How I Voted: Criminal Justice Bills
Rep. Danielle Friel Otten October 28, 2022 | 10:09 AM
My team and I created this page to make it easy to find information on several criminal justice bills that we’ve received questions about this week.
While these bills cover a range of topics, they share a common thread of appearing to be tough on crime without actually being smart on crime, a trend sometimes described as, “more laws, less justice.”
In some cases, the bills listed below create duplicate offenses where laws already exist or create mandatory minimums and sentencing enhancements that worsen our mass incarceration epidemic without doing anything to reduce crime rates or address the underlying causes of criminal activity.
I believe these proposals are well intentioned, but in each case, I voted No, because concerns about due process, the violation of constitutional rights, or other unintended consequences of the legislation outweighed any potential benefit.
If we truly want to protect victims, reduce crime, and improve the lives of Pennsylvanians, we need to focus our efforts on prevention, invest in our communities, give our courts and law enforcement agencies the resources they need to operate effectively and efficiently, and work to understand, address, and alleviate the root causes of crime and violence.
Descriptions of each specific bill and vote are below, sorted by bill number:
HB 146 (Bernstine) – “Markie’s Law”
How I voted: No (Bill passed the House 144-58)
HB 146 prohibits parole of an inmate at the expiration of the minimum sentence if the inmate was convicted of certain offenses while incarcerated. At its core, HB 146 is a mandatory minimums/resentencing bill that would add additional years to a sentence after a judge has already sentenced the person. I voted no because sentencing is correctly placed within the purview of the judicial branch of our government—this should not be a legislative role.
The Parole Board already has the ability and the authority to consider an incarcerated person’s behavior when considering parole. The PA Parole Board and the PA Department of Corrections are among the agencies and organizations opposed to this legislation. HB 146 passed the House and Senate, but was ultimately vetoed by the Governor.
HB 185 (Struzzi) – Cody’s Law
How I voted: No (Bill passed the House 154-58)
HB 185 would make it an automatic aggravated assault (a felony of the second degree) if a person “attempts to cause or knowingly or intentionally causes bodily injury to an individual with a physical disability, an intellectual disability or an autism spectrum disorder.” While I believe this bill is well-intentioned, it is problematic for several reasons, and I believe the negatives outweigh the positives. While this bill passed the House, it has not been brought up for a final vote in the Senate.
My reasons for opposing the bill are as follows:
- The bill’s sponsor acknowledged that he did not consult disability advocates in drafting this legislation. Disability rights groups have expressed concerns that in many cases, all parties involved in a physical incident involving a person with disabilities may be disabled themselves, meaning that there is a strong likelihood that this legislation would be used to criminalize the actions of disabled individuals more than any other community.
- This bill does not require knowledge of a person’s disability. Since many disabilities are not visible or apparent by looking at an individual, it is problematic to base the application of this proposed new law—and a potential eight additional years in prison—on invisible characteristics.
- Current Pennsylvania law distinguishes “bodily injury” (a misdemeanor) from “serious bodily injury” (a felony). HB 185 eliminates the “serious” requirement, automatically treating a simple assault as aggravated, and increasing penalties from up to 2 years in prison to up to 10 years in prison for a single offense.
- Judges and prosecutors already have the ability to consider a victim’s physical or intellectual disability as an aggravating factor in charging and sentencing. (For example, the teens who assaulted Cody Overdorff, for whom this bill is named, were each charged with multiple offenses under existing law, resulting in possible sentences of nearly 10 years.)
HB 231 (Mustello) – Expanding list of prohibited activities
How I voted: No (Bill passed the House 184-17)
This bill expands the list of prohibited activities that constitute the crime of unlawful contact with a minor. While I believe that some portions of this bill are well-intended, I voted No because the overall impact of the bill is problematic. HB 231 creates 18 new criminal offenses by adding a new element to 18 existing offenses. Every crime listed within this bill is already an existing criminal offense, and 11 of the 18 already increase the grading of the crime if committed against a minor.
Creating separate offenses allows prosecutors to charge two separate offenses for the same act, once under the existing statutes and then separately under Section 6318(a) of Title 18. This would result in an escalation of penalties and could result in felony convictions and sexual offender registration for non-sexual and non-felony offenses. More information is available at ACLU PA.
Further, my Republican colleagues voted down an attempt to amend this bill by removing homosexuality from the state’s obscenity statute, meaning that undefined “acts of homosexuality” are included as a criminal offense. This bill passed the House, but it has not advanced in the Senate.
