Well, let me humbly propose a real Leftist idea: stop giving your money to billionaires.  Oh, but you already hate billionaires and want to tax them into oblivion, right?  You’re going about it the wrong way.

The valuation of billionaires’ vast fortunes is not based on money, or more precisely, taxable income, at least not in the traditional sense. As Warren Buffet, the CEO of Berkshire Hathaway, repeatedly points out, 99% of his personal fortune is comprised of Berkshire Hathaway stock.  Berkshire Hathaway has a market capitalization of over one trillion dollars, that’s $1,000,000,000,000. There are currently 11 companies with market capitalizations over one trillion dollars, led by Nvidia, with a market cap of $4.6 trillion.  I’m old enough to remember, way back in 2018, when Apple became the first company to reach the one trillion market cap milestone.  Depending on your algorithm, that story got a lot of press back then.  

These huge corporations are valued at many times their earnings.  The ratio of stock price to earnings per share is referred to as the P/E ratio, which is one metric that investors use, or used in the past, to determine if a stock, or equity, is fairly valued, overvalued or undervalued.  This metric is crude because it does not translate well between industries.   However, P/E ratio is a good metric to contextualize the radical Leftist idea of not giving billionaires your money.  Here’s the context: Tesla has a P/E ratio of around 380.  This means that for every one dollar of earnings per share, you pay $380 dollars. Tesla currently trades at around $417 per share.  This means that for every share of Tesla that you buy, you’re getting about $1.10 of earnings. Berkshire Hathaway, on the other hand, has a P/E ratio of about 16. This isn’t a one-to-one comparison because Tesla and Berkshire Hathaway are very different types of corporations, in very different industries, with very different strategies for the future.  Tesla’s value is very much driven by investors’ optimism in its growth potential, thereby justifying its high P/E ratio.  Warren Buffett, on the other hand, is famous for being a “value” investor, which means he looks for stocks that are undervalued. 

So, where does the stock price come from? And, who determines that Tesla is currently worth $417 per share with a P/E ratio of 380 and Berkshire Hathaway (class B) is currently worth $498 per share with a P/E ratio of about 16?  Well, of course, the stock market determines the price of the stocks.

This is where you come into the story.  If you have a job working for the government or for some quasi-government corporation, such as UPMC, Pitt, AHN, PNC, or any other large corporation, you probably have a certain amount of money deducted automatically from your paycheck for “retirement.” Your employer might even “match” your contributions.  The money that gets deducted from your paycheck probably then gets invested into some sort of exchange traded fund (ETF) or mutual fund. ETFs and mutual funds are (actively or passively) managed funds that invest each dollar based on some formula.  The most popular ETFs track certain indeces, like the S&P 500 or the Russell 2000.    For example, the Vanguard VOO fund directly tracks the S&P 500. ETFs that track certain indeces are referred to as index funds.  This means that each dollar that you invest in VOO is proportionate to the relative size of each of the 500 largest U.S. companies.  Currently, 31% of each VOO dollar is invested in technology companies like Nvidia, Apple, Microsoft, etc. VOO currently holds 615,201,878 shares of Nvidia stock, valued at $114,735,150,247.  This is 7.5% of VOO’s holdings.  Nvidia has 24.3 billion shares outstanding, with nearly 70% held by institutional investors like Vanguard.

As an employee, with access to an employment retirement plan, you usually get a few choices of funds to invest in.  For example, there will usually be an option to invest in a total stock market fund, or a large cap fund, or a fund that splits each dollar between stocks (equities) and bonds (debts).  Some people like to invest in target-date funds that balance the proportion of each dollar invested between growth and value stocks and bonds based on the date that the contributor expects to retire.  As the expected retirement date gets closer, the investment strategy is balanced to lessen risk.  There are also sector funds that let you invest in certain sectors like energy, technology, consumer staples, utilities, etc. There are funds that focus on growth stocks or value stocks or a mix of both.  There are funds that focus on market capitalization allowing you to invest in companies of various sizes.  There are funds that let you invest in emerging markets or established markets, that let you exclude certain countries, regions, or industries. There are even funds that let you invest in “socially conscious” companies, as determined by the people who manage the fund.  While brokerages like Vanguard, Fidelity, or Blackrock offer many different types of funds, employer retirement plans, like the federal TSP, usually offer relatively few options. As of January 2026, there are nearly 200,000 TSP millionaires, with the highest account valued at around $10 million dollars. 

Obviously, your miniscule biweekly retirement contribution is nothing but grains of sand on the beach.  However, there are tens of millions of people just like you, all contributing every other week to these gigantic index funds.  There are an estimated 70 to 80 million people contributing to 401k plans. There are 7.2 to 7.6 million federal TSP accounts.  There is an estimate that 65 million people hold IRA accounts. There are also pension plans, but the number of people who have access to them has declined significantly over the past 40 years.  Tens of millions of dollars get invested in the stock market every day without the investors even thinking about it.  Collectively, this is a huge amount of money. The only time you probably think about your retirement portfolio is when you get the quarterly or annual report.  You look at it.  You see that the amount of money in the account is greater than the amount of money that you contributed, and you are happy. 

But, what you are doing is making billionaires of the people who own the largest shares of these corporations—people like Warren Buffett, Elon Musk, Jeff Bezos, and Jensen Huang (who owns approximately $100 billion worth of Nvidia stock). You are literally giving them your money. You’re also creating staggeringly large brokerage firms that manage trillions of dollars. Blackrock manages $14 trillion dollars. Vanguard manages $12 trillion dollars. Fidelity manages between $15 to 16.4 trillon dollars.  Suffice it to say, these three companies manage a lot of the world’s money, perhaps even most of it.  So, what’s the alternative?

Instead of putting your money in complicated, government-created, retirement plans that invest in index funds, managed by gigantic brokerage firms, why not invest your money back into your community.  The local community council can set up a corporation for the purpose of receiving money and spending it on local improvements and projects.  This corporation could buy and repair blighted property, make infrastructure improvements, pay people a livable wage to work for local business.  Provide grants and loans to local businesses to hire employees, pay them well, and improve storefronts, pay for childcare so people can work, pay to train people to do the jobs that the community needs, etc. The corporation could fund medical clinics and professionals to come into the community to provide services without the need for predatory insurance plans.  The corporation could hire professional mediators to resolve torts without involving the government.  How many landlord-tenant disputes could be resolved if the tenant simply had more money with which to pay his rent?  The possibilities are endless. 

The problem with this idea is that there is no direct benefit for you.  On paper you would be poorer.  Instead of having a retirement portfolio that gets bigger every year, you would have a nicer community.  There would be less crime and better services.    People would have a more direct relationship with the quality of their community and the health and wellbeing of their neighbors.  But, the tradeoff is that you would not be able to “retire” in the traditional sense and live off the scraps that the billionaires leave you.  The quality and ease of your golden years will be determined by the community in which you spent the beneficence of your working years. 

The other problem is that a critical mass of people would have to agree to this.  Nobody likes freeloaders and there would be no reason for me to sacrifice my retirement for your benefit if you are not willing to do the same for me.  Also, the secondary benefits would not be proportional to the direct contributions.  For example, a person who makes $150K a year working for the government or a quasi-government corporation would contribute more than a person making $30K a year working for a local private business. Finally, people would become very sensitive to market efficiency and inefficiency in a way that they aren’t with the government or quasi-government corporations. In other words, you wouldn’t tolerate a bad employee or a bad business in your neighborhood if you’re paying for it directly. If you go into a bagel shop and the service sucks, you are probably not going to want to continue to fund that business.  Whereas you have no control over how well or poorly the government or quasi-government corporations are run.  When you interact with the government, and the service sucks, there is literally nothing you can do about it. This is a large reason why private businesses are more sensitive to their customer preferences than the government is.    

You might be thinking, isn’t this what taxes are supposed to do?  Yes, in a sense. But taxes are filtered through government, and government is controlled by people who do not have your best interest at heart.  The government’s purpose is to protect itself… from you.  The current retirement system was designed by the power elite for the purpose of keeping itself powerful and rich, and making itself more powerful and richer. The current retirement system is effectively a wealth and power redistribution system that transfers wealth and power from the bottom to the top.  The more money you have, the more you benefit from it.  If you have neither wealth nor power, then the tens of trillions of dollars that flow through this system are completely and utterly inaccessible to you.

The power elite incentivizes you to behave in a way that increases its wealth and power at the cost of your freedom.  So, the power elite would not be interested in a plan that reduces its direct control over the billions of dollars that are automatically sucked out of millions of paychecks every other week. 

The idea that you should stop giving billionaires your money is a Leftist idea.  You won’t hear it from anybody actively employed in the government except for the most libertarian and anarchist outsiders.  Bernie Sanders doesn’t want you to stop giving your money to the millionaires and billionaires.  He wants you to keep giving them your money, and then raise taxes on their “income”, which of course, they don’t have.  

You either think this Leftist idea is fantastic or idiotic.  Obviously, it could never work unless there was a fundamental change in the way that people think about money and their role and obligation to their community.  As it stands now, people secure their own financial future, and once it is secured, then they become philanthropic.  This idea reverses that mindset.  Your philanthropy would come before and, in fact, at the cost of your ability to control your own financial future.  You would depend on the very community that you helped create to determine what type of future you have when you’re no longer able to work.  That’s a terrifying thought…

In the United States of America, do parents have a Constitutional right to raise their children as they see fit?  I think that most parents assume that they have this right, but how do they know for sure? The right to raise one’s children does not expressly appear anywhere in the United States Constitution or the Bill of Rights—the first ten amendments to the Constitution.  So, unlike the right to freedom of speech, or the right to keep and bear arms, or the right against self-incrimination, we must find the right to raise one’s children somewhere else.

The Bill of Rights does not define the limit of our rights as American citizens.  In other words, a right does not exist BECAUSE it is included in the Bill of Rights. Nor are we deprived of any right BECAUSE it is NOT included in the Bill of Rights.  Alexander Hamilton argued against including the Bill of Rights as part of the Constitution because of his concern that it would be interpreted as a limitation of rights.   Hamilton cautioned,

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

Hamilton, Alexander; Madison, James; Jay, John. The Federalist Papers #84.

So, even if the Bill of Rights does not define the limit of our freedom, we still need to find some authority for the right to raise one’s children as one sees fit.  One might assume that if a power is not specifically granted to the government, it remains with the people.  This is theoretically true as applied to the federal government, but not for the state governments. Generally, the interference with a parent’s right to raise his children will come from state law, rather than federal law.  Again, quoting the Federalist Papers:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Hamilton, Alexander; Madison, James; Jay, John. The Federalist Papers #45.

Numerous and indefinite? That seems rather broad.  Certainly, there must be some limit on the power of the states, right?

II.  Due Process

This brings us to the concept of Due Process of Law, which is perhaps the most important right that we have as American citizens.    

Essentially, “due process” means fairness. Its underpinnings hearken back to the Magna Carta’s requirement that a person can be divested of life or property only by the law of the land and not by the arbitrary whim of the king.

Frederick Douglass, the former slave who became one of America’s greatest statesmen, famously said “the rights of men reside in three boxes- the ballot box, the jury box, and the cartridge box.”  You cannot blame Mr. Douglass for not mentioning the due process box because the idea of “due process” probably did not mean in his time what it now means in our time.  The modern notion of “due process” comes from the 14th Amendment of the United States Constitution, which was ratified in July 1868. The 14th Amendment states,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(emphasis added). 

There is also a “due process” clause in the 5th Amendment, but that clause only applies to the federal government, and it might only apply to criminal prosecutions. This raises the question of what is due process and why is it the most important right?  And, why does the right to due process of law matter for a parent’s right to raise his children?

a.   Procedural and Substantive Due Process

There are two categories of due process– procedural due process and substantive due process.  Procedural due process is easier to define, though its requirements can change depending on what’s at stake.  Generally, when very important interests are at stake—such as a criminal defendant’s liberty-- the minimum requirements of procedural due process are 1) notice, 2) an opportunity to be heard, and 3) a fair and impartial tribunal.  There can be other requirements such as the right to counsel, the right to cross-examine witnesses, and the right to have the determination made solely on the law and the evidence presented at the hearing. These latter three requirements are generally encompassed within the minimum requirements.  For example, the right to be heard would be meaningless in many contexts for many people if it did not include the right to be heard by counsel trained in the law (but not necessarily the right to court-appointed counsel).  The right to a fair and impartial tribunal would be meaningless if the decision could be made based on reasons other than the applicable law and the evidence presented at the hearing, or evidence that is not part of the record.

The other category of due process is substantive due process.  This category is less well defined, and very much more controversial.  The very term “substantive due process” has been criticized as an oxymoron. See Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 331 (2022) (Thomas, J. concurring).

Under the theory of substantive due process, the courts have recognized the existence of rights that are not expressly mentioned in the constitution, “but any such right must be ‘deeply rooted in this Nation's history and tradition’ and ‘implicit in the concept of ordered liberty.’”  Substantive due process also “incorporates” much, but not all, of the first eight amendments of the United States Constitution and makes them applicable to the states.  Prior to the ratification of the 14th Amendment, the Bill of Rights only applied to the federal government. Even after the ratification of the 14th Amendment, there remained significant questions about the applicability of the Bill of Rights to the states.  Some might be surprised to learn that even a basic, fundamental right such as the right against self-incrimination found in the 5th Amendment was not always interpreted to apply to the States through the 14th Amendment.  See Adamson v. People of State of California, 332 U.S. 46 (1947), overruled by Malloy v. Hogan, 378 U.S. 1 (1964).

b.   The 14th Amendment

As mentioned above, the concept of “substantive due process” is derived from the 14th Amendment, which obviously did not exist at the time of the founding of the United States.  In fact, the 14th Amendment along with the 13th and 15th Amendments are called the Reconstruction Amendments because they were passed in the aftermath of the Civil War.  Relatively soon after the ratification of the 14th Amendment, the Supreme Court cautioned that the Amendment’s purpose was not to interfere with the States’ police power:

But neither the amendment—broad and comprehensive as it is—nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.

Barbier v. Connolly, 113 U.S. 27, 31 (1884).  The Supreme Court has described the police power as “one of the least limitable of governmental powers[.]” Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 83 (1946).

III.   The Substantive Due Process Right to Raise One’s Children

The influence of substantive due process grew during a well-known era in the Supreme Court’s history referred to as the Lochner Era, named for the case of Lochner v. New York (1905).  In Lochner, the Supreme Court held unconstitutional a New York labor law restricting the number of hours that a baker could work– ostensibly to protect the health and safety of bakers. The Court reasoned that the law violated the fundamental right of individuals to enter contracts– a right that is not expressly stated in the Bill of Rights and therefore based on the idea of substantive due process.  The Lochner Era is synonymous with the Gilded Age, the Roaring Twenties, and laissez-faire capitalism because business interests were prioritized over the interests of labor.  The Lochner Era would set in motion the legal foundation for the recognition of the fundamental right of parents to direct the upbringing of their children particularly when that right conflicted with the state’s police power.    

IV.  Parens Patriae and the State’s Police Power

Now that the stage is set, let’s talk about the fundamental right to raise one’s children.  In family law, there is a much-quoted aphorism:

The relationship of parent and child is a status––not a property right. Parents, whether divorced or not, have no property right in their child's custody, concerning which they may make contracts[.]

In re Rosenthal, 157 A. 342, 344 (Pa. Super. 1931); see also Rogers v. Daven, 148 A. 524 (Pa. 1930). What does it mean to say that parents do not have a property right in their children?  As explained by the Supreme Court of North Carolina,

But the infant child of their union is not property, and the father can have no vested right in the child or its services under a decree divorcing the parents. Such decree as to the child has no extraterritorial effect beyond the boundaries of the state where it was rendered. The child is now a citizen of North Carolina, and, as such peculiarly under its guardianship and the courts of this state will not remand it to the jurisdiction of another state, especially where, as in this case, it is so manifestly against the true interests of the child. “Minors are the wards of the nation, and even the control of them by parents is subject to the unlimited supervisory control of the state.” In this case it is said: “The supreme right of the state to the guardianship of children controls the natural rights of the parent when the welfare of society or of the children themselves conflicts with parental rights.”

Ex parte Alderman, 73 S.E. 126, 129 (N.C. 1911) (internal citation omitted) (emphasis added).

Through the years, the meaning of this aphorism has slightly changed.  In Pennsylvania, courts now apply it to dependency cases, rather than to private contracts concerning custody of children:

Indeed, the relationship of parent and child is a status and not a property right, and one in which the state has an interest to protect the best interest of the child.”

Int. of K.C., 310 A.3d 296, 304 (Pa. Super. 2023).

The aphorism appears to originate from an opinion written by Justice David Brewer writing for the Supreme Court of Kansas in the case of In re Bort, 25 Kan. 308 (1881). Justice Brewer would later rise to the United States Supreme Court in 1889.  Though once very well regarded, Justice Brewer has become relatively obscure nowadays because his judicial philosophy has not aged well.  Justice Brewer’s tenure on the high court ended when he died in 1910.  He voted with the majority in Lochner. And, while on the Kansas Supreme Court he provided the lone dissent from an opinion overturning segregation of public schools. In his dissent, Justice Brewer wrote,

I dissent entirely from the suggestion that under the fourteenth amendment of the federal constitution, the state has no power to provide for separate schools for white and colored children. I think, notwithstanding such amendment, each state has the power to classify the school children by color, sex, or otherwise, as to its legislature shall seem wisest and best.

Bd. of Educ. of City of Ottawa v. Tinnon, 26 Kan. 1, 23–24 (1881).  This opinion was not necessarily borne from racism, though.  Justice Brewer clarified his position: “[. . .] classification by color may be unreasonable and deserve condemnation; but the question before us is not one of policy, but one of power.” Id. at 24.

In In re Bort, Justice Brewer rejected the petitioner’s argument that the full faith and credit clause of the federal constitution, U.S. Cont. Art. IV, §1, required Kansas to honor the award of custody granted by a court in Wisconsin.  Justice Brewer wrote the oft-cited words:    

This claim seems to rest on the assumption that the parents have some property rights in the possession of their children, and is very justly repudiated by the courts of Massachusetts. 2 Bish. Mar. & Div. (5th Ed.) p. 204.

[. . .]

We understand the law to be, when the custody of children is the question, that the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that. Even when father and mother are living together, a court has the power, if the best interests of the child require it, to take it away from both parents, and commit the custody to a third person. In other words, a court of chancery stands as a guardian of all children, and may interfere at any time, and in any way, to protect and advance their welfare and interests.

In re Bort, 25 Kan.  at 309-10 (emphasis added). Justice Brewer made no mention of the 14th Amendment, substantive due process, or the unenumerated fundamental right of parents to raise their children.  This is consistent with the judicial philosophy at the time that the 14th Amendment did not affect the States’ exercise of the police power.

In fact, prior to the ratification of the 14th Amendment, there was little doubt about the State’s parens patriae authority.  In 1839 the Supreme Court of Pennsylvania wrote,

The object of the [House of Refuge for children] is reformation, by training its inmates to industry; by imbuing their minds with principles of morality and religion; by furnishing them with means to earn a living; and, above all, by separating them from the corrupting influence of improper associates. To this end, may not the natural parents, when unequal to the task of education, or unworthy of it, be superseded by the parens patriæ, or common guardian of the community? It is to be remembered that the public has a paramount interest in the virtue and knowledge of its members, and that, of strict right, the business of education belongs to it. That parents are ordinarily entrusted with it, is because it can seldom be put into better hands; but where they are incompetent or corrupt, what is there to prevent the public from withdrawing their faculties, held, as they obviously are, at its sufferance? The right of parental control is a natural, but not an unalienable one. It is not excepted by the declaration of rights out of the subjects of ordinary legislation; and it consequently remains subject to the ordinary legislative power, which, if wantonly or inconveniently used, would soon be constitutionally restricted, but the competency of which, as the government is constituted, cannot be doubted. As to abridgment of indefeasible rights by confinement of the person, it is no more than what is borne, to a greater or less extent, in every school; and we know of no natural right to exemption from restraints which conduce to an infant's welfare.

Ex Parte Crouse, 4 Whart.9  (Pa. 1839) (emphasis added).

The Supreme Court of the United States would indirectly repudiate the In re Bort rationale to some extent in the year 2000 when it issued its plurality opinion in Troxel v. Granville, 530 U.S. 57 (2000), which I discuss in more detail a little later. 

V.  The Lochner Era's Landmark Cases

Considering the judicial philosophy of the Lochner Era, it is not surprising that a case from this era created the precedent that the 14th Amendment protects the fundamental right of parents to raise their children through substantive due process.  In 1923, the Supreme Court decided the landmark decision of Meyer v. Nebraska, 262 U.S. 390 (1923).  In this case, the Court considered a state law that prohibited the teaching of any subject in a language other than English to students before the 8th grade. There was an exception for “dead” languages, such as Latin, Greek, and Hebrew.  A teacher had been convicted of teaching a 10-year-old child to read in the German language.  The conviction was upheld by the Nebraska Supreme Court. The purpose of the law was essentially to force the large immigrant population that had immigrated to Nebraska after WWI to assimilate and speak English.  The Court held that the law was an arbitrary assertion of government power.  The Court found no good reason why a parent should be prohibited from hiring a teacher to teach his children a foreign language.

Interestingly, in its opinion the Court referred to a law proposed by Plato that children should be raised by the state and never know their parents.  The Court also referred to the practice in Sparta of removing children from their parents at the age of seven to be raised by official guardians. The Court wrote, “[a]lthough such measures have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest.” Id. at 402.  Nowhere in the opinion did the Court cite any authority to support its finding that

Without doubt, [the due process clause of the 14th Amendment] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

Id. at 399 (emphasis added).   This opinion became the authority upon which almost every other parent vs. police power opinion would be based.

The next landmark case was also from the Lochner Era.  In Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925), the Court struck down an Oregon law that required all children of a certain age to attend ONLY public schools.  The plaintiffs were a Catholic school and a military school. The Court noted that under the “doctrine of Meyer v. Nebraska,” the law at issue

unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Id. at 535 (emphasis added).  Note that in Pierce there was no question that the private schools were educating children consistently with the state’s requirements. The emphasized language contradicts the prevailing judicial philosophy of the pre-Lochner Era espoused in In re Bork, over 45 year earlier. Pierce, especially the emphasized languange in the above quote, would be cited often in the substantive due process battle between parents and the state’s police power.

These two Lochner Era cases essentially declared unconstitutional arbitrary laws that served no legitimate purpose in the Court’s view.  The laws were so arbitrary that they did not even protect the very interests that the states presented as their rationale for passing them.  Over 70 years later, Justice Kennedy, in a dissenting opinion, noted that had these cases been decided today, they probably would have been decided on First Amendment grounds rather than substantive due process.  However, the impact of these landmark cases on substantive due process remained.

VI.  Post Lochner Era—the Survival of Substantive Due Process

The Lochner Era ended in 1937 with the case of West Coast Hotel Co. v. Parrish, which upheld the right of the state to impose minimum wage laws.  Yet, the idea of substantive due process, as a limitation on the state’s police power, emanating from the 14th Amendment survived. 

In 1944, the Supreme Court decided Prince v. Massachusetts, 321 U.S. 158 (1944).  In this case, the Court considered whether a parent was guilty of violating a state child labor law when the child distributed religious literature on the street– essentially acting as a street preacher.  The appellant raised constitutional challenges under the First and 14th Amendments.  The Court cited Meyer and Pierce for the rule that

It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.

Id. at 166.  However, the Court then acknowledged many ways in which the state can interfere with a parent's decision on how to raise his children.  The Court cited compulsory school attendance, child labor, and vaccination laws.  Ultimately, the Court upheld the law on very narrow grounds.  It first said that the law was unquestionably constitutional when applied to a child alone on the street, but then narrowed the question to when a child was accompanied by a guardian.  The Court described different ways that street preaching can be dangerous physically, mentally, and emotionally.  The Court reasoned,

Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.

Id.  at 170.  Then,

We think that with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms, and the rightful boundary of its power has not been crossed in this case.

Id.

Thus, it appears that the Lochner Era’s recognition of the fundamental right of parents to raise their children may have been a short-lived excursion from the older idea that children belong to the state, not the parents. 

In 1972, the Court decided Stanley v. Illinois, 405 U.S. 645 (1972).  However, this case was really decided on procedural due process grounds rather than substantive due process.  In this case, the Supreme Court held that an unwed father had a right to a hearing to determine his parental fitness upon the death of the children’s mother.  Citing Meyer v. Nebraska, the Court acknowledged

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed ‘essential,’ Meyer v. Nebraska, [supra], ‘basic civil rights of man,’ Skinner v. Oklahoma,[1] 316 U.S. 535, 541, (1942), and ‘(r)ights far more precious . . . than property rights,’ May v. Anderson,[2] 345 U.S. 528, 533, (1953).

Stanley, 405 U.S.at 651.  This case is somewhat incredible because the Supreme Court seriously considered the state’s argument that “unmarried fathers are so seldom fit that Illinois need not undergo the administrative inconvenience of inquiry in any case[.]” The court continued,

The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency.[footnote omitted] Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.

