The Pennsylvania Sentencing Myth

Last week, the Allentown Morning Call published an interesting article about the myth of indeterminate sentencing in Pennsylvania. Indeterminate sentencing provides that every 'state' sentence have a minimum term and a maximum term, i.e. two years to four years.

Many in the criminal justice system have perpetuated the myth that most offenders serve 85 percent of their maximum sentence before parole, i.e. three years and four months on a four years sentence. The myth has impacted sentencing, plea decisions and has beguiled crime victims and criminals alike. The article below in its entirety is an interesting read--and its implications go far beyond the Lehigh Valley.

The 'baloney' you'll hear in court
Violent offenders in Lehigh Valley and beyond don't serve 85% of maximum sentences.
The Morning Call -Riley Yates
August 21, 2011

From the bench of the Northampton County courtroom, a judge sentencing a 27-year-old man for a harrowing home invasion in Bethlehem cited a statistic sure to ease the mind of anyone worried about violent criminals returning to the streets.
Judge Edward Smith told Luis Nestor Martinez he'll probably be forced to serve at least 85 percent of his up-to-50-year sentence — that's 421/2 years — for tying a couple in their basement and ransacking their house on Father's Day 2010.
There's one problem, however.
The figure Smith highlighted last month is a myth, without basis in state parole policy or practice.
In fact, according to a 2007 report by the Board of Probation and Parole, nearly half the violent offenders in Pennsylvania's prison system are released at their minimum sentences, which for Martinez — who is also serving time for a separate Lehigh County case — would be 261/2 years.
Even those convicted of the most serious crimes tend to be paroled at about the same point in their sentences as other convicts, if not slightly sooner, according to 2010 data provided by the board to The Morning Call. An inmate sentenced to five to 10 years for a crime like aggravated assault was out in six years on average, not 81/2 years as many judges and lawyers believe.
But the false number — sometimes given as 85 percent of the maximum sentence, sometimes as 80 percent — is one you're sure to hear if you sit in courtrooms in Northampton, Lehigh and other counties. It is often raised by defense attorneys, and occasionally crops up in newspapers — among them The Morning Call.
"It's intellectual laziness on people's part," said Bucks County District Attorney David Heckler, a former president judge who labels it "baloney" that someone on the bench would cite a number for which he's never seen statistical backing.
"And you can quote me on that," Heckler said. "They used to be my colleagues, but that's wrong."
Call it an urban legend, the courthouse's version of claims that Walt Disney was cryogenically frozen (he was cremated), or that downing Pop Rocks and cola will cause your stomach to explode (it won't).
The claim "has been persistent for years," said Mark Bergstrom, executive director of the Pennsylvania Commission on Sentencing, which advises the state on sentencing policy. "It's pretty embedded. … It sort of takes on a life of its own."
Northampton County Court Administrator James Onembo acknowledged there is no statistical backing for claims that violent offenders usually serve 80 percent or 85 percent of their maximum sentences.
Comments by judges about future parole decisions are "speculation" based on factors like defendants' prior records, their crimes and their treatment needs, Onembo said. It is ultimately the parole board that determines how much time offenders will serve beyond their minimum sentences, he said.
"A member of the court may be giving his or her opinion," Onembo said, but it is only an opinion.
Smith, a respected judge in his 10th year on the bench, is just one of many who have used the mistaken stat. He declined to be interviewed for this story.
The bad information can gum up plea bargains, with defendants unwilling to take a deal they worry will be harsher than it is in reality. It also can lead victims to expect that their assailants will be locked away longer than is actually likely.
Pennsylvania Victim Advocate Carol Lavery said her office regularly gets calls from across the state from victims who were told by prosecutors or the court that their perpetrators would serve 80 percent or 85 percent of their sentences. Instead, the victims have learned, the defendants are up for a parole hearing after serving their minimum sentences.
"They are very, very unhappy people who feel that they have maybe agreed to a plea agreement based on misinformation," Lavery said, adding: "We often call that re-victimization, the concept that the system failed them."
The parole board, which bases its calculations on an offender's minimum sentence, says the myth has no backing.
For the class of crimes that include third-degree murder, manslaughter, robbery, aggravated assault, burglary, and arson, the average inmate served 119 percent of his minimum sentence last year, or not more than 60 percent of his maximum.
The average sex offender also didn't reach 85 percent of his sentence, though he came closer. Last year, he served 148 percent of his minimum, or not more than 74 percent of his maximum.
By comparison, an inmate for a class of offenses such as forgery, simple assault, drunken driving and fraud served an average of 123 percent of his minimum — higher than for the class of more serious crimes, though less than for sex offenses.
Those imprisoned for drugs usually got out earlier, at 112 percent of their minimums last year.
Bergstrom and the Board of Probation and Parole trace the mistaken violent-crime figure to the 1990s, when the federal government encouraged states to enact "truth-in-sentencing" laws that more strictly regulated when convicts got out.
At the time, many states were allowing prisoners to significantly reduce their jail time through "good-time credits" for working, taking classes or remaining infraction-free. The federal effort sought to goad states into imprisoning violent offenders for at least 85 percent of their terms, and tied that to federal grants.
But Pennsylvania's sentencing structure, which has fixed minimums and maximums, is different from those that issue a specific sentence. In Pennsylvania, inmates must serve their minimum sentences before becoming eligible for release, with the exception of some nonviolent offenses. That structure provided truth in sentencing and satisfied federal officials, Bergstrom and the parole board said.
When deciding when to release convicts, the parole board considers their social and criminal history and the input of prosecutors, judges and jailers. Inmates need to have reduced their risk of offending again, and gotten the counseling and education they need to stay out of trouble.
The treatment requirements help explain why prisoners for less serious crimes tend to serve a higher percentage of their maximum sentences, said Leo Dunn, a parole board spokesman.
Serious offenders typically have longer sentences, giving them the opportunity to complete the classes they need, Dunn said. Those with short sentences sometimes haven't finished their programs before their parole hearings come up, causing delays.
That reality flies in the face of the mythical violent crime stat that many judges and lawyers cite.
In April, Judge Craig Dally sentenced Michael J. Beaman to six to 14 years for a Forks Township bank robbery, then helpfully calculated that Beaman could spend 11.2 years behind bars.
In explaining his decision, Dally said it is a "matter of fact" that defendants such as Beaman "do serve approximately 80 percent of their maximum sentence."
"You are going away for a long time," Dally told Beaman.
Dally, a former state lawmaker in his second year as judge, did not respond to a request for comment.
Even prominent attorneys get the stats wrong.
Easton lawyer Philip Lauer has argued a case before the U.S. Supreme Court and he's also one of the few lawyers in the area to win an acquittal for a defendant charged with murder and facing the death penalty. In appeals, he has used the mistaken 85 percent statistic to try to overturn sentences his clients received, arguing those sentences are harsher than intended.
"Anecdotally, it still appears that particularly in any violent offense, people are doing very close to their maximum sentence," Lauer said in an interview.
When told of the contradictory parole statistics, Lauer said, "That really surprises me."
Northampton County District Attorney John Morganelli believes that those convicted of violent crimes used to be jailed longer than they are today. But he admits that's based on his perception, and not hard data.
"You raise the question, 'Where do you get this, out of the air?' " Morganelli said. "And the answer is, 'Sort of.' "