More Law, Less Justice

Even as crime rates in PA plummet year after year, Pennsylvania continues to outpace other states in its rates of incarceration and criminal supervision. Incarceration devastates individuals, families, and communities in Pennsylvania. Even a few days behind bars can cost someone their employment, housing, medical care, or custody of their children.

#1 | PA has the highest rate of incarceration in the Northeast.

#2 | Pennsylvania has the second highest rate of people under criminal supervision (probation and parole) in the United States.

$3B | Annually, the state spends nearly $3 billion on corrections to keep Pennsylvanians in prison and under criminal supervision.

46% | Black adults are 11 percent of PA's population, but comprise 46 percent of our prison population—that's 1 in 66 Black adults incarcerated in PA.

96% | 96 percent of all criminal cases in Pennsylvania are resolved through plea deals. Only 1 percent get jury trials.

Overcriminalization is woven into the fabric of Pennsylvania’s mass incarceration crisis. This problem has united the political spectrum in sounding the alarm about this dangerous and destructive compulsion.

Rapid expansion of the crimes code: A brief history

In 1972, Pennsylvania enacted the modern crimes code, succinctly categorizing all criminal behavior into 282 offenses and suboffenses, with a careful grading scheme for all charges. Since that time, legislators have made countless unnecessary changes and additions.

By 2010, the crimes code contained 636 offenses and suboffenses.

Today, there are more than 2,300 offenses and suboffenses—a 256% increase over 10 years.

As it stands, Title 18 (Crimes and Offenses) itself contains over 1,600 criminal offenses—but offenses are scattered throughout other statutes, including in Titles 3 (Agriculture), 23 (Domestic Relations), 25 (Elections), 34 (Game), 35 (Health & Safety), 42 (Judiciary), 61 (Prisons & Parole), and 75 (Vehicles), not to mention offenses in the Unconsolidated Statutes.

And if you include all summary offenses (which carry a minimum of 90 days incarceration), and all offenses and suboffenses in the Unconsolidated Statutes, the total number of skyrockets to 8,000 total criminal offenses and suboffenses in Pennsylvania.

We have all been told that ignorance of the law is no excuse. But if you want to find a list, either in print or online, of all the criminal offenses in Pennsylvania, you're out of luck. No such resource exists, which is not only inexcusable, it also undermines any argument that creating new or harsher penalties could ever serve as a deterrent against crime.

If we truly want to address our mass incarceration crisis, our legislature must stop its ceaseless expansion of the criminal code.

The Pennsylvania legislature: A bipartisan criminal offense factory

Our criminal code has become an expansive and irrational web of overlapping offenses. Over the last four decades, members of both political parties have churned out hundreds of redundant crime bills that duplicate existing law or add unnecessarily harsh new criminal penalties. This legislative hyperactivity contributes to our mass incarceration crisis in three ways:

1. Duplicative offenses: Legislators create duplicative offenses, covering the same behavior already criminalized by law. This allows prosecutors to stack multiple charges for the same action, which maximizes time behind bars and puts more pressure on defendants to accept a plea deal.
2. Increased penalties: Legislators steadily increase the penalties for offenses, so charges carry more severe sentences.
3. Expanded definitions: Legislators expand criminal offense definitions by adding more actors or actions, which snares more people in the criminal legal system.

Responsibility for this crisis does not solely rest on state legislators. Other stakeholders have advocated for creating new crimes and increasing criminal penalties, including judges, police unions, attorneys general, and the governors who enact these bills.

But those most complicit in widening the carceral net are county district attorneys, represented by the Pennsylvania District Attorneys Association (PDAA), one of the most powerful interest groups in Harrisburg. Any effort to counter this trend will require support from these stakeholders or, at the very least, will require their neutrality.

Learn more: Know Your DA in PA

Serially expanding the criminal code creates a punitive ripple effect throughout our criminal legal system.

The unrelenting expansion of our criminal code impacts every stage of the criminal legal system. The steady addition of offenses isn’t just unnecessary, it has real world consequences.

Legislative overcriminalization gives police more power to stop and arrest people for an ever-widening variety of behaviors. Mandatory sentences divert power away from judges and into the hands of prosecutors and police. Duplicative criminal offenses give prosecutors greater power to coerce guilty pleas. Guilty pleas erode our Sixth Amendment right to trial. Harsher penalties and sentencing enhancements increase incarceration terms, keeping hundreds of thousands of Pennsylvanians behind bars longer. And post-conviction, people face hundreds of civil penalties (aka collateral consequences) that restrict access to employment, education, housing, and more. And at each stage of this process, the economic and racial disparities are glaring and systemic.

Legislative overcriminalization exacerbates racial and economic disparities.

Legislative overcriminalization does not exist in a vacuum. Racial and economic disparities exist at every stage of the criminal legal system. Any change to the criminal law will have a compounding effect on these existing disparities.