Id. The Stanley Court held that the father’s interest outweighed the state’s interest.  The Court emphasized that it had no issue with the state exercising its power to remove children from parents:

But we are here not asked to evaluate the legitimacy of the state ends, rather, to determine whether the means used to achieve these ends are constitutionally defensible. What is the state interest in separating children from fathers without a hearing designed to determine whether the father is unfit in a particular disputed case? We observe that the State registers no gain towards its declared goals when it separates children from the custody of fit parents. Indeed, if Stanley is a fit father, the State spites its own articulated goals when it needlessly separates him from his family.

Id. at 652-63.

The Stanley dissenters focused on the procedural posture of the case and thought the issue decided by the majority was not properly before the Court.  However, within the dissent is the following observation about the “human condition”:

Furthermore, I believe that a State is fully justified in concluding, on the basis of common human experience, that the biological role of the mother in carrying and nursing an infant creates stronger bonds between her and the child than the bonds resulting from the male's often casual encounter. [. . .] Centuries of human experience buttress this view of the realities of human conditions and suggest that unwed mothers of illegitimate children are generally more dependable protectors of their children than are unwed fathers. While these, like most generalizations, are not without exceptions, they nevertheless provide a sufficient basis to sustain a statutory classification whose objective is not to penalize unwed parents but to further the welfare of illegitimate children in fulfillment of the State's obligations as parens patriae.

Id. at 665–66 (Burger, J, dissenting) (emphasis added).

Also, in 1972 the Supreme Court decided Wisconsin v. Yoder, 406 U.S. 205 (1972).  This case once again forced the High Court to contend with the intersection of religion, education, parental rights and the State’s police power.  Yoder provides a narrow precedent for two reasons:  first, the opinion largely rests on the Court’s finding that the Old Order Amish Religion has a long and recognized history of three centuries within American society.  Id. at 235.  Second, the holding is based on Freedom of Religion as guaranteed by the First Amendment, which was made applicable to the States through the 14th Amendment.  The Court held that a statute requiring all children to attend school until the age of 16 was unconstitutional when applied to the Amish and the Mennonite Church because it violated their sincerely held religious beliefs.  The Court specifically limited its holding to laws that interfere with religion:

A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief.

Id. at 215. 

Once again, the Court relied on “the doctrine of Meyer v. Nebraska” as understood by the Court in Pierce. The Court opined that

[t]he history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.

Id. at 232-33.  

But is this true?  Remember that in Meyer the Court distinguished contemporary society from the western tradition espoused by Plato and practiced in Sparta: “[a]lthough such measures have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest.” Meyer v. Nebraska, 262 U.S. at 402.  Also, prior to Meyer, there was certainly a well-established history of state courts recognizing the states’ unlimited police power to protect children.

In Troxel v. Granville, 530 U.S. 57 (2000), the Supreme Court upheld the opinion of the Supreme Court of Washington which declared unconstitutional a Washington State statute that permitted any person at any time to petition the court for visitation of children if visitation would serve the “best interests of the children.”  In reaching this holding the Court once again invoked the doctrine of Meyer v. Nebraska for the rule that “the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Id. at 65. 

The Court took exception to the Washington statute because it was “breathtakingly broad.” The problem, as defined by the Court, was that any third party could petition for visitation, and once a petition was filed, the parents’ estimation of the children’s best interests was afforded no presumption of validity or weight.  The statute, therefore, permitted the judge the sole discretion to interfere with parents’ custody of their children based solely on the judge’s determination of the children’s best interests. Id. at 67. 

Troxel was a divisive case.  It generated three concurring opinions and two dissenting opinions.  In dissent, Justice Scalia wrote,

Judicial vindication of “parental rights” under a Constitution that does not even mention them requires [. . .] not only a judicially crafted definition of parents, but also—unless, as no one believes, the parental rights are to be absolute—judicially approved assessments of “harm to the child” and judicially defined gradations of other persons (grandparents, extended family, adoptive family in an adoption later found to be invalid, long-term guardians, etc.) who may have some claim against the wishes of the parents. If we embrace this unenumerated right, I think it obvious—whether we affirm or reverse the judgment here, or remand as Justice STEVENS or Justice KENNEDY would do—that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.

Id. at 92–93 (Scalia, J. dissenting). Both Justice Scalia in his dissenting opinion and Justice Thomas in his concurring opinion attempted to avoid the substantive due process issue altogether.  Justice Scalia would have held that the right to raise one’s children is included within the “inalienable rights” of the Declaration of Independence and the Ninth Amendment.  C.f. Ex Parte Crouse, 4 Whart. 9 (Pa. 1839) (noting that “The right of parental control is a natural, but not an unalienable one.”).  Justice Thomas expressly chose not to comment on whether the due process clause permits enforcement of unenumerated rights. Justice Thomas simply stated that the fundamental right of parents to direct the upbringing of their children exists but cited no authority for that conclusion. 

VII. Conclusion

The Supreme Court’s plurality opinion in Troxel is diametrically opposed to the judicial philosophy that existed prior to the Lochner Era.  Thus, in 120 years our American culture moved from

“Minors are the wards of the nation, and even the control of them by parents is subject to the unlimited supervisory control of the state.”

And

We understand the law to be, when the custody of children is the question, that the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that. [. . .] In other words, a court of chancery stands as a guardian of all children, and may interfere at any time, and in any way, to protect and advance their welfare and interests.

to the Supreme Court deciding that a statute permitting a court to award custody based solely on its determination of the best interests of the child was unconstitutional.  And the genesis of this cultural shift is a case from an outdated era, that cited no authority for its doctrine, and in fact, cited contrary authority within the canon of Western tradition. 

Notwithstanding the cultural vicissitudes that influence judicial philosophy over the decades and centuries, the “fundamental” right to raise one’s children is not “deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty.” If it were so “deeply rooted” the courts would not rely on the 14th Amendment, which was not ratified until 1868, as authority to enforce that right against the state’s police power.  In fact, prior to the Lochner Era cases, the prevailing judicial philosophy was that the state has unlimited power to protect the welfare of the children within its borders—subject, perhaps, only to a determination the law is arbitrary.

Ultimately, if parents want the authority to direct the upbringing of their children, that authority must come from the State legislature.  It is important for citizens to understand that constitutional rights, as interpreted and defined by the Supreme Court of the United States, are fickle and subject to change. Our freedom as American citizens and citizens of the individual states lies in our power to elect the state representatives that write the laws. 

____________________

[1] Declaring unconstitutional as violative of the equal protection clause an Oklahoma statute that required habitual offenders convicted of certain crimes, but not other similar crimes, be sterilized.  

[2] Mother could not lose her custody rights to her children in an ex parte divorce action in a state where she was not a resident, not domiciled, nor present. 

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]]>Do Parents have a Constitutional Right to Raise their Children?Aaron SontzWed, 08 Jan 2025 02:34:20 +0000https://www.pittsburghcriminallegaldefense.com/blog/a-presumption-like-no-other6331d2418389dc08816e48f3:633214e1c8b83d7b9f5951d5:677ddb3ab989e50454236ffaWhat is a legal presumption? 

Most definitions of the legal term “presumption” begin by distinguishing it from an “inference.”  An inference permits, but does not require, the factfinder to reach a decision about an elemental fact based on other facts that have been proven.  It does not shift the burden of production or persuasion.  The most common inference in criminal law is that a person intends the foreseeable consequence of his actions.   For example, the law permits the factfinder to infer that a defendant acted with malice if he intentionally uses a deadly weapon on a vital part of the victim’s body. Obvioulsy, the factfinder cannot see a person’s thoughts, but from his actions, the factfinder can infer his mental state.  In this example, the factfinder does not have to infer malice, nor must the defendant present any evidence to rebut the inference of malice.  The factfinder could conclude that even though the defendant intentionally used a deadly weapon on a vital part of the victim’s body, the defendant did not act with malice, or more precisely, that the prosecution failed to prove beyond a reasonable doubt that he acted with malice. 

A presumption, on the other hand, requires that the factfinder reach a certain conclusion about evidence unless that conclusion is rebutted.  The fundamental presumption in criminal law is the presumption of innocence, which requires that the factfinder acquit the defendant if the prosecution fails to prove his guilt beyond a reasonable doubt. In other words, where one party has the presumption, the other party has the burden of production and persuasion.  There are other presumptions in criminal law, which are usually created by statute.  For example, the Castle Doctrine creates certain presumptions regarding the defendant’s use of deadly force while in his own home. However, evidentiary presumptions in criminal law, especially those that work against the defendant,  are rare because of the presumption of innocence.  No statutory presumption can interfere with, or usurp, the presumption of innocence because of the federal and Pennsylvania constitutional right to due process of law, which requires that the prosecution prove every element of a crime beyond a reasonable doubt.  

Presumptions are essentially formalized heuristics, or intellectual shortcuts.  Thus, if a factfinder finds A and B, then it must find C unless D, where C is the presumed fact and D is the rebuttal.  

The way that presumptions work in the legal system is fairly consistent.  However, there is one presumption that is like no other– what I’ll refer to as the “judge’s presumption.”  

When a defendant files a motion to recuse a judge, the standard is “well-settled.”  What that means is that the standard has been recited so many times, in so many cases, and by so many judges, that nobody questions why it is the standard or how it became the standard.   It is axiomatic that a fair tribunal is a basic requirement of due process of law.  A party seeking recusal bears the burden of producing evidence to establish bias, prejudice, or unfairness,  which raises a substantial doubt as to the judge's ability to preside impartially. The appearance of bias or prejudice can be as damaging to public confidence in the administration of justice as the actual presence of bias or prejudice. Concerning bias, the appearance of impropriety is sufficient to warrant recusal without a showing of actual bias.  

When a judge denies a motion for recusal, the appellate court reviews the judge’s decision for an abuse of discretion.  “An abuse of discretion is not merely an error of judgment, but occurs only where the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record.”

The “abuse of discretion” standard is pretty strange if you think about it.  It is not enough for a “judge” to make “an error of judgement.”  Huh?  Isn’t an error of judgement exactly what an abuse of discretion should be? Not according to the “well-settled” standard.   One way that a judge can abuse his discretion is by making a decision based on “partiality, prejudice, bias, or ill will.”  This is a somewhat circular standard when applied to a motion for recusal.  In other words, to show that recusal is necessary, a litigant must produce evidence that the judge is biased, prejudiced, or unfair.  This motion must be presented to the very judge who stands accused. And, assuming the judge denies the motion for recusal, the standard by which the appellate court reviews the judge’s decision is for evidence that the decision to deny the motion was based on partiality, prejudice, bias, or ill will.  Thus, the litigant says, “I accuse you, judge, of bias, prejudice, partiality, or ill will.”  The judge says, “I deny your accusation.”  The litigant then appeals to the appellate court who asks, “did the judge act with bias, prejudice, partiality, or ill will when he denied the accusation that he acted with bias, prejudice, partiality or ill will.” How does the appellate court answer the question? 

Here’s where it gets interesting: 

When confronted with a recusal demand, judges have the ability to determine whether they can rule impartially and without prejudice. The judge must consider whether his continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary.  This is a personal and unreviewable decision that only the judge can make. In reviewing the denial of a motion for recusal, the law presumes that judges are honorable, fair, and competent and can rule in an impartial manner. 

The law presumes…. Does this mean that there is an evidentiary presumption that judges are honorable, fair, competent and impartial?  This is what I refer to as the  “judge’s presumption.”  

What is the legal, philosophical, or intellectual basis for the judge’s presumption? We don’t just pull legal or evidentiary presumptions out of thin air.  There has to be a good reason for them to exist.  Informal razors, like Occam’s Razor, or “laws”, like “Hitchins Law,” exist because they save time and energy. They are intellectual shortcuts that let us make decisions without analyzing all of the evidence and data.  Without taking these shortcuts in our daily lives we would become paralyzed and unable to act as we attempt to analyze every detail before making a decision.  However, we don’t rely on intellectual shortcuts in the legal system if doing so would violate the defendant’s constitutional rights.  Remember that the greatest of all the presumptions, the presumption of innocence, is part of the ethos of our culture–  the inherent and inalienable right to due process of law  bestowed upon us not by our government, not by our wealth, not by our physical or political power–  but by our Creator.   This is why a reasonable doubt is often defined as a doubt that would cause a reasonble person to pause or hesitate before acting in a matter of great importance. There are no shortcuts when the defendant’s rights are at stake.

By what right or authority does a judge have to the presumption that he is honorable, fair, competent, or impartial?  Especially when he’s reviewing a challenge to his honor, fairness, competence, or impartiality?

Judges are not kings, nor are they ministers, prophets, or oracles of some divine code or revealed truth.  They are government officials, employees.  In a democracy, such as the United States, judges are public servants. The judiciary is supposed to be the least democratic and the most independent of the three branches of government so that it can protect the citizenry from government abuse and overreach without concern for the political consequences. It is not the job of the executive and the legislature to protect the people from the judiciary, it is the job of the judiciary to protect the people from the executive and legislature.  We call the power of the judiciary to invalidate any law or act of government that violates the constitution “Judicial Review.” 

I suppose one could argue that the judge’s presumption arises from his political success in winning an election.   In Pennsylvania, judges are elected officials.   Thus, even though judges are supposed to be the public servants most independent from politics, they still serve at the whim of the electorate– or at least the part of it that actually votes.   In the federal government and in other states and countries, judges are appointed.  I wonder if the judge’s presumption only applies to those judges who are elected rather than appointed. 

Back to the original question:  By what right or authority does a judge have to the presumption that he is honorable, fair, competent, or impartial? 

The answer begs the question: judges have the right and authority to the judge’s presumption because they have the power to presume that they are honorable, fair, competent, and impartial.  To put it more bluntly, it is the consequence of their unchallenged, unreviewable power that judges get to judge their own decisions. Nobody– not the executive nor the legislature– has the power to revoke the judge’s presumption, the intellectual shortcut, that a judge is fair and impartial in the face of an accusation that he is not.  Ironically, the judge’s presumption creates the very evil that it was supposed to protect against– the appearance of impropriety.  Imagine if in a football game the headcoach of one team got to call all the penalties for his team and the other team. You wouldn’t take that sport very seriously, would you? And for those reason, the judge’s presumpion is a presumption like no other. "Where the word of a king is, there is power; and who may say to him, 'What are you doing?'" Ecc. 8:4.  

The right to raise one’s children as one sees fit is perhaps “the oldest of the fundamental liberty interests recognized” in the United States and Pennsylvania. Troxel v. Granville, 530 U.S. 57, 65 (2000); In re D.C.D., 105 A.3d 662, 676 (Pa. 2014). However, as with most rights, the right to raise one’s children is not unlimited, or beyond the power of the state to regulate.  The state has the power, and perhaps the duty, to protect the health, safety, and welfare of the children who reside within its borders.  The legal framework through which the Commonwealth of Pennsylvania regulates the right of its citizens to raise their own children is colloquially referred to as the “juvenile dependency system.”  Through the juvenile dependency system, the court can temporarily– or permanently– remove children from their parents and homes and establish a permanency goal of reunification, which means returning the children to the parents, or some other disposition including the voluntary or involuntary termination of parental rights, which culminates with the adoption of the child.  

The Supreme Court of Pennsylvania has recognized that a decree terminating parental rights “is widely regarded as the civil law equivalent to the death penalty, forever obliterating the fundamental legal relationships between parent and child.”  In re Adoption of C.M., 255 A.3d 343, 362 (Pa. 2021). In fact, termination of parental rights is so serious that federal courts require proof beyond a reasonable doubt when the government seeks to terminate the parental rights of Native American parents over whom the federal government has jurisdiction. See Santosky v. Kramer, 455 U.S. 745, 769 (1982) citing Indian Child Welfare Act of 1978, Pub.L. 95–608, § 102(f), 92 Stat. 3072, 25 U.S.C. § 1912(f) (1976 ed., Supp.IV) (noting that “Congress requires ‘evidence beyond a reasonable doubt’ for termination of Indian parental rights, reasoning that “the removal of a child from the parents is a penalty as great [as], if not greater, than a criminal penalty....”).  In Pennsylvania, the standard applied to termination of parental rights proceedings is clear and convincing evidence, which is generally recognized as the highest standard of proof in civil law, but a lower standard than proof beyond a reasonable doubt, which applies in criminal law.    

II. Background- the Adoption and Safe Families Act of 1997

The machinery of the juvenile dependency system is complicated and extensive. The Court of Common Pleas of Allegheny County is organized into four divisions: civil, criminal, orphans, and family.  42 Pa C.S. § 951(b). Interestingly, Allegheny County is the only judicial district in Pennsylvania that operates this way. In Philadelphia County, the civil and criminal divisions are combined into the trial division. These divisions are purely administrative, not jurisdictional.  Each division of the Court of Common Pleas “is vested with the full jurisdiction of the whole court[.]” Id. at § 952. Notwithstanding the purely administrative nature, the four divisions operate almost entirely independently of each other.  The divisions have separate judges, and they operate in different courthouses, with the exception of when a family division judge sits as the orphans court judge in adoption matters following termination of parental rights proceedings.   

Because of the profound reach of the juvenile dependency system, it often stretches through three, and perhaps all four, of the administrative divisions of the Court of Common Pleas of Allegheny County.  That is, juvenile dependency proceedings often involve the family, orphans, and criminal divisions. A common example of cross-division involvement is when a single factual episode results in both the filing of criminal charges and a dependency petition.  The orphans court division becomes involved when a party to the dependency matter files a petition to terminate parental rights, and the case moves from dependency to adoption.  The civil division might become involved with ancillary matters, such as landlord/ tenant disputes involving parents who lose their housing because of criminal charges or conviction. The significance of the intermingling of the various administrative divisions is discussed in more detail later in this paper.

The sprawling power of the juvenile dependency system is enacted through a network of statutes, regulations, and decisional case law.  At the heart of this network is the Adoption and Safe Families Act of 1997 (ASFA), which is a prolix and complex federal statute that was passed during the Clinton administration with bipartisan Congressional support. In fact, the ASFA passed the Senate with unanimous consent, and garnered only 5 nays and 12 no-votes in the House. It was sponsored by Representative Dave Camp, a Republican from Michigan, with 20 Republican and 11 Democrat cosponsors. The ASFA is contained within the Social Security Act, which is Chapter 7 of Title 42 of the United States Code.  

One might wonder how and why the United States government would be involved in the regulation of Pennsylvania’s power to protect the health, safety, and welfare of the children within its border.  After all, the United States government is one of limited powers, which are enumerated in Article I section 8 of the United States Constitution. Suffice it to say, the constitution does not empower the federal government to regulate the states’ power to protect the welfare of its children. So, Congress did what it often does– it conditioned the payment of money to the states on their creation of child welfare systems that comply with the terms of the ASFA. The section of the ASFA that controls the payment scheme is codified in Section IV-E of the Social Security Act.  Section IV-E is plainly titled “Federal Payments for Foster Care, Prevention, and Permanency.” In fiscal year 2020, the states collectively received $15,182,888,437.62 for child welfare spending from the federal government. Pennsylvania received $456,472,947.00.  Section IV-E is mind-bogglingly complex, and is virtually impenetrable for anyone but the most passionate legislative wonks. Seriously, try to read it yourself.  Critics of Section IV-E argue that it created adoption “bounties” that incentive adoption over reunification.  In fact, the federal government spends almost 10 times as much on foster care and adoption than on family reunification programs. 

So, where did this colossus of federal oversight come from? As one might suspect, the ASFA’s origin story emerged from the fog of the era of “crack babies” and “super predators.”   The ASFA arose from the same zeitgeist that created the much-maligned 1994 Crime Bill.  Critics of the ASFA describe it as racist and classist, while creating a middle-class entitlement to adopt babies from poor families. According to critics, much like the 1994 Crime Bill, the ASFA has caused immeasurable damage to black families and black communities.  

III. The Problems

The two central problems with the ASFA are its unyielding focus on “permanency” and  the requirement that states move to terminate parental rights once a child has been in foster care for 15 of the previous 22 months unless certain conditions apply.  42 USC §675(5)(E); see also 42 Pa C.S. §6351(f)(9).  Critics argue that the focus on “permanency” was a heavy-handed response to the cultural narrative of poor, black, drug-addicted mothers whose children were removed from the home only to languish indefinitely in foster placement.  

Anybody who has any experience working in the field of child welfare or criminal justice knows that 15 of 22 months is not enough time to correct the myriad physical and psychological problems caused by systemic, environment, and generational trauma. Additionally, as will be discussed later, reunification is often postponed and prevented by factors outside of the parents’ control.   Fortunately, the Supreme Court of Pennsylvania has interpreted Pennsylvania’s implementation of the ASFA to require only that the court consider the child’s time in foster placement as one factor during permanency review hearings. In In Re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).  Former Justice Joan Orie Melvin, a Republican, dissented in In Re R.J.T,  and used the opportunity to recount the history and rationale of the ASFA and its focus on permanency. Id. at 1193. 

Interestingly, on June 24, 2020, President Donald Trump (R) issued Executive Order 13930, titled “Strengthening the Child Welfare System for America’s Children,” 85 F.R. 38741, which attempted to modify and expand the ASFA.  One important modification appeared in Section 5(a)(iv), which states, 

Within 6 months of the date of this order, the Secretary shall provide guidance to States regarding flexibility in the use of Federal funds to support and encourage high-quality legal representation for parents and children, including pre-petition representation, in their efforts to prevent the removal of children from their families, safely reunify children and parents, finalize permanency, and ensure that their voices are heard and their rights are protected. The Secretary shall also ensure collection of data regarding State use of Federal funds for this purpose.

(emphasis added).

The emphasized language is quite remarkable because it acknowledged the importance of providing legal counsel BEFORE– to use a legal term of art– shit hits the fan.  Virtually all court-appointed counsel become involved AFTER legal process is filed, such as a criminal complaint or a sheltercare petition.  For example, the Allegheny County Office of the Public Defender cannot begin to represent a person until after a criminal complaint has been filed.  This puts Pennsylvanians who rely on court-appointed counsel at a significant disadvantage to those who can afford to hire private counsel.  Generally, the earlier in the process that a citizen can get legal counsel, the better the chances of preventing deeper penetration into the legal system. This is true for both criminal and dependency proceedings.  

On January 14, 2021, the U.S. Department of Health and Human Services, Administration for Children and Families,Children’s Bureau issued guidance responsive to President Trump’s Executive Order. See ACYF-CB-IM-21-06. The guidance is very well-researched, and cited the abundant and well-known research on the importance of holistic and interdisciplinary legal representation.  Not surprisingly, the guidance focused on developing strategies for better legal representation through the holistic representation model in dependency proceedings, and the need to provide more funding for additional training for attorneys.  However, the guidance contained no suggestion that Section IV-E funds can be used to directly pay attorneys to represent parents in dependency proceedings, or to pay for experts retained by the parent’s attorneys and other professionals who would comprise the interdisciplinary team that the guidance proposes.  

IV. Questions and Obstacles 

So, where does this leave us proletarians who toil under the financial beneficence of our federal sovereign? In other words, what do We The People get for the $102,805 personal share of the nation’s $34.5 trillion debt liability?  After all, those Section IV-E payments have to come from somewhere, right?

The Pennsylvania Department of Human Services, Fiscal Year 2024-25 Needs-Based Plan & Budget for the Office of Children, Youth, & Families of Allegheny County (NBPB narrative) attempted to answer, or perhaps respond, to these questions.  The NBPB narrative included a section called “challenges.”  The fourth challenge is titled, “Availability of High-Quality Legal Services for Parents.” NBPB at 5.  This section cited the usual bromides about the value of competent legal representation for parents and children.  The NBPB narrative cited research showing that high-quality legal counsel actually saves money and supports the purpose of the ASFA by reducing the amount of time that children spend in foster care. The NBPB narrative touted the oft-repeated conclusion that interdisciplinary legal teams save money over time.  For example, according to the NBPB narrative, 

Interdisciplinary legal teams enable a holistic approach to representing parents with dependency cases by bringing in the disciplines of social work and peer advocacy to assist in stabilizing families, leading to a quicker path to permanency and resulting in long-term savings. Research shows that interdisciplinary legal teams for parents hasten permanency for children in foster care by an average of 118 days.

Id. at 6.

The NBPB narrative described the challenge caused by the lack of federal funding provided by Section IV-E and the lack of state funding available to support high-quality legal counsel for parents.  The NBPB narrative concluded with the following observation: “Inadequate funding causes challenges in hiring and retaining attorneys, leading to significant delays in legal representation, thereby extending time to permanency.”  One of the proposed solutions to the lack of funding for legal counsel is investing in and expanding primary prevention and diversion services to families BEFORE the OCYF case is opened.  Again, this recommendation acknowledges the importance of appointing counsel as early in the process as possible– perhaps even before the formal process has officially begun. 

The NBPB narrative then considered the following question:

Is there interest by the county agency financially responsible for legal representation costs for parents in dependency proceedings in developing an MOU with the CCYA to draw down Title IV-E funds?

