminal Record in Chester County or Delaware County, PA

Call the attorneys at the Skinner Law Firm if you are interested in sealing or expunging a criminal record in Chester County or Delaware County, PA.

We also help clients seal or expunge a record throughout the surrounding areas of Pennsylvania. Call us to speak directly with an attorney to discuss your case.

With offices in West Chester in Chester County (610-436-1410) and Media in Delaware County (610-565-3320), we are here to assist you in moving past your criminal record.


Who is Eligible to Seal a Record under Pennsylvania Law?

A person who has a conviction for a second degree misdemeanor, third degree misdemeanor or ungraded misdemeanor and who has been free of arrest or prosecution for the past 10 years is eligible.

The 10 year wait period does not start until completion of probation, parole or other supervision. Anyone who has ever been convicted of one of the following offenses is not eligible:

  • Ungraded misdemeanor punishable by more than two years;
  • Four of more misdemeanor offenses;
  • Sexual Intercourse with an Animal;
  • Obstruction of Child Abuse Case;
  • A conviction that requires Meghan’s Law (sex offender) registration;
  • Retaliation Against a Witness;
  • Intimidation of Witnesses;
  • Impersonating a Public Servant; or
  • A second degree misdemeanor for Simple Assault (M2).

What convictions can be sealed in Pennsylvania?

As mentioned above, certain convictions cannot be sealed even if they are second, third or ungraded misdemeanors. The law also clearly disqualifies simple assault convictions unless it was a third or ungraded misdemeanor.

Thus, common offenses that may be sealed under the new law include first offense DUI, possession of marijuana, possession of drug paraphernalia, and certain theft, trespass and firearm offenses.


What is the procedure to seal the record?

A person who is eligible files a petition in the Court of Common Pleas in the county where the guilty plea or verdict took place. The District Attorney’s Office has thirty (30) days to consent or object.

If the District Attorney’s Office objects, there will be a hearing before a judge. If the District Attorney’s Office does not object, the Order will be granted and notice of the sealed Order will be submitted to the appropriate agencies.

It is important to note that there are exceptions to the law. For example, legal, medical, teaching or nursing agencies that issue professional occupational licenses may request criminal information from a sealed case.

In addition, if there is an investigation by a county children, youth and family agency or Department of Public Welfare, criminal information may be requested.

It is important to remember that the purpose of the law is not to expunge or erase a criminal record. The purpose of the law is to seal a case from public access after successfully showing years of law-abiding behavior.


Additional Resources

Section 9122. Expungement in Pennsylvania – Visit the website of the Pennsylvania General Assembly to read more about Title 18, on expungement. Find the specific proceedings subject to expunction including criminal history record information. Also find a list of offenses with a prohibition on expunction after the defendant was placed on Accelerated Rehabilitation Disposition (ARD) when the victim was under 18 years of age.

§ 9122.1 Order for limited access – The new law for sealing records in Pennsylvania provides, in part:

(a) General rule.—The following shall apply:

(1) Notwithstanding any other provision of this chapter, upon petition of a person who has been free of arrest or prosecution following conviction or final release from confinement or supervision, whichever is later, for a period of 10 years, the court of common pleas in the jurisdiction where the conviction occurred may enter an order that criminal history record information maintained by any criminal justice agency pertaining to a conviction for a misdemeanor of the second degree, a misdemeanor of the third degree or an ungraded offense which carries a maximum penalty of no more than two years be disseminated only to a criminal justice agency or a government agency as provided in section 9121(b.1) and (b.2) (relating to general regulations).

(2) Except when requested or required by a criminal justice agency, or by and for the official use of a government agency described in section 9121(b.1) or 9124(a) (relating to use of records by licensing agencies), no individual shall be required nor requested to disclose information about the person’s criminal history records that are the subject of a court order for limited access granted under this section…..

…..(c) Notice to district attorney.—The court shall provide notice of the filing of a petition under subsection (a) to the district attorney within 10 days. Within 30 days of receipt of notice, the district attorney may file objections to the petition. If no objection is timely filed, the court may grant the petition without further hearing if the requirements of this section have been met.

