For immediate release, December 3, 2014

In an opinion released yesterday, the Pennsylvania Superior Court struck down Pennsylvania’s drug-free school zone sentencing law, 18 Pennsylvania Consolidated Statutes Section 6317. In Commonwealth v. Bizzel, the Superior Court held that the drug-free school zone law is unconstitutional in light of a 2013 United States Supreme Court mandate in Alleyne v. U.S. Click here for a copy of the Bizzel opinion.


Over the last decade or so, the Pennsylvania legislature passed various criminal sentencing laws aimed at keeping people incarcerated for longer periods of time. These sentence enhancement laws increased minimum sentences for drug related crimes committed under certain circumstances. Two of the most common sentence enhancement laws are the drug-free school zone and gun possession sentencing laws. The drug-free school zone law increases sentences for possessing or selling drugs within 1000 feet of a school zone, and the gun possession law increases sentences for possessing a gun or firearm while otherwise possessing/selling drugs.

These sentence enhancing laws allow a trial judge, not a jury, to make the factual finding which triggers the enhanced sentence. For instance, for drug possession/dealing cases occurring within a school zone, the trial judge is required to find that the crime occurred within 1000 feet of a school zone. The standard of proof under PA’s sentence enhancement laws is lower than the one imposed on the government for prosecuting criminal cases. Prosecutors are required to prove the elements of a crime beyond a reasonable doubt. However, the sentencing enhancement laws only require the prosecutor to prove the triggering fact by a preponderance of the evidence. If the beyond a reasonable doubt standard is like having to run a mile, the preponderance of the evidence standard is like having to run half a mile.

The problem with Pennsylvania’s sentence enhancement laws is that the triggering fact is basically like an additional element of the given crime and therefore unconstitutional. This is exactly what the U.S. Supreme Court found in the seminal case, Alleyne v. U.S. Click here for an in-depth analysis of the Alleyne case.


Since the Alleyne case was decided, no Pennsylvania appellate courts decided the issue of whether these sentence enhancement laws were constitutional or not. Late last year, the Pennsylvania Superior Court came close, in Commonwealth v. Munday, but decided the case just short of ruling on the constitutionality of the gun sentence enhancement law. In that case, the defendant raised the Alleyne issue and got his sentence reduced.

Then in August of this year, the Superior Court again came close to ruling that the gun sentence enhancement law in the case was unconstitutional. See Commonwealth v. Newman. Instead of directly ruling that the gun sentencing law was unconstitutional, the court stated, “We find that Alleyne does indicate that the sentencing practice under Section 9712.1 is unconstitutional.”

However, as of yesterday, the Pennsylvania Superior Court directly held that the drug-free school zone law is unconstitutional in light of Alleyne. In the Bizzel case, the court decided the issue of whether the unconstitutional part of the law could be severed from the rest of the statute. Finding that it could not, the court struck the entire law down.


The Bizzel case isn’t cause for celebration just yet. The Bizzel court ruling is not final yet, and it’s highly likely the government will appeal the decision. Now, the Pennsylvania Supreme Court will probably have to decide the issue once and for all.

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