The Pendulum Swings (Is Pulled) Back to the Courts from the Legislature

The Pennsylvania courts are taking back control of criminal sentencing procedures.  Beginning in October 2014 the Pennsylvania Superior Court began chipping away at legislative mandated mandatory minimum sentences. This was in response to the U.S. Supreme Court’s reinstating federal district courts’ sentencing authority in two separate be equally important ways.

Back in 2007 the U.S. Supreme Court in U.S. Booker, ruled all sentencing guideline provisions to be advisory and not mandatory. This reinstated federal judicial discretion in federal court sentencing decisions.  Thereafter, in U.S. Alleyne, http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CDAQFjAC&url=http%3A%2F%2Fwww.supremecourt.gov%2Fopinions%2F12pdf%2F11-9335_b8cf.pdf&ei=Xv7MVPPePMXnsASVroKwAw&usg=AFQjCNGBcIFt4QaQ10fN-3DaztBuSJhlTg&sig2=4Td1NwsMAG0TbwfkXkvnEA&bvm=bv.85076809,d.cWc&cad=rja, the Supreme Court determined that state legislative mandatory minimum sentences were unconstitutional under the Sixth Amendment due process provisions because the provisions allowed judges to increase a defendant’s potential jail sentence based upon facts not considered by a jury.

Following these two constitutionally instructive decisions, Pennsylvania Superior Court began reasserting it’s judicial authority. In two separate cases in which defendants appealed their drug conviction mandatory minimum sentencing based upon Alleyne. Superior Court agreed Defendants’ arguments regarding the illegality of their sentences, finding Pennsylvania’s mandatory minimum sentencing procedures unconstitutional because they allowed judges to sentence a defendant to increased jail time (the mandatory minimum sentence) based upon facts not decided by a jury.  Pennsylvania’s Superior and Supreme Court, rejecting the appeals, determined that Pennsylvania legislature did not have the authority tell judges to engage in such conduct under the federal Constitution. The courts took back their authority by ruling the legislature could not tell a judge the minimum amount of time it had to sentence a defendant to jail under certain fact patterns.

In the fall of 2014, Superior Court reviewed the legislature’s ability to unilaterally alter a convicted felon’s sex offender registration scheme by amending the registration scheme statute in effect at the time of the plea agreement.  Superior Court in Commonwealth v. Hainesworth and Nase ruled the legislature could not engage in this conduct. These cases represent the courts chipping away at legislative intrusion into judicial sentencing prerogative in the context of Megan’s Law registration requirements for sex offenders. In these cases, the courts determine that the guilty plea agreement, a contract, precluded the legislature from unilaterally altering a defendant’s registration characterization and reporting responsibilities.

Finally, on December 28, 2014 the Pennsylvania Supreme Court ruled unconstitutional Pennsylvania’s Megan’s law as its applied to juveniles. The Supreme Court held that Megan’s law in its entirety, as it is applied to juveniles, was inconsistent with the rehabilitative nature of juvenile court, and, thereafter unconstitutional as to all juvenile offenders. The Supreme Court reasserted the importance of its sentencing decisions, and not legislative prerogatives, in determining the correct goal of juvenile adjudications and the juvenile court process is rehabilitation, not life time punishment required by SORNA’s juvenile life time registration requirements.

These cases focus on the judiciary as the primary arbiter of sentencing procedures it may compel against a convicted felon. Importantly, the pendulum is beginning to swing back (because the judiciary is pulling it back) in both federal and state courts towards judicial discretion and against legislative mandated procedures. The Courts are beginning to realize that every defendant is different and a one-size-fits-all sentencing procedure’s are inappropriate in many cases.

Call me about your case.

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QUESTIONS THE PROFESSIONAL SHOULD ASK THEMSELVES BEFORE ENTERING PENNSYLVANIA’S PHMP

Should you expect your VRP case worker’s cooperation when you complete the PHMP (whether voluntary or not) three year program? Will your PMP, PNAP, SarPH case worker be your advocate? Will the program finish within the three year time? When will your licensing board hear your reinstatement application? These are all important questions for any professional considering Pennsylvania’s Voluntary Recovery Programs.