The answer is worth quoting verbatim:

Allegheny County recognizes the importance of quality legal representation for parents in dependency proceedings. The County contracts with Allegheny County Bar Foundation Juvenile Court Project to provide representation for parents. Additionally, the Courts maintain a conflict panel for those parents who cannot be represented by the Juvenile Court Project (and ACDHS and the Courts have established an MOU). To improve quality, ACDHS, as the Allegheny County Children & Youth Agency (CCYA), has begun to seek Title IV-E reimbursement for parent legal representation costs.

o If yes, what change(s) will be made to improve the quality of legal representation in dependency proceedings?

As part of our work to improve the quality of legal representation in dependency proceedings, the CCYA has piloted an interdisciplinary model with the Juvenile Court Project. The Courts also plan to enhance the model for providing representation to ‘conflict’ parents (e.g., parents whom Juvenile Court Project does not represent because they are the second parent on a case and therefore have a conflict of interest). These enhancements aim to improve parental support and timelines for reunification with children when possible.

A remaining barrier to the quality improvement of legal representation services is the high cost and minimal reimbursement available to counties. While Title IVE is newly available for this purpose, Allegheny County expects it will support less than 25% of the total services cost. Unfortunately, there is no state funding available for parent attorney costs.

As briefly mentioned earlier, reunification is often thwarted by factors outside of the parents’ control.  For example, the lack of family-centered drug abuse treatment poses one impediment to reunification.  According to the NBPB narrative, in FY 2022-23, 33% of children removed from their homes were in response to adult drug or alcohol abuse.  For children under 5, the number increases to 43%. Obviously, if the reason for a child’s removal was based on the parent’s drug addiction, the lack of available drug treatment would delay potential reunification. 

Another obstacle to reunification is the lack of efficient and appropriate transportation for children to participate in family visits.  According to the NBPB narrative, “up to 40% of transportation needs are unmet due to a lack of provider and staffing capacity.” Id. at 23. 

A third systemic problem is the staffing shortages among service providers.  The NBPB narrative reported that the “staffing shortage that has delayed families' receipt of services has also increased caseloads for CYF caseworkers, which slows down the pace of contacts with families, assessments, and updating family plans.”  Over the past year, the OCYF reported 187 vacancies. Id. at 68. 

Of course, OCYF’s staffing shortages must not affect the reunification of children with their parents.  This is one of the intercepts with the legal system that parents’ counsel could mitigate by ensuring that the systemic barriers to reunification are not attributed to the parents.  

V. Solutions

Every stakeholder in the juvenile dependency system agrees that high-quality, holistic, interdisciplinary legal representation for parents is necessary.  The American Bar Association published an infographic that described the benefits of high-quality legal representation in child welfare proceedings.  Under the “Quality hallmarks” section, the infographic includes a summary of the services that the parents’ attorneys provide in these proceedings.  One service is described as “collaborat[ing] with a multidisciplinary team, including parent mentors and parent social workers.” 

As discussed in the Background section, Allegheny County is somewhat unique in the organization of its Court of Common Pleas administrative divisions.  Allegheny County is the only judicial district in Pennsylvania that has four administrative divisions: Civil, Criminal, Orphans, and Family.  Because the juvenile dependency system is so overreaching, the administrative divisions create their own impediments to reunification by fragmenting the representation that parents get when they have cross-division legal proceedings.  So, here are some proposed solutions that are specifically tailored to Allegheny County.  

• A parent should have the same attorney represent him or her in both the dependency, criminal, and termination of parental rights proceedings.  

This topic was discussed in “A Dose of Resilience– Holistic Representation and the Locally Served Model.”  In many cases criminal charges and dependency proceedings stem from the same set of facts. A common recurring example is when a child sustains an unexplained injury that results in the filing of criminal assault and endangering welfare charges against a parent or parents in the criminal division as well an emergency sheltercare and dependency petition in the family division. If the parent qualifies for court-appointed counsel, the parent will be assigned an attorney from the Allegheny County Bar Association Juvenile Court Project (JCP) to represent him in the family matter, and an attorney from the Allegheny County Office of the Public Defender (OPD) to represent him in the criminal matter.  If either, or both, offices are conflicted, a criminal and/or family division judge will appoint conflict counsel as needed.  The JCP and OPD have their own internal procedures for assigning attorneys to individual cases.  These internal procedures often result in several different attorneys becoming involved in the case at various stages.  These offices also suffer from significant turnover, which exacerbates the problem of the carousel of lawyers who become involved in these cases. This creates a fractured representation model that fundamentally contradicts the holistic, interdisciplinary model of representation.  Another problem caused by this fractured model is that the attorneys appointed in each division rarely interact with each other.  Finally, the family division docket is confidential, so a court-appointed criminal defense attorney would not have access to it, unless he seeks a court order or serves a subpoena. But, without any access, it is often difficult for the criminal defense attorney to know what to ask for from the family division docket.

The solution to this problem is appointing a single attorney, trained in both dependency and criminal law, to represent the parent in both divisions. This would save time and money– and thereby help effectuate the purpose of the ASFA by reducing the amount of time until permanency. This solution would also improve the attorney-client relationship by eliminating the fractured representation model and replacing it with a seamless, vertical representation model A single attorney would have access to all of the information– the documents and records, including those made confidential by the Juvenile Act–  that he needs to competently represent his client in both divisions. The attorney could use the resources available in one division, such as the services provided by OCYF as part of its “reasonable efforts” to achieve the goal of reuniciation, to help mitigate the consequences in the other division.  The attorney could also negotiate resolutions that take into account the progress made by the parent in the other division. A single attorney would reduce the overall amount of time necessary to prepare both cases. Much of the preparation for the dependency case and the criminal overlap, especially when both cases stem from the same facts. Finally, if a single attorney were appointed to both cases, he would be in a better position to competently advise and counsel his client, rather than being forced to restrict his advice to one half of the client’s legal misadventure.

When a parent has pending criminal and dependency cases, the president or administrative judge should appoint the same attorney to represent the parent in both divisions.  The court appointment fee rate should increase to reflect the additional complexity, time, and court appearances required to represent a parent in both divisions.  For example, assuming that the parent is charged with a felony assault or endangering welfare charge, the court appointment rate in the criminal division is either $100 to $110 per hour.  The family division rate is $80 per hour.  If the court appoints a single attorney to represent the parent in both proceedings, much of the preparation between the two cases will overlap. For example, if the rate for dual representation is increased to, say,  $140 per hour for a single attorney, the court would save $40 to $50 per hour from the cost of two attorneys doing similar, overlapping work for one hour each.  

• The criminal division should defer to the family division in matters that directly affect the achievement of the goals set in the dependency case (other than incarceration).   

Under both federal and Pennsylvania law, the primary goal of the dependency system is reunification of the family. However, when a parent is facing criminal charges, the district magistrate judge or the criminal division judge will often impose conditions on bail that interfere with reunification, such as no-contact orders between a parent and his children.  The magistrate judges and criminal division judges will often include in their bail and sentencing orders a requirement that visitation must be supervised by OCYF.   According to the Pennsylvania Juvenile Dependency Benchbook 3rd Edition, “it is important that courts exercise oversight of visitation arrangements, and not leave this responsibility solely to the agency [OCYF].” §8.1. Furthermore,

In order to proceed effectively toward successful reunification in a case involving out-of-home placement, frequent and meaningful family visitation is essential. Visitation is also a key component of the agency’s “reasonable efforts” toward the goal of reunification, which the court must review on an ongoing basis. Thus, specific visitation conditions should be incorporated in the court’s orders at the end of each hearing.

Id. at §8.2.

Thus, the magistrate judge or criminal division judge cannot simply defer its supervisory function to OCYF. Nor can it impose a blanket order that effectively prevents reunification.  If the magistrate or criminal division judge imposes a condition on a parent that affects the dependency case, the judge has an obligation to supervise the parents’ progress towards reunification.  Because of Allegheny County’s administrative divisions, supervision of the dependency case resides with the family division. So, while the criminal division judge has the inherent authority to supervise the dependency case, doing so would contradict the administrative organization of the Allegheny County Court of Common Pleas. Also, it is unlikely that the criminal division judge would have the time, resources or inclination to supervise the dependency case.  Accordingly, unless there is some compelling reason why the magistrate judge or criminal division judge needs to impose bail or sentencing conditions that affect the overlapping dependency proceedings, they should refrain from imposing the conditions and defer to the family division judge. 

• The JCP and OPD should merge, or develop a collaboration system to identify cases and appoint attorneys in dual representation cases. 

The importance of representation by a single attorney in both dependency and criminal proceedings cannot be overstated.  Anecdotally, when a parent is represented by a single attorney, or by attorneys working in close collaboration with each other, the results for the parent and children are better and achieved more quickly.  While a merger of the JCP and OPD would create potential for additional conflicts of interest, this would be an acceptable risk considering the potential rewards for the parent, the children, and the entire system.  Working collaboratively, the offices could develop protocols for identifying potential conflicts of interest.  When such conflicts are identified, the offices could file a joint motion to appoint a single conflict attorney to represent the parent in both proceedings.  The two offices could jointly create a holistic parent representation unit staffed by attorneys who were specially trained in both dependency and criminal representation.  Alternatively, Court Administration could develop a panel of conflict attorneys who are able and willing to accept dual appointments when a parent has overlapping dependency and criminal cases.  This proposal is consistent with the NBPB narrative which called for the creation of a dedicated interdisciplinary conflict counsel office. NBPB at 22.

The NBPB narrative also acknowledged the need for a cross-agency process that has expertise in multiple systems.  NBPB at 32. The Allegheny County Department of Human Services “employs a unit of multisystem specialists to provide administrative technical assistance across systems for children and youth whose needs are complex.” Id. Interestingly, the NBPB narrative did not connect the two pieces– the need for high-quality legal representation and the need for expertise in multiple systems. The creation of a panel of attorneys who are able to provide representation to a parent in both dependency and criminal proceedings would advance the call for high-quality holistic legal representation and decrease the time and expense of both dependency and criminal proceedings. 

VI. Conclusion 

The AFSA is not an entirely bad law.  For example, the ASFA emphasized placing children in kinship care, rather than foster care and group home settings.  However, the ASFA did create problems associated with, and reminiscent of, the misguided approach to criminal justice reform that enthralled the United States in the late 1990s. While there have been vigorous and passionate calls to repeal the AFSA, it remains the law that effectively controls juvenile dependency in Pennsylvania and Allegheny County.  Every stakeholder in the system, from the president of the United States to the leadership of Allegheny County OCYF recognizes the need for high-quality, holistic, interdisciplinary legal representation for parents in the dependency system.  One readily available, but overlooked, solution is providing legal counsel who can represent parents in overlapping dependency and criminal proceedings.  

Part I is here.

Part II is here.

Three Pennsylvania Standard Criminal Jury Instructions walk up to the  bar of “justice”… 

The first one, Instruction 4.17, says, 

I’m the “general credibility of witnesses” instruction.  Here’s what I think the jury should know:

As judges of the facts, you are sole judges of the credibility of the witnesses and their testimony. This means you must judge the truthfulness and accuracy of each witness's testimony and decide whether to believe all or part or none of that testimony. The following are some of the factors that you may and should consider when judging credibility and deciding whether or not to believe testimony:

a. Was the witness able to see, hear, or know the things about which [he] [she] testified? b. How well could the witness remember and describe the things about which [[he] [she] testified? c. Was the ability of the witness to see, hear, know, remember, or describe those things affected by youth, old age, or by any physical, mental, or intellectual deficiency? d. Did the witness testify in a convincing manner? How did [he] [she] look, act, and speak while testifying? Was [his] [her] testimony uncertain, confused, self-contradictory, or evasive? e. Did the witness have any interest in the outcome of the case, bias, prejudice, or other motive that might affect [his] [her] testimony? f. How well does the testimony of the witness square with the other evidence in the case, including the testimony of other witnesses? Was it contradicted or supported by the other testimony and evidence? Does it make sense? g. [give other factors].

If you believe some part of the testimony of a witness to be inaccurate, consider whether the inaccuracy casts doubt upon the rest of his or her testimony. This may depend on whether he or she has been inaccurate in an important matter or a minor detail and on any possible explanation. For example, did the witness make an honest mistake or simply forget or did [he] [she] deliberately falsify? While you are judging the credibility of each witness, you are likely to be judging the credibility of other witnesses or evidence. If there is a real, irreconcilable conflict, it is up to you to decide which, if any, conflicting testimony or evidence to believe. As sole judges of credibility and fact, you, the jurors, are responsible to give the testimony of every witness, and all the other evidence, whatever credibility and weight you think it deserves.]

The trial judge says,  “You’re a really good instruction, 4.17.  You explain everything the jury needs to know about how it should consider and weigh the testimony of witnesses.  I’m definitely going to read you to the jury.”

The second one, Instruction 4.13B, says,

I’m the “victim’s uncorroborated testimony in sexual offense cases” instruction. Here’s what I think the jury should know:

The testimony of the “victim” standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in this case.  The “victim’s” testimony need not be supported by other evidence to sustain the conviction.  You may find the defendant guilty if the testimony of the [complainant] convinces you beyond a reasonable doubt that the defendant is guilty. 

The trial judge says,  “You’re a really good instruction, 4.13B.  Even though you don’t say anything that 4.17 hasn’t already said, I’m still going to read you to the jury.”

The third one, Instruction 4.15, says, 

I’m the “false in one, false in all” instruction.  Here’s what I think the jury should know: 

If you decide that a witness deliberately testified falsely about a material point, [that is, about a matter that could affect the outcome of this trial,] you may for that reason alone choose to disbelieve the rest of his or her testimony. But you are not required to do so. You should consider not only the deliberate falsehood but also all other factors bearing on the witness's credibility in deciding whether to believe other parts of [his] [her] testimony.

The trial judge says,  “You’re a terrible instruction, 4.15.  Even though you’re a correct statement of Pennsylvania law, you don’t say anything that 4.17 hasn’t already said.  I’m not going to read you to the jury.”

“But, Judge,” says 4.15, “while I’m similar to 4.17, I give the jury a little more information about how it can and should consider the testimony of a dishonest witness.  Specifically, I let the jury know that it can reject the entire testimony of a witness if it believes that the witness intentionally lied about a material fact.  4.15 doesn’t tell that to the jury.  Also, Judge, you read 4.13B to the jury even though it says fundamentally the same thing as 4.15.”  

Oh… are you waiting for the punchline? Unfortunately, there isn’t one.

All three of these instructions overlap with each other to some degree.  Yet, Instruction 4.13B- the victim’s uncorroborated testimony–  is always given when warranted by the evidence and requested by the prosecution, while Instruction 4.15– False in One, False in All– is rarely given, and never given by some judges, even when warranted by the evidence and requested by the defense.  Even though Instruction 4.15 is a standard Pennsylvania criminal jury instruction, the Superior Court of Pennsylvania has said, “the False in One, False in All Rule is much to do about nothing.  It mandates nothing and merely gives the jury the right to accept or reject testimony as the jury sees fit.  This was adequately explained by the [trial court] in its general charge on credibility.”  Commonwealth v. Carey, 439 A.2d 151, 159 (Pa. Super. 1981) (internal citation omitted). 

But, the exact same rationale could be applied to the victim’s uncorroborated testimony instruction. Thus,  Instruction 4.13B “mandates nothing and merely gives the jury the right to accept or reject testimony as the jury sees fit.” 

As a sidenote, if Instruction 4.15- Fasle in One, False in All— is truly redundant, then why not give the instruction when a party asks for it? What harm would it cause? Why do prosecutors argue so vehemently against giving the instruction? It’s a relatively short instruction. Within the context of an hour and a half jury charge, the False in One instruction is a drop in the bucket.

Compare Instruction 4.13B to the instruction that the defendant– you know, the person who is presumed innocent– gets when he decides to testify:  

3.09 CREDIBILITY OF DEFENDANT AS WITNESS: INTEREST,

The defendant took the stand as a witness. In considering the defendant's testimony, you are to follow the general instructions I gave you for judging the credibility of any witness. 2. You should not disbelieve the defendant's testimony merely because [he] [she] is the defendant. In weighing [his] [her] testimony, however, you may consider the fact that [he] [she] has a vital interest in the outcome of this trial. You may take the defendant's interest into account, just as you would the interest of any other witness, along with all other facts and circumstances bearing on credibility in making up your minds what weight [his] [her] testimony deserves.

You might ask yourself why wouldn’t the alleged victim and the defendant get the exact same instruction on credibility? That’s a good question.  So, how about this:

Proposed 4.13C– Defendant's uncorroborated testimony in sexual offense cases:

Although the defendant has no burden of proof, the testimony of the defendant standing alone, if believed by you, is sufficient proof upon which to find the defendant not guilty in this case.  The defendant’s testimony need not be supported by other evidence to raise a reasonable doubt about his guilt.  You may find the defendant not guilty if [his] [her] testimony raises a reasonable doubt about his guilt.  

We can, and should, go one step further.  It is not enough that the jury believes that the accuser/ victim testified truthfully to find the defendant guilty beyond a reasonable doubt.  The jury must also be convinced beyond a reasonable doubt that the defendant is, in fact, guilty of the alleged crime.  A witness can testify truthfully and still be wrong.  According to the Innocence Project 69% of DNA exonerations “have involved eyewitness misidentifications, making it the leading contributing cause of these wrongful convictions.  Further, the National Registry of Exonerations has identified at least 450 non-DNA based exonerations involving eyewitness misidentification.”  

Add to the problem of eyewitness misidentification the problem of difference of opinion about what happened.  For example, one person might believe that a sexual encounter was consensual, while the other person might believe that it was not consensual.  Both people might be telling the truth as they know it.  So, it’s not enough for the jury to simply believe the accuser/victim.  The jury must also find beyond a reasonable doubt that the defendant is lying.

 Thus, Instruction 4.13B is actually not a restatement of Instruction 4.17– general credibility of witnesses.  But rather, the two instructions are inconsistent with each other.  As stated in Instruction 4.17– general credibility of witnesses, 

The following are some of the factors that you may and should consider when judging credibility and deciding whether or not to believe testimony:

f. How well does the testimony of the witness square with the other evidence in the case, including the testimony of other witnesses? Was it contradicted or supported by the other testimony and evidence? Does it make sense?] g. [give other factors].

(emphasis added).  Meanwhile, Instruction 4.13B essentially tells the jury that the accuser’s testimony need not “square with the other evidence in the case.”  Nor must the jury consider whether the accuser’s testimony was “contradicted or supported by other testimony and evidence.” Rather, all the jury needs to do in order to convict the defendant is believe the accuser, notwithstanding any other evidence to the contrary, including the testimony of the defendant.  

A better instruction might be something like this: 

It is not enough for you to simply believe the testimony of the accuser.  Before you may find the defendant guilty, you must be satisfied that he committed the crime beyond a reasonable doubt regardless of any evidence that has been presented in this trial.  So, if you are unsure if the accuser testified truthfully, or if you are unsure if the defendant testified truthfully, or if you find that both the accuser and the defendant testified truthfully, or if you find that neither testified truthfully, you must find the defendant not guilty.  You may only find the defendant guilty if after considering all of the evidence presented at this trial you conclude beyond a reasonable doubt that he committed the charged crime. 

Three jury instructions walk up to the bar of justice…

Part I: The Mendacity of Mathematical Certainty, is here.

What is the difference between direct and circumstantial evidence?  This is a trick question– there really is no difference at all.  Well,  more precisely, there is no difference that actually matters in a criminal trial.  

Pennsylvania standard criminal jury instruction 7.02A describes the alleged distinction between direct and circumstantial evidence.  Judges and lawyers often use a version of the following example to explain the difference:

Before you go to sleep at night, you look out your window and everything appears as usual.  When you wake up the next morning, you see a blanket of snow on the ground.  You see snow on your neighbor’s roof, in the trees, and on the cars parked in the street.  This is circumstantial evidence that it snowed last night after you went to bed because you did not personally see the snow falling.  From the fact that there is snow on the ground now, you can infer the fact that it snowed sometime after you went to sleep the previous night.  On the other hand, if you were walking home last night while it was snowing, and you saw and felt the snow, that is direct evidence that it snowed.  

This example is wrong.  

If you wake up in the morning and see a fresh blanket of snow that was not there the previous night when you went to sleep, this is direct evidence that it snowed last night.  You do not need to have personally witnessed the snow falling for the evidence to be direct evidence.  In fact, not a single human being needs to have seen it snow.  Rather, the fact that there is a blanket of snow on the ground that was not there the previous night directly proves the fact that it snowed. No other evidence is needed for you to reach that conclusion.

Compare this example to the one used by the 3rd Circuit Court of Appeals in its model jury instruction 1.09:

If a witness testified that she had been outside and saw that it was raining, that testimony would be direct evidence that it was raining. On the other hand, if a witness testified that she saw someone walk in from outside wearing a wet raincoat and carrying a wet umbrella, that testimony would be circumstantial evidence that it was raining, from which you could infer that it was raining. You would not have to find that it was raining, but you could. 

This example is better, but not great.  You could argue that even this example describes direct evidence rather than circumstantial evidence. Think about it— if a person walks in from outside wearing a wet raincoat and carrying a wet umbrella, what additional evidence do you need to connect these facts to the conclusion that it is raining outside?  Remember that the distinction between direct and circumstantial evidence is not concerned with the weight, quality, amount, or authenticity of the evidence.  So, while you might conclude that the facts presented in the example above are not sufficient to convince you that it is raining outside, the facts nonetheless directly point to that conclusion.

For some reason, the legal system has convinced itself that direct evidence is the same thing as eyewitness evidence or evidence derived from a witness’s personal knowledge or experience. The Pennsylvania jury instruction provides the following definition of direct evidence: 

“testimony by a witness from his or her own personal knowledge, such as something that he or she saw or heard himself or herself.”  

Nope.  That is the definition of an eyewitness or lay witness, not direct evidence.  The 3rd Circuit instruction provides a better definition: 

“Direct evidence is simply evidence which, if believed, directly proves a fact,” 

This is the correct definition even though it is a tautology.  The 3rd Circuit instruction then provides the following example:

An example of "direct evidence" occurs when a witness testifies about something the witness knows from his or her own senses - something the witness has seen, touched, heard, or smelled. 

 Again, this is wrong.  This example describes an eyewitness or a lay witness. Eyewitness testimony could be direct or circumstantial evidence depending on the fact that it is offered to prove.

Let’s consider an actual example of circumstantial evidence:

You look out your window early in the morning at your neighbor’s house across the street.  There’s a fresh blanket of snow on the ground.  Your neighbor’s car is parked in the driveway and it is covered in snow.  There are no tire tracks in the snow leading to or from the driveway to the road. There are no footsteps in the snow leading to or from the house.  The lights are on in your neighbor’s house, and there’s smoke coming from his chimney.  

This is circumstantial evidence that your neighbor is home. None of the facts presented in the above example directly prove that your neighbor is home, but if you want to, you can infer that your neighbor is home.  What does that mean?  It means that if you choose to, you can proceed with your life under the assumption that your neighbor is home.  In this particular example, it probably makes no difference to you whether your neighbor is home or not.  In other words, this is not a matter of great importance for you, so the amount and quality of evidence that you need before acting is not very high. If you were counting on your neighbor to give you a ride this snowy morning to the place where you are scheduled to take your LSAT exam, then this circumstantial evidence might not be good enough, and you might need some more evidence to quell your anxiety.  

A second problem with the distinction between direct and circumstantial evidence is that whether evidence is direct or circumstantial depends on the question being asked, and the purpose for which the evidence is offered.  I have already alluded to this a little bit in the previous examples, but let’s go into more detail. 

Suppose a body is discovered in the street with a gunshot wound to the head.  This is direct evidence that the victim was shot in the head.  No witness needs to have personally observed the gunshot, but the fact that there is a gunshot wound in the head directly proves that the person was shot in the head.  The gunshot wound might also be direct and circumstantial evidence of the cause (gunshot wound) and manner (homicide) of death.  However, the gunshot wound, in itself, can never be anything but circumstantial evidence of the identity of the shooter, or the shooter’s state of mind at the moment he pulled the trigger.  Thus, one piece of evidence can be both direct, direct and circumstantial, or solely circumstantial evidence depending on what fact the evidence is offered to prove.  

A third problem with the distinction between direct and circumstantial evidence is the increasing reliance on what I’ll refer to as scientific evidence in criminal trials.  Scientific evidence very often replaces the personal experience of human witnesses.  Is a surveillance video direct or circumstantial evidence? Is a fingerprint or DNA direct or circumstantial evidence?  Is GPS data recovered from a cell phone direct or circumstantial evidence?   Based on the definitions provided by both the Pennsylvania and 3rd Circuit jury instructions, direct evidence is that which is personally experienced by the witness. Is a computer a witness?  When a human being uses a computer program to analyze data, is the witness the human being or the program that tells the computer what to do?

