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."