The answers to these questions constitute the basic assumptions each professional will posses and seek to understand prior to entering the PHMP. Whether doctor, nurse, pharmacist, or any other professional, understanding the full extent of your professional recovery program (they are almost all the same) prior to signing the enrollment contract is paramount to managing your expectations and experiences in the PHMP. See this link for the terms and conditions. http://www.dos.pa.gov/ProfessionalLicensing/OtherServices/ProfessionaHealthMonitoringPrograms/Documents/terms_and_conditions_for_participation.pdf

The first issue is how long is the PHMP. If you think your personalized PHMP will be only three years from the date you sign the VRP contract, you are wrong. See the terms and conditions link. http://www.dos.pa.gov/ProfessionalLicensing/OtherServices/ProfessionaHealthMonitoringPrograms/Documents/terms_and_conditions_for_participation.pdf.

Upon signing and submitting the contract to your case worker, your compliance is necessary. (You have now admitted an addiction which causes an impairment to practice safely. See my other blogs on why not to do that.) The three year period only commences upon your licensing board’s approval of that contract–thus becoming a board ordered agreement that they can enforce. However, what your PHMP caseworker intentionally omits telling you is that it takes 3, 6, or maybe 9 months for your licensing board to approve your enrollment contract. As such, the three-year term of the PHMP is really 39, 42, or 45 months. This becomes excruciatingly long.

Secondly, every professional expects their PHMP caseworker to advocate for their return to practice. Each enrollee hopes to have someone assist them navigate the complexities of the drug testing, treatment, and evaluations. Within several months of PHMP enrollment, whether your contract has received board approval, reality clashes with expectations. Every participant with whom I have spoken quickly realizes that “their advocate” — their PNAP or PHMP caseworker, is merely an enforcement officer. This enforcement officer does not help, but merely enforces the terms of the contract of sobriety into which you the professional has entered.

Your PNAP, PMP, PHMP, VRP case worker demands payment, drug testing, re-drug testing, and all medical records. They require retests and timely answers to all questions. East case worker will be the first to suggest a violation of the program and seek automatic and lengthy extensions for failing drug test for other program protocols. Your advocate becomes your violator, cop, the PHMP enforcer – not an advocate for you.

Lastly, if you have been drug free for 36 to 45 months, you the professional would think your compliance warrants license reinstatement without restriction. However, there are several additional steps in the process of which the case worker never discloses until the three year time period has run, thus delaying reinstatement longer.

Each participant must pass fitness for return to work evaluations. These evaluations delay full reinstatement for significant time periods. Case workers only schedule these evaluations at the end of the programs. A mix of participant and expert scheduling coordination, report generation and final approval by PHMP supervisors extent your PHMP enrollment many more months.  Thereafter, petitions to the board for reinstatement must be filed, for which hearings and decisions could take additional months. All the while, the professional must remain compliance in the program. None of this is explained to the unknowing and scared PHMP participant.

It is at the end of the PHMP 3 year time period when case worker manipulation is rampant. Specious drug test violations magically show up. Chain of custody protocols become suspicious. Allegations of participant “no showing” or lost samples for drug tests are routine. Case workers begin to unilaterally extend the PHMP time period by refusing to schedule fitness for work evaluations. Refusing to advocate for you the professional becomes the final delay tactic of choice.

If you have been in the program for drug and alcohol use and now you’re being required to undergo a mental health evaluation for no reason, they will seek to extend your enrollment for noncompliance. If you received drug treatment, but were not told you had a mental health diagnosis (anxiety otherwise unspecified) and you have not received any mental health treatment for three years because no one suggested it, recommend it, or require it, your case worker will attempt to delay your fitness for return to work for now a mental health evaluation. These are examples of your advocate refusing to advocate on your behalf.

Legal counsel is necessary to insure that the board understands the arbitrary and capricious nature of case workers’ lack of support, advocacy, or basic assistance in helping you get through the program. Frayed nerves, empty wallets, and frustration rule the professional PHMP participant’s day. Please call me to discuss missed drug tests, positive drug tests, or delayed scheduling of fitness to return to work evaluation. Please call me to discuss the abusive, obnoxious and demeaning caseworker treatment of you in your attempt to get back to your professional life. Lets file that petition for reinstatement and get you out of the PHMP in the time they suggested.

The PHMP program is only available to the following licensees:

Chiropractic
Dentistry
Medicine
Nursing: RN Law and PN Law
Occupational Therapy
Optometry
Osteopathic Medicine
Pharmacy
Physical Therapy
Podiatry
Psychology
Social Work, Marriage and Family Therapists and Professional Counselors
Speech-Language Pathology and Audiology
Veterinary Medicine

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