Legislative overcriminalization expands police power.

Police have vast power to stop and arrest people for a wide variety of behaviors. Legislative overcriminalization arms police with an endless supply of offenses to enforce. These offenses are often enforced selectively and disproportionately against Black people.

Legislative overcriminalization expands prosecutorial power.

Prosecutors' charging decisions are unreviewable and plea offers are not part of the public record. District attorneys decide if, when, and whom to charge. Legislative overcriminalization offers prosecutors a seemingly endless supply of offenses with which to charge defendants. And because Pennsylvania criminal law permits charging multiple offenses for a single act, not only can someone be convicted of multiple offenses for one act, they can then be sentenced to consecutive terms of incarceration for the multiple offenses charged.

Legislative overcriminalization fuels mass incarceration.

As lawmakers expand the number, scope of, and penalties for criminalized behavior, sentences grow longer and more punitive. Legislative overcriminalization increases offense grading and penalties, putting more people behind bars with longer sentences.

Legislative overcriminalization encourages coercive plea deals that erode the right to trial.

Pennsylvania's array of criminal offenses gives prosecutors extraordinary leverage when it comes to securing guilty pleas. Legislative overcriminalization creates duplicative offenses, which allows prosecutors to stack charges against defendants. By stacking enough charges, prosecutors increase the threat value of trial and use that threat as leverage to induce defendants to accept plea deals. Accepting a plea deal forfeits your Sixth Amendment right to trial, even though giving up that right is often the safest choice.

Legislative overcriminalization compounds collateral consequences.

The General Assembly’s punitive impact doesn’t end when incarceration does. The effects of legislative overcriminalization linger, as people face a wide variety of civil penalties, or collateral consequences, following a conviction. In Pennsylvania, there are 879 collateral consequences for criminal convictions. If you include federal consequences, the number jumps to 1,928. Consequences for felony convictions are particularly severe, since they can restrict access to benefits, such as college financial aid, housing, employment, and can prohibit someone from sitting on a jury or running for public office. Every time the legislature creates a new offense or ratchets up an offense’s grading from a misdemeanor to a felony, it triggers new or additional collateral consequences that make it more difficult for people in reentry to succeed and easier for them to reoffend.

If legislators want to improve our criminal legal system while stemming the tide of mass incarceration, the ACLU of Pennsylvania offers the following recommendations:

1 | Vote no

Our current code has more than enough tools for law enforcement and prosecutors to protect public safety. Vote no on bills that include:

• Duplicative criminal offenses
• New or increased criminal penalties to existing offenses
• Expanded criminal offense definitions
• New or increased sentencing enhancements
• Mandatory minimum or consecutive sentences

2 | Ask a public defender

When analyzing a criminal offense bill, many legislators seek advice from their local district attorney or the Pennsylvania District Attorneys Association. But that only provides half the story. Solicit feedback from your county public defender on the potential effects of a proposed bill.

3 | Require a crimes comparison

Criminal offense bills should require an existing crimes comparison statement that describes all existing related offenses with evidence that current law does not already criminalize the conduct proposed in the legislation.

4 | Require impact statements

Proposed criminal offense bills should include an impact statement to evaluate potential racial and economic disparities prior to final passage.

5 | Decriminalize/legalize

Decriminalize or legalize non-violent, consensual behavior, such as sex work and personal marijuana use.

6 | Reduce/repeal

Reduce excessive grading and fines; repeal outdated or frivolous offenses; and eliminate collateral consequences of conviction.

7 | Recodify the crimes code

Create a commission to review current law to consolidate all offenses into Title 18, eliminate duplicative offenses, and reset offense grading to ensure similar crimes are graded similarly.

8 | Create a crimes code commentary

Rather than file named, "crime du jour" bills, create an official and regularly updated commentary to the criminal code, which would allow legislators to propose amendments to the commentary to clarify what is covered under an offense.

For advocates who want to help us sound the alarm about the dangers of legislative overcriminalization, the ACLU of Pennsylvania offers the following recommendations:

1 | Contact your legislators

Write, call, or visit your legislators and ask them first, to put down their pens; and second, support meaningful reforms that reduce mass incarceration in Pennsylvania.

2 | Get candidates on the record

Research positions held by candidates running for seats in the General Assembly (or even district attorney) on criminal legal reform and ask them to commit to opposing any expansion of the criminal code in Pennsylvania.

3 | Check our scorecard

Keep track of whether your state senator and representative voted to support or oppose expanding PA's criminal code by checking their votes on the ACLU-PA legislative scorecard.

4 | Share this report

Share this report with family members, friends, fellow advocates, your state legislators and other elected officials in your community.

5 | Follow, sign up, and join

• Follow us on social media
• Sign up to get our action alerts
• Join our Advocate Academy and learn how to sharpen your constituent lobbying skills
• Become a card-carrying member of the ACLU-PA!