{"id":869,"date":"2021-03-24T02:25:44","date_gmt":"2021-03-24T02:25:44","guid":{"rendered":"http:\/\/96.66.168.57:8080\/wordpress\/?page_id=869"},"modified":"2026-08-24T02:53:59","modified_gmt":"2026-08-24T02:53:59","slug":"chapter-18-the-absolute-power-of-the-pennsylvania-courts","status":"publish","type":"page","link":"https:\/\/unstablefocus.mynetgear.com\/?page_id=869","title":{"rendered":"Intermission:  The Absolute Power of the Pennsylvania Courts"},"content":{"rendered":"<audio class=\"wp-audio-shortcode\" id=\"audio-869-1\" preload=\"none\" style=\"width: 100%;\" controls=\"controls\"><source type=\"audio\/mpeg\" src=\"https:\/\/unstablefocus.mynetgear.com\/wp-content\/uploads\/2026\/08\/Intermission-869-P01.mp3?_=1\" \/><a href=\"https:\/\/unstablefocus.mynetgear.com\/wp-content\/uploads\/2026\/08\/Intermission-869-P01.mp3\">https:\/\/unstablefocus.mynetgear.com\/wp-content\/uploads\/2026\/08\/Intermission-869-P01.mp3<\/a><\/audio>\n<p>There is a long history of the Pennsylvania legislature and its courts battling over how much power the Legislature has to dictate how the courts handle contempt issues. For almost 200 years and until Commonwealth v. McMullen, the courts allowed the Legislature to intrude on and regulate this authority. According to <a href=\"http:\/\/96.66.168.57\/wordpress\/wp-content\/uploads\/2021\/07\/Sodroski-567.pdf\">Sodroski<\/a>:<\/p>\n<blockquote><p>In connection with crimes in general, the separation of powers doctrine creates a natural tension between the General Assembly and the courts. Under the police power, the General Assembly has the power to make substantive criminal laws that proscribe conduct from minor offenses to murder and to set the penalties for their violation. In contrast, the Pennsylvania Supreme Court, through its rulemaking authority, has the power to create the procedure that the courts will follow during prosecutions for violations of criminal laws. The courts also have the power to enter orders that impose sentence. The tension that arises from the legislative power to create substantive crimes and the judicial power to create related procedural law is exacerbated when contempt is in play because criminal contempt is a crime [according to the court], yet one that would exist even if the legislature never entered the field, as the power to define and punish contempt is inherent in the courts. Thus, contempt statutes reduce the power of the courts while any overly restrictive contempt statute has the potential to render the courts powerless. The overarching constitutional issue is the authority of the General Assembly to legislate substantive and procedural contempt provisions.<\/p><\/blockquote>\n<p>In 1809, the Pennsylvania General Assembly enacted a statute that limited the power of judges to impose summary punishments to only certain types of contempt. This statute was the first time the Legislature limited the court&#8217;s management of punishment for contempt to primarily those acts that occurred in the presence of the court, i.e., direct contempt and limited imprisonment to acts committed in &#8220;open court.&#8221;\u00a0 The court could assess fines in other cases.<\/p>\n<p>The Legislature reenacted The Act of 1809 in 1836 and gave some power back to the court. In particular, the court could jail someone fined for contempt until they paid the fine; the jail term was, however, limited to three months.<\/p>\n<p>The Legislature enacted Section 4136&#8211;the one mentioned previously, which limited sentences to 15 days for restraining order violations and discussed previously&#8211;in 1978 as part of a reenactment of the 1836 act. This section, along with Sections 4137 and 4138, which deal primarily with contempt citations in the lower (district) court, passed apparently after contentious debate in the House of Representatives because the additions to the 1836 act gave the courts even more power over how it could punish contemptuous acts. The Legislature was undoubtedly not thinking at the time that they eventually would have <em>no<\/em> control over how the courts punish contemptuous acts.<\/p>\n<p>Pennsylvania courts implement statutes in &#8220;rules&#8221; in the <a href=\"http:\/\/www.pacodeandbulletin.gov\/\">Pennsylvania Code &amp; Bulletin, <\/a>updated whenever laws are changed or enacted. For example, <a href=\"http:\/\/www.pacodeandbulletin.gov\/Display\/pacode?file=\/secure\/pacode\/data\/231\/chapter1900\/chap1900toc.html&amp;d=reduce\">Title 231, Chapter 1900<\/a> of the Pennsylvania Code, titled &#8220;Actions Pursuant to the Protection from Abuse Act,&#8221; explains how courts should handle requests for PFA orders. Rule 1905 of this chapter provides all the boilerplate forms for requesting and being notified of the request. In particular, it makes clear that while the statute states a defendant is &#8220;entitled&#8221; to an attorney during a PFA request hearing, the court will not provide one (capitalization in the original):<\/p>\n<blockquote><p>YOU HAVE THE RIGHT TO HAVE A LAWYER REPRESENT YOU AT THE HEARING, HOWEVER, THE COURT WILL NOT APPOINT A LAWYER FOR YOU. YOU HAVE THE RIGHT TO PRESENT EVIDENCE AT THE HEARING, INCLUDING SUBPOENAING WITNESSES TO TESTIFY ON YOUR BEHALF.