(d) Notice to central repository.—Notice of an order for limited access shall promptly be submitted to the central repository which shall notify all criminal justice agencies which have received criminal history record information related to such conviction that access to such criminal history record has been limited by order of the court.

Expungement of Juvenile Record in Chester County, PA – Visit the website of Chester County, PA, to learn more about the expungement process for a juvenile record in Chester County, PA. Find information on the process to legally erase a juvenile record or seal the record making it permanently unavailable to the public. Find out more about when the Juvenile Probation Department will expunge any information it creates and any information it receives from outside sources. Also find information on when the State and Local Police will expunge arrest records and records of juveniles’ dispositions upon receipt of a certified court order from the petitioner.


What should I do if I am eligible?

If you are eligible under the new law to seal your criminal case, contact an attorney at Skinner Law Firm to discuss your options further. With offices in West Chester in Chester County (610-436-1410) and Media in Delaware County (610-565-3320), our attorneys are here to assist you in moving past your criminal record.

Call us to seal or expunge your criminal record in West Chester for Chester County or in Media for Delaware County, PA.

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What Happens in a Protective Order Hearing?

When a person is a victim of domestic violence, he or she may be able to protect themselves with a protective order. The protective order, also known as a restraining order, limits the interaction between people, which is seen as an essential way to keep victims safe. A judge also could impose other restrictions if he or she determines it necessary.

The intent of the protective order is defined for Pennsylvania in 18 Pa.C.S §4954, stating that any court with criminal jurisdiction may issue protective orders with provisions such as:

  • Defendant may not violate any provision of stalking or harassment
  • Defendant must maintain a prescribed geographic distance from any specified witness or victim
  • Defendant must have no communication whatsoever with the specified person unless it is through an attorney

A temporary order with these restrictions could be issued if a judge believes the allege victim is in immediate danger. However, other steps must be taken for an extended order to be put in place. Each side has the opportunity to plead its case at the protective order hearing.

After a person files a petition for a protective order, a hearing will be scheduled within seven to 10 days. The procedure for the hearing is formal and often is like a regular trial. During the hearing each side — the alleged victim and the accused — can present evidence, witnesses and testimonies before the judge.

This hearing is considered vital because it is when each person essentially can present their side of the story. In these hearings, the burden of proof is lighter than in a criminal trial.  The alleged victim only has to prove need for a protection by a preponderance of evidence instead of beyond a reasonable doubt.

Once the evidence is heard, the judge then will decide if he or she thinks the protective order is necessary. A judge could grant a 60 to 90 day continuance instead of a protective order if the concerns are nonviolent. However, a protection from abuse order could have steep requirements.

If a protection from abuse order is placed against you, you could be prevented from seeing your children, siblings or other family members, depending on who was involved in the alleged incident.  This could have a serious impact on cases in the future, including custody cases or even child abuse cases.

Defending yourself against a protective order is important because although it seems minor, the restraining order could have a serious affect on your life. Domestic violence cases and protective orders carry a stigma and could make a person appear as dangerous, even if that is not the case. Additionally, violating the order could mean criminal consequences.

If a person is convicted for violating a protection from abuse order he or she could face a fine of between $300 and $1,000, in addition to imprisonment or supervised probation. The court also could extend the protective order for an additional term.  Any firearms or other weapons that were used or threatened to be used also could be confiscated.

If a protective order from abuse has been filed against you, it is important you defend yourself. You have the right to an attorney for a hearing, and a skilled Pennsylvania attorney can help protect your future. Call (267) 388-3476 to discuss you case with Michael Skinner.

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Keeping Your License After a DUI Arrest

When a person is arrested for driving under the influence, he or she could face immediate consequences, such as having driving privileges suspended or revoked. This often is one of the hardest parts of a DUI arrest because it could create issues with employment and education. However, there are options and ways you can fight to keep your license.

When a person is arrested for a DUI, law enforcement officers often ask they submit to a chemical test. Under Pennsylvania law, the Department of Transportation Driver and Vehicle Services can suspend or revoke your driving privilege for many reasons, including violating the implied consent law.

Implied consent is a legal concept related to DUI that has been adopted in several states. Under implied consent, any time a person drives, operates or is in actual physical control of a vehicle, he or she agrees to a chemical test of his or her blood, alcohol or urine.