HB 975 (DelRosso) – Elder and Care-Dependent Adult Sexual Assault
How I voted: No (Bill passed the House 170 – 32)
This bill amends Pennsylvania’s criminal statute by creating a new offense of sexual assault by a caretaker of a care-dependent person. To be sure, sexual assault against a care-dependent person—like any sexual assault—is a serious and reprehensible offense, and existing Pennsylvania law reflects that severity. House Bill 975 is problematic, as it assumes that all care-dependent individuals, who may be care-dependent for any number of reasons related to their physical or cognitive ability, are incapable of giving consent.
Engaging in sexual intercourse or deviant sexual intercourse with a person who is incapable of giving consent already falls within the state’s existing rape and involuntary deviant sexual intercourse statutes, which carry severe penalties and up to lifetime sex-offender registration.
I voted no because the bill fails to provide any substantial new protections for care-dependent individuals, because the conduct addressed in this bill is already covered by existing criminal statutes, and because the bill fails to recognize care-dependent individuals as equal members of and participants in society, who in many cases are fully capable of consent. This bill passed the House and Senate and was signed into law by Governor Wolf as Act 61 of 2022.
HB 1130 (C. Williams) – Sexual Offender Registration
How I voted: No (Bill passed the House 186-15; has not advanced in the Senate)
HB 1147 (Gaydos) – Sex Offender Treatment
How I voted: No (Bill passed the House 183-18; signed into law as Act 45 of 2021)
Both HB 1130 and HB 1147 add non-sexual offenses, specifically human trafficking offenses, to the Megan’s Law sex offense registry and expand the list of sexual offenses that require offenders to attend and participate in Department of Corrections programs of counseling or therapy designed for incarcerated sex offenders.
Here again, I understand that these bills are well-intentioned; however, the sentencing does not address the root causes of the crime. Human trafficking offenses are extremely serious offenses and are treated accordingly under existing Pennsylvania law. HB 1130 and HB 1147 make the assumption that all human trafficking is sexual trafficking, which is simply not the case. Children are, tragically, trafficked for many different reasons, including illegal adoption, farm work, and domestic work. The psychological factors that drive human trafficking are simply not the same as the factors that drive sexual assault.
As ACLU PA notes, offenders convicted of human trafficking are not necessarily sex offenders, and these crimes require different approaches to sentencing, counseling, and treatment. Requiring human trafficking offenders to complete specialized treatment for which they have no medical need or diagnosis takes spots in these extremely limited programs from those who truly need them, causing unintended risks to the communities we want to protect.
Additionally, Megan’s Law is designed to let people know who lives in their community, and traffickers frequently prey on victims who live in vulnerable communities, sometimes states or countries away -- often not where they themselves live.
In the decades since Megan’s Law was enacted, data and research collected and carried out by the Bureau of Justice Statistics, the National Institute of Justice, and Human Rights Watch indicates that increasing the number of registrants does not result in safer communities and may even have the opposite effect. Contrary to popular belief, the vast majority of sexual assaults are not perpetrated by strangers. The truth is, approximately 2/3 of sexual assaults are committed by someone the victim knows.
For more information, please see the position statement by ACLU PA.
HB 2039 - (Pennycuick) – Testimony at Bail Hearings
How I voted: No (Bill passed the House 141-59)
This bill amends the Pennsylvania Crime Victims Act to require that alleged victims are notified of and have an opportunity to comment at bail hearings. However, alleged victims already have the right to information regarding the granting or denial of bail to a defendant. They do not have the right to testify at bail hearings because bail hearings are not set up or equipped to function as criminal trials where guilt or innocence is determined.
I voted No because this legislation undermines the fundamental presumption of innocence until proven guilty and the Constitutional right to due process. It allows prejudicial information to be presented at a bail hearing, with no provisions to establish standards of proof or clarify whether defendants would have an opportunity to cross-examine or even a right to counsel. (For a more in-depth explanation, visit ACLU-PA.) This bill passed both the House and Senate and was signed by Governor Wolf July 11 as Act 71.
More “How I Voted”
As your elected representative in Harrisburg, I am committed to good governance, and I believe it’s incredibly important to be transparent about my votes.
For a full recap of my voting record for the legislative session, visit my How I Voted page. I added this section to my website at the beginning of the 2021-22 legislative session because while state legislators’ votes are always public record, the reasons behind those votes are not always clear.
If you have questions or would like more information on the bills listed here or my position on any other past or current legislation, please contact my office at repotten@pahouse.net or 484-200-8259.