On Jan. 22, Judge Samuel Kline sentenced Ashley Menser, a 36-year-old woman convicted of stealing about $110 in goods from a grocery store, to the maximum penalty allowed by Pennsylvania law: up to seven years in state prison.
Menser’s sentence is a glaring outlier. According to charging dockets reviewed by The Appeal, she was the only person charged in 2018 in Lebanon County to receive the statutory maximum sentence for felony retail theft. She will be eligible for parole after 10 months in prison.
The judge chose a state prison sentence in part because the state system is “far more capable of addressing serious health concerns for inmates,” District Attorney Pier Hess Graf said in a statement to the press. Menser, whose case has received national attention, has advanced-stage ovarian and cervical cancer.
Kline’s office told PA Post, which broke the story about Menser’s case, that he would not comment on the sentencing decision. He did not respond to The Appeal.
“We have 1,000 different ways to actually manage this in a far more humane process,” John Pfaff, a Fordham University law professor, told The Appeal. “This didn’t just happen.”
Menser was arraigned on a felony retail theft charge in December 2018. She was previously convicted of several retail thefts, drug charges and a DUI, though she has not committed any thefts since 2018.
She was released on unsecured bail, meaning that if she missed a court appearance, she would have to pay the county $1,000. And in September 2019, she entered an open guilty plea, which meant the prosecutor did not offer her a deal and her sentence was left entirely up to the judge.
Kline adhered to state sentencing guidelines—six to 16 months—in recommending Menser’s minimum sentence. State law requires that the maximum sentence be at least double the minimum, but Kline deviated substantially from the norm, records show, in giving her the maximum seven years. Generally, people sentenced in Pennsylvania to a maximum term of two years or more go to prison, whereas people sentenced to a maximum term of incarceration of less than two years remain in county jail.
The Appeal reviewed nearly 2,000 criminal charging dockets filed in Lebanon County in 2018 and identified 45 cases where the person was charged with felony retail theft.
Menser was one of only seven people sentenced to state prison as a result of a felony retail theft conviction, according to the review. In four of those cases, the person sentenced was already on state parole for a previous conviction and one person sentenced in two retail theft cases was simultaneously sentenced to state prison in a child sexual assault case.
Menser was the only person sentenced to state prison who would not otherwise have been incarcerated in a state facility and who qualified for a county jail sentence.
In several of the felony retail theft cases, judges crafted sentences explicitly to keep individuals in county jail. A man who had a prior criminal history similar to Menser’s was sentenced to two years minus one day in county jail for stealing $340 worth of goods from Weis grocery store, the same store that Menser was accused of stealing $110 in goods from.
Had Kline sentenced Menser to county jail, Lebanon County would have been responsible for her healthcare and would have had to pay for the medical costs associated with her treatment. By sentencing Menser to state prison, Kline shifted the responsibility for her care and the related costs to the state.
“One problematic aspect of our criminal justice design is that county-elected and county-funded prosecutors are able to send people to state-funded prisons and ignore the costs they impose when they do that,” Pfaff said. “Whatever sort of financial concerns that are present, they all could have been avoided by giving her some sort of continuance to take care of this before serving her time in county [jail],” he added.
The state Department of Correction, while potentially more equipped to deal with medical concerns than the county, has also faced lawsuits and criticism over its medical care. Last year, women who were formerly held in state prison spoke to the Herald Standard newspaper in Fayette County, Pennsylvania. They said healthcare workers at State Correctional Institution Muncy were dismissive of medical concerns from at least two women who ultimately died from lung cancer in the prison.
The same day that Kline sentenced Menser, she was supposed to schedule a hysterectomy that she needs as part of her treatment, according to the PA Post.
If Kline had sentenced Menser to less than two years of incarceration, she would have remained in county jail, and Kline could have offered her an immediate re-entry plan so she could continue her treatment with her doctors.
“I sat there and sat there and was like, ‘No, this can’t happen,’” Steve Via, Menser’s father, told PA Post. “She must have this operation or she’s going to die.”
Lieutenant Governor John Fetterman has offered to pay Menser’s restitution to Weis, the grocery store, so that she can see her oncologist.