<\/p>\n<p>YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. IF YOU CANNOT FIND A LAWYER, YOU MAY HAVE TO PROCEED WITHOUT ONE.<\/p><\/blockquote>\n<p>The template to be used to notify the defendant states:<\/p>\n<blockquote><p>If an order of protection has been entered, you MUST obey the order until it is modified or terminated by the court after notice and hearing. If you disobey this order, the police or sheriff may arrest you. Violation of this order may subject you to a charge of indirect criminal contempt under 23 Pa.C.S. \u00a7 6114. Violation may also subject you to prosecution and criminal penalties under the Pennsylvania Crimes Code.<\/p><\/blockquote>\n<p>There is no mention of the penalties the court may impose. This omission is interesting because, besides the unconstitutional penalties included in 23 Pa.C.S. \u00a7 6114 by the Legislature, there seems to be nothing stipulating what the maximum sentence should be. Lawyers and judges implicitly understand that the entire length of incarceration cannot exceed six months. It is left to individual county courts to make sure defendants know this so they can&#8217;t demand a jury trial. For example, my PFA order reiterates and references the sentencing guidelines in \u00a7 6114, which are unconstitutional. It would be interesting to see what would happen if someone challenged this claiming, because there is no statutory maximum sentence, they should be allowed a jury trial.<\/p>\n<p>The final relevant document that guides judicial conduct is The Pennsylvania Benchbook on Criminal Proceedings, which provides guidance, but not rules, for how judges should handle criminal cases. In particular, Chapter 50 deals with criminal and civil contempt outside the court&#8217;s view&#8211;further muddying the waters about whether indirect civil contempt exists. One section lists the five elements required for a finding of contempt.<\/p>\n<blockquote>[The accused shall have] the right to be notified of the accusation and a reasonable time to make a defense, if the alleged contempt is not committed in the immediate view or presence of the court.<\/p>\n<ol>\n<li>Disobedience to court orders. Section (2) requires a formal order directed to a specific person or group. The refusal to comply need not occur in the court\u2019s presence. For example, witnesses must appear when subpoenaed or ordered and jurors must respond when called.<\/li>\n<\/ol>\n<ol>\n<li style=\"list-style-type: none;\">\n<ol start=\"1\">\n<li>Under section (2) five elements are required for a finding of contempt:\n<ol start=\"1\">\n<li>The order or decree must be definite, clear, and specific and leave no doubt or uncertainty in the mind of the person to whom it was addressed of the prohibited or commanded activity;<\/li>\n<li>The contemnor must have had notice of the specific order or decree;<\/li>\n<li>The act constituting the violation must have been willful or volitional;<\/li>\n<li>The contemnor must have acted with wrongful intent, that is, he or she must know or reasonably be aware that such conduct is unlawful;<\/li>\n<li>The order must have been lawful and of record.<\/li>\n<\/ol>\n<\/li>\n<li>A mere showing of non-compliance with a directive (as in the case of lateness) is insufficient to show contempt under \u00a72.<\/li>\n<\/ol>\n<\/li>\n<\/ol>\n<\/blockquote>\n<p>In my particular cases, especially those I have not yet discussed and many other cases I am aware of, the first element can be an issue. So many requirements of most PFA orders I&#8217;ve seen are vague, and defendants could interpret them differently. Likewise, the third and fourth elements are challenging to prove, especially if the standard is &#8220;beyond a reasonable doubt.&#8221; Ultimately, it always comes down to judges deciding if they believe defendants when they say they did not mean to violate the order. In all the cases I know of, the judge did not believe the defendant. When I brought this issue up on appeal&#8211;see later chapters&#8211;the judicial response has always skirted around the issue, essentially arguing that you must have intended to do so if you violated the order.