When a person refuses to take the test, the officer then will document the refusal and send it to the Department of Transportation. From that point, you driver’s license will be suspended 30 days after the correspondence. The suspension for a first refusal could last up to a year.

It is important to understand the process of reinstating your driving privileges because drivers only are allowed 30 days to request a license suspension hearing. It is at the hearing the driver and his or her attorney can make a case as to why he or she should retain driving privileges.

To appeal, drivers must file an appeal with the Civil Trials Division of the Court of Common Pleas in the county in which the refusal occurred. The appeals process will require forms and a filing fee, much like a criminal court. If your hearing is granted, PennDOT will need to prove:

  • The officer had reasonable cause for a stop
  • The officer had reasonable cause to believe the driver was intoxicated
  • You refused a chemical test after an officer asked you submit to one
  • The officer read your O’Connell warnings
  • The arrest was valid

Your administrative suspension could be revoked if these things cannot be proven. If they are, there still may be defenses to argue your defense. However, even if your administrative suspension is overturned, you still could face criminal penalties.

DUI convictions carry severe penalties, including a driver’s license suspension. If it is a first offense, a person only may be faced with an administrative suspension. A second or third DUI could mean a one-year suspension, plus administrative penalties.

In certain cases, a person convicted of a first-time DUI may be eligible for an Occupational Limited Licenses after serving 60 days of his or her suspension. Those sixty days are sometimes called the “hard suspension,” meaning the individual cannot drive for any reason. This license would allow a person to commute only for an occupation, work, trade, medical treatment or study

However, the best way to avoid having your driving privileges revoked is to avoid a DUI conviction. A skilled Chester County DUI defense attorney can work with you at the beginning of the case and help you build a strong defense against the charges. Protecting your future is important, and the attorneys at Skinner Law Firm understand that. Call (267) 388-3476 for a free consultation.

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When is Registration as a Sex Offender Required?

When a person is convicted of a sexually based offense, he or she could face severe and long-term consequences, including being required to register as a sex offender. This could mean difficulty finding a job, restrictions on housing and a reputation as a potentially dangerous person.

If a Pennsylvania resident has been convicted of one or more Tier I, II or III offenses, he or she may be required to register as a sex offender in the state. Additionally, if a person previously convicted of one or more offenses works in the state, but resides in another, or attends a university in the state, he or she could be required to register in Pennsylvania.

Certain out-of-state offenders and some juveniles adjudicated of specific crimes also are subject to the registration requirements of Megan’s Law, a state law designed to protect the public from sexual offenders.

In Pennsylvania, there are several offenses that, if convicted, a person could be required to register. The offenses are categorized by tiers based on the severity of the crime. The tiers designate the appropriate penalties, including the length of time in which a person must be on the registry.

Those convicted of Tier I offenses in Pennsylvania are required to register for 15 years. Some of these could include certain offenses relating to the sexual exploitation of minors, offenses relating to possession of child pornography, indecent assault and sexual abuse of children.

A Tier II conviction in Pennsylvania could mean being placed on the state’s sex offender registry for 25 years. Offenses such as trafficking in individuals, statutory sexual assault, unlawful contact with a minor and sexual exploitation of children are considered Tier II offenses.

If a person is convicted of a Tier III offense, he or she could be forced to register as a sex offender for life. These offenses often are considered some of the harshest. These offenses could include kidnapping, rape, incest, sexual abuse, aggravated sexual abuse, sexual assault and statutory sexual assault.

A juvenile could be required to register if he or she was adjudicated of rape, involuntary deviate sexual intercourse, aggravated indecent assault or any attempt, conspiracy or solicitation of the offenses. A child in Tier III previously was required to register for life, but the state Supreme Court ruled last month the requirement was unconstitutional.

Sexual offenders are required to register at the time of sentencing. Out-of-state offenders who are subject to registration must report to an approved Registration Site and register within three business days of establishing a residence, becoming employed or attending school in the state.

