When Alleyne v. United States was decided in June, sentencing in criminal cases changed dramatically. Prior to Alleyne, aggravating factors that could invoke a mandatory minimum sentence in Pennsylvania did not have to be submitted to a jury and could be decided by a judge. After Alleyne, such factors must be submitted to a jury, as these aggravating factors constitute elements of separate offenses that needed to be proven beyond a reasonable doubt. Examples of such aggravating factors are the presence or possession of a firearm in close proximity to a drug transaction or arrest, which invokes a five-year mandatory minimum sentence, and the possession of between ten and 21 marijuana plants, which invokes a one-year mandatory minimum sentence. Alleyne held that such factors (the presence of the gun and the number of plants) are issues that must be submitted to the jury for a factual determination before the mandatory minimum sentence may be invoked. This is directly opposite, however, to the text of the statutes, which explicitly say that a judge may decide whether these factors have been proven and need not submit the issues to the jury. Two questions present themselves at this point: 1) Are these mandatory minimums still constitutional, even if submitted to a jury? 2) Are mandatory minimum sentences for crimes that carry less than six months imprisonment constitutional?
Widener University School of Law Professor Len Sosnov argues that mandatory minimum sentences such as those in the above examples are not constitutional, even if submitted to a jury through a special verdict. He argues that despite the special verdict, such sentences are not constitutional because the statute itself is unconstitutional. In Pennsylvania, portions of a statute can be severed from the rest if a given portion is unconstitutional. However, a statute cannot be severed if the remaining portions of the statute after severing it “are incomplete and are incapable of being executed in accordance with legislative intent”. 1 Pa.C.S.A. § 1925. Professor Sosnov argues that since the clear intent of the legislature, evidenced by the plain text of the sentencing statutes, is to create a sentencing scheme that clearly violates Alleyne and the Constitution, a court cannot simply sever the statute and disregard the provision giving the judge the authority to rule on such issues. Since the statute itself is not constitutional and non-severable, Professor Sosnov argues, the mandatory minimum sentence is not constitutional, even if the issue is submitted to a jury.
If Professor Sosnov’s argument prevails, then statutes such as those referenced above will be held to be unconstitutional – but there are other statutes where it is less clear. An example of a mandatory minimum sentence that probably is constitutional is the three-year mandatory minimum for Homicide By Vehicle While Driving Under the Influence. Since a jury has to determine whether the elements of the crime have been proven (in short, that a defendant was DUI and that his driving caused an accident from which the victim died), and those elements are all that is necessary to invoke the mandatory minimum sentence, Alleyne has likely been satisfied. But what about crimes that do not require a trial by jury? In Pennsylvania, crimes that are punishable by a maximum of six or less months of incarceration are considered “petty”, and the defendant is not entitled to a trial by jury. For example, a first-time DUI offender with a BAC of .16 or above must be incarcerated for 72 hours to six months. Yet, he is not required to be given a jury trial, as it is considered a petty crime. Since there is a mandatory minimum sentence, shouldn’t the issue be presented to the jury per Alleyne? This area of the law is presently very unclear.
Alleyne, like many higher-court decisions, creates more questions than it answers. As it stands, mandatory minimum sentences are a gray area in Pennsylvania and other states. What do you think? Are mandatory minimum sentences constitutional following Alleyne, and in which situations? Please leave us a comment here with your thoughts.