<\/p>\n<p>The Benchbook clarifies that when the sentence can exceed six months, the defendant is entitled to a jury trial and, presumably, the full array of all procedural rights attending any criminal jury trial. It states the following procedures should apply when the sentence does <em>not<\/em> exceed six months.<\/p>\n<blockquote>\n<ol>\n<li>Burden of proof.\u00a0 Contempt is a crime and consequently, the Commonwealth has the burden of proving every element of the crime beyond a reasonable doubt.<\/li>\n<li>Notice.\u00a0 Notice of the specific contempt charges is required. This requirement, however, may be satisfied in the form of a rule to show cause, returnable on a specific date. A complaint and either a bill of information or indictment are not required.<\/li>\n<li>Pre-trial hearings.\u00a0 There is generally no right to a preliminary hearing.<\/li>\n<li>Counsel.\u00a0 A defendant is entitled to counsel in a contempt hearing.<\/li>\n<li>Right to present evidence.\u00a0 A defendant has the right to be heard on the charges and the punishment.<\/li>\n<\/ol>\n<p>Criminal contempt of court is a criminal offense and thus every element of the offense must be established beyond a reasonable doubt. Johnson, supra, 467 Pa. at 557, 359 A.2d at 742. \u201cTo prove criminal contempt of court which may be acted upon under authority of subsection III of the Act of June 16, 1836, the Commonwealth must prove an improper intent, an action and an obstruction of the administration of justice.\u201d Johnson, supra, id.<\/p><\/blockquote>\n<p>The conspicuous inconsistency in the court&#8217;s rules for handling indirect criminal contempt and the PFAA is what burden of proof the plaintiff has. The Act states that the burden of proof is a preponderance of the evidence. However, the court&#8217;s rules state that because the offense is &#8220;criminal,&#8221; i.e., it can carry punishments of imprisonment or is not rectifiable, the plaintiff should have to prove the charges beyond a reasonable doubt. These inconsistencies are especially egregious because the Pennsylvania courts have declared that the Legislature, which created a statute allowing a lower burden of proof, cannot dictate how the court tries and punishes people for disobeying their orders. The courts could change their guidance, allowing indirect criminal contempt of restraining orders to have a lower burden of proof. At least then, the inconsistency of how the courts adjudicate criminal contempt would be much more apparent. Additionally, when a sole judge makes decisions, they can always say that they were beyond a reasonable doubt in their mind.<\/p>\n<p>The appeals courts have also stated that contempt is an offense <em>sui generis<\/em>, or &#8220;Of its own kind, peculiar, for example, a statutory proceeding for declaratory judgment, neither legal nor equitable,&#8221; and the contempt proceeding need not follow the entire procedures required for other crimes.<em> However, the courts have not expressly stated how and in what respects the proceeding differs.<\/em><\/p>\n<p>Thus, the Pennsylvania courts have the power to act as all three branches of government and the public in domestic abuse cases.<\/p>\n<div class=\"su-box su-box-style-default\" id=\"right-sidebar\" style=\"border-color:#000009;border-radius:3px;max-width:none\"><div class=\"su-box-title\" style=\"background-color:#2F323C;color:#FFFFFF;border-top-left-radius:1px;border-top-right-radius:1px\">Hills<\/div><div class=\"su-box-content su-u-clearfix su-u-trim\" style=\"border-bottom-left-radius:1px;border-bottom-right-radius:1px\">\n<h3>Summary of The Act<\/h3>\n<ul>\n<li>A sentence for contempt under this chapter may include:\n<ul>\n<li>\u00a0a fine of not less than $300 nor more than $1,000 and imprisonment up to six months; or<\/li>\n<li>a fine of not less than $300 nor more than $1,000 and supervised probation not to exceed six months; and an order for other relief set forth in this chapter.<\/li>\n<li>The defendant shall not have a right to a jury trial on a charge of indirect criminal contempt. However, the defendant shall be entitled to counsel.<\/li>\n<li>Upon conviction for indirect criminal contempt and at the request of the plaintiff, the court shall also grant an extension of the protection order for an additional term.<\/li>\n<li>The defendant shall be afforded a preliminary arraignment without unnecessary delay.<\/li>\n<li>A hearing shall be scheduled within ten days of the filing of the charge or complaint of indirect criminal contempt. The hearing and any adjudication shall not preclude a hearing on other criminal charges underlying the contempt, nor shall a hearing or adjudication on other criminal charges preclude a hearing on a charge of indirect criminal contempt.