By STEPHANIE VETTENBURG-SHAFFER

McKean County District Attorney

(Editor’s note: The information in this special series is for educational purposes only and is not intended to address any particular case, nor should any articles be taken as legal advice. Always consult with an attorney on any legal matter.)

When we disagree with the interpretation of the law, the judge still has to follow it, the legislators can change the law, and my only option is to appeal the decision.

April 12’s article was Part 1 of this topic about the different powers in each branch of our government. In the criminal justice system, it is the legislators – not the judge – that sets the parameters of permissible sentences for any crime. The judge has to set a sentence within those parameters. The judge is not permitted to make law but, rather, must interpret and apply the law created by the legislators.

We normally think of a judge as having the ability to impose a sentence. The question in a recent appeal I filed with the Pennsylvania Supreme Court relates to what a “sentence” really is. And it is not as black and white as you would think.

A few years ago, I prosecuted a defendant who was convicted of sexually assaulting three children with whom he had a very close relationship. A judge listened to the testimony but, of course, it was the jury’s job to determine guilt and it did find this offender guilty. A few months later, the judge heard testimony from an expert about the offender’s risk of reoffending and ruled that the offender should be classified as a sexually violent predator. Finally, at sentencing, the same judge heard about the impact of the crime on the children. The judge sentenced the offender to a very long sentence in state prison, ordered that he not have contact with the victims, and set other restrictions.

The Superior Court recently upheld the conviction and the length of incarceration. But it ruled that the judge does not have authority to order the offender to not have contact with the victims or impose the other restrictions when it imposes a sentence of state incarceration. In the opinion of the Superior Court, citing cases and current statutes, only the parole board can impose these types of restrictions. And, while the offender is incarcerated in state prison, he will be bound by the normal rules of incarceration, which prohibit a state inmate from having contact with his victims.

I have asked the Supreme Court of Pennsylvania to look at the cases and statutes cited and allow me to appear before them and show how the restriction of “no contact” with a victim is different than other restrictions that have been previously found to be outside of the judge’s authority that are referenced in the cases cited by the Superior Court.

The parole board has authority when an inmate becomes eligible for parole after serving a substantial part of their sentence. But the sentence goes into effect the very moment the judge says it out loud. I am asking that the judge be able to impose this restriction from that very moment.

Judges are elected by us. And, by their election, we have agreed that he or she is the one we trust to make major decisions involving legal disputes. Why should he or she not be permitted to impose restrictions or other terms in addition to state incarceration that relate to safety of our community?

I have asked our PA Supreme Court to accept the appeal to analyze the relevant statutes — one that says sentencing is left to the judge and another that says only the parole board can impose special conditions of parole. I am asking that they read these provisions together and issue an opinion that agrees that the judge’s sentence goes into effect immediately while the parole board’s conditions only come into play after the offender has served his incarceration. Therefore, I am asking that the statute that says sentencing is left to the judge to be interpreted to include not only the state incarceration portion of the sentence but any other restriction that goes to the safety of the community — including restricting the offender from having contact with his minor victims.

I would ask any of our legislators who may come across this article to consider changing any statutes that have been interpreted to prevent a judge from imposing any such restrictions and clarify that a judge may include restrictions in his sentence if he or she deems appropriate based on the facts of the case.

I have no reason to believe that state prisons do not enforce their rules that prohibit contact or that the parole board would think contact is appropriate, but I think prohibiting a judge from imposing such a restriction is akin to tying his hands when he could protect child victims.