Law enforcement and prosecutors already have all of the tools necessary to protect public safety. But over the last four decades, the Pennsylvania General Assembly has become a bipartisan offense factory, churning out hundreds of new bills each legislative session that duplicate existing law or add unnecessarily harsh new criminal penalties to our already bloated criminal code. This is the statehouse-to-prison pipeline.
The ACLU of Pennsylvania tracks all criminal laws proposed or passed by lawmakers in Harrisburg for our biennial report More Law, Less Justice: Pennsylvania's Statehouse-to-Prison Pipeline. Late last month, we released our latest edition for the 2021-2022 legislative session.
Mass incarceration begins at the statehouse. The purpose of this report is to highlight the role and responsibility of the Pennsylvania General Assembly in fueling our state’s ongoing mass incarceration crisis.
How we got here
In 1972, Pennsylvania enacted the modern crimes code, succinctly categorizing all criminal behavior into 282 offenses and suboffenses. By 2010, it contained 646 offenses.
Today, the code has ballooned to over 2,300 offenses and suboffenses—the vast majority of which cover behavior that was already illegal in 1972.
2021-2022 session pipeline
During the 2021-2022 legislative session, a total of 308 pipeline bills were introduced. Sixty-three of those bills—or 20 percent—were considered, and eighteen were enacted.
These eighteen bills continued the relentless expansion of sentencing enhancements, expanded criminal offense definitions, and new criminal offenses and penalties.
Legislators also ensured that Pennsylvania’s criminal law sprawled far beyond Title 18 Crimes and Offenses (the part of the statutes where all criminal offenses should properly be codified) and into eight other sections of the Consolidated and Unconsolidated Statutes.
Unnecessary, yet enacted, legislation
Let’s take a deeper dive and look at some of the unnecessary and/or duplicative laws that were passed by bipartisan majorities in the Pennsylvania legislature and enacted by the Governor in the 2021-2022 legislative session.
H.B.184 (“Shawn’s Law”) enhanced criminal penalties for causing/aiding suicide if the person was under 18 or had autism or an intellectual disability. Pennsylvania has existing laws on the books that make it a crime to assist in a person’s suicide.
H.B.773 (“Deana’s Law”) enhanced the refusal to take a DUI breath or chemical test to a felony and imposed mandatory consecutive sentences for DUI offenses. Pennsylvania has existing laws on the books that make it a crime to refuse a breath or chemical test and that outlaws DUI.
H.B.1429 created a new, duplicative offense prohibiting the financial exploitation of an older adult or care-dependent person. Pennsylvania has existing laws on the books that make it a crime to financially exploit another person.
H.B.2398 created new offenses and penalties for catalytic converter theft. Pennsylvania has existing laws on the books that make it a crime to steal property from a car.
S.B.814 (“Wilding's Law”) prohibited evading police arrest or detention on foot. Pennsylvania has existing laws on the books that make it a crime to evade or resist arrest.
You get the picture.
For more detailed information on this session’s pipeline bills, visit the 2021-2022 Pipeline bill database.
Since this is our third iteration of the More Law, Less Justice report, we can take a step back to see how Pennsylvania’s criminal law has expanded in just the last three legislative sessions.
Not only has the number of pipeline bills filed and enacted increased each session, the ways in which our criminal law has expanded also increased in almost every category from session to session
The tally of this expansion puts a finer point on the scale and acceleration of the problem. Since we began analyzing session activity in 2017, legislators have steadily increased the number of pipeline bills filed and enacted, adding a total of 10 new sentencing enhancements, 28 expanded offense definitions, 52 new offenses or suboffenses, and 106 new criminal penalties to Pennsylvania law.
Fueling mass incarceration
The ever-expanding crimes code creates a punishing and punitive ripple effect throughout our criminal legal system.
Legislative overcriminalization gives police more power to stop and arrest people. Creating duplicative offenses gives prosecutors greater power to coerce guilty pleas. And imposing harsher penalties and enhancements lengthens sentences, keeping people behind bars for longer with bigger barriers to success when they get out.
None of these bills make Pennsylvanians any safer. And yet lawmakers insist on reaching for the same, broken tool in their toolbox. The mere introduction of so many of these bills signals to fellow legislators, stakeholders, news media, and others that the answer to almost everything legislators do not like or do not understand is solved through criminalization and mass incarceration. We cannot arrest, prosecute, and incarcerate our way out of this crisis.
This iteration of More Law, Less Justice recommends that Pennsylvania state legislators oppose any proposed legislation that adds new criminal offenses, penalties, or sentencing enhancements. It suggests that lawmakers increase their reliance on public defenders as stakeholders and experts when analyzing legislation. It recommends that lawmakers subject legislation that proposes a new criminal offense to a crimes comparison to existing law and an impact statement regarding any racial or economic disparities that the new legislation might compound. Finally, the report also encourages legislators to decriminalize non-violent behavior, like drug consumption and consensual sex work.
ACLU-PA will continue to work with legislators to stem the churn of unnecessary and duplicative legislation that continues to fuel the mass incarceration crisis in Pennsylvania.