<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<ul>\n<li>The order or agreement may include:\n<ul>\n<li>Directing the defendant to refrain from abusing the plaintiff or minor children.<\/li>\n<li>Granting possession to the plaintiff of the residence or household to the exclusion of the defendant by evicting the defendant.<\/li>\n<li>Prohibiting the defendant from having any contact with the plaintiff or minor children, including, but not limited to, restraining the defendant from entering the place of employment or business or school of the plaintiff or minor children and from harassing the plaintiff or plaintiffs relatives or minor children.<\/li>\n<li>Directing the defendant to pay the plaintiff for reasonable losses suffered as a result of the abuse.<\/li>\n<li>Directing the defendant to refrain from stalking or harassing the plaintiff and other designated.<\/li>\n<li>Granting any other appropriate relief sought by the plaintiff.<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<ul>\n<li>Within ten business days of the filing of a petition under this chapter, a hearing shall be held before the court, at which the plaintiff must prove the allegation of abuse by a preponderance of the evidence. The court shall, at the time the defendant is given notice of the hearing, advise the defendant of the right to be represented by counsel.<\/li>\n<\/ul>\n<\/div><\/div>\n<h3>The Courts as Legislature<\/h3>\n<p>Because the courts can add provisions to a PFA order as they deem appropriate, the judge issuing the order can impose restrictions that can limit a person&#8217;s civil rights and freedoms far beyond those defined by Legislator-passed laws. Some provisions may be blatantly unconstitutional but only apply to one person, and appealing a decision is pointless. The Legislature gave the courts this power because, according to the courts, they can handle domestic abuse issues on a case-by-case basis. Thus, besides the conditions suggested in The Act, the courts routinely add other provisions such as:<\/p>\n<ul>\n<li>Contact is permitted by text message and\/or email only when they concern the person&#8217;s children not subject to the order. (Sometimes these allowances are limited by time, e.g., 9:00 a.m. to 9:00 p.m.)<\/li>\n<li>Defendant may post no remark or image concerning plaintiff on social networks such as, but not limited to, Facebook, Twitter, Myspace, or any other electronic network.<\/li>\n<\/ul>\n<p>The protected persons are free to contact the defendant and often do, putting defendants in the awkward position of wondering if they will violate the order if they respond by answering the telephone or sending an electronic reply. Telephone contact is complicated when young children do not have a phone; the defendant has no idea before answering the phone if it is a protected person calling or the defendant&#8217;s child. Another complication frequently arises because custody orders often allow defendants to contact by telephone their children when they are in the custody of a protected person. The protected persons can then claim the defendant was contacting them. I was sentenced to six months of intensive domestic violence probation when I tried three times one evening to talk to my daughter as specifically allowed in a custody order and the same way I had been doing for over a year.<\/p>\n<p>In another example, an incarcerated defendant&#8211;his estranged wife, the protected person, invited him over to see his daughter&#8211;included in a letter to his daughter a note to the protected person asking her to encourage the daughter to continue to write. The defendant thought this was okay because it was a matter concerning the child. However, he was sentenced to six additional months in jail because the PFA order said contact concerning the child could be by text message or email only, an option he did not have in jail.<\/p>\n<p>A father, subject to a PFA order, who had custody of his young daughter one evening went to the drug store to buy something to relieve the daughter&#8217;s pain from teething so she could sleep. Not sure which product to purchase, he sent a text message to his estranged wife, the child&#8217;s mother, and the person protected by the PFA order, asking for advice. Unfortunately, this message was sent shortly after 9:00 p.m., violating the time-restricted provision for contact concerning the child. The court sentenced the father to six months in jail.<\/p>\n<p>When there are (absolute) no contact clauses between people that have been married many years and whose lives are intertwined tightly, issues involving finances, custody, insurance, and housing are challenging to handle. The lawyers can act as intermediaries, but they are expensive and not always available for time-sensitive issues. Lawyers cost roughly $180 per hour in Centre County and typically bill in 10-minute increments. Thus, a straightforward communication&#8211;e.g., &#8220;The electric company still has my phone number on record and needs you to call to change it.