Sentencing: Mandatory and Mandatory Minimum Sentences
SENTENCING: MANDATORY AND MANDATORY MINIMUM SENTENCES
Supporters of mandatory sentencing assert that these laws achieve deterrence and incapacitation with more certainty than sentencing under other structures. Mandatory penalties are designed to eliminate judicial discretion in choosing among various punishment options, under the assumption that judges are too lenient and that offenders are therefore neither generally deterred from crime nor specifically deterred because some are not incarcerated long enough to prevent persistent criminality (Shichor and Sechrest).
Mandatory sentencing laws require judges to sentence the convicted offender to specific prison term of a fixed number of years. Usually this means that an offender must serve at least some absolute minimum prison term before becoming eligible for parole (some laws also preclude parole). The requirement is triggered when the offender is convicted of a particular charge. Although this approach may appear simple and straightforward, there is wide variation in how these laws are applied. The variation is mostly attributable to the exercise of discretion by criminal justice actors other than judges: prosecutors and parole boards. A prosecutor's decision whether to charge a crime to which a mandatory sentence will attach varies depending on local prosecutorial charging policies and plea bargaining practices, and the actual charge of conviction is somewhat flexible in a plea bargain. Decisions to release an offender from prison can depend on whether the particular statute allows parole reductions to apply to the mandatory sentence once it is handed down, and on whether "good time" or work release credits may apply. It is often said that discretion removed from one component of the justice system will reappear elsewhere, and mandatory sentencing is the prime example (McCoy).
Types of mandatory penalties
Mandatory sentences differ from determinate or guidelines sentences because they include no range of years, however narrow, within which a judge has discretion to set a prison sentence. Upon conviction, the judge is required to set the exact sentence enunciated in the law. This can be a prison term required for committing a particular offense, or it may be an "add on" term of years appended to a normally determined prison term. An example of the former type of mandatory minimum is the common three-strikes law, in which a third felony conviction means that the "three time loser" will automatically be imprisoned for life. State laws vary significantly as to which offenses count as "strikes" and whether parole from a life term is permissible (Clark, Austin, and Henry). An example of an "add-on," or enhancement of the base sentence, is a requirement that a person who has used a gun to commit a felony will receive a prison term for the "predicate" felony, and then have an extra year of prison time added for use of the firearm. Another type of law regarded as mandatory sentencing requires each offender to serve a set percentage—usually 85 percent to 100 percent—of whatever prison term the judge imposed under the existing sentencing law (Ostrom et al.).
The concept of mandatory minima usually refers to prison terms, with the "minimum" understood as referring to months or years of incarceration. However, the approach can also be seen in laws that forbid judges to grant probation, and/or which mandate jail terms. An example is a law from the Northern Territory of Australia requiring judges to send juveniles to jail, forbidding probation or any alternative correctional program, upon conviction for any felony. In March 2000, a report from the United Nations Human Rights Commission stated that mandatory jailing of juveniles violates the Convention on the Rights of the Child. The United States has not signed these international treaties and is thus not bound by them, nor by legal standards in most developed nations, which regard mandatory sentencing as a violation of due process or as punishment disproportionate to the crime.
History and legality of mandatory minima
Mandatory sentencing is not new. Sentencing "enhancements" for habitual felons have been used in most states for decades (Austin et al.) and the idea can be easily traced back to Dickensian England and, no doubt, earlier (Simon). The difference, if any, lies in the fact that modern mandatories often purport to eliminate discretion; by contrast, mercy from the judiciary or executive was explicitly possible, historically. In a particularly stark application of the modern notion of mandatory sentencing, several states enacted mandatory death penalty statutes after the U.S. Supreme Court had placed a moratorium on capital punishment in Furman v. Georgia, 408 U.S. 238 (1972). The Court struck these down as a violation of individualized justice in favor of a system in which death would be imposed on a convicted murderer only if an "aggravating factor" was alleged and proven to the trial court's satisfaction (Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976)). In a line of case law that seems contradictory, however, the Supreme Court upheld a Texas mandatory three-strikes law when it required that life imprisonment be imposed on an offender who had committed three minor thefts (Rummel v. Estelle, 445 U.S. 263 (1980)). Perhaps the contradiction is resolved by the fact that, as Chief Justice Rehnquist pointed out in the majority opinion, parole from the life term was possible under the Texas statute. Contemporary three-strikes laws, however, have withstood individualized justice/due process and disproportionality challenges based on the Eighth Amendment's prohibition of cruel and unusual punishment, even though these statutes seldom permit parole (Zeigler and Del Carmen).
Soon after Rummel was decided in 1980, political campaigns and popular sentiment in favor of mandatory sentencing laws became widespread throughout the nation. In the 1980s and 1990s, demands for harsher and more certain sentencing became extremely popular. A grassroots campaign by Mothers Against Drunk Driving in the early 1980s, which successfully changed laws nationwide so as to require mandatory jail terms for drunk drivers, began the trend. Recognizing an emotionally appealing way to establish themselves in electoral politics as tough hard-liners, and thus to harness popular alarm over the high crime rates of the 1970s, political candidates promised to pass tougher and tougher sentencing laws if they were elected. They were and they did (Tonry, 1996).
Media portrayals of crime and criminals heightened the fears. Media outlets may encourage "moral panics" by demonizing offenders, drumming up widespread anxiety, and riding the wave of public concern with high viewership ratings and ad revenues. Although the media's influence on policy is not clearly causal—many factors influence lawmaking and public opinion—it is almost always present to some degree in the development of mandatory sentencing legislation. A news cycle can begin with "a preexisting social construction of predator criminals" from the entertainment media (Surette, p. 194) to which is added news of a horrific crime in some locality, which is widely reported nationally and thus dramatized everywhere as an ongoing firsthand threat. The media coverage can create "victim heroes" and build politicians' careers when they promise tough sentencing (Surette, 1996). (The instantaneous spread of three strikes law in twenty-four states is attributed to such a cycle, sparked by the kidnap/murder of young Polly Klaas in Petaluma, California.) Sometimes the furor addresses sensational crimes that were indeed very serious but that already had very heavy punishments on the books; in such cases, reformers have demanded abolition of parole or additional controls such as community notification when an offender is released. Examples include the Washington