Additionally, offenders are required to appear in-person throughout the year at an approved registration and verification site according to their assigned Tier classification. Appearances could include:

  • Tier I offenders — Annually
  • Tier II offenders — Twice a year
  • Tier III offenders —Four times a year
  • Transient offenders —Monthly
  • Juvenile offenders — Four times a year

All sexual offenders are required to report any changes, such as a change in residence, name or employment, within three business days. Failing to do so could mean additional penalties. Fighting a conviction for a sexual offense is critical. An attorney at Skinner Law Firm can help you through the process. Call (267) 388-3476 for a free consultation.

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Consequences of Drug Trafficking Offenses: Pennsylvania’s Controlled Substance Forfeiture Act

Recently, the Philadelphia Inquirer published an article regarding the draconian forfeiture policies of the Philadelphia District Attorney’s Office.[1] The Sourovelis’ told the story of their son, who was caught selling just $40 of drugs outside the home he shared with his parents. Even after the crime and punishment had concluded, and even after their son began rehabilitation towards a new start, the Sourovelis were in for another shocking surprise: their family home was subject to civil forfeiture. Despite no evidence to show the Sourovelis knew or suspected anything about their sons’ misdeeds, they may lose their homes over their son’s sale of drugs.

Anyone charged or convicted of a drug trafficking offense in Pennsylvania may be subject to forfeiture of a variety of property. An acquittal, dismissal or admission into diversionary programs does not necessarily preclude the District Attorney’s Office from commencing forfeiture proceedings. Additionally, those who have knowledge of drug trafficking within the confines of their homes or vehicles may have to forfeit this personal property. In a forfeiture proceeding, the District Attorney must prove a sufficient “nexus” exists between the property seized and the illegal drug trafficking offense. Mere circumstantial evidence can be sufficient to prove this nexus exists. The District Attorney also has the burden of proof to show that items seized and forfeited are “more likely than not” associated with drug trafficking. Not only is this burden less than that of a criminal trial’s “beyond a reasonable doubt” standard, it does not afford all the same rights and protections of the criminal trial itself.

Once drugs and contraband are seized as a result of a drug trafficking charge or conviction, these items are unquestionably non-returnable. This includes manufacturing equipment and paraphernalia. However, if the District Attorney believes other property is associated with the commission or facilitation of a drug trafficking offense, they may seek forfeiture of any and all legally owned firearms, money (loose or bundled), ledgers, books, motor vehicles, and even real estate.[2] This may include less-thought of items such as cellular phones, cameras, bank accounts and even children’s property. Just as in the Sourovelis’ case, anyone engaged in the commission or facilitation of drug trafficking may cause others to lose family homes, regardless of the quantity or type of drugs involved.

Originally intended to protect against violent drug traffickers, whose homes and vehicles were plagued with illegal drugs, guns and paraphernalia, the power and harshness of Pennsylvania’s Controlled Substance Forfeiture Act cannot be underestimated. If you have been charged with a drug trafficking offense and are concerned with forfeiture of property which may not be related to the crime at hand, be sure to consult with an attorney.

Legal Disclaimer: This post is not to be construed as giving legal advice by any member of Skinner Law Firm. LLC, nor it is intended to form an attorney-client relationship.  All information is solely informative.



[2] 42 Pa.C.S.A. § 6801, et seq.

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Westchester Defense Attorney Discusses the Criminal Justice Reform Act Recently Signed into Law

 

In what may be one of the most dramatic reforms in recent Pennsylvania history, the Criminal Justice Reform Act was signed into law by Gov. Tom Corbett in July. Looking to remedy the inherent flaws and growing strain on the inefficient Pennsylvania justice system, the Act hopes to reduce prison populations and cut costs while shifting focus towards rehabilitation as opposed to punishment.

As a state that has garnered the reputation as being one of the most punitive in the nation, the reforms could not come soon enough. The consequences of strict sentencing and reactive law enforcement over the past two decades have led to a state prison population of 51,757. This huge amplification in prisoners comes out to a 40% increase over the last 12 years. The corrections budget has ballooned to $1.86 billion a year, with these funds unable to remedy the fact that 26 penitentiaries were found to be over capacity by at least 4,000 inmates. These numbers are alarming, disturbing and unsustainable.