&#8221;&#8211;will cost a minimum of $40 to pass from the defendant to the defendant&#8217;s attorney to the protected person&#8217;s attorney to the protected person. All these routine matters of people trying to uncouple their lives in a divorce can add substantially to an already substantial legal bill.<\/p>\n<p>The communication of time-sensitive matters is at the mercy of overburdened lawyers, simply away or out of contact. For example, when Penn State removed Rita from my health insurance, I could not ask the insurance provider or the employer to call her because third-party contact is not allowed. I notified my attorney ($20), who responded that Rita&#8217;s attorney was away and out of contact for two weeks. I asked my attorney ($20) to contact the protected person directly, but the attorney refused because it might be considered third-party contact. I then told my ex-brother-in-law, posing on Facebook as his wife, a friend of mine from high school, that Rita was uninsured and likely unaware of this. Even though I did not explicitly ask my friend to contact the protected person, RitRita&#8217;sother told her. Rita contacted the police, and I was arrested and sentenced to two months in jail, four months of intensive domestic violence probation, and fined $1000.<\/p>\n<p>The restrictions on posting remarks concerning the protected person on any electronic network severely restrict a defendant&#8217;s right to free speech and go far beyond the normal limits of free speech that have criminal&#8211;terroristic threats, etc.&#8211;or civil&#8211;defamation, slander, libel, etc.&#8211;consequences. While I am unaware of a court convicting anyone for doing so, this provision, in most orders, prevents the defendant from sending emails concerning the protected party to anyone, including the defendant&#8217;s attorney. Any document stored in the cloud by the defendant that mentions the protected person could lead to a jail sentence.<\/p>\n<p>I was jailed for five months because I titled a link to a password-protected document for my attorney &#8220;Rita Calling.&#8221; My attorney was the only one with the password, and the post was an analysis of data showing how Rita was frequently calling me. Rita, for whatever reason, did an internet search for my name and discovered the link; I was unaware search engines were indexing the page as there was a &#8216;robots.txt&#8217; file explicitly saying not to. Rita then notified the police, who arrested me. Doing this would be like putting someone in jail because he left a paper on a table in his house with the protected person&#8217;s name on it and the protected person discovered it by looking in the defendant&#8217;s window. Provisions like the one addressing social media posts should clarify requirements by at least saying &#8220;or any other <em>public<\/em> or <em>social<\/em> network.&#8221;<\/p>\n<p>The reasons for these additional provisions are clear. Judges put no contact clauses in the orders because it is often difficult to determine what is abusive and what is not. Something that in one situation may not be abusive could, in another, be highly abusive. Likewise, the provision concerning posting about the protected person on social networks is undoubtedly necessary as a great deal of mental and psychological abuse can occur there. However, in trying to cover every possible situation that may arise and every possible avenue abuse might flow, conduct not intended to be abusive is a violation of the order. If the order were an order protecting someone from abuse, as the title specifies, none of this would be an issue. Hearings should be concerned with determining if the defendant&#8217;s conduct was intentionally abusive. Instead, judges do not want to be burdened by these difficult decisions and write orders with absolute and far-reaching provisions.<\/p>\n<p>Less ambiguity in the order is better for the defendant. However, there will always be ambiguities in court orders, so there are hearings. A provision allowing contact &#8220;concerning the children&#8221; is highly ambiguous. I was interrogated by the police but not charged with a violation because I sent a message stating, &#8220;Why are you treating me this way?&#8221; that Rita forwarded in isolation to the police. Fortunately, I had the entire conversation stored on my phone and showed the police that it was part of a conversation discussing taking the children to school.<\/p>\n<p>If judges wrote the orders to prevent abusive behavior, provisions should clarify that only abusive non-physical contact and posted remarks should be violations. The hearing should be the forum for a judge or, better yet, a panel to determine if the behavior was abusive. The commonwealth would argue why the behavior was abusive, and the defendant could say why it was not. Unfortunately, PFA violation hearings are clogging many courts, and judges do not want to take the time or effort to make these determinations. It is a tricky problem exacerbated by having a single, publicly-elected official, i.e., a judge, burdened with this job.<\/p>\n<h3>The Court as Jury<\/h3>\n<p>Because a defendant charged with a violation does not have the right to a trial by jury, the judge who issued the order and officiated the hearing also is the jury, deciding the verdict. Thus, one person is making the decision, not a collection of 13 peers, who can only hold the defendant accountable for what the judge wrote in the order and not what the judge intended to write.<\/p>\n<p>The people elect judges in the U.S.&#8211;the U.S. is one of only two developed countries that elect their judges, the other being Uruguay. Thus, they are also politicians thinking about reelection. Not only are defendants not afforded the benefit of the collective opinion of 13 unbiased peers, but they are also not given the benefit of peers that can remain anonymous and outside of public scrutiny. A judge does not have the advantage of anonymity when rendering a verdict.<\/p>\n<p>If they find the defendant guilty, then at most, a handful of people&#8211;and potential voters&#8211;are upset. If a judge finds the defendant not guilty and, heaven forbid, the defendant then hurts the protected person; the entire electorate will be upset at the judge; this has happened. Likewise, when deciding whether to issue an order, judges inevitably think about the political ramifications should they deny it, and someone later gets hurt which has also happened.<\/p>\n<p>You would like to think judges put justice above their careers, but in rural areas of Pennsylvania, judges&#8211;who make $180,000 per year&#8211;earn far more than they would as an attorney. Not being reelected would mean an unwelcome lifestyle change. Thus, it is only human nature that judges make with their and their family&#8217;s well-being in mind.<\/p>\n<p>The sole and non-anonymous juror is a judge who is hesitant to make tough decisions because they might not be popular with the electorate. One would think that an order protecting someone from abuse would require any acts violating the order to be deemed abusive somehow. However, anyone subject to one of these orders quickly realizes&#8211;per the examples here&#8211;that &#8220;no contact&#8221; does not mean &#8220;no abusive contact,&#8221; and &#8220;post no remarks&#8221; does not mean &#8220;post no abusive remarks.&#8221; The original statute-suggested provisions require the defendant to refrain from abusing, harassing, stalking, threatening, and attempting to cause physical harm. Judges have alleviated the burden of deciding if an act was at all abusive by adding provisions that relieve them from determining whether something was abusive or not. Judges have taken the LegLegislature&#8217;stent to stop abuse and turned it into black-and-white rules that exempt them from making common-sense determinations. If judges used some common sense as the Legislature intended, things would not be so bad.<\/p>\n<p>People might be surprised that, given the chance of six months in jail, a defendant would have the right to a trial by jury and due process. However, The Act specifically precludes a trial by jury. The case Eichenlaub v. Eichenlaub, 1984, challenged this portion of The Act. Following U.S. Supreme Court decisions, the Superior Court ruled that if the maximum sentence is six months or less, then the defendant does not have a right to a jury trial. For comparison, in Pennsylvania, all but summary, i.e., very minor, offenses have a statutory maximum sentence of at least one year; more on this later. Thus, although the maximum penalty is rarely ever given or suggested by official sentencing guidelines, anyone charged with even the simplest of misdemeanors has a right to a trial by jury.<\/p>\n<h3>\u00a0The Court as Judge<\/h3>\n<p>The courts, of course, include the judges in any hearing concerning a potential violation of a PFA order. This judge is most likely the same person who wrote and issued the order; most courts attempt to assign the same judge. Thus, the same person who makes the rules\/provisions interprets them to decide what was meant by the rule\/provision, not what was written and understood by the defendant. There is an excellent reason that in this country, both federally and in all states, the Legislative branch&#8211;which makes the laws&#8211;and the Judicial branch&#8211;which interprets and enforces the laws&#8211;are separate. Oddly, in domestic abuse issues in Pennsylvania, it is not only the same body but likely the same person making, interpreting, and enforcing the &#8216;laws.&#8217;<\/p>\n<p>Judges will often provide examples of abusive behavior when granting a PFA order. All the examples I have heard or seen in transcripts would be at least somewhat abusive: &#8220;Don&#8217;t say that she&#8217;s a terrible mother on Facebook,&#8221; or &#8220;Don&#8217;t be throwing rocks at her house,&#8221; or &#8220;Don&#8217;t smash the windows on her car,&#8221; or &#8220;Don&#8217;t call and threaten her,&#8221; etc. The judges never give trivial (<em>de minimus<\/em>) examples like those highlighted here, even though they have no problem giving defendants relatively long prison sentences for such violations.<\/p>\n<p>As they do in most jurisdictions in this country, the judge also is the person determining a sentence. I have no problem with this in principle. However, in practice, sentencing in PFA violation hearings differs from any criminal case. In typical criminal proceedings, the trial to determine guilt or innocence is entirely separate from the sentencing phase. There are usually several weeks between the end of a trial and, if necessary, the sentencing hearing. This time allows a defendant to mount a vigorous defense during the trial phase to convince the jury that the defendant committed no crime.<\/p>\n<p>In a PFA violation hearing, the sentencing portion occurs at the end of the hearing should the defendant be found guilty. I&#8217;ve never seen or been a part of a legal proceeding where the trial and the sentencing were separate. In every case, the judge has said, &#8220;I find you guilty and sentence you to&#8230;&#8221; This format makes it very hard for the defendants who need to argue that they are innocent <em>and<\/em>, should they be found guilty, what sentence should be appropriate. Each attorney will usually offer a recommended sentence during the brief closing arguments. The defendant&#8217;s attorney is again left, assuming the judge will find the defendant guilty. This assumption probably isn&#8217;t reasonable because I&#8217;ve never been part of or heard of a violation hearing in which the defendant was not found guilty.<\/p>\n<p>Thus, the idiom &#8220;Judge, Jury, and Executioner&#8221; applies in Pennsylvania. The best definitions I found of this phrase are someone with full power to judge and punish others unilaterally or someone in charge of every decision made with the ability to be rid of whomever they choose. That seems to be precisely the role of judges in domestic abuse cases. It&#8217;s interesting to note the negative connotation of this phrase in American society. We believe that having someone being the judge, the jury, and the executioner is terrible for a society to work. However, that is <em>precisely<\/em> how it works in Pennsylvania.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>There is a long history of the Pennsylvania legislature and its courts battling over how much power the Legislature has to dictate how the courts handle contempt issues. For almost 200 years and until Commonwealth v. McMullen, the courts allowed the Legislature to intrude on and regulate this authority. According to Sodroski: In connection with [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_oasis_is_in_workflow":0,"_oasis_original":0,"inline_featured_image":false,"footnotes":""},"class_list":["post-869","page","type-page","status-publish","hentry"],"jetpack-related-posts":[],"jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/unstablefocus.mynetgear.com\/index.php?rest_route=\/wp\/v2\/pages\/869","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/unstablefocus.mynetgear.com\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/unstablefocus.mynetgear.com\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/unstablefocus.mynetgear.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/unstablefocus.mynetgear.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=869"}],"version-history":[{"count":37,"href":"https:\/\/unstablefocus.mynetgear.com\/index.php?rest_route=\/wp\/v2\/pages\/869\/revisions"}],"predecessor-version":[{"id":3045,"href":"https:\/\/unstablefocus.mynetgear.com\/index.php?rest_route=\/wp\/v2\/pages\/869\/revisions\/3045"}],"wp:attachment":[{"href":"https:\/\/unstablefocus.mynetgear.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=869"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}