The planet Neptune was the first planet discovered without direct observation.  Astronomers noticed irregularities, or perturbations, in Uranus’s orbit. In other words, Uranus was not always where it was supposed to be.  Astonomers hypothesized that there must be another planet so massive that its gravity affected Uranus’s orbit. Astronomers were able to use mathematical calculations to predict the existence and location of Neptune.  In 1846, based on these predictions, an astronomer was able to observe Neptune with a telescope, but more importantly, he recognized it as the hypothesized planet.  There is evidence that Galileo observed Neptune in the 17th century, over two hundred years earlier, but he did not realize what he was looking at, and therefore he does not get credit for Neptune’s discovery. 

The discovery of Neptune raises some interesting questions.  First, were the perturbations in Uranus’s orbit direct or circumstantial evidence of Neptune’s existence?  Second, when was Neptune’s existence proven to an “absolute certainty”— that is, when was its existence proven such than nobody who understood the evidence could reasonably disagree with its existence?   Was it when astronomers proved to a “mathematical certainty” that Uranus was not where it was supposed to be in the night sky?  Was it when astronomers developed calculations to predict the location of the hypothesized eighth planet— which proved to be accurate?  Or, was it when a human being looked through a telescope at night and saw sunlight reflected from a ball of ice and gas nearly 3 billion miles away? When Galileo observed Neptune, over two hundred years before it was “discovered,” was Neptune’s existence proven to a “moral certainty” or a “mathematical certainty?”  If you asked someone to prove to you that Neptune exists, what would be more convincing to you, seeing its reflected light with your own eyes through a telescope, or looking at a series of mathematical equations on a piece of paper? 

Let’s bring this back within the orbit of criminal law.  It is tempting to conflate the distinction between direct and circumstantial evidence with authenticity, weight, quality, and amount of evidence.  However, direct evidence, as defined by the jury instructions, can be credible or incredible.  This is true for circumstantial evidence also.  In fact, circumstantial evidence can be more credible and weighty than direct evidence.  For example, when an accomplice testifies against his co-defendant in exchange for a benefit from the government, our legal system refers to this as a “corrupt and polluted source” and instructs the jury that it should considered the testimiony with special caution. See PA Standard Criminal Jury Instruction 4.01. 

So, this reveals the real problem with drawing a distinction between direct and circumstantial evidence– the distinction does not matter at all.  Who cares whether evidence is direct or circumstantial?  Most of the time, nobody can really tell if the evidence is direct or circumstantial anyway— as demonstrated by the examples presented in the jury instructions themselves. And, whether a piece of evidence is direct or circumstantial, or both, can change from one question to the next.  A piece of evidence can be direct evidence of one fact, and circumstantial evidence of another fact in the same trial.

All that matters is whether the evidence presented at trial proves the elements of each charged crime beyond a reasonable doubt.  As such, the distinction between direct and circumstantial evidence is a distinction without a difference.  It is the forest for the trees.  Add to this nonsense the distinction between “proof beyond a reasonable doubt” and “proof to a mathematical certainty” and the legal system has complexified  something that should be very simple:  

The evidence presented at this trial must prove that the defendant is guilty beyond any and all reasonable doubt. The word reasonable simply means real, not imagined or contrary to human experience. A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to pause or  hesitate before acting upon a matter of great importance in his or her own affairs. A reasonable doubt can arise from the evidence presented as well as from the lack of evidence presented.   

This means that before you can find the defendant guilty of any of the crimes charged, you, the jury, must be certain that he is guilty of every element of the crime to the highest degree of certainty that one can have when dealing with the affairs of human beings.  In other words, you can only find the defendant guilty if there is no reasonable conclusion other than his guilt.   

Standard Pennsylvania Jury Instruction 7.01 states, in part:

Although the Commonwealth has the burden of proving that the defendant is guilty, this does not mean that the Commonwealth must prove its case beyond all doubt and to a mathematical certainty, nor must it demonstrate the complete impossibility of innocence. A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his or her own affairs. A reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence presented with respect to some element of the crime. A reasonable doubt must be a real doubt; it may not be an imagined one, nor may it be a doubt manufactured to avoid carrying out an unpleasant duty.

(emphasis added). 

I have objected to the use of the phrase “mathematical certainty” in the jury instructions because it is misleading and inaccurate.  Prosecutors often use the phrase “mathematical certainty”  to diminish or lessen the burden of proof that they must meet to “win” a conviction. When, in fact, the phrase “mathematical certainty” means the same thing as proof beyond a reasonable doubt. 

The phrase “mathematical certainty” is ambiguous.   What is a “mathematical certainty” anyway?  Within the context of a criminal jury trial, judges and prosecutors use the phrase “mathematical certainty” as a euphemism for “absolute certainty” or “demonstrative certainty,” and logical or syllogist certainty. These phrases all refer to the type of truth that is inherent in its proof– the type of proof that can be demonstrated, and to which no rational or empirical evidence can refute.  However, this is not what a “mathematical certainty” is.  

In the past, the phrase “mathematical certainty” was juxtaposed to the phrase “moral certainty,” which is derived from “moral evidence.”  The two types of “certainty” were defined by their relationship to each other.  Mathematical Certainty is the standard that applies to evidence that can be measured and quantified.  Moral certainty refers to evidence that cannot be measured. The American legal system gradually came to realize that modern juries no longer understand the concept of “moral evidence” or “moral certainty.”  So, the phrase “moral certainty” was replaced with the phrase “proof beyond a reasonable doubt.”   In 1875, the Supreme Judicial Court of Massachusetts explained, 

Proof ‘beyond a reasonable doubt’ ... is proof ‘to a moral certainty,’ as distinguished from an absolute certainty. As applied to a judicial trial for crime, the two phrases are synonymous and equivalent; each has been used by eminent judges to explain the other; and each signifies such proof as satisfies the judgment and consciences of the jury, as reasonable men, and applying their reason to the evidence before them, that the crime charged has been committed by the defendant, and so satisfies them as to leave no other reasonable conclusion possible.” 

Commonwealth v. Costley, 118 Mass. 1, 24 (1875).  

Criminal trials deal with the affairs of human beings, their interactions, their perceptions, their emotions, etc.  These human facts are not measurable or quantifiable.  In Victor v. Nebraska, the United States Supreme Court noted, 

“everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt”—in other words, that absolute certainty  is unattainable in matters relating to human affairs. Moral evidence, in this sentence, can only mean empirical evidence offered to prove such matters—the proof  introduced at trial.

511 US 1, 13 (1994).

Outside of philosophy, people who use math in the real world as a tool generally do not reach conclusions to an absolute certainty.  In fact, many of the important facts that can be proven to an absolute certainty already have been so proven.  To the extent that a person might disagree with settled facts, such as the shape or age of the Earth, the disagreement stems from ignorance or ideology.  There is simply no reasonable doubt about these facts, and to the extent that any person harbors doubt, it is unreasonable and imaginary. 

However, when dealing with facts that are not settled, we deal with statistical significance, margins of error, confidence intervals, probability, and industry-wide accepted standards. Laboratories such as the Office of the Medical Examiner do not measure or quantify their conclusions to absolute certainty.  They have accepted margins of error.  Scientists using the most vigorous and controlled experimental designs usually report their conclusions in terms of statistical significance, rather than absolute certainty. A criminal trial is not an experiment under controlled laboratory conditions. No fact which is settled, or can be settled, would ever be the ultimate question to answer at a crimnal trial. So, to instruct a jury that the prosecution need not prove its case to an absolute certainty is a truism.  

Suppose the question at trial is whether the defendant acted maliciously when the car he was driving crashed causing the death of his passenger.   

Mathematical Evidence:

The prosecution could introduce data from the vehicle’s event data recorder.  This data could show the speed of the vehicle at the time of the crash, if and when the brakes were applied, the angle of the steering wheel, the amount of traction available to the wheels, and many other data points.  The accident scene investigators could measure skid marks on the road.  If surveillance video is available, investigators could estimate the vehicle’s speed based on the number of video frames in which the car passed between two defined points, etc.  This type of evidence would have to be proven to a mathematical certainty in order for it to be credible. 

Moral Evidence: 

The prosecution could also  introduce the testimony of witnesses who observed the defendant’s actions, heard the defendant’s statements, and saw or experienced the accident. This type of evidence would have to be proven to a moral certainty for it to be credible.  

A criminal trial might, and probably will,  include both types of evidence.  The factfinder must then consider all the evidence– both the mathematical and moral evidence– and be satisfied that there is no reasonable conclusion other than the defendant’s guilt.  So, the factfinder can take into consideration the vehicle’s speed– a fact proven to a mathematical certainty– and a witness’s testimony that immediately before the accident the defendant attempted to swerve to avoid hitting a deer– a fact proven to a moral certainty.  The factfinder could then conclude that even though the defendant was driving in excess of the speed limit, his conduct was merely reckless, but not malicious.  

Thus, Standard Pennsylvania Jury Instruction 7.01 is simply misleading and inaccurate.  Depending on the type of evidence introduced at trial, the prosecution might very well need to prove guilt to a mathematical certainty in order to meet its burden of proof beyond a reasonable doubt.  Just as the phrase “moral certainty” means the same thing as proof beyond a reasonable doubt, so does the phrase “mathematical certainty.”  The applicable standard depends on the type of evidence upon which the decision must be made.  Thus, I would revise Instruction 7.01 as follows: 

Although the Commonwealth has the burden of proving that the defendant is guilty, this does not mean that the Commonwealth must prove its case beyond all doubt or to an absolute certainty.  However, the Commonwealth must prove the defendant guilty to a moral and mathematical certainty.  In other words, the Commonwealth must prove the defendant’s guilt beyond any and all reasonable doubt.  A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to pause or hesitate before acting upon a matter of importance in his or her own affairs. A reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence presented with respect to some element of the crime. A reasonable doubt must be a real doubt; it may not be an imagined one, nor may it be a doubt manufactured to avoid carrying out an unpleasant duty.  The Commonwealth meets its burden of proving the defendant guilty beyond all reasonable doubt when there is no reasonable conclusion other than the defendant’s guilt. 

• Justice Alito-- J.D.  Yale

• Justice Coney Barret-- J.D. Notre Dame

• Justice Brown Jackson-- J.D. Harvard

• Justice Gorsuch-- J.D. Harvard

• Justice Kavanaugh-- J.D. Yale

• Justice Kagan-- J.D. Harvard

• C.Justice Roberts-- J.D. Harvard

• Justice Sotomayor-- J.D. Yale

• Justice Thomas-- J.D. Yale

Notwithstanding their age, race, gender, religion, state of origin, or the wealth of their parents-- these nine people have more in common with each other than they do with the vast majority of American citizens. The trait that binds these nine people is their membership in the American ruling class, also known as the “Power Elite.”

Harvard Law School was founded in 1817. Yale Law School was founded in 1824— both well prior to the American Civil War when human slavery was a “legal” institution. Notre Dame Law School was founded in 1869 a few years after the end of the Civil War. The infamous Supreme Court decision, Plessy v. Ferguson, that upheld the doctrine of Separate-but-Equal, was decided in 1896. The author of the majority opinion in Plessy was Henry Billings Brown. He attended both Yale and Harvard Law Schools. He wrote,

The object of the [Fourteenth] Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.

Plessy v. Ferguson, 163 U.S. 537, 544 (1896) overruled by Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).

The lone dissenter from the Plessy majority was John Marshall Harlan. Do you know where he went to law school? Transylvania University in Lexington, Kentucky. Justice Harlan somehow--without the imprimatur of the Ivy League-- had the prescience to write,

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.

Id. at 559 (Harlan, J. dissenting).

Why would anybody want to go to Harvard or Yale? Why would any person want their personal success to be tethered to the reputation of institutions that are built on a foundation of elitism, classism, racism, oppression, and hypocrisy?

Our society celebrates when black people receive admission to elite academic institutions.   Our society celebrates when black people are chosen for prestigious high-ranking positions in elite corporations and nonprofits.  Our society celebrates when black people win elections or receive appointments to elite and prestigious government positions.    But why?    

What does an elite academic degree, an elite corporate career, or an elite government position signify? Why does our society celebrate the people who achieve these things? Are the chosen few more deserving than everybody else? Are they smarter, harder-working, more self-disciplined, more creative, more interesting? Do they have a better sense of humor? Are they taller, thinner, or more attractive? Are they just simply further to the right on the bell curve of life?   More curiously, why do the rest of us celebrate the people who achieve these things while at the same time lamenting the people who live in generational poverty?  Have not both groups proven that the capitalist system works exactly as it is supposed to? The existence of the Bourgeoisie— the ruling class— necessarily implies the existence of a servant class— the Proletariat. The Bourgeoisie is literally defined by its relationship to the Proletariat, and vice versa.

In The Society of the Spectacle, Guy Debord wrote,

the bourgeoisie is the only revolutionary class that has ever won; and that it is also the only class for which the development of the economy was both the cause and the consequence of its taking control of society.

This is really a profound observation that is even more applicable today then when Guy Debord wrote it in the 1960s. The hundreds of pages of opinions filed by the Supreme Court of the United States in Students for Fair Admission, Inc. V. President and Fellows of Harvard College, June 29, 2023, is a paean to the complete triumph of the Bourgeoisie.  According to Debord,

The spectacle is the ruling order’s nonstop discourse about itself, its never-ending monologue of self-praise, its self-portrait at the stage of totalitarian domination of all aspects of life.

Students for Fair Admission represents the ruling class's internal dialectic into its most important question:  Who gets to be a member of the ruling class? Perhaps more imporantly, which members of the ruling class get to decide how it perpetuates itself? Debord referred to this as the “integrated spectacle.” The struggle is no longer between the Bourgeoisie and the Proletariat, but “internal to the Bourgeoisie itself.” Students for Fair Admission is a monument to the Power Elite.

The criteria for access to the ruling class has changed over time, from generation to generation. This is simply a truism of dialectical materialism. For example, on September 8, 2023, the NY Times published an article titled, "DEI Statements Stir Debate on College Campuses." According to the article,

At Berkeley, a faculty committee rejected 75 percent of applicants in life sciences and environmental sciences and management purely on diversity statements

[. . .]

Candidates who made the first cut were repeatedly asked about diversity in later rounds. “At every stage,” the study noted, “candidates were evaluated on their commitments to D.E.I.”

D.E.I statements have become so important for admission to elite universities that

[a] cottage industry has sprouted nationally and in California to guide applicants in writing these statements. Some U.C. campuses post online reading lists of antiracist books and examples of successful diversity statements with names redacted.

This reminds me of the work of Peter Boghossian, James Lindsay and Helen Pluckrose, who wrote fake academic papers using the language and style of the academic left. They were able to get several of their papers published in peer reviewed journals before the fraud was discovered. One published paper titled “Our Struggle Is My Struggle” “simply scattered up-to-date jargon into passages lifted from Hitler’s ‘Mein Kampf’.”

Of course it goes without saying that D.E.I. statements are not the problem. They're not even a symptom of the problem. The "problem" is not even really a "problem" unless you think human civilization should operate in some kind of fundamentally different way than it has always operated. The Power Elite does not care about “diversity,” at least not in the sense that it has been commodified, packaged and sold by the Spectacle for consumption by the masses. D.E.I. statements are simply the lastest tool that the Power Elite use to distinguish US from THEM. According to Debord,

Knowledge of the ‘passwords’ and ‘signs’ of the ‘elite’ are promoted by the spectacle as the means of admittance to the inner circles of (managerial) government and its networks of patronage and power.

The use of the “correct” academic language as manifested in acceptable D.E.I. statements and repackaged Hitler as feminist theory has replaced the social register and the blue blood clubs and fraternities of generations past as the “passwords” and “signs” of the Power Elite. So, the real question is not whether the Power Elite should permit itself to use race as a litmus test for determining who gets to be in the next generation. The real question is why do we, the proletariat, the servant class, care how the Bourgeoisie, the ruling class, perpetuates itself. You might be thinking to yourself, well, finally people "who look like me" have access to the ruling class. But, this is simply the next stage of historical materialism and end-stage western capitalism. Societies are not stagnant, and neither is the ruling class. They evolve over time or they die.

Holistic Legal Representation and the Locally Served Model–

The call for holistic, or interdisciplinary, legal representation, such as the well-known model used by Bronx Defenders in New York City, is well-documented.[1] Holistic representation is generally defined as “a legal practice that incorporates professionals into the legal team, including social workers, parent advocates, interpreters, specialized attorneys, experts, and investigators.”[2]  Research shows that law offices that employ a holistic model engage with their clients earlier in the legal process than traditional court-appointed attorneys, and they provide a broader array of services.   For example, a holistic, or interdisciplinary law firm might provide representation in multiple legal forums, such as criminal court and juvenile dependency court, and the firm might provide additional non-legal services such as assisting their clients apply for public benefits, employment training, mental health counseling, substance abuse treatment, transportation, etc.  

Studies that analyze the impact of holistic representation tend to focus on quantifiable data, such as conviction rates, expected conviction rates, length of sentence, days of custodial punishment, recidivism rates, and the tax savings associated with lower incarceration rates.[3] While these data are certainly valuable in assessing the impact of holistic defense, it overlooks perhaps the most important benefit. The most important benefit of the holistic representation model might very well be the role that the holistic defense law firm serves in helping the community, the family, and the client develop a “dose of resilience” as part of a broader “portfolio of strength.”  This paper discusses these concepts in more detail below. The community-based holistic defense law firm would function as part of the community that it serves, rather than as a separate top-down government system imposed upon the community from the outside.

Outline

This paper will first discuss some research on the impact of systemic generational and environmental trauma on public health, with a focus on the health of marginalized communities.  The paper then reviews research that analyzes the capacity of “resilience” to heal the damage caused by systemic trauma.  Next, the paper discusses three well-known systemic problems that create and perpetuate community trauma– the over-policing of black children; the mass incarceration of parents and the placement of their children in the dependency system; and the fragmentation of legal representation.  Finally, the paper discusses the role that holistic representation– through the Locally Served model–  plays in providing a dose of resilience to mitigate the effects of intergenerational and environmental trauma caused and perpetuated by the system itself.

Trauma:

          Not an event itself, but the consequence of the event–

Trauma is

 an inner injury, a lasting rupture or split within the self due to difficult or hurtful events. [It] is primarily what happens within someone as a result of the difficult or hurtful events that befall them; it is not the events themselves. [. . .] [T]rauma is a psychic injury, lodged in our nervous system, mind, and body, lasting long past the originating incident(s), triggerable at any moment.

Maté, Gabor. The Myth of Normal (p. 20). Penguin Publishing Group. Kindle Edition.

Trauma and criminal justice are inexorably connected. Over the past twenty years, a new field of research has developed that identifies and focuses on Adverse Childhood Experiences (ACEs).[4]  The “public health crisis resulting from cumulative adverse childhood experiences is costing ‘hundreds of billions of dollars’ each year”.[5]  The research into ACEs has proven the “associations between childhood adversity and typically adult-onset conditions such as ischemic heart disease, cancer, chronic bronchitis, and emphysema.”[6]  Additionally, ACEs “contribute to many behavioral problems and higher rates of mental and physical disorders.”[7]  For example, trauma affects a person’s “response flexibility”, which is defined as “the ability to choose how we address life’s inevitable ups and downs, its disappointments, triumphs, and challenges. Human freedom involves our capacity to pause between stimulus and response and, in that pause, to choose the one response toward which we wish to throw our weight [. . .].Trauma robs us of that freedom.”[8]  The trauma that a person suffers as a child limits his or her ability to respond effectively to adversity as an adult. This is particularly important in the legal system where criminal conduct is often viewed as a moral or personal failing. 

This research also brought to light the significance of poly-victimization, which is a “stronger predictor of psychopathology than even chronic or severe experiences of a single type.”[9]  Poly-victimization refers to “exposure of multiple types of adversity, versus particularly traumatic or chronic experiences of a single type.”[10]  Poly-victimization is particularly important when discussing the effect of the legal system on marginalized communities.  As will be discussed later, marginalized communities are at greater risk for poly-victimization through persistent systemic multigenerational and environmental trauma.    

Multigenerational Trauma

Trauma is transmitted through generations from parents to children.[11] Trauma suffered by mothers while pregnant affects their children’s “language, BMI [body mass index] and obesity, insulin secretion, [and] their immune system” as teenagers.[12]  A mother’s ACEs “increase perinatal psychosocial risk, which, in turn, is associated with disruptions to mother-infant coregulatory, dyadic functioning”, which is “the ways in which mothers and their offspring regulate each other’s biological, emotional, and behavioral processes.”  Thus, a mother’s ACEs may “compromise maternal-infant didactic functioning through elevations in perinatal psychosocial risk. Dysregulation within the dyad, in turn, has implications for maladaptive maternal and offspring biobehavioral health.”[13]  Put more simply, the “chain of a woman’s stress exposure that begins in (her) childhood and persists into the perinatal period can have lasting negative consequences for mothers and their children.”[14] This research is very troubling because it suggests that a child can suffer negative health consequences from its mother’s trauma before the child is ever born.  Unfortunately, by the time the government intervenes by providing services to a parent and child, the intergenerational impact of trauma has already occurred. There’s even some research suggesting that fathers can transmit their trauma to their offspring through their sperm.[15] 

Environmental Trauma

Trauma is transmitted through the environment via epigenetics.  “Epigenetic processes act on chromosomes, delivering and translating messages from the environment that “tell” the genes what to do.”[16]  Epigenetics provides “a way of adapting to changing conditions without inflicting a more permanent shift in our genomes.”[17]  In other words, through the epigenetic mechanism, genes receive signals from the environment, and then respond to the signal by turning “on” or “off.”  Essentially, epigenetics modifies the traditional Darwinian understanding of “spontaneous mutations and random selection” because “circumstances themselves can change how genes adjust to the environment.”[18] Id. This research clearly demonstrates that “[a]dversity among both mothers and fathers bear ‘reliable linkages’ to the epigenetic profiles of the children[.]”[19]  For example, “factors such as poverty, racism, and urban blight can directly impact our genetic and molecular functioning.”[20]   The environmental trauma of poverty and racism manifests as

higher rates of inflammation in African Americans than in Caucasians, an epigenetic effect that remained even when comparing those of the same socioeconomic level. “We found that experiences with racism and discrimination accounted for more than 50% of the black/white difference in the activity of genes that increase inflammation[.]”[21]

Scientists can literally measure the impact of environmental stress on a person by looking at the length of his or her telomeres.  “A telomere is a region of repetitive DNA sequences at the end of a chromosome. Telomeres protect the ends of chromosomes from becoming frayed or tangled. Each time a cell divides, the telomeres become slightly shorter. Eventually, they become so short that the cell can no longer divide successfully, and the cell dies.”[22]  Telomeres have been referred to as a “biological clock” because they are “a measure of biological rather than chronological age. Two people, even identical twins, could be the same age computed in years, months, weeks, and days, yet one may be biologically older than the other, depending on how much stress, adversity, or trauma they have endured.”[23]  Unsurprisingly, strong evidence shows that racism makes people old. “The neighborhood deprivation, the crime, the income of the zip code, [. . .] all of that is associated with aging of the cells. That is to me one of the biggest demonstrations that our health is outside of our body.”[24] 

Resilience— Ordinary Magic

The idea that people can simply pick themselves up by their bootstraps and overcome the trauma that they have experienced through force of will or strength of character is simply outdated and inconsistent with the towering weight of scientific evidence.  People cannot control the trauma that triggers epigenetic responses that write diseases into their very genome.  Nor can people control the persistent environmental and social stress that literally ages their cells prematurely or increases their risk for serious medical problems.  Trauma is a systemic problem that requires a holistic, multigenerational, environmental solution.