The mandatory minimum sentences, for-profit prisons and lack of diversionary programs have been the three largest contributors to this mess the justice system has found itself in. Locking up offenders for minimum terms, particularly non-violent criminals, without considering the situation is a reactive approach that is not welcome in a society that prides itself on due process and justice.

Minimum sentences are obviously huge benefits for corporations that own the prisons that profit from extended jail stays. This conflict of interest is unconscionable but has continued to be prevalent throughout our county, mainly because of public misinformation and selfish financial interests of the few. Not only are prisoners given mandatory, arbitrary sentences, they are also not given ample opportunities to rehabilitate and learn how to be a productive member of society. This vicious cycle makes it more difficult for a Pennsylvania criminal defense attorney to fairly represent an alleged offender when the odds are completely out of their favor.

Considering the recidivism rate in Pennsylvania shows that 46% of offenders are back behind bars within three years ($244 million spent on this alone), the Reform Act has become a vital aspect of our justice system going forward. As a point of comparison, the country of Norway is known to have one of the most progressive prison systems in the world and currently has a recidivism rate of 20%.

The Criminal Justice Reform Act makes many changes to the Pennsylvania criminal justice system. Some of the substantial revisions include expanding the eligibility for intermediate punishment, a program for nonviolent offenders convicted of an offense motivated by the use or addiction to drugs, along with banning defendants convicted of certain misdemeanors from serving their sentences in state prison.  In addition, the Act moves to establish as a default that parolees are returned to community corrections centers, in lieu of state prison, for most parole violations.

One of the most progressive aspects of the bill is the requirement to reinvest any savings from reducing the prison population to create a risk-assessment tool for judges when sentencing defendants, to fund local law enforcement and to give judicial districts and incentive to divert defendants to county jails through programming such as treatment and drugs courts.

The measures mandated by the Criminal Justice Reform Act are projected to lower Pennsylvania’s prison population by as many as 4,000 inmates over four years and to save up to $370 million in five years. The fact that it has taken this long to reach a simple conclusion is frustrating, considering that many accused criminals (many of which are non-violent) have languished in prison without any options to move in the right direction. It is vital that our state lawmakers implement this Act in a timely and efficient manner, allowing our society to evolve and become safer.

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Chester County Defense Attorney Discusses State Taxpayer Money Spent on Keeping Non-Violent Inmates Incarcerated

 

New statistics regarding money spent on the Pennsylvania Corrections System were recently released, and unsurprisingly, they highlight some major issues with how the system operates. The most worrisome number mentioned by The Council of State Governments Justice Center, is the $49 million in taxpayer money used in 2010 to house non-violent offenders beyond the minimum release dates for misdemeanors and minor felonies.

Seeing a huge number like this goes a long way in showing that Pennsylvania’s corrections system is flawed. It shows that mandatory minimum sentencing and the punitive nature of Pennsylvania non-violent convictions must be revised. It is counterproductive for the state to continue unnecessarily spending millions of public dollars imprisoning individuals who would be much better served by reducing their sentences through the use of rehabilitative programs, drug diversion or probation. In these cases, the offender can learn from the situation and grow, as opposed to rotting in a cell,  likely lowering the cost and overpopulation burden the state carries.

As for the corrections system currently in place, consultants from the Justice Center have found that individuals convicted of non-violent crimes requiring minimum sentences are not even given the opportunity to meet conditions for early release. In fact, the most common reason for denying inmates’ parole during the past two years was failure to participate in or complete institutional programming such as education programs and drug treatment. The problem with this is that three-quarters of inmates with a minimum sentence of a year or less cannot complete the programs to get out by then due to how Pennsylvania prisons operate.

Law enforcement, prison officials and prisoners alike would benefit if non-violent criminals had the opportunity to satisfy their requirements by getting into programs quickly so they can rehabilitate while in jail, as opposed to simply waiting out the sentence and using up valuable resources. The Justice Center also found that the state’s programs designed to reward inmates for good behavior have been backlogged.

Fortunately, after the release of these numbers, some Pennsylvania policymakers are taking notice and considering a bill that would keep nonviolent offenders from going to state prison. Considering the state’s prison population has increased from 7,000 in 1980 to 51,645 today, this is a massive problem that has strained state resources by leaving a large proportion of low risk inmates without any options to remedy the situation because of their mandatory minimum sentences.

