Depending upon whom you ask, state House Bill 1704 is full of holes, or passable. The legislation is necessary to fight drugs, or it’s just a way for politicians to grandstand.
HB 1704 would punish people for drug delivery resulting in death, requiring a mandatory minimum sentence of five years in jail and a $15,000 fine. The bill has passed the state House and is under review by the state Senate Judiciary Committee.
Sponsored by state Rep. Jeffrey Pyle (R, Ford City), HB 1704 is a newer version of a bill originally sponsored by state Sen. Jane Orie (R, McCandless). The earlier bill, state Senate Bill 480, provided for a third-degree murder charge against anyone found guilty of giving, selling or administering a drug to a minor 17 or under who later died because of that drug use. The Pennsylvania Supreme Court struck the murder charge earlier this year in Ludwig vs. Pennsylvania, and the bill has resurfaced in Pyle’s newer, pared down version.
The Supreme Court’s opinion left a lot of wiggle room for legislators, some law experts say. Duquesne Law School professor Bruce Ledewitz, a criminal law specialist and former public defender, says the court’s opinion in Ludwig was written so narrowly that it allowed legislators other opportunities to rewrite the law. “The court said the Legislature must’ve meant to include malice, since they said murder [in the bill]. When you write an opinion that way, you invite the Legislature to rewrite the statute,” he says.
HB 1704 reads:
“A person commits a felony of the first degree if the person intentionally, knowingly or recklessly administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.”
Because HB 1704 is much more narrowly written than SB 480, it appears to stand a good chance of making it through the state Senate and approved as law. “The [Pa.] Supreme Court would uphold this legislation,” Ledewitz says. “Which would make an enormous net for drug dealers.”
But Ledewitz’s colleague, Duquesne Law professor Bruce Antkowiak, said the focus of a challenge to the proposed law would be on whether the person who provided the drugs knew that a death would result. HB 1704 addresses “a random outcome by making it into a greater crime,” Antkowiak says.
There are laws already that do such a thing, such as Aggravated Assault by reason of DUI, Ledewitz says.
It appears that the Legislature will pass this new legislation, if nobody speaks out against it. And while it might seem that such cases as Brandy French and Zach Zion are uncommon, they may be more common then we might want to consider. If approved as law, HB 1704 could affect dozens or possibly hundreds of criminal prosecutions in the state each year, Pyle says.
Pyle wants the proposed law to serve as a big stick to beat back the drug dealers. “I want this penalty stiff and omnipresent,” he says.
But the Legislature is attempting to penalize something that is an accident, Ledewitz notes. “If it weren’t an accident, [the crime] already is murder,” he says.
The big stick that Pyle, Orie and other state politicians want to brandish at drug dealers through HB 1704 may be more for the benefit of the voters, Ledewitz says. "It's a symbolic stick, so they can say they want to do something about drugs."
6 comments:
Great question.
As an under current, I've seen plenty of times when lawmakers get hyper because there are problems with enforcement.
Same too with this 8-foot bubble that Pgh City Council just passed recently.
The lawmakers go overboard to help take up the slack because enforcement is questionable, frail, without clear leadership -- or some other ill, including fearful of backlashes.
If you sell illegal drugs now -- and a death occurs -- that drug dealer is guilty. Yes? Of course. So, in an ideal world, this law is not needed, true?
I say that the lawmakers who are hyper are miss-guided. They should rather spend time to insure that the police and detectives have what they need to do the enforcement as it should be done. Don't cut corners on the police and the management because you want to build a new office, retail, housing project downtown and reward a corporate developer.
Fund a drug task force to work the school yards. Catch the bad guys -- not by working backwards from the coroner's office. Catch them sooner. That takes expensive police work. That takes money.
I want the kids to be safe from drugs. And, this can occur if the drug dealers are nailed. But don't nail them after a kid dies. Nail them sooner.
And by all means, the coaches, the band directors, the activity directors for the programming efforts for the kids need to challenge the kids to insure that they are NOT turning to the drugs in the first place.
I'd try much, much harder to celebrate kids and life at the other end of the spectrum -- not where Orie is going.
yes, but it takes money and is not nearly as newsworthy/photo op as some person with political ambition somehow claiming that they alone meted out some sort of "justice/retribution" to a dealer after a kid had died.
if they funded headstart programs and after school programs and mentor programs with the zest that they do for revenge we wouldn't have quite the drug and crime problems we have now. just my rant.
You covered a lot of ground in your comment, Mark. I think we all want to keep kids off of drugs, but we sometimes disagree on how to accomplish that.
Sherry, I'm inclined to agree with you that better social programs would make a difference. But parents and families need to teach and encourage abstinence from drugs and booze, too.
oh i agree, it is up to parents and families, but kids need to have safe places to go, to learn, to learn socialization skills, to learn that arguments can be settled with compromises and diplomatic outcomes from an early age instead of force and that there are ways to cope with the stress and the often terrible bewilderment of the teenage years without drugs to help them feel good about their situations or to feel they have to fit in.
yes, parents are the most important factor, but we really have to place more value on our children. we talk a good game as a country about it, but we really place little effort and money into it, not compared to the time and effort and money we shovel into jails and such. way too late then.
Finally got around to linking...sorry it took so long!
have a good new year's eve and year ahead!
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