The research into trauma is not all bleak.  The ACE research has produced promising and hopeful new understanding of how people recover from trauma.  As one researcher explained, “[h]ealth is not simply the absence of pathology[.]”[25]  This led to the emergence of a general theory, or science, of “resilience,”[26] which has been described as “ordinary magic” for its ability to help people recover from trauma [27]  Amazingly, resilience can even reverse the shortening of telomeres caused by environmental trauma.[28]

Resilience is “the capacity of a system to adapt successfully to challenges that threaten the function, survival, or future development of the system.” Furthermore, resilience is not “simply within an individual, or systems within an individual” but it applies to “families, economies, ecosystems and organizations.”[29]   As a result of this research the Center for Disease Control recommends that service providers “shift the focus from individual responsibility to community solutions.’”[30] The concept of “resilience” includes three elements:  adversity, evidence of healthy functioning after adversity, and the protective factor or strength that allows one to rebound from adversity.[31]

Resilience Portfolio Model

The research into resilience demonstrates that “[d]espite the high costs of adversity, many people manage to overcome such burdens and achieve well-being, using individual, family, and community assets and resources.”[32] The “Resilience Portfolio Model” was introduced in 2015 “to provide a more comprehensive understanding of the processes that promote health and thriving in individuals exposed to adversity.[33]    According to this model, “resilience is best considered an ongoing process that will be needed over a lifetime and involves the full social ecology.”[34]  Furthermore, “resilience is not a trait that can be measured directly, but a process that requires assessment of adversities, strengths, and outcomes.”[35] The Resilience Portfolio Model “underscores the need to assess a wide range of resources and assets available to individuals, families, and communities exposed to adversity.” The term “assets” refers to the characteristics of the person that promote healthy functioning.  The term “resource” refers to sources of support outside of the person. Together, a person’s assets and resources represent a person’s “portfolio of strengths.”[36]  A person’s “portfolio of strengths” “has similar or greater impact on current functioning than one’s trauma burden, even in highly victimized samples.”[37]  In other words, a person’s portfolio of strengths might be more impactful on that person’s well-being and ability to thrive in response to adversity than the person’s history of trauma.[38] 

The Resilience Portfolio Model incorporates  the concept of “poly-strengths”, which is a “construct that captures the totality (dose) of an individual’s protective factors across three categories of strengths:  regulatory, interpersonal, and meaning making.”  Regulatory strengths refer to a person’s ability to control impulses, manage difficult emotions, and persevere in the face of setbacks.  Interpersonal relationships include family, friends, and neighbors, as well as the personal qualities that sustain the relationships.  This domain also “captures broader elements of a person’s social ecological niche, including features of communities, cultures, and other elements of one’s social network.”  Finally, the “meaning making” domain refers to a person’s ability to explain and understand their experience.[39]  In the context of ACEs, the Resilience Portfolio Model suggests “a dose-response relationship between Positive Childhood Experiences (PCE) and ACE outcomes, finding that they can attenuate or prevent the negative health outcomes associated with ACEs.”[40]    

Another recent study corroborated the evidence that there is a cumulative or “dose” effect of positive childhood experiences.[41] This study analyzed the results of research that examined “community-wide levels of empowerment, with the hypothesis that, if increased, could influence changes in community norms and culture that would increase protective supports for adults themselves and for youths across various social domains.”  One such community-wide protective factor is “social capital”, which is defined as “the trust inherent in webs of local social networks that supported norms of reciprocity and cooperation.  These webs took the form of bonding among friends, family, and neighborhoods, bridging across social divisions in the same community and lining social networks to community leaders.”[42] The study noted that there has been an emerging consensus on how to increase resilience.  Specifically, there needs to be a shift from “deficit-based models that prevent and treat consequences of adversities to strength-based ones that focus on methods to increase positive adaptations and success among affected populations, by creating multilevel strategies across many fields of practice.” [43] The study concluded that there needs to be “a focus on building higher community capacity and increasing contextual resilience” through a “bottom-up strategy to increase social cohesion and collective efficacy and to increase protective factors among youth in schools and in neighborhoods [. . .]” A study  published in 2021 crystalizes this point:

Grounded in the principle that community-based treatment is more effective and cost efficient, the goal is to divert individuals from further penetration into the justice system by providing community-based alternatives.[44]

The emerging research shows that there is a “systemic underestimation of the trauma burden endured by people of color and other marginalized and oppressed groups.” [45] Because of this discrepancy faced by marginalized and oppressed groups “[m]ore attention to racial trauma and other collective, ongoing oppressions is needed too, including investing in community resilience and social justice interventions.”[46]

The Problem:

Part 1– Over-Policing of Black Children:

A good place to start looking at the “systemic underrepresentation of the trauma burden” is the over-policing of black children.  The research shows “significant associations among justice-involved youth between ACEs and a variety of behavioral health and legal outcomes including mental health or psychiatric symptoms, substance abuse, and delinquency, as well pregnancy, victimization, and limited academic achievement.” [47] Furthermore, there are “significant differences with respect to race, ethnicity, and gender in the association of ACEs and behavioral health and legal outcomes.”[48]  African Americans suffer from “increased vulnerability to ACEs” because of an interplay of contextual factors that negatively impacts physical and mental health over time.”  These factors include a “combination of historical-systemic, community (e.g. racism, deep poverty, police brutality, or deficits in child protection) intergenerational, and personal trauma exposure.”[49] 

The Sequential Intercept Model (SIM)–

The Sequential Intercept Model (SIM) “began as a conceptual framework to organize the discussion of overcriminalization of adults with behavioral health concerns and how to identify and divert these individuals to needed behavioral health services while holding them accountable for criminal behavior.”[50]  Further research showed that SIM was “highly relevant to the juvenile justice system given its focus on rehabilitation and community-based intervention.[51]  According to SIM, there are five original intercepts:  Intercept 1– law enforcement, emergency services; Intercept 2– Initial detention, initial court hearings; Intercept 3; Jails, collaborative/ specialty courts, forensic evaluation/ hospitalization; Intercept 4– Reentry; and Intercept 5- Community corrections and supports. After further research an additional intercept was added, Intercept 0, which includes Hospital, Crisis, Respite, Peer and Community Services.[52]  A review of the literature analyzing SIM shows “the importance of developing community-engaged public mental health and juvenile justice partnerships to coordinate efforts for infusing trauma-informed approaches and care across the intercepts.” 

In the study, researchers systematically reviewed literature on the prevalence of and impact of ACEs among justice-involved youth at Intercepts 1-5.  They recommended “universal screening of ACEs among [justice-involved youth] across the different SIM intercepts”. The study further noted that “probation officers and other system stakeholders [. . .] should consider conceptualizing the impact of trauma on [criminogenic] behaviors as the risk factor instead of viewing youth simply as aggressive, detached, cold or defiant[.]” Furthermore, “[i]ndividuals serving justice-involved youth (i.e. practitioners, police officers) may want to consider becoming more knowledgeable about the consequences associated with ACEs and how trauma might influence behaviors commonly displayed by justice-involved youth.”  Finally, the researchers recommended a “trauma-informed response or creating a trauma-informed environment, should be provided to all staff at each intercept, including law enforcement, judges, probation officers, and treatment staff.”[53]

SIM and the racial inequality of the Allegheny County juvenile justice system

For black children in Pittsburgh, Intercept 1 is particularly important because of the staggering racial injustice that afflicts them. Intercept 1 is “the point at which youth come into contact with the justice system, often exhibiting disruptive behavior at school that could be considered offending (e.g. fighting). Many schools have developed “‘zero tolerance policies’ mandating suspension or expulsion, and at times reporting to the police:  these practices ultimately promote the school-to-prison pipeline.” Of course, the data reveals these policies are disproportionately felt by children of color who are grossly overrepresented in the juvenile justice system.  A report authored by The Black Girls Equity Alliance (BGEA) called “Understanding and addressing institutionalized inequity: Disrupting Pathways to Juvenile Justice for Black Youth in Allegheny County,” poignantly describes the impact of overcriminalization on black children in Allegheny County.[54]  For example, consider the report’s key findings:

• Black girls are 10 times more likely than White girls, and Black boys 7 times more likely than White boys, to be referred to juvenile justice.

• The extreme levels of racial disproportionality in juvenile justice referrals in Allegheny County reflect that Black youth locally are referred at higher rates than Black youth nationally and White youth locally are referred at lower rates than White youth nationally.

• Pittsburgh Public Schools police are the largest juvenile justice referral source for Black girls in Allegheny County.

• Pittsburgh Public Schools students are referred to law enforcement at rates higher than students in 95% of similar U.S. cities. Black girls are referred at rates higher than those of Black girls in 99% of U.S. cities and Black boys at rates higher than Black boys in 98% of U.S. cities.

• The majority of arrests made by Pittsburgh Public Schools police are for minor offenses that are not safety related. In 2019, 54% of PPS police’s arrests of Black girls and 42% of Black boys ultimately resulted in a criminal charge of disorderly conduct, a highly discretionary charge that is frequently affected by racial biases.

• Students with disabilities constitute a large proportion of Pittsburgh Public Schools students referred to juvenile justice by the Pittsburgh Public Schools police. Specifically, of the 57% of PPS juvenile justice referrals for which data are available, 45% of Black boys referred to juvenile justice by the PPS police during academic years 2017-2018 and 2018-2019 had an Individualized Education Program (IEP)/qualified for special education services.

• Black youth are ten times more likely than White youth to be referred to juvenile court for failure to comply with a lawful order, often failure to pay a fine, stemming from a summary citation. Pittsburgh Public Schools police issued the largest number of the original citations resulting in “failure to comply” referrals of youth to juvenile court. Over half of the original citations that resulted in “failure to comply” referrals were for disorderly conduct.

The Problem:

            Part 2– Mass Incarceration of Parents and Placement of their Children in the Dependency System:

There is a direct connection between the incarceration of parents and the placement of their children in the dependency system. Equally important is the connection between a child’s foster care placements and his or her future involvement with the criminal justice system.[55] According to one research study, over half of children in foster care experience some interaction with the criminal justice system by the age of seventeen.[56]  Over 90% of foster children who have been through five or more placements become involved in the juvenile justice system.[57]  Therefore, the decision to incarcerate a parent must be made with a full understanding of the collateral consequences.  These statistics reinforce the obvious conclusion presented in a DHS data report: “the jailing of a parent is a disruptive event associated with significant health, education, and behavioral consequences.”[58] The incarceration of a parent is traumatic for both the parent and the child.  

The people most affected by the dependency and criminal systems are, unsurprisingly, people of color. Currently, 66% of inmates in the Allegheny County Jail are black,[59] yet only 13.5% of the population of Allegheny County is black.[60]  In 2021, across the nation, cases involving allegations of abuse towards black children were opened at 1.2 the rate of cases involving allegations of abuse towards white children.  However, in Allegheny County the “black child case open rate” was 4.7 times higher than “the white child case open rate.”[61] This statistic was reiterated in a DHS research report,

Black children entered care at a rate about five times that of their White counterparts. Black children made up the largest proportion (a range of 48% to 42% throughout the decade) of children entering their first placement, even though Black children comprised only 18% of the county’s under-18 population in 2017. White children made up 37% of first placements, compared to their share of 73% of the County’s under-18 population in 2010.[62]

Many people booked in the ACJ probably should not be there at all, but are themselves the victims of the inequity, unfairness, and unyielding bureaucracy of the system.  Over the past three years, 66% of people booked in the Allegheny County Jail were there for 30 days or less.  11% of people booked in the ACJ were there for two days or less.  A staggering 76% of women booked in the ACJ are there for 30 days or less.[63]  This last statistic reflects the increasing incarceration of women over the past 40 years in the United States, which in turn, is driving even more children into foster care. In fact, women are the fastest growing incarcerated population.[64]  Nationwide, women’s state prison population has grown 834% over the past 40 years, which is double the rate of the growth of the male prison population.[65]  As one might suspect, the incarceration of a mother tends to hit harder than the incarceration of father: when a father is incarcerated, 90% of children remain with their mother, but when a mother is incarcerated, only 25% of children live with their father.[66]

The high cost of incarcerating parents can be shown through Allegheny County Department of Human Services statistics.  According to a data brief published by the DHS,

• Out of 26,641 people booked in Allegheny County from 2018 through 2021, 51% (13,529) had children 18 or under at the time of booking, totaling 25,335 minor children.

• 58% (7,868) of parents who were incarcerated were Black, compared to 12.8% of the county adult population. This means that Black children and parents are disproportionately affected by incarcerations.

• Most parents (65%, 8,794) are in jail for less than 30 days and only 4% of the parents were sentenced to the jail during this period. Most of the parents booked are held pretrial (46%, 6,207) or on a local probation detainer (23%, 3,127).

• In addition to targeted programs, 10,335 of the children of incarcerated parents (41%) were involved in DHS services within a year after parental incarceration

• Early childhood services (such as Head Start and home visiting programs) and behavioral health services (such as mental health counseling) were the most common services used by children of incarcerated parents

• 1,894 children had a home removal or new placement within a year before or after the parental incarceration. Of these, 54% (1,022) were placed with family. 

• 39% (9,760) of children had a mom who was incarcerated. Of these, 8% (776) had a home removal. The largest group of children (194) were removed in the 6 months before the maternal incarceration.

• Examining trends in the 30 days pre- and post- incarceration, there is an increase in home removals in the 5 days before an incarceration. 33% (49) of home removals of children that occurred within a month of a mother’s incarceration occurred in the 5 days prior.[67]

These statistics show the profound and direct connection between parental incarceration and the placement of children in the dependency system. According to DHS data, “1 in 8 children with a child welfare referral have an incarcerated parent.”  The cost of incarcerating parents cannot be overstated:  

Children with incarcerated parents are at higher risk for child welfare involvement for multiple reasons: (1) When parents are removed due to incarceration, children experience unstable housing and may enter child welfare placements and (2) Parental incarceration is associated with substance abuse, mental health conditions, and other negative outcomes that may lead to child welfare involvement in a family.[68]

Furthermore, “33% of removals that occur within a month of a mother’s incarceration occur in the five days prior.”  This suggests that “child removals may cause disruptions in households that lead to maternal incarceration or that similar factors may lead to incarceration and child removal.”[69]

Considering the connection between maternal incarceration and child placement, the stakeholders in the Allegheny County Criminal Justice System must ask if the penological interest in incarcerating a parent for 30 days or less is worth the high cost that is paid by the parent, the child, the family, and the community. 

The Problem:

Part 3: Fragmentation of Representation

“The system is not designed to be run by the public defender's office[.]”

Chief Public Defender of Allegheny County, 2023[70]

The 2023 Allegheny County Criminal Justice budget looks like this (excluding police and emergency services):

• The Court of Court of Common Pleas has a budget of $90,440,911.

• The District Attorney’s Office has a budget of $22,307,763.

• The Department of Human Services has a budget of $234,685,040.

• The Office of the Public Defender has a budget of $11,848,995.

• The Allegheny County Jail has a budget of $103,593,632.

• All told, Allegheny County has a 2023 budget of $1,019,933,000.

Notwithstanding the enormous cost, the present system of government funded court-appointed legal representation does not adequately address the problem of the systemic trauma burden suffered by marginalized communities in Allegheny County.   The Allegheny County court system appoints government-paid public and private attorneys to represent many low-income residents in different types of cases. However, these attorneys are often limited in the scope of their representation.  For example, public defenders can only represent their clients in criminal court or juvenile delinquency matters.  Juvenile Court Project parent advocates only represent their clients in dependency or termination of parental rights proceedings. Neighborhood Legal Services Association attorneys provide a broad range of representation in civil matters, but not in criminal, dependency, or delinquency court.

To summarize, a single episode in an otherwise law-abiding mother’s lifetime might result in the Commonwealth charging her criminally, OCYF filing a petition to remove her children from her care and adjudicate them dependent, and a loss of her housing and public benefits.  Suffice it to say, parents and families facing multiple legal challenges, and struggling to find services to keep their family intact, need consistent, vertical, holistic representation in as many courtrooms as possible. Many families struggle with trauma, addiction, lack of stable housing, lack of stable employment, food insecurity, medical and mental health issues, and disabilities.  These are global, systemic problems. These problems cannot be effectively addressed piecemeal from one court hearing to the next.  

During the course of a criminal case in Allegheny County, most clients represented by the Public Defender will be assigned at least two attorneys– one attorney assigned at the pretrial stage before the formal arraignment and a new attorney assigned at the trial stage after the formal arraignment.  In many cases, a client will have more than two attorneys before the case is closed.  During the course of a CYF/dependency case, a client will  have no fewer than three parent advocates. So, a client facing parallel criminal and dependency cases– arising from the same incident– will likely have no fewer than five different attorneys through the course of her two cases. Then, add in the Neighborhood Legal Services attorney who might represent the client in an eviction or protection from abuse proceeding, and we’re up to at least 6 different attorneys in three different forums.  Each time the client gets bounced from one attorney to the next is a potential for the client to "slip through the cracks."  It is a formula for clients to lose faith in, and become distrustful of, the system.  

The system can, and very often does, tear apart families. Criminal cases can take well over 15 months to resolve especially if the parent chooses to fight the charges.   However, once a child has been in care for fifteen of the last twenty-two months, the Adoption and Safe Families Act requires OCYF to file a petition to terminate a parents’ rights. This creates a heartbreaking dilemma: a parent might choose to plead guilty to a crime that she did not commit in order to strengthen her position in the fight to retain her right to raise her children.  Obviously, this is a choice that no parent should make in a system that purports to honor the principles of Due Process of Law.  This dilemma is exacerbated by the fragmentation of representation.  The way the system currently operates, each attorney necessarily focuses on a single, discrete area of the law.  So, the criminal defense attorney focuses on getting the “best” outcome for the client in the criminal case without considering the potential consequences for the dependency case, and the dependency attorney has the opposite perspective.     

A Dose of Reslilience:

Holistic Representation— The Locally Served Model:

The top-down patriarchal government-funded criminal justice system doesn’t work– at least not for the people who are most afflicted by it.  This fact is self-evident from the statistics that describe the over-policing of black children, the mass incarceration of parents, and the placement of their children in the dependency system.  In order to solve– or at the very least, begin to solve–  the systemic generational and environmental trauma that afflicts low-income and marginalized communities in Allegheny County, a new approach is needed. 

The research into trauma and resilience provides a solution.  A holistic representation model of legal representation recognizes its role as part of the social capital of the community– the web of local social networks that support norms of reciprocity and cooperation. Whereas the system is imposed upon the people, the holistic representation model of representation serves the people.  The holistic representation model of representation provides a dose of resilience to the community at every stage of the criminal justice system.  Most importantly, an independent community-based holistic firm can intervene at Intercept Zero, before criminal charges are filed, and before children are adjudicated dependent.  Through early intervention, the holistic law firm can help to reduce the community member’s further penetration into the criminal justice system, thereby limiting system burden and systemic trauma.

Consider the results of Locally Served, a holistic representation community member that represents parents in the dependency system who also have pending criminal charges, as well as “special needs” clients with autism spectrum disorder and intellectual disability.  While only operating for around 5 months, Locally served successfully negotiated the closure of four OCYF intake cases without any further court activity.  In three of the cases, parallel criminal charges were withdrawn at the magistrate court, and in the fourth case, charges were threatened, but never filed.  Out of four “special needs” cases” two were resolved without the filing of any criminal charges, and two cases are currently pending.

The impact of Locally Served is hard to quantify with raw data.  For example, Locally Served is able to intervene before the client is technically eligible for court-appointed counsel– that is before OCYF opens an investigation and before the Commonwealth files criminal charges.  Then, through early remediation, Locally Served is able to reduce the trauma burden by preventing further penetration into the legal system.  Even if a dependency petition and criminal charges are filed, the parents know they can trust and rely on the Locally Served team to help them navigate the legal eddies before they become tidal waves.  By remediating the problems that led to OCYF opening an investigation and with the help of other community service providers, parents are in a much stronger position if a dependency petition or criminal charges are filed.  The timeline to successful resolution is much shorter, thereby reducing the trauma of a protracted legal battle in multiple courtrooms.      

Consider the following case example:  OCYF opened an investigation into a family based on allegations of deplorable conditions. OCYF filed a dependency petition, and the case was scheduled for an adjudicatory hearing.  Locally Served helped the mother remediate the conditions that led to the initial OCYF investigation sufficiently that OCYF was prepared to withdraw the petition.  However, three months after the incident, the Commonwealth filed felony criminal charges against the mother based on the same conduct that led to OCYF investigation.  The pending criminal charges prevented OCYF from withdrawing the petition.  Locally Served represented the mother at the magistrate court and successfully negotiated a complete withdrawal of the criminal charges.  OCYF withdrew the dependency petition shortly afterwards.  Through vigorous, holistic representation in multiple courtrooms, Locally Served was able to reunify the family without a dependency adjudication and without a criminal conviction.  If Locally Served had not intervened, it is likely that the criminal charges would have been held for court by the magistrate and the reunification of the family would have been delayed for months. Even if the criminal charges would have been dismissed eventually without Locally Served’s intervention, the children would have been in foster placement for months while the criminal case meandered through the system.  In other words, Locally Served’s early intervention in both the juvenile dependency and criminal systems saved the family months of trauma, and prevented further penetration into the legal system.

Now, consider a case with the opposite outcome.  OCYF opened an investigation into a family with a mother and father both of whom had intellectual disability.  Criminal charges were filed against both of them.  The father’s charges were withdrawn at the preliminary hearing.  The mother’s attorney was unavailable for personal reasons, and for some reason, the charges were waived at the magistrate court and sent to the court of common pleas.  Ultimately, the criminal charges against the mother were withdrawn, but it took an extra nine months.  OCYF could not return the children until the criminal charges were resolved.  Thus, for want of effective advocacy at the magistrate, the family suffered an additional nine months of separation and government interference.  

These two anecdotes demonstrate the difference in outcomes that can be achieved when one client has access to community-based holistic representation, and the other does not.  Statistically, the outcomes might appear similar– both families were reunified, and no parents were convicted of any crimes.  However, in the latter case, the family was forced to endure an extra nine months of system burden and trauma that could have been avoided.  

Conclusion

Community-based holistic legal representation is obviously not a panacea for all the problems caused by systemic generational and environmental trauma. However, it is a step in the right direction insofar as it reflects the scientific evidence developed over the past 20 years. Furthermore, the current system is simply not working. This is not an opinion, but a statement of fact based on the data. There is no single cure for systemic multigenerational and environmental trauma. But, the evidence strongly suggests that if a cure exists, it will come from within the communities themselves, not imposed on them from the government.        

Notes

[1] Gerber, Lucas, et al., “Effects of an interdisciplinary approach to parental representation in child welfare,” Children and Youth Services Review, Vol. 102, 42-55, July 2019; Anderson, James, et al., “The Effects of Holistic Defense on Criminal Justice Outcomes, Harvard Law Review, Vol. 132, January, 2019. 

[2] Gerber, 2019. 

[3] Anderson, 2019;  According to a study by the Rand Corporation that was funded by the Department of Justice titled  “The Effects of Holistic Defense on Criminal Justice Outcomes,”over a 10 year period, the Bronx Defenders “helped clients avoid 1.1 million days of incarceration, reduced incarceration rates by 16%, cut pretrial detention by 9%, shortened sentence length by 24%, and saved New York taxpayers an estimated $165 million on housing costs alone.”

[4] Grych, John, et al., “The Resilience Portfolio Model: Understanding Healthy Adaptation in Victims of Violence.”, Psychology of Violence, American Psychological Association, Vol 5, No. 4, 343-354, 2015. 

[5] Longhi, Dario, et al., Community-Wide Resilience Mitigates Adverse Childhood Experiences on Adult and Youth Health, School/Work, and Problem Behaviors, American Psychologist, American Psychological Association, vol. 76, No. 2216-229, 2021. 

[6] Hamby, Shery, et. al.,  Recognizing the Cumulative Burden of Childhood Adversities Transforms Science and Practice for Trauma Resilience, American Psychologist, American Psychological Association, vol. 76, no. 2, 230-242, 2021.

[7] Longhi, 2021

[8] Maté, Gabor. The Myth of Normal (p. 29). Penguin Publishing Group. Kindle Edition. (footnote, internal quotations omitted).

[9] Hamby, 2021

[10] Id.

[11] Roubinov, Danielle, et al. “A Prenatal Programming Perspective on the Intergenerational Transmission of Maternal Adverse Childhood Experiences to Offspring Health Problems, American Psychologist, American Psychological Association, Vol. 76, No. 2, 337-349, 2021.

[12] Maté, Gabor. The Myth of Normal (p. 64). Penguin Publishing Group. Kindle Edition.

[13] Hamby, 2021

[14] Id.

[15] Maté, Gabor. The Myth of Normal (p. 64). Penguin Publishing Group. Kindle Edition.

[16] Id. (p. 61).

[17] Id. 

[18] Id.

[19] Id. at (p. 64)

[20]Id. at (p. 59).

[21] Id. at (p. 65)

[22] National Human Genome Research Institute, available at bit.ly/3MJmggb.

[23] Maté, Gabor. The Myth of Normal (p. 65). Penguin Publishing Group. Kindle Edition.

[24] Id. at (P. 66).

[25]  Hamby, Sherry, et al, “Resilience Portfolios and Poly-Strengths:  Identifying Protective Factors Associated With Thriving After Adversity, Psychology of Violence, American Psychological Association, Vol. 8, No. 2172-183, 2018.

[26] Longhi, 2021

[27] Hamby, 2021

[28] Maté, Gabor. The Myth of Normal (p. 67). Penguin Publishing Group. Kindle Edition.

[29] Longhi, 2021

[30] Id.

[31] Hamby, 2018.

[32] Hamby, 2021.

[33] Hamby 2018.

[34] Hamby, 2021.

[35] Id.

[36] Hamby, 2015.

[37] Hamby, 2021

[38] Hamby, 2018.  According to this study, “a portfolio of protective factors accounted for a substantial amount of variance in all three indicators of well-being:subjective well-being, posttraumatic growth, and mental health symptoms.  Participants’ strengths accounted for more variance that their history of adversity or their social position as represented by the demographic characteristics of gender and age[.]”

[39] Id.

[40] Hamby, 2021.

[41] Longhi, 2021. 

[42] Id.

[43] Id.

[44] Folk, Johanna, et. al., Adverse Childhood Experiences Among Justice-Involved Youth: Data-Driven Recommendations for Action Using the Sequential Intercept Model, American Psychologist, American Psychological Association, Vo. 76. No. 2, 268-283, 2021.

[45] Hamby, 2021

[46] Id.

[47] Folk, 2021.

[48] Folk, 2021.

[49] Hampton-Anderson, 2021.

[50] Fok, 2021 

[51] Id.

[52] Id.

[53] Id.

[54] BGEA report, available at https://www.alleghenycountyanalytics.us/wp-content/uploads/2020/10/20-011-BGEA_JuvenileJustice-BlackYouth_v4.pdf

[55] Juvenile Law Center. (2018, May 26). What is the foster care-to-prison pipeline?   available at https://jlc.org/news/what-foster-care-prison-pipeline

[56] Palcheck, T. (2021, March 24). Child welfare and the criminal system: Impact, overlap, potential solutions. Georgetown Journal on Poverty Law & Policy.   https://law.georgetown.edu/poverty- journal/blog/child-welfare-and-the-criminal-system-             impact-overlap-potential-solutions/

[57] Miriam Aroni Krinsky, Disrupting the Pathway from Foster Care to the Justice System-A Former Prosecutor's Perspectives on Reform, 48 Fam. Ct. Rev. 322, 325 (2010),

[58] https://analytics.alleghenycounty.us/wp-content/uploads/2023/01/Children_of_incarcerated_parents_2023.pdf

[59] https://tableau.alleghenycounty.us/t/PublicSite/views/AC_JailPopulationManagement_Final/JailPopulationOverview?%3Aembed=y&%3AshowVizHome=no&%3Ahost_url=https%3A%2F%2Ftableau.alleghenycounty.us%2F&%3Aembed_code_version=3&%3Atabs=yes&%3Atoolbar=yes&%3Adisplay_spinner=no&%3AshowAppBanner=false&%3Adisplay_count=no&iframeSizedToWindow=true&%3AloadOrderID=0

[60] https://www.census.gov/quickfacts/alleghenycountypennsylvania

[61] https://tableau.alleghenycounty.us/t/PublicSite/views/RacialDisproportionalityinChildWelfare/OpenedCases?%3Aembed=y&%3Adisplay_spinner=no&%3AshowAppBanner=false&%3Aorigin=viz_share_link&%3Aembed_code_version=3&%3AloadOrderID=0&%3Adisplay_count=n&%3AshowVizHome=n

[62] https://www.alleghenycountyanalytics.us/wp-content/uploads/2019/12/19-ACDHS-11-ChlidPlacementDynamics_12.11.2019-final.pdf. 

[63] https://tableau.alleghenycounty.us/t/PublicSite/views/AC_JailPopulationManagement_Final/BookingReleasesandLengthofStay?%3Aembed=y&%3AshowVizHome=no&%3Ahost_url=https%3A%2F%2Ftableau.alleghenycounty.us%2F&%3Aembed_code_version=3&%3Atabs=yes&%3Atoolbar=yes&%3Adisplay_spinner=no&%3AshowAppBanner=false&%3Adisplay_count=no&iframeSizedToWindow=true&%3AloadOrderID=0

[64] Sawyer, Wendy, “The Gender Divide: Tracking Women’s State Prison Growth”, Prison Policy Initiative, available at https://www.prisonpolicy.org/reports/women_overtime.html#:~:text=And%20although%20women%20represent%20a,of%20the%20growth%20among%20men.

[65] Id.

[66] Palcheck, Tressa, “Child Welfare and the Criminal System: Impact, Overlap, Potential Solutions, Georgetown Law Library, Georgetown Journal on Poverty Law & Policy, March 24, 2021.

[67] Data Brief, Children of Parents Incarcerated in the Allegheny County Jail, available at https://analytics.alleghenycounty.us/wp-content/uploads/2023/01/Children_of_incarcerated_parents_2023.pdf

[68] https://analytics.alleghenycounty.us/wp-content/uploads/2023/01/Children_of_incarcerated_parents_2023.pdf

[69] https://analytics.alleghenycounty.us/wp-content/uploads/2023/01/Children_of_incarcerated_parents_2023.pdf

[70] Rosenfeld, Jordana,  “District Attorney challenger Matt Dugan calls for more collaborative, preventative approach to public safety”, City Paper, Jan. 19, 2023, available at https://www.pghcitypaper.com/news/district-attorney-challenger-matt-dugan-calls-for-more-collaborative-preventative-approach-to-public-safety-23188297

When people say that the criminal justice system is “racist,” what does that mean? Well, it means different things to different people. Obviously, it means something different to a person who lives in a “high crime neighborhood” in a dense urban area and who has personally experienced many adversarial interactions with police than it does to a person who lives in a rural area, who rarely, if ever, interacts with the police in an adversarial manner.

As a criminal defense lawyer, when I want to find an answer to a question, I look at the evidence— or the lack of evidence. Evidence can be objective or subjective, qualitative or quantitative. All of it can be usefull.

In this blog, I try to provide an (admittedly overly-simplified) answer using objective and quantitative data as examined through the lens, and in the context, of two of the most profoundly and uniquely American institutions: the private ownership of firearms and mass incarceration.

Disclaimer:

Please note that I am not a sociologist, nor am I a statistician. Also, I’m publishing this blog on my own website because I want to; it hasn’t been reviewed or edited by anybody other than myself. So, while I’ve tried to be accurate, I’m sure there are errors in my analysis. Don’t rely on anything in this blog unless you fact-check it first.

Context:

Possessory offenses are very interesting if you spend any time thinking about them. Almost anything can be legally possessed, bought, and sold by somebody in some form or analogue, such as a prescribed medication that functions the same way as an illegal “street drug”. (The only signficant example that comes to mind of something that people cannot generally possess is child sex abuse material, often referred to as “child pornography”— but even this has only been criminalized at the federal level since the 1970s.)

Guns and drugs are legally bought, sold, possessed and used everyday, all the time. So, there is nothing inherently immoral, unethical, or criminal about possessing and using guns and drugs. The criminalization of possessing something that is generally legal— like guns or drugs— ususally arises because 1) the possessor does not have the proper government-issued credential (such as a license or a prescription), or 2) because the possessor has been “legally” precluded from possessing it, such as when a convicted felon cannot possess a gun. Child sex abuse material is an entirely different matter because the possession of it necessarily implies the abuse and exploitation of a non-consenting child (except in cases where the child is legally old enough to consent under state law, though not federal law).

Possessory offenses are interesting, at least from my perspective as a criminal defense attorney, because they comprise such a large percentage of the cases that move through the intestines and bowels of the Criminal Conviction System, yet they mostly include items and objects that are legal and omnipresent in the lives of many Americans.

For example, in 2021, 407 federal defendants were sentenced in the Western District of Pennsylvania (WDPA). Of those 407 cases, 400 cases, or 98.3%, ended with guilty pleas. In the WDPA the largest category of cases for which defendants were sentenced were classified as “drug trafficking” with 187 cases, or 45.9% of the total.

This statistic holds true throughout the federal system where “drug trafficking” offenses comprise the largest category of federal crimes. As will be discussed later, the third largest category was gun offenses.

Can you guess the second largest category of federal crimes? Here’s a hint— it is another category of “crime” that disproportionately affects people of a certain race/ ethnicity.

But, I’ve gotten off track…

Step 1— Firearms:

Americans really like firearms.

From November, 1998, through August, 2022, the FBI reported 432,366,543 firearm background checks in the United States. [1] As of 2017, the United States is estimated to have 120.5 firearms per 100 residents. The country with the next highest rate of private firearm ownership is Yemen with 52.8 firearms per 100 residents.[2] America is the only country in the world that (officially) has more firearms than people.

In 2021, there were 1,045,890 sales and transfers of firearms and frames/receivers in Pennsylvania.[3] So, I’ll say it again, Americans really like guns.

Step 2— Mass Incarceration:

Despite this abundance of freedom wrought from cold steel and tepid polymer, the United States has both the largest number of incarcerated people and the highest rate of incarceration in the world. [4] The United States incarcerates more people per capita than its peers in the community of nations including El Salvador, Turkmenistan, Palau, Rwanda and Cuba.[5] At the end of 2020, there were 151,283 federal prisoners,[6] and a total of around 2 million incarcerated people in the various public and for-profit private prisons and jails throughout the country. In 1928, at the dawn of the federal effort to criminalize the possession of drugs and guns, there were 7,738 federal prisoners. Rufus G. King, “The Narcotics Bureau and the Harrison Act: Jailing the Healers and the Sick,” 62 Yale L.J. 736, 749 (1953). It’s not surprising that the prison population exploded when America started criminalizing the things that people like to possess— like drugs and guns.

So, while Americans really like guns, they also really like incarcerating each other. But, who gets incarcerated for possessing guns?

Sentencing Data: Pennsylvania

In June 2022, the Pennsylvania Commission on Sentencing published a Report to the House of Representatives titled “A Comprehensive Study of Violations of Pennsylvania’s Uniform Firearm Act”, HR 111, Session of 2021 (hereafter referred to as “House Report.”).[7] The House Report analyzed sentencing data from 2015 to 2020. According to the report, criminal charges under the Pennsylvania Uniform Firearm Act disproportionately affect young black males who live in urban communities located in counties with high population density. This conclusion was not the purpose for which the report was commissioned, but the conclusion was otherwise inescapable. The report found that “[i]ndividuals charged with VUFA offenses are predominantly male, black, and 34 years of age or younger.”[8] In Pennsylvania, 92.7% of all defendants convicted of VUFA are male, 59.8% are black, and 71.9% are 34 years old or younger.[9] Furthermore, while black people comprise 42% of the overall parole population, they comprise 70% of the people on parole for VUFA violations.[10] However, race, gender, and age are not the only variables at issue. The report found an interesting relationship between VUFA recidivism rates and population density:

Recidivism rates vary substantially across county classifications. There appears to be a relationship between the population density of the county classification and its corresponding recidivism rate. The highest proportion of VUFA charges and the largest proportion of the most serious charges occur in the First- and Second-Class Counties, where population densities are the highest. These counties see the highest rates of recidivism for VUFA offenses, while the less densely populated county classifications see lower rates of initial charges and recidivism[.][11]

According to the data, which can be accessed through the Pennsylvania Commission on Sentencing Data Dashboards (2019),[12] in Allegheny County for the year 2019—the latest year for which data are published— 35 people with a prior record score of 5 were sentenced for a VUFA conviction graded as a first-degree felony. Of those 35 people, 32 were black. 40 people were sentenced for a VUFA conviction graded as a second-degree felony with a prior record score of 5, of which 37 were black. 45 people were sentenced for a VUFA conviction graded as a third-degree felony, of which 42 were black. In other words, 93% of people sentenced for VUFA offense in Allegheny County with a prior record score of 5 were black.

Interestingly, in Allegheny County for the year 2019, the mean prison sentence imposed (in months) on black people who were convicted of VUFA with a prior record score of 5 was higher than the mean prison sentence for white people convicted of VUFA with a prior record score of 5:

Mean Prison Sentence (White):

Min Max

VUFA (F1) 27 84

VUFA (F2) 36 72

VUFA (F3) 24 48

Mean Prison Sentence (Black):

Min Max

VUFA (F1) 41.4 89

VUFA (F2) 37.8 80.2

VUFA (F3) 31 62.9

You might be wondering why black people receive longer sentences for the same crime with the same prior record score. It’s good question, but note that this disparity does not persist when looking at statewide data.

Sentencing Data: Federal

The data from the Pennsylvania Sentencing Commission are largely consistent with data collected by the Federal Sentencing Commission. In 2022, the Federal Sentencing Commission published a report titled “What do Federal Firearms Offenses Really Look Like?”[13] (hereafter referred to as the “Federal Report”). According to the Federal Report, firearm offenses are among the most common crimes prosecuted and sentenced in federal court.[14] United States Sentencing Guideline (USSG) Section 2K2.1 was the third most frequently applied guideline in fiscal year 2021.[15] Federal firearm offenses have the second highest percentage of black defendants (55.3%) in 2021, behind only Robbery (59.4%).[16] These are the only two federal crimes for which the majority of defendants are black.[17] 72% of offenders convicted under USSG section 2K2.1 were between the ages of 25 and 44 years old, and 96.2% of offenders were male. The average age of firearm offenders is 34 years old, and 61.1% of firearm offenders were under the age of 35 when sentenced.[18] All told, in the five-year period from 2017 through 2021, 36,176 mostly young, mostly black, mostly men were sentenced for federal firearms violations. [19]

Can you guess which federal crimes have the highest percentage of white defendants? For the answer, see Note #16.

Discussion:

Regardless of any other conclusion that might be drawn from this data, one conclusion is inescapable: black people are disproportionately affected by VUFA. But why? I think the answer is that black people, at least in Pittsburgh, are simply over-policed relative to their proportion of the population. Consider the following data from the 2021 Statistical Report, City of Pittsburgh, Department of Public Safety, Burea of Police.

In 2021, there were 10,243 traffic stops in the City of Pittsburgh. Of those traffic stops, for which there is racial data, 47% (4346 of 9341) were inflicted on black people, with 31% conducted on black males, yet black people comprise only 23% of the population of Pittsburgh.[20] So, the data clearly show that black people are disproportionately afflicted by traffic stops. But why does that matter? Is a traffic stop anything more than a minor inconvenice? If you are not doing anything wrong who cares if the police stop your car, interrupt your day, restrict your freedom, put your safety in jeopardy, etc.? Also, if you are not doing anyting wrong, who cares if the government spies on you, collects your data, and colludes with giant social media corporations to control your access to information….

I’m getting off track again…

The following data show the number and percentage of total vehicle stops where the person was let off with a “warning.”

Before you look at the data, try to guess which group is most likely to be let off with a “warning.” Your choices are black men, black women, white men, and white women.

Black Males: 39.7%

Warned: 1156

Total: 2909

White Males: 42.1%

Warned: 1355

Total 3211

Black Females: 43.4%

Warned: 624

Total: 1437

White Females:47.4%

Warned: 846

Total: 1784

[21]

Were you able to guess correctly? Does it surprise you that white women are the group most likely to be let off from a traffic stop with nothing but a “warning” and that black men are the least likely? These data raise the question of what criteria do police officers use to decide to let someone off with a “warning” rather than some other outcome such as a citation or an arrest.

Let’s look at some more data about traffic stops:

Following traffic stops, black males were frisk-searched 406 times and arrested 194 times (47.8% arrest rate). White males were frisk-searched 120 times and arrested 60 times (50% arrest rate). These data suggest that while black and white males are arrested at about the same rate following frisk-searches, black males are subjected to 3.4 times more frisk-searches following traffic stops. This statistic is even more pronounced than it appears because there are more white males in Pittsburgh than black males.

Let us assume that when the Statistical Report refers to “frisk-searches”, it is the same thing as a Terry patdown. Police officers are only permitted to conduct a frisk-search or Terry patdown of a person following a traffic stop if they have a “justified belief that the individual, whose suspicious behavior [they are] investigating at close range, is armed and presently dangerous to the officer or to others. Commonwealth v. Zhahir, 751 A.2d 1153, 1158 (Pa. 2000) citing Terry v. Ohio, 392 U.S. 1, 24 (1968). However, the data show that weapons were discovered only 12% of the time following frisk-searches of black males, and 7% of the time following frisk-searches of white males. These data suggest that police officers believe that people are armed and dangerous much more often than they really are and/or they are simply ignoring the constitutional standard. So, while black males are 1.7 times more likely to possess weapons than white males, they are frisk-searched 3.4 times as often. Interestingly, in 31% of frisk searches of black males and 41% of frisk searches of white males, no evidence was discovered at all. Again, this suggests that police are either not very good at determining who is armed and dangerous, or they simply ignore the constitutional standard.

Still not convinced that black people are over-policed in Pittsburgh? Let’s look at everyone’s favorite plant— marijuana.

Marijuana:

In 2021, 100%— that’s right, 100%— of arrests where the only charge was marijuana were of black people. Furthermore, 80% (176 of 220) of people who were cited for possessing marijuana were black.[22] Black people comprise 23% of the population of the City of Pittsburgh. Even if black people use marijuana at a higher rate than white people (a statistic for which I have no evidence), there is still something wrong here. Common-sense tells us that the strong populist effort to legalize marijuana among the several states would not be successful if marijuana legalization were only of interest to black people. They simply do not have the demographic numbers to change criminal laws through the legislative process. In other words, white people must also be interested in, and support legalizing marijuana, which suggests that they have an interest in using it. For example, the State of Maine has legalized marijuana.[23] Yet, the population of Maine is 90.9% white.[24] The State of Vermont has also legalized marijuana.[25] It’s population is 89.8% white.[26] Absent compelling evidence that in Pittsburgh black people use marijuana at much higher rates than white people, the logical conclusion is that police disproportionately enforce marijuana laws against black people.

Conclusion:

A potential rejoinder to the argument that Pittsburgh over-polices black people is that black people commit more crimes than white people. This is certainly true with violent crime, such as homicide where the black male homicide rate dwarfs the homicide rates for other groups. Consequently, one might argue that the police simply go to where the crime is most likely to occur and focus on the people who are most likely to commit it. However, this is a self-fullfiling, self-perpetuating cycle as we can see with the marijuana offenses. I wonder what would happen if the Criminal Conviction System were completely race-neutral. Would the number of white people who are stopped, frisked, arrested, convicted, and sentenced increase, or would the number of black people who suffer these indignities decrease? To reach an equilibrium where the Criminal Conviction System statistics directly mirror the demographics of Pittsburgh would we simply ignore more criminal conduct perpetrated by black people or would we stop ignoring criminal conduct perpetrated by white people? Maybe this summation of the problem is too simplistic. Maybe black people do commit more crimes, and at a higher rate, than white people, but there are other political, social, and economic factors that cause this to happen. Maybe the way we define crime itself is the problem. As already mentioned, the federal prison population increased when Congress started criminalizing possessing things like alcohol, drugs and guns. Here’s a crazy idea— maybe race is not the best, or most productive variable upon which to analyze the Criminal Conviction System. Maybe there’s something esle going on… but that’s for another blog post.

Notes

[1] “NICS Firearms Checks: Month/Year”, available at https://www.fbi.gov/file-repository/nics_firearm_checks_-_month_year.pdf/view, last accessed September 11, 2022.

[2] See Karp, Aaron, “Estimating Global Held Firearm Numbers,” June 2018, SmallArmsSurvey.com, available at https://smallarmssurvey.org/database/global-firearms-holdings, last accessed September 11, 2022.

[3] See 2021 Firearm Sales/Transfers Reported by County, Pennsylvania State Police Firearms Annual Report 2021, available at https://www.psp.pa.gov/firearms-information/Pages/Firearms-Annual-Reports.aspx, last accessed September 11, 2022.

[4] See https://worldpopulationreview.com/country-rankings/incarceration-rates-by-country.

[5] https://www.statista.com/statistics/262962/countries-with-the-most-prisoners-per-100-000-inhabitants/

[6] https://bjs.ojp.gov/library/publications/federal-prisoner-statistics-collected-under-first-step-act-2021#:~:text=The%20federal%20prison%20population%20decreased,to%20151%2C283%20at%20yearend%202020

[7] Available at https://pennstateoffice365.sharepoint.com/:b:/s/PCSFileshare/EXRhMt_vJrhNuimg3Hq-HwsB9Zui3XF9svNU6BB3WJxQ9A?e=6HLuGI

[8] House Report at 25.

[9] Id. at 23.

[10] Id. at 102

[11] Id. at 109

[12] Available at https://pcs.la.psu.edu/research-data/interactive-data-portal/sentence-outcome-report/.

[13] The report is available at https://www.ussc.gov/research/research-reports/what-do-federal-firearms-offenses-really-look

[14] This represents a significant difference from Pennsylvania, where VUFA offenses are a small percentage of total case filings. According to the House Report, VUFA dockets account for 3.8% of all dockets filed in the lower courts, and 1.6% of felony 1 or felony 2 VUFA dockets. House Report at 1.

[15] Federal Report at 2.

[16] The federal crimes that have the highest rate of white defendants are Antitrust (100%), food and drug (84.4%), and child pornography (80.1%). Race of Federal Offenders by Type of Crime, Table 5, available at www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2021/Table05.pdf

[17] Id.

[18] Federal Report at 2.

[19] Federal Report at 9, figure 1. Trend in Number of §2K2.1 offenders.

[20] https://worldpopulationreview.com/us-cities/pittsburgh-pa-population

[21] Annual Report at 94, available at https://cprbpgh.org/documents/2021-Pittsburgh-Police-Annual-Report.pdf

[22] See 2021 Statistical Report at 100, available at https://apps.pittsburghpa.gov/redtail/images/18173_2021_Annual_Report_Final.pdf.

[23] https://worldpopulationreview.com/state-rankings/marijuana-laws-by-state

[24] https://www.census.gov/library/stories/state-by-state/maine-population-change-between-census-decade.html

[25] https://worldpopulationreview.com/state-rankings/marijuana-laws-by-state

[26] https://www.census.gov/library/stories/state-by-state/vermont-population-change-between-census-decade.html

Recently, two federal district courts held 18 U.S.C. §922(g)(3) unconstitutional as a result of the United States Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, 124 S.Ct. 2111 (June, 2022). U.S. v. Morales-Lopez, 2:20-CR-27 (D. Utah 6/30/2022); U.S. v. Harrison, 22-CR-328 (W.D. OK 2/3/2023). Section 922(g)(3) prohibits any person from possessing firearms “who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).” Of course, this includes marijuana. The Pennsylvania Uniform Firearm Act does not contain a similar restriction as section 922(g)(3). However, when a Pennsylvanian exercises his State (Pa Const. Art. I sec. 21) and Federal Constitutional Right to purchase firearms, he is required to fill out an ATF form which asks, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance"?” Underneath the question appears a warning, which states “The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.” So, if a citizen answers this question with a negative response, where there is evidence that the citizen does use marijuana, the Commonwealth could potentially charge him with violating 18 Pa C.S. §6111(g)(4)(ii), which makes it a third degree felony for any person to knowingly and intentinally “(ii) make[ ] any materially false written statement, including a statement on any form promulgated by Federal or State agencies[.]”

Obviously, the inconsistencies between federal and Pennsylvania law create a conviction trap for otherwise law abiding Pennsylvanians. It remains to be seen how Bruen will affect Pennsylvanians who wish to exercise their Federal and Pennsylvania right to bear arms and their right to lawfully (or unlawfully) use marijuana (or any other controlled substance).

Generally speaking, the new constitutional standard announced in Bruen will not have much effect on the Pennsylvania Uniform Firearms Act, 18 Pa C.S. 6101 et seq. Pennsylvania is an “open-carry, shall-issue” state. See Bruen, 142 S.Ct. at 2161(Kavanaugh, J., concurring) (noting that the Bruen decision does not affect existing “shall-issue” licensing schemes.) (This statement does not apply to Philadelphia and 18 Pa C.S. §6108.) Furthermore, the Bruen standard does not apply to state concealed-carry regulations so long as open-carry is available. Bruen, 142 S.Ct. 2146-2105.

In Pennsylvania, unless a citizen is a prohibited person, he can lawfully possess a firearm in his home and in public without a license (except in Philadelphia). No license is needed unless the citizen wants to conceal the firearm or transport it in a vehicle. But, unlike the statute at issue in Bruen, in Pennsylvania the sheriff “shall issue” the license if there is no good cause to deny it. 18 Pa C.S. §6109(e). The only class of people in Pennsylvania who have a constitutional right to bear arms, but who are prohibited from getting a license, are citizens ages 18-20. 18 Pa C.S. §6109(b); see Firearms Policy Coalition v. McCraw, 2022 WL 3656996 (N.D. Tex. August 25, 2022) (holding that under Bruen, the 2nd Amendment applies to citizens ages 18-20). However, this class of people can still lawfully possess firearms in their homes and in public without a license, except in Philadelphia. 18 Pa C.S §6108. (A potential Bruen challenge to Section 6108 is discussed below.) So, it is doubtful that Bruen would provide a basis for a constitutional challenge on this issue, except in Philadelphia.

Though Bruen might have limited applicability in Pennsylvania, there are several sections of the Uniform Firearm Act that might be susceptible to a constitutional challenge under the new constitutional standard.

Section 6105- Overview

Section 6105 might be susceptible to constitutional challenge to the extent that it prohibits citizens from possessing firearms for reasons other than those that excluded people from possessing firearms at the time of the ratification of the 2nd Amendment. Section 6105(b) provides a list of 38 enumerated offenses that upon conviction prohibit a citizen from possessing a firearm, and 6105(c) provides a list of 10 “other persons” who are also prohibited from possessing firearms.

Prior to Bruen, the federal courts have had difficulty deciding whether convictions for a non-violent felony or misdemeanor can justify prohibiting a person from possessing a firearm under the 2nd Amendment. See e.g. Binderup v. Atty’Gen, 836 F.3d 336 (3rd Cir. 2016)( en banc ); see also Kanter v. Barr , 919 F.3d 437 (7th Cir. 2019). As discussed in Bruen, federal courts would apply an intermediate scrutiny test and generally defer to the legislature to determine if an offense was serious enough to take the citizen outside of the protections of the 2nd Amendment. Though there are many cases that considered this issue, two cases are particularly important: Binderup from the Third Circuit and Kanter from the Seventh Circuit.

In Binderup, the Third Circuit considered two cases that had been consolidated. Both defendants successfully petitioned Pennsylvania courts to remove the prohibition from possessing firearms. However, they remained prohibited from possessing firearms under federal law. Both defendants filed complaints in federal district court, which were denied. They then appealed to the Third Circuit.

One defendant pled guilty in Pennsylvania to corruption of minors, graded as a first degree misdemeanor. He was sentenced to three years of probation and a $300 fine and costs. The other defendant pled guilty in Maryland to possession of a firearm without a license, a misdemeanor with a permissible range of sentence from not less than 30 days to not more than three years or a fine of not less than $250 and not more than $2500 or both. He received a suspended sentence of 180 days imprisonment, a $500 fine, and a year of probation. Eight years later he was convicted of a misdemeanor DUI offense in Maryland. Otherwise, the two defendants led crime free lives.

Sitting en banc, a majority of 8 judges upheld an “as applied” challenge to 18 U.S.C. §922(g)(1), but there was disagreement among the majority as to the rationale. Some judges reasoned that the convictions at issue were simply not serious enough to justify disarmament. The other group reasoned that only dangerous people could be disarmed under the Second Amendment. The seven dissenting judges argued that an “as applied” challenge was simply not permissible.

In Kanter, the defendant pled guilty to one count of mail fraud under 18 U.S.C. §1341. The crime carried a maximum penalty of 20 years in prison and a maximum fine of $250,000. The defendant was sentenced to a year and a day, with two years of supervised release, a $50,000 criminal penalty, and he was ordered to pay restitution in the amount of $27 million in a related civil settlement.

The 7th Circuit carefully considered Binderup in its analysis because at the time it was the only federal case in which an “as applied” challenge had been upheld. The 7th Circuit found that the federal felony conviction at issue in Kanter, though non-violent, was more serious than the state misdemeanor convictions at issue in Binderup. The Court held that the government proved that the felon dispossession statutes are substantially related to the important government objective of keeping firearms away from those convicted of serious crimes. See also Folajtar v. Att'y Gen. of the United States, 980 F.3d 897 (3d Cir. 2020) (holding, in a tax fraud case, that the test to determine whether a conviction excludes a felon from the protection of the Second Amendment is whether the offense is serious, not whether it is dangerous, and the courts must defer to the legislature’s determination of which offenses are serious.)

However, Judge (now Supreme Court Justice) Barret dissented from the majority opinion. Justice Barrett would have held that the Second Amendment only permits disarmament based on evidence of dangerousness. It is not enough to show that the person was convicted of a non-violent, though serious, felony to justify disarming him under the 2nd Amendment. Bruen seems to have settled the question raised in Binderup and Kanter. The historical analysis conducted by the majority in Bruen strongly suggests that the rationale of the Kanter dissent is now the constitutional standard because at the time of the ratification of the 2nd Amendment, the founders were only concerned with disarming people who carried guns to terrorize the population. This conclusion is supported by Justice Barrett’s short concurrence in Bruen in which she wrote separately only to caution against relying on historical practice from the mid-to-late 19th century. Accordingly, certain enumerated offenses under section 6105(b) can no longer justify disarmament absent evidence that the defendant poses a public danger. The same is true for section 6105(c) which lists persons other than those convicted of enumerated offenses who are also prohibited from possessing firearms.

Section 6105 enumerated offenses

In 2017 the Pennsylvania Superior Court decided Commonwealth v. Grove, 170 A.3d 1127 (Pa. Super. 2017). The case was presented in the posture of an appeal from the denial of a PCRA petition. The defendant alleged that his attorney was ineffective for failing to challenge the underlying enumerated offense conviction that made him a prohibited person under section 6105. The facts of the case are somewhat complicated, so a short summary will suffice: In 1978 the defendant was convicted of criminal trespass. The conviction was graded as a second degree felony. Following the conviction, also in 1978, the criminal trespass statute was amended into its current form. In its current form criminal trespass can be graded as either a 2nd or 3rd degree felony. The language of the pre-amendment statute under which the defendant had been convicted was changed such that had he been convicted after the amendment the offense would have been graded as a 3rd degree felony.

Between 1978 and 1995, the defendant was not a prohibited person regardless of the grading of the offense. However, in 1995, section 6105 of the Uniform Firearms Act was amended. Prior to the 1995 amendment, section 6105 provided, “[n]o person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm, or have one in his possession or control.” (emphasis added). The term “crime of violence” was defined as “any of the following crimes, or an attempt to commit any of the same, namely: murder, rape, aggravated assault, robbery, burglary, entering a building with intent to commit a crime therein, and kidnapping.” The Superior Court opined, “[b]ecause [the defendant’s] conviction for criminal trespass was not a “crime of violence” under this definition, [the defendant] was not prohibited from owning a firearm under Section 6105 at the time of his conviction of that offense in 1978.” Id. at 1140.

The 1995 amendment added the current language in the enumerated offense subsection, which includes “[s]ection 3503 (relating to criminal trespass) if the offense is graded as a felony of the second degree or higher.” In 2014, the defendant was convicted of possessing a firearm in violation of section 6105 based on his 1978 conviction for criminal trespass.

So, in summary, the actual conduct for which the defendant was convicted in 1978 would be graded as a 3rd degree felony had he been convicted after 1978. As such it would not be an enumerated offense under either the pre or post 1995 Uniform Firearm Act amendment to section 6105. This creates the absurd result that people convicted of criminal trespass before 1978 are prohibited from possessing firearms, whereas people convicted after 1978 might not be depending on the grading of the offense. Furthermore, between 1978 and 1995, regardless of the grading of offense, criminal trespass was not an enumerated offense, so the defendant could lawfully possess a firearm during that time period.

The Supreme Court in Bruen expressly eliminated means-end or intermediate scrutiny from 2nd Amendment Analysis. It is no longer acceptable to show that the government has an interest in prohibiting a certain person from possessing a firearm or that he was convicted of a “serious offense.” In his concurring opinion in Bruen, Justice Alito explained the rationale for rejecting a means-end test: “[t]his mode of analysis places no firm limits on the ability of judges to sustain any law restricting the possession or use of a gun. Bruen, 142 S. Ct. at 2160 (Alito, J. concurring).

The only test that matters after Bruen is whether the firearm regulation at issue is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms. Considering the arbitrary and absurd application of section 6105 to the defendant in Grove, it seems unlikely that the Commonwealth could prove that the1978 and 1995 amendments are part of the historical tradition of firearms regulation. The whole purpose of the Bill of Rights is to protect citizens from the very type of arbitrary deprivation of rights displayed in Grove. Constituional rights are simply not subject to the whims of state legislators or judges.

Section 6105(c)(6)

Section 6105(c)(6) prohibits

A person who is the subject of an active final protection from abuse order issued pursuant to 23 Pa.C.S. § 6108, is the subject of any other active protection from abuse order issued pursuant to 23 Pa.C.S. § 6107(b), which provided for the relinquishment of firearms during the period of time the order is in effect or is otherwise prohibited from possessing or acquiring a firearm under 18 U.S.C. §922(g)(8). This prohibition shall terminate upon the expiration or vacation of theorder or portion thereof relating to the relinquishment of firearms.

In a memorandum opinion the federal district court in the Western District of Texas held that under the Bruen standard 18 U.S.C. §922(g)(8) is unconstitutional. USA v. Litsson Antonio Perez-Gallan , 2022 WL 16858516(W.D. TX, 11/10/2022).

Section 922(g)(8) prohibits a person who is subject to a court order that–

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

The court reasoned that domestic violence, or violence against anyone for that matter, is not just a modern problem. Quoting Bruen , the court wrote, if a challenged regulation addresses a “general societal problem that has persisted since the 18th century,” and “earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.” Id . at *10. The court concluded that “the historical record does not contain evidence sufficient to support the federal government's disarmament of domestic abusers. And without historical support, § 922(g)(8) does not overcome Bruen ’s presumption that the Second Amendment protects an individual's possession of a firearm. Thus, § 922(g)(8) is unconstitutional.” Id .; cf. United States v. Boyd, 999 F.3d 171, 188 (3rd Cir. 2021)(pre- Bruen decision that rejected a constitutional challenge to section 922(g)(8) after applying intermediate scrutiny.)

Section 6105(c)(2)

Section 6105 (c)(2) prohibits

A person who has been convicted of an offense under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or any equivalent Federal statute or equivalent statute of any other state, that may be punishable by a term of imprisonment exceeding two years.

Under 35 P.S. §780-113(b), a person convicted of possession of a controlled substance under 35 P.S. §780-113(a)(16) can be sentenced up to three years for a secondconviction. Therefore, a second conviction for a non-violent, ungraded misdemeanor would trigger the application of section 6105(c)(2).

The federal firearms act does not have a section that is identical to section 6105(c)(2), but 18 U.S.C. § 922(g)(3) is similar. Section 922(g)(3) prohibits a person from possessing firearms “who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))”. Unfortunately, federal courts have rejected challenges to section 922(g)(3) under Bruen. See e.g. USA v. Daniels , 2022 WL 2654232 (S.D. Miss. July 8, 2022). However, the court simply posited that people who are addicted to drugs are dangerous. Obviously, this conclusion is untenable in Pennsylvania because in Pennsylvania people can lawfully possess and be addicted to controlled substances that other people could not lawfully possess. Furthermore, people can illegally possess and illegally use controlled substances without being addicted to them. Therefore, a challenge to section6105(c)(2) under Bruen would trigger the Commonwealth’s burden to prove that this regulation comports with America’s history and tradition of firearm regulation. In order to meet this burden the Commonwealth must present evidence that possession and use of controlled substances was not a problem that existed at the time of the ratification of the 2nd Amendment before it could present an analogous regulation.

Section 6108

Section 6108 provides,

No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless:

(1) such person is licensed to carry a firearm; or

(2) such person is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).

Section 6108 probably violates Bruen to the extent that it completely bans citizens ages 18-20 from carrying firearms in public for the purpose of self-defense, though they may carry firearms for other limited purposes like hunting and training dogs. This exception should not save section 6108 because Bruen makes clear that the Second Amendment protects a citizen’s right to carry firearms for self-defense. As previously discussed, citizens ages 18-20 are not permitted to get a firearm license, and thus, they arecompletely banned from carrying firearms in Philadelphia for self-defense.

In Commonwealth v. Scarborough the Superior Court considered an equal protection and due process challenge to section 6108. The defendant was charged with possessing a firearm without a license under section 6106. However, because he was in Philadelphia, he was also charged with violating section 6108. Consequently, he was not eligible for the section 6106(a)(2) reduction in grading from a third degree felony to a first degree misdemeanor if the defendant is otherwise eligible to possess a license and has not committed any other criminal violations. The “other criminal violation” was the violation of section 6108. Scarborough, 89 A.3d 679, 684-85 (Pa. Super. 2014).

The defendant argued that had he been anywhere in Pennsylvania other than Philadelphia the offense would be graded as a first degree misdemeanor rather than a third degree felony. Id. at 685. He raised an equal protection and due process challenge to sections 6106 and 6108. The Court rejected the constitutional claims. The Court first determined that “persons located in Philadelphia” was not a protected class. Id at 868. The Court then reasoned that the right to carry firearms on the streetsof philadelphia without a license is not a fundamental right. Id. (The Superior Court also held that the right to carry a concealed weapon is not a fundamental right, which is consistent with Bruen .) Consequently, it applied “rational basis” scrutiny to the defendant’s constitutional challenge. Id. (This is an even lower standard than the federal courts applied when considering pre-Bruen constitutional challenges to firearms regulations. The federal courts generally applied intermediate scrutiny.) The Superior Court found that the statute served a legitimate state interest based on its consideration of crime statistics in Philadelphia. Id. at 686-87.

Scarborough did not directly consider the question of whether the legislature can totally prohibit citizens ages 18-20 from carrying firearms in public for the purpose of self-defense. However, the rationale that the Scarborough Court used to reach its holding is no longer valid under the Bruen . Specifically, the right to bear arms on the streets of Philadelphia for self-defense is a fundamental right under the Second Amendment.

Section 6110.2

Section 6110.2 says “[n]o person shall possess a firearm which has had the manufacturer's number integral to the frame or receiver altered, changed, removed or obliterated.” This section is similar to 18 U.S.C. 922(g)(k) which provides that “It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.”

A federal district court in the Southern District of West Virginia declared section 922(g)(k) unconstitutional under Bruen. USA v. Price , 2022 WL 6968457 (S.D.W.Va. October, 12, 2022); cf. United States v. Holton, 2022 WL 16701935 (N.D. Tex. Nov. 3, 2022) (holding that firearms without serial numbers are “dangerous and unusual weapons” and therefore outside the scope of the Second Amendment). The court applied the Bruen framework and then analyzed the history of serial numbers on firearms. The court noted that the first legal requirement for serial numbers on firearms did not appear until 1934 when Congress passed the National Firearm Act. Not until the passage of the Gun Control Act of 1968 were serial numbers broadly required for all firearms. But, even then, it was not a crime to possess a firearm with an altered or obliterated serial number. The possession of a firearm with an altered or obliterated serial number was not criminalized until the passage of the Crime Control Act in 1990. Id . at *5. The court concluded that the government failed to prove that section 922(g)(k) was part of, or analogous to, the historical tradition that delimits the outer bounds of the right to keep and bear arms. Id . at *9.

Section 6104

One final section of the Uniform Firearms Act is worth considering. Section 6104 might be susceptible to an “as applied” constitutional challenge under Bruen based on which enumerated offense the defendant is charged with committing. Section 6104 says,

In the trial of a person for committing or attempting to commit a crime enumerated in section 6105 (relating to persons not to possess, use, manufacture, control, sell or transfer firearms), the fact that that person was armed with a firearm, used or attempted to be used, and had no license to carry the same , shall be evidence of that person's intention to commit the offense.

(emphasis added).

This statute is potentially unconstitutional because it burdens a core right under the Second Amendment, specifically the right to use firearms in self-defense, by creating an evidentiary inference that a person who is in lawful possession of a firearm intended to use it to commit a crime.

No other constitutional right is burdened in such a manner. For example, the failure to have a broadcasting license does not create an inference that a person’s speech is outside of the protections of the 1st Amendment.

There is no requirement in Pennsylvania that a person possess a firearm license in order to carry a firearm in public or to use the firearm in self-defense (other than in Philadelphia). Consider a citizen who carries a firearm on his hip in open view, but is forced one day to use the firearm in self-defense resulting in the death of the assailant. If the defendant is charged with murder, under section 6104 the Commonwealth would be entitled to an instruction that the jury may infer the defendant’s intent to commit murder, i.e. that he acted with malice, based on the fact that he did not have a license to carry the firearm. After Bruen , a defendant should be entitled to the exact opposite instruction– the jury should be instructed that it must not consider the fact that the defendant did not have a license as evidence of his intent to commit the offense.

Conclusion

The effect of Bruen on the Pennsylvania Uniform Firearm Act is still yet to be determined. However, one thing is clear, if the Supreme Court means what it says that the 2nd Amendment is not a second-class right, then several Pennsylvanian laws are ripe for constitutional challenges.

Grading/ Classification of Offenses for Sentencing

Pennsylvania Crime Classifications:

In Pennsylvania, crimes are classified into four categories: murder, felony, misdemeanor, and summary. Felonies and misdemeanors are classified as either first, second, or third degree, but sometimes they are ungraded. The classifications are based on the statutory maximum sentence, which is the longest sentence that can be imposed for that type of crime.

• the maximum penalty for murder is life in prison or the death penalty

• 1st degree felonies are punishable by more than 10 years.

• 2nd degree felonies are punishable by up to 10 years.

• 3rd degree felonies are punishable by up to 7 years.

• 1st degree misdemeanors are punishable by up to 5 years.

• 2nd degree misdemeanors are punishable by up to 2 years.

• 3rd degree misdemeanors are punishable by up to one year. Misdemeanors that are ungraded are considered to be 3rd degree misdemeanors.

• Summary offenses are punishable by up to 90 days .

18 Pa C.S §106.

As will be discussed later, the statutory maximum penalty refers only to the maximum sentence that can be imposed. According to Pennsylvania law, the maximum must be at least twice the minimum sentence.

Federal Crime Classifications:

In the Federal system there are felonies, misdemeanors and infractions. The following list describes the statutory maximum sentence that can be imposed for each class of crime.

• Class A Felony- maximum penalty is life in prison or death.

• Class B Felony- maximum penalty is 25 years or more.

• Class C Felony- maximum penalty is less than 25 years, but 10 or more years.

• Class D Felony- maximum penalty is less than 10 years, but 5 or more years.

• Class E Felony- maximum penalty is less than 5 years, but more than one year.

• Class A Misdemeanor- One year or less, but more than 6 months.

• Class B Misdemeanor— 6 months or less but more than 30 days.

• Class C Misdemeanor— 30 days or less, but more than 5 days.

• Five days or less is an infraction.

18 U.S.C. §3559. The classification also determines the maximum amount of supervised release that can be imposed, and the maximum sentence that can be imposed for a violation of supervised release.

Calculating the Sentence

The Pennsylvania and Federal sentencing systems are similar in several important ways.

In both systems, the crime or crimes for which the defendant is convicted are assigned a number that theoretically reflects the seriousness of the crime relative to all other crimes. In Pennsylvania, this number is called the OFFENSE GRAVITY SCORE (OGS). In Federal court, this number is called the OFFENSE LEVEL (OL).

Both systems also assign a number to the defendant’s criminal history. In Pennsylvania, the criminal history number is called the PRIOR RECORD SCORE (PRS). In federal court the criminal history number is called the CRIMINAL HISTORY CATEGORY (CHC).

Once these two numbers have been calculated, the next step is to consult the sentencing chart, or matrix. Pennsylvania and the Federal system each have their own chart, but both charts display the same information: one axis displays the OGS or OL and the other axis displays the PRS or CHC. This is really where the similarities of the two systems end.

Who calculates the numbers?

In the Pennsylvania system, generally the OGS and PRS are calculated by the assistant district attorney (ADA) assigned to the case. There is really no formal process for the defense to challenge either number as calculated by the ADA, but defense counsel could file a motion and request a hearing if the calculation is in dispute. One area in particular where there is fertile ground for dispute is when the defendant has an out-of-state conviction for a crime that is not directly comparable to a Pennsylvania crime.

In the Federal system, the United States Probation Office (USPO) is charged with preparing a presentence investigation report (PSR or PSIR) that includes an accurate calculation of the defendant’s OL and CHC. There are formal procedures that the defense must follow in order to challenge the calculation.

In both the Pennsylvania and Federal systems, the trial judge is the final arbiter of the OGS and PRS, and the OL and CHC, respectively.

Through experience, I have discovered that clients who are familiar with the PA sentencing system are somewhat confused by the federal system when they are unfortunately charged with a federal crime. So, this blog post will present a short primer on Pennsylvania and Federal sentencing, with a section on the difference between Pennsylvania parole and Federal supervised release.

Pennsylvania Sentence— MINIMUM and MAXIMUM Sentence

When a defendant is sentenced to a period of incarceration in Pennsylvania, the sentence will be composed of two numbers. The lower number represents the MINIMUM amount of time that the defendant must serve before he is eligible for parole. The higher number is the MAXIMUM (or MAX) sentence that the defendant can serve. At the conclusion of the MAX sentence, the defendant must be released. Under Pennsylvania law, the MAX sentence must be at least twice that of the MINIMUM. For example, a common sentence in Allegheny County is 11 and half months to 23 months of incarceration(the reason for this common sentence will be explained a little later). However, the MAX sentence can be more than twice the MINIMUM. For example, if the defendant agrees to plead guilty to a MINIMUM sentence of 5 years, the MAX sentence must be at least 10 years. However, it can be longer, such as 12 or 15 years, etc.

There is often a third number that is tacked on to the end of Pennsylvania sentences— the amount of probation imposed in addition to any period of incarceration. So, a defendant might be sentenced to 11 1/2 to 23 months incarceration, followed by 2 years of probation.

PA Sentencing Range

Sometimes people get confused when discussing the sentencing range with their attorney. They might confuse the sentencing range with the MINIMUM and MAXIMUM sentence. The sentencing range refers ONLY to the MINIMUM SENTENCE as determined by the Sentencing Guidelines. A MINIMUM sentence within the standard range is considered a standard guideline- range sentence. For example, if a defendant commits a crime with a OGS of 6 and he has prior record score of zero, his sentencing range is 3-12 months. This means that the MINIMUM sentence can be anywhere from 3 months to 12 months and still be considered a standard guideline-range sentence. Remember that the MAX sentence must be at least twice as long as the MINIMUM. So if the defendant receives a MINIMUM sentence of 3 months then his MAX sentence must be at least 6 months, though it could be longer. However, if the defendant receives a MINIMUM Sentence of 12 months, then his MAX sentence must be at least 24 months. So, a defendant who commits a crime with an OGS of 6 and a PRS of 0 can potentially face a guideline range sentence of anywhere from 3-6 months up to 1-2 years, and anything in between.

Note— many times a defendant will ask his attorney what kind of time he is facing. In the Pennsylvania system, this question is more difficult for a defense attorney to answer than the client might realize. Aside from all of the variables that go into sentencing, the actual sentence is controlled by two different numbers that have already been discussed— the statutory maximum and the guideline range. Here’s an example:

Suppose the defendant is charged with Aggravated Assault causing fear of serious bodily injury, 18 Pa C.S. §2702(a)(6). This crime is graded as a 2nd degree felony and the OGS is 6. So, if the defendant has no criminal history, the standard guideline range is 3-12 months. However, the statutory maximum for a 2nd degree felony is 10 years. Technically, when the client asks his attorney what is the most time that he could get, the answer is 5-10 years. However, that sentence would be extremely unlikely considering the guideline range. If the statutory maximum sentence were imposed, the defendant would have a compelling appellate issue that the court abused its discretion when imposing a sentence so much higher than the guidelines.

When I find myself in this type of situation with my client, I will usually begin by discussing the guideline range, and not mention the statutory maximum at all. There is a big difference between telling a client that he is looking at 3 months rather than 10 years, which are both technically correct answers to the question of “what kind of time am I facing.” Remember that the guidelines only control the MINIMUM sentence. So, the judge could impose a sentence of 3 months to 10 years, and that would still technically be a guideline sentence. However, I have never seen a judge impose such a sentence unless it was part of a negotiated plea bargain. In fact, I have seen judges reject pleas that have very long MAX tails.

Of course, before the defendant enters a plea or proceeds to trial, he must be made aware of the statutory maximum sentence. But, this conversation usually occurs after the conversation about the guideline range.

In Pennsylvania, the standard guideline range can be modified into a mitigated range or an aggravated range sentence. Depending on the seriousness of the crime, the mitigated range and aggravated range are +/- 3, 6, or 12 months. So, in the previous example, the mitigated and aggravated range for a crime with an OGS of 6 is +/- 6 months.

Calculating a Pennsylvania guideline sentence is relatively simple (especially when compared to calculating a federal guideline sentence). Pennsylvania sentencing is largely controlled by Title 204, Chapter 303 of the Pennsylvania Code. Here is an overview of how it works: each crime is assigned an OGS. An experienced criminal defense attorney who is familiar with the PA sentencing guidelines can attempt to negotiate a plea agreement to a crime that appears to be similar to the one charged, but which has a lower OGS, and therefore, a lower guideline range. This is usually based on the grading of the offense, such as whether the offense is 1st, 2nd, 2nd or 3rd degree felony or misdemeanor. Here’s an example:

Aggravated Assault attempt serious bodily injury is graded as a 1st degree felony with an OGS of 10. 18 Pa C.S. §2702(a)(1). However, Aggravated Assault cause fear of serious bodily injury is graded as a 2nd degree felony, with an OGS of 6. 18 Pa C.S. §2702(a)(6). A crime with an OGS of 10 and a PRS of 0 has a standard guideline range of 22-36 months, and a statutory maximum of 20 years. A crime with an OGS of 6 and a PRS of 0 has a standard guideline range of 3-12 months., and a statutory maximum of 10 years. Obviously, that is a considerable difference even though the crimes seem very similar to each other.

Control of the Sentence

The reason why county judges often impose a period of incarceration of 11 1/2 to 23 months is because it is generally the longest incarceration sentence that can be imposed for which the judge retains control. C.f. 42 Pa C.S. §9762. For any sentence of incarceration that is two years or longer, the control shifts to the Pennsylvania Department of Corrections (DOC) and the Pennsylvania Parole Board unless certain conditions are met, in which case the judge can retain control up to five years. In my experience, judges in Allegheny County very rarely (if ever) retain control of a sentence over 2 years.

So, what does it mean to maintain control of a sentence? If the judge maintains control, the judge can parole the defendant any time before the expiration of the maximum sentence even if the defendant has not yet served his minimum sentence. Also, the judge maintains control of the parole portion of the sentence, and can resentence the defendant if he violates the terms of his parole. In other words, for a sentence of incarceration that is shorter than 2 years, parole is functionally the same as county probation.

If the DOC has control, then the defendant must serve his minimum sentence before he is eligible for parole (unless he qualifies for a program such as RRRI, which reduces the minimum sentence that must be served). Also, recommitment following a parole violation is handled by the PA Parole Board.

Federal Sentencing— No MIN and MAX

In Federal court, there is no MINIMUM and MAXIMUM sentence. The defendant will receive an incarceration sentence composed of only one number which is usually expressed in months. In addition to the incarceration sentence, the judge might also impose a period of supervised release, which has replaced federal parole.

Federal Sentencing Range

The Federal sentencing range is similar to the Pennsylvania sentencing range. It refers to the range of the sentence that the judge can impose without varying or departing from the guidelines. In federal court the lowest criminal history category is I (in Pennsylvania, the lowest PRS is 0). So, a defendant who is convicted of a crime with an offense level of 9, with a criminal history category of I, faces a guideline range sentence of 4-10 months.

Though the concept of the sentencing range is similar, calculating the federal sentencing guidelines is very complicated and time consuming. In fact, a very large part of federal criminal defense practice is challenging the sentencing guidelines as calculated by the Federal Probation Office. While Pennsylvania simply assigns an OGS based on the crime, the federal sentencing guidelines have a large array of sentencing enhancements that can apply almost independently of the crime itself. Pennsylvania has sentencing enhancements also, such as the deadly weapon enhancement, 204 Pa Code §303.10(a), but there are fewer of them and they are easier to calculate than the enhancements in the federal system.

Because of complexity of calculating the federal sentencing guideline range, it is often very difficult to discuss potential sentencing outcomes with clients at the early stage of the case. If there is an applicable mandatory minimum sentence, which will usually be revealed in the Indictment and the Indictment Memorandum, the attorney should make his client aware of that fact. However, it is quite common that the sentencing guidelines are higher than the applicable mandatory minimum sentence.

Federal Supervised Release

In the Federal system parole has been eliminated. However, Federal Supervised Release operates in a similar manner to parole. Just like the incarceration portion of the sentence, the length of supervised release is controlled by the sentencing guidelines. and various statutes.

Defendants who are serving federal time might be eligible for good time credit and early release to Residential Reentry Centers. Technically, federal prisoners who are serving a sentence greater than 1 year are eligible for 54 days of credit at the end of each year. See 18 U.S.C. §3624(b). However, based on the method that the Bureau of Prisons (BOP) uses to calculate good time credit, it really amounts to only 47 days per year. So, if a defendant is sentenced to 24 months of incarceration, he could potentially be eligible for up to 94 days of credit for a total sentence of 20 months and 28 days.

Parole vs. Supervised Release Violations

While Pennsylvania sentencing is relatively simple, Pennsylvania Parole is very complicated. This is the opposite of the Federal system, where sentencing is enormously complicated, but supervised release violations are relatively simple. This discrepancy probably stems from the fact that federal sentences tend to be longer than Pennsylvania sentences on the front end, while Pennsylvania parole tails tend to be longer than Federal Supervised Release tails on the back end.

Pa Parole

Pennsylvania parole is codified at Title 61 of the Pennsylvania Consolidated Statutes.

If the offender's parole is revoked, the offender shall be recommitted to serve the remainder of the term which the offender would have been compelled to serve had the parole not been granted and, except as provided under paragraph (2.1), shall be given no credit for the time at liberty on parole.

61 Pa C.S.§6138(a)(2). The presumptive ranges for convicted parole violators is codified at 37 Pa. Code §75.2.

The BOP offers a number of programs for defendants who are sentenced to state prison. These programs include,

• 61 Pa C.S. §4503- Recidivism Risk Reduction Incentive (RRRI). If an offender is accepted into this program, he will only have to serve 3/4ths of his minimum sentence, if the sentence is 3 years or less; If the sentence is greater than three years, he will only have to serve 5/6ths of his minimum sentence.

• 61 Pa C.S. §6137.1— Short Sentence Parole, which automatically paroles a defendant at his minimum sentence or his RRRI minimum if certain conditions are met

• 61 Pa C.S §4103— State Drug Treatment Program (SDTP). This program allows eligible defendants to serve a substantial portion of their sentence in community based treatment programs rather than the incarcerated in state prison.

• 61 Pa C.S. §3903— Motivational Boot Camp— this is a program for youthful offenders that includes “rigorous physical activity, intensive regimentation and discipline, work on public projects, substance abuse treatment services, continuing education, vocational training, prerelease counseling and community corrections aftercare.”

Federal Supervised Release

In the Federal System, supervised release violations are controlled by the United States Sentencing Guidelines §7B1. There are three grades of violations:

(1)  Grade A Violations -- conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment exceeding one year that

(i) is a crime of violence,

(ii) is a controlled substance offense, or

(iii) involves possession of a firearm or destructive device of a type described in 26 U.S.C. § 5845(a); or (B) any other federal, state, or local offense punishable by a term of imprisonment exceeding twenty years;

(2)  Grade B Violations -- conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year;

(3) Grade C Violations -- conduct constituting

(A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or

(B) a violation of any other condition of supervision.

The guideline range for a violation is determined based on the grade of the violation and the defendant’s Criminal History Category. However, if the defendant was on supervised release for a Class A felony, and he’s convicted of a Grade A violation, the guideline range increases.

The authorized terms of supervised release are as follows:

• Class A or B Felony- not more than 5 years;

• Class C or D Felony— not more than 3 years;

• Class E Felony— not more than 1 year.

18 U.S.C § 3583(b). Upon revocation of supervised release, the court can resentence the defendant as follows:

• Class A- not more than 5 years.

• Class B- not more than 3 years;

• Class C or D- not more than 2 years; and

• not more than one year in any other case.

18 U.S.C. §3583(e)(3).

Collateral Consequences of Convictions

Of course, a criminal conviction carries more than just a prison and/or a probation sentence. For many crimes there are a host of collateral consequences that might be just as onerous as the sentence. Collateral consequences might include Megans Law or SORNA registration for sexual offenses or offenses committed against children, deportation for non-citizens, driver’s license suspension, forfeiture of property, loss of federal benefits, inability to get certain job clearances suchvas Act 33 clearance, and the loss of certain constitutional rights, such as the right to vote or the right to bear arms . Before a defendant enters a guilty plea, he must be fully aware of all the potential collateral consequences. Otherwise, the plea will be rejected.

Conclusion

This very short blog post does not intend to provide a comprehensive analysis of Federal and Pennsylvania sentencing, parole and supervised release. To accomplish that would require an encyclopedia with many volumes. Pennsylvania and Federal sentencing are enormously complicated areas of criminal law. Furthermore, the law often changes as does the collateral consequences and sentencing alternatives. In the federal system, over 98% of defendants ultimately enter a guilty plea. This means that if you are charged with a federal crime, the probability is that you will enter a plea and face a sentence. The statistics in Pennsylvania are not as one-sided as the federal system, but there is still a very high probability that if you are charged with a Pennsylvania crime, you will likely enter a plea. Accordingly, a criminal defense attorney must be very familiar with federal and Pennsylvania sentencing procedure and caselaw in order to effectively represent you.

While media representations of public defenders are sometimes less than flattering, the truth is that many Offices of the Public Defender (OPDs) have excellent, dedicated, and talented attorneys.

Also, by working at an OPD, an attorney can focus exclusively on criminal defense, rather than split his attention between different areas of the law. For example, many private attorneys branch out into other areas such as personal injury and family law.

Public defenders also have enormous institutional knowledge about the local criminal justice system. In fact, a large public defender office, like the Allegheny County OPD, may have opportunities to participate in creating and influencing systemwide policy. The enormous volume of cases that a large OPD handles every year necessitates some degree of participation. Otherwise the system would become increasingly inefficient as various stake-holders create their vision of how the system should operate, which is not always consistent with the way it does operate in reality.

However, the large caseloads can be both a blessing and a curse. It is true that many assistant public defenders are overworked and underpaid. While most assistant public defenders are able to effectively manage their caseloads and maintain a work-life balance, it can still be a daunting and overwhelming challenge. Because of the relatively low pay, OPDs are often staffed with new and inexperienced attorneys. Many attorneys get their first legal job at OPDs. As a result, OPDs often dedicate significant resources and personnel to training new attorneys, and often provide extensive mentorship to newer attorneys before they are asked to handle more serious matters on their own.

Another advantage of proceeding with the OPD as your attorney is that it will pay to fund your defense. For example, if you need an expert witness, the OPD will hire the expert and pay his or her fee. However, this is a double-edged sword. The OPD might be limited in the resources that it can expend on any given case. Also, the OPD might require that experts agree to a cap on their fee, which could cause certain experts to choose not to work with the OPD. However, generally speaking, the OPD will hire the necessary experts to competently represent you.

So, why would anybody hire their own attorney? Well, the major reason why someone would hire his or her own attorney is because he or she might not qualify for the OPD, which only accepts cases based on income level or incarceration. In other words, you might make too much money to qualify for OPD representation. Another reason why someone might hire a private attorney is to get more accessibility to the lawyer. While many assistant public defenders are extremely dedicated, they are government employees, after all, who receive a paycheck for working set hours. Many of them go above and beyond what they are paid to do, but ultimately, it is not fair or equitable to force a public defender to work when he or she is not getting paid to do so. In Pennsylvania, public defenders can only represent you in the county where they are employed . So, if you want to talk to your attorney during the weekend, early in the morning, or late at night, or if you want your attorney to handle matters in different jurisdictions, such as Pennsylvania and federal court, or multiple counties, an assistant public defender might not be able to accommodate you.

Also, when you apply for representation by the OPD, you don’t get to choose your attorney. Your attorney will be assigned to you based on an internal assignment process. It is likely that you will be assigned the assistant public defender who already happens to be scheduled in the courtroom on the day when your case is scheduled. In all honesty, while many assistant public defenders are very good attorneys, some of them are not. If you get assigned an assistant public defender who does not have the experience or commitment to represent you effectively, you could be in for a big problem. If you hire your own attorney, you do not have to worry about getting assigned the “wrong” attorney.

One of the reasons why I created the Major Felony Unit at the Allegheny County OPD, was so that I could apply my discretion to the assignment of attorneys to serious cases. I would take into consideration many variables, including the attorneys’ caseloads, their experience level, and their preexisting schedules. My goal was to assign the best possible attorney to the case based on all the information that was available to me at the time.

Many private criminal defense attorneys started out as public defenders. So, by hiring a private attorney you are getting the benefit of whatever training and experience that the attorney received while working as a public defender. However, as you can imagine, there is a reason why many, if not most, attorneys eventually leave the OPD. As already mentioned, the two big reasons why attorneys leave the OPD is to have more manageable caseloads and to increase their income. So, generally speaking, if you hire a private attorney, you should expect to receive a level of experience and accessibility for your case that you might not get if you proceed with the OPD.

However, not every private attorney has the experience, skill or commitment that your case deserves and requires. Some private attorneys have little in-court experience. Some private attorneys who accept criminal cases do not specialize in criminal law, but rather, they specialize in other areas and do criminal law on the side. In some situations, you might hire a specific private attorney based on his reputation only to have him “represent” you in name only, with the actual legal work and court appearances handled by his partner or associate. Finally, when you hire a private attorney you must fully understand the scope of the representation. If you hire the attorney to represent you only for a specific hearing, such as the preliminary hearing, then do not expect him to continue representing you once that part of the case has concluded unless you reach a new agreement for the attorney to continue representing you.

The bottom line is you need to be very careful when you choose which attorney will represent you considering how much is at stake. If you are charged with a serious crime— or any crime for that matter that could cost you your freedom, reputation, and livelihood— you need to hire an attorney who has the experience, dedication, and ability to provide you with the most effective criminal legal defense possible. Remember also that while hiring an attorney might be expensive, the cost of a criminal conviction is even higher. I recall a judge who would jokingly advise defendants who were entering pleas to DUI offenses that it would have been cheaper to just hire the attorney to drive him home.

I served as an assistant public defender for over 15 years. During that time, I handled many criminal cases and learned a lot about the art and science of criminal legal defense. Over the years, many people, including friends and family members, would ask me if they should hire a private attorney or proceed with the public defender. My answer is usually something like this: if you can afford to hire a private attorney and fund your defense, you are probably better off hiring a private attorney— unless of course you are lucky enough to be assigned an attorney like me, in which case, you would be better off proceeding with the public defender.

So, why did I leave the Public Defender after 15 years to open my own practice… well, that’s a story for another blog.

Every citizen of Pennsylvania (and every other state) is subject to two completely separate criminal legal systems— the state system and the federal system. These two systems often overlap, and it is very important that your attorney understands how the two systems interact with each other. However, despite the overlap between the two systems, they are independent of each other. This means that you can be charged with two different crimes in two different systems for essentially the exact same conduct. Here’s a short primer on the difference between state and federal criminal law:

Chief Law Enforcement Officer

The chief law enforcement officer in the Commonwealth of Pennsylvania is the Attorney General. The chief law enforcement officer of each district within the Commonwealth is the District Attorney. There are 60 districts in Pennsylvania, which means there are 60 District Attorneys. There are 67 counties in Pennsylvania, which means that some districts contain more than one county. Most criminal prosecutions in Pennsylvania are brought by district attorneys. The PA Attorney General is elected by the citizens of Pennsylvania in a statewide election. The district attorneys are elected by the citizens of each county. Attorneys who work in the District Attorney's Office are called Assistant District Attorneys, or ADAs. Allegheny County is in the 5th Judicial District.

The chief law enforcement officer in the federal system is the United States Attorney General. The chief law enforcement officer of each federal district is the United States Attorney. These officials are not elected, but rather, they are nominated by the president and confirmed by the Senate. Attorneys who work in the U.S. Attorney’s Office are referred to as Assistant U.S. Attorneys, or AUSAs.

If the prosecution is conducted by Pennsylvania, in formal settings such as legal motions and briefs, the prosecution is usually referred to as “the Commonwealth” and cases are styled “Commonwealth of Pennsylvania vs. [Name of Defendant].” If the case is prosecuted by the federal government, the prosecution is referred to as “the government” or “the United States”, and the case is styled “United States of America vs. [Name of Defendant].” It might sound strange to say, “undersigned counsel spoke with ‘the government’, and it agreed to provide the requested discovery two days prior to the suppression hearing”, when referring to a conversation with a single person, but that is the convention.

Constitution

When someone is prosecuted by the District Attorney in Pennsylvania state court, that person is protected by both the federal constitution (also called the United States Constitution) and the Pennsylvania constitution. Most people are familiar with the federal amendments, such as the 1st Amendment or the 5th Amendment. These amendments are contained within a document called the Bill of Rights. The protections contained in the Bill of Rights are applicable to the states through the 14th Amendment, which was ratified after the Civil War in 1868. Prior to the ratification of the 14th Amendment, the Bill of Rights did not apply to the states; it only applied to the federal government.

Under the Pennsylvania constitution, protections for individual freedom appear in Article I, which is called the Declaration of Rights. While there is substantial overlap between the federal and Pennsylvania constitutions, there are some differences.

For example, the 2nd Amendment of the United States Constitution says,

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

However, Article I, section 21 of the Pennsylvania Constitution says,

The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

These two provisions clearly say different things even though the courts of Pennsylvania have interpreted them to provide the same protection.

The Pennsylvania constitution can provide no less protection than the federal constitution, but in some instances, it can provide more protection. See Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) (noting that Article I section 8 of the Pennsylvania Constitution provides greater protection than the 4th Amendment of the United States constitution). So, if your attorney intends to argue that your constitutional rights were violated, your attorney must understand if the challenge should be raised under the Pennsylvania constitution, the federal constitution, or both. It is very rare that a person who raises a constitutional challenge in Pennsylvania state court will only raise the challenge under the federal constitution because, as previously mentioned, the Pennsylvania constitution can provide no less protection, but it might provide more protection. In other words, if something is unconstitutional under the federal constitution, it will also be unconstitutional under the Pennsylvania constitution. However, something might be unconstitutional under the Pennsylvania constitution, but perfectly legal under the federal constitution.

Crimes Code

Pennsylvania crimes are usually codified (which is a fancy way of saying “recorded and arranged”) in the Pennsylvania Crimes Code, which is Title 18 of the Pennsylvania Consolidated Statutes. There are crimes that appear in other sections, such as drug offenses, which appear in title 35—Health and Safety, of the Pennsylvania statutes, and DUI offenses, which appear in title 75— Vehicles, of the Pennsylvania consolidated statutes. Some crimes have not been consolidated. They appear in the Unconsolidated Statutes.

Federal crimes are codified in the United States Code. Many federal crimes are codified in title 18, but just like in Pennsylvania, there are many crimes that are not codified in title 18, such as drug offenses, which appear in title 21.

So, if you are charged with possessing a firearm while being prohibited from doing so, usually because of a previous disqualifying conviction, in Pennsylvania your charge will look like this: 18 Pa C.S. §6105(a)(1); if you are charged by the federal government, your charge will look like this: 18 U.S.C. § 922(g)(1). These charges are very similar, but not identical.

This leads to the next section, which is jurisdiction and venue.

Jurisdiction and Venue

Jurisdiction simply means that the court has the power to rule over the matter before it. Venue is the place that is most appropriate for the prosecution to commence These two concepts are similar, but different. A court literally does not have the power to issue judgments if it does not have jurisdiction. Venue is usually created by statute. Venue can be waived by the litigants, or changed by agreement of the parties, but jurisdiction cannot be waived or changed by agreement. Jurisdiction often comes into play when dealing with certain timing requirements. For example, if a statute requires that a certain motion be filed within a certain number of days, if the motion is filed one day late, the court might not have jurisdiction to rule on the motion.

Pennsylvania courts only have power to preside over the prosecution of crimes that were committed in Pennsylvania. Some crimes might occur in several different states. If so, the question becomes which state has jurisdiction. It might be true that several states have jurisdiction. For example, if a high-speed chase begins in Ohio and ends in Pennsylvania, both states might have jurisdiction over all or parts of the alleged criminal conduct. Nowadays, if a threat is made by a person in California over the internet to a person who resides in Pennsylvania, your lawyer will have to research whether Pennsylvania has jurisdiction.

As previously discussed, Pennsylvania has 67 counties, but only 60 judicial districts. Generally, each district has its own trial court, which is called the Court of Common Pleas. These are the courts in which criminal trials occur. Again, generally, venue will be appropriate in the court of common pleas within the county where the crime is alleged to have been committed. But, this is not always the case. Every court of common pleas in Pennsylvania has subject matter jurisdiction to hear any case involving an alleged violation of the Pennsylvania crimes code.

The trial courts of the United States are called District Courts. There are 94 federal districts. Each United States District has one or more divisions that hold a courthouse. For example, the Western District of Pennsylvania has three divisions, in Pittsburgh, Erie, and Johnstown. Federal courts only have jurisdiction over criminal matters if the government can prove a jurisdictional element or nexus, which will usually appear in the criminal statute iteself. Most federal crimes require that the offense be committed with an item that travelled in interstate commerce or which had an effect on interstate commerce. This type of jurisdiction is referred to as Commerce Clause jurisdiction because it arises under the commerce clause of the United States Constitution. The Commerce Clause appears in Article I section 8 of the United States Constitution. It says that Congress has the power

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

(don’t confuse Article I section 8 of the United States Constitution with Article I section 8 of the Pennsylvania Constitution. The former is the Commerce Clause, the latter is similar to the 4th Amendment and protects Pennsylvanians from unreasonable searches and seizures among other things.) The Supreme Court has interpreted this simple sentence to grant to the United States Congress the jurisdiction to create an entire body of criminal law. When a person is charged with possessing a firearm, marijuana, or child pornography, the jurisdiction is usually based on the Commerce Clause. If you are wondering how the court can reach this interpretation from a short sentence that does not mention anything about crime, you need to understand the aggregation principle. Under the aggregation principle, the United States Congress can regulate conduct, i.e., criminalize it, even if it does not itself affect interstate commerce, as long as it has some minimal effect on interstate commerce in the aggregate. Thus, if you grow marijuana in your own home, and consume it yourself in your own home, the Supreme Court says that Congress can criminalize this conduct because growing marijuana, in the aggregate, can affect interstate commerce. Furthermore, if purely “intrastate” state production and consumption of marijuana were permitted, Congress would be unable to enforce the Controlled Substance Act because it would be impossible to distinguish legal marijuana from illegal marijuana. Another type of federal jurisdiction is when the criminal conduct occurs on federal property, such as an army base, indian land, or a VA hospital.

Many federal and state crimes overlap, and as a result, you can be charged by either the District Attorney or the United States Attorney, or both for the exact same conduct. This is referred to as the Dual Sovereign Doctrine. That is, each American has two sovereigns— the federal government and the state government. Many Americans might be surprised to learn that they have any sovereigns at all, but so says the Supreme Court of the United States.

Appellate Courts

In Pennsylvania, criminal appeals are heard in the Superior Court. If the litigant does not get the relief that he requested in the Superior Court he can petition the Pennsylvania Supreme Court to hear the case. The Pennsylvania Supreme Court is the final authority on the meaning of Pennsylvania law. The Supreme Court of the United States will only overrule the Pennsylvania Supreme Court on a matter of Pennsylvania law if the Pennsylvania Supreme Court’s ruling violates the United States Constitution.

Federal appeals are heard in the Circuit Court of Appeals. There are 13 federal circuits. Pennsylvania is in the Third Circuit, which is headquartered in Philadelphia. The Third Circuit also includes New Jersey, Delaware and the U.S. Virgin Islands. Appeals from the Circuit Courts are presented to the United States Supreme Court, which is the highest court in the United States.

The Process

Generally, a prosecution by the District Attorney under Pennsylvania law will begin with the filing of a criminal complaint. The complaint will have an affidavit in which the affiant, usually a police officer, will describe the conduct such that it establishes the elements of the crimes with which the person is charged. Sometimes, police officers make mistakes and they don’t allege in the affidavit all of the elements that are necessary to prove the charged offenses. After the criminal complaint is filed, a preliminary hearing is scheduled. The preliminary hearing usually occurs in a district magistrate office. The burden of proof is very low, it’s called prima facie evidence, which simply means that the district attorney must present some evidence that a crime was committed and that the defendant is probably the person who committed it. The magistrate is required to accept as true the Commonwealth’s evidence. This means that even if you have evidence that the Commonwealth’s witness is lying, the magistrate cannot consider that evidence at the preliminary hearing. While this is the standard, if it is blatantly obvious that a witness is lying a magistrate may exercise its discretion to dismiss the charge, though this is rare.

The district attorney can also initiate a prosecution by filing an indictment, but this is rare in Pennsylvania. It usually only occurs when the district attorney is concerned about the safety of witnesses, and prefers not to have a preliminary hearing in open court.

Generally, a prosecution by the United States Attorney will begin with the filing of an indictment. An indictment is a finding of probable cause made by a grand jury. Grand jury proceedings are secret and confidential, and most people charged with federal crimes will never be permitted to see the grand jury transcript. The United States can also initiate a prosecution by filing a complaint, which is similar to a complaint in Pennsylvania. If a complaint is filed, the defendant is entitled to a preliminary hearing, just like in Pennsylvania. If an Indictment is filed, the defendant does not get a preliminary hearing. The government will proceed with a compliant if the defendant is arrested immediately after committing the crime. After the preliminary hearing is held, the government must still present the case to a grand jury and file an indictment, unless the defendant waives the indictment, in which case the government will file an Information.

Law Enforcement Agencies

Pennsylvania law is generally enforced by local agencies, such as the Pittsburgh Police, department or organization agencies, such as the Port Authority police or the University of Pittsburgh police, county agencies, such as the Allegheny County Police, and state agencies, such as the Pennsylvania State Police. The Office of the District Attorney and the Attorney General also employ detectives that conduct investigations.

Federal law is enforced by many different federal agencies, such as the FBI, DEA, The United States Postal Inspector, The Department of Agriculture Inspector General, the Treasury Department, the IRS, the SEC, and ICE.

Local and state law enforcement can also team up with federal law enforcement. In fact, federal agencies can wholly adopt a local or state investigation, thereby making it federal. For example, the Pennsylvania State Police might conduct an investigation, but then the FBI could decide to adopt the case. The decision of whether the federal government will adopt a local investigation is entirely within the discretion of the United States Attorney, assuming the government can prove the jurisdictional nexus.

Conclusion

While there is some overlap between the Pennsylvania and federal criminal systems , the two systems are completely independent of each other. If you are charged with a Pennsylvania or federal crime you need to hire an attorney who knows how to work in each system. And, because the systems do overlap, you need an attorney who is experienced in both the Pennsylvania and federal system.