The majority of the blame for the large rise in prison population is not more violence or crime; it is simply due to the mandatory minimum sentencing laws enacted in the 70’s and 80’s. Requiring an individual to serve a minimum sentence lumps many offenders into broad categories, as opposed to judging their crimes individually, as should be the case.

Arising from good intentions, with a goal of searching for a more efficient way to tackle the criminal process, mandatory minimums have only helped to exacerbate the problems of unfair judgments and prison overpopulation. Judicial discretion that would have normally allowed for leniency or different punishments is thrown out the window when it comes to minimum sentencing, which has an adverse effect on the ability for a Pennsylvania criminal defense attorney to defend an individual for the crimes they committed. Personal situations are also not taken into account as these stringent guidelines are followed. This gives many otherwise productive members of society who have committed minor offenses a disproportionately harsh sentence.

With the problems we are having with regard to funding our federal and state governments, we should be taking a pragmatic and rational approach to analyzing the state of affairs in the Pennsylvania legal system, while also focusing on problems that are solvable, like changing mandatory sentencing laws and introducing diversionary programs for non-violent offenders. This will free up public funds and lower prison populations, while allowing low risk offenders to rehabilitate and become productive members of society.

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Controversial New Pennsylvania Wiretapping Bill Discussed by West Chester Criminal Defense Attorney

The Pennsylvania House of Representatives recently passed a revised wiretapping bill that would expand on the ability for law enforcement agencies to track suspected criminals. House Bill 2400 was voted through with overwhelming support, 145 to 52 on June 13, 2012. The bill contains some helpful provisions that would aid in developing a more effective law enforcement system, but also contains wording that is a direct assault on the privacy and individual rights of Pennsylvania citizens.

The bill amends Act 18 of the original 1989 wiretapping law through a dozen new provisions and updates, and will move to the state Senate in the fall. Among the changes, HB2400 broadens the legal circumstances under which civilians and law enforcement can record oral communication without consent and how recordings can be used as evidence in the criminal court system.

The most glaring examples of this includes the expansion on a resident’s capacity to make secret recordings of alleged criminal activity, the new capacity for police to open and respond to messages on a cell phone if they suspect the communications relate to crime, and the ability to wiretap a person as opposed to just a phone line.

These provisions, while singularly beneficial from a law enforcement perspective, have the potential to seriously infringe on the rights and privacy of free citizens while also creating an environment of fear, distrust and paranoia within communities. HB2400 gives law enforcement unprecedented power to spy on individuals who they suspect are engaging in criminal activity, such as drug trafficking or possession with an intent to distribute.

For example, under HB 2400, only one party would need to be aware of a wiretap or recording for it to be legal, if they believed that the other party would speak about committing a crime, or confess to one. This can also include a “third party” which means that telephone companies, internet providers or computer technicians could be used as interception agents without a warrant. In the bill’s wording, it is legal for “Any individual to intercept the contents of any wire, electronic or oral communication if that person is under a reasonable suspicion that the intercepted party is committing, about to commit or has committed a serious crime.”

This Orwellian provision may help in certain cases where crime victims need to gather evidence of wrongdoing, such as sexual assault, but it is a near certainty that there will be exponentially more situations where privacy is improperly invaded. This will likely produce a climate of distrust that degrades the ability for our society and community to operate without fear of privacy invasions.

The other primary source of contention is the ability to now wiretap a person as opposed to just the phone. The bill also allows for what is known as “target-specific wiretaps,” which prosecutors say will allow them to track drug dealers and criminal suspects who allegedly use more than one pre-paid mobile phone to throw off law enforcement. This presents many issues that could complicate matters in a criminal investigation and defense of the charges, by allowing for inter-jurisdictional surveillance and interception of communications without a warrant, even if the individual had not yet committed a crime and the judge has not been notified of the activity.

This bill presents specific privacy and individual rights abuses for those being investigated for drug crimes, while also hampering the ability for a West Chester drug defense attorney to effectively and fairly do their job and protect the rights of their clients. This precedent will lead to a major advantage to the prosecution while the defense will have to compete with intrusive and constitutionally ambiguous evidence presented.

With this erosion of constitutional rights, there is greater possibility for individuals accused of drug crimes having to deal with the already harsh penalties in Pennsylvania law. An example would be the sentencing for possession with intent to distribute, which according to §7508 of the Pennsylvania Consolidated Statutes, could bring up to 15 years in prison and fines of up to $250,000. With stakes this high, it is dangerous to give one party such expansive liberties during criminal investigations.

It is justified and expected for legislators to help police keep pace with suspected criminal activity, but not to hasten the attack on privacy that has already begun through to the proliferation of visual and audio recording devices. This bill is bad news for citizens of the state, as it legalizes total surveillance without any specific crime, without court orders, without a warrant, all while throwing out constitutional protections. This will bring undue burden to suspected criminals, particularly those accused of drug crimes. The Senate should strip the unnecessarily invasive aspects of the bill and focus on strengthening our justice system without it being at the expense of the citizens of Pennsylvania.

 

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Chester County Attorney Discusses Court Decision that Gives Added Protection to Juvenile Offenders

A recent Pennsylvania Supreme Court decision has lead to additional protections being given to juvenile offender who get in legal trouble. These protections mostly pertain to the proper dissemination of juvenile offender information and the prevention of the school’s ability to take disciplinary measures for when a child gets in trouble off the school premises. The changes and additions can be seen in the revised version of Pennsylvania’s Rules of Juvenile Court Procedure, specifically in the form of revisions to Rules 160 and 163 and the new Rule 161.

This decision comes at a time when many highly publicized recent situations where Pennsylvania high school students were forced to miss their graduations or were suspended for various off-campus infractions, including possession of drug paraphernalia.

Rule 163, which deals with the release of juvenile information to schools, will now disallow school officials from taking any disciplinary action, with the potential to be found in contempt, if not followed. This includes the inability to suspend, expel, or otherwise block students from taking part in school activities, particularly graduation. Put simply, off-campus legal issues are not to be used against the juvenile for disciplinary reasons.

The new provision, Rule 161, sets forth that juvenile probation offices have discretion to disseminate portions of their files to the juvenile, service providers, placement facilities and court staff when serving that child. It also adds needed language about how electronic records may be inspected, which he said provides safeguards against the information adversely affecting employment opportunities and credit checks. Electronic records will be subject to inspection and copying only pursuant to a court order.

All of these rule changes and additions are extremely beneficial to the youth of the state. It allows for the protection of juveniles against addition, unnecessary punishments, while protecting their personal information.

The state of Pennsylvania has come under heat in the recent months over their handling of juvenile offenders, with the particularly divisive issue of allowing juveniles to be sentenced to life in prison without probation being a hot topic. Although not close to the severity of that major issue, the revision of juvenile rules has given minors an impartial and equitable opportunity to learn for their mistakes.

Having additional school disciplinary action is akin to receiving both state and federal convictions, where a person is punished twice for a single offense. The difference is that a person would have broken two separate laws, whereas a student would have only broken one. If you look at it this way, the previous reporting process would in fact grant an institution, which was not connected in any way to the offense, the authority to punish individuals, simply because they attend that school. This was inherently unfair and forced children to deal with multiple, unrelated punishments. In fact, even if the minor had a pennsylvania juvenile defense attorney who helped get the other charges dropped, the prior rules would have allowed the schools discretion to punish separately.

If the offense was not committed on school property, then there is absolutely no reason or justification to involve an educational institution with a juvenile infraction that happened off school property. This not only disproportionately punishes the student, but it also isolates them as troublemakers and juvenile offenders, obstructing their ability to complete tasks at school. Juveniles are still growing into their body and minds, and such severe sanctions have the potential to lead to deleterious effects and consequences that could stay with the individuals, making it more difficult for them to move forward in life and accomplish their goals.

The Supreme Court must be praised for their decision and it is the hope of all individual and families in the state of Pennsylvania that they are treated fairly and not handed down additional punishments for off-campus offenses.

The new provisions are set to go into effect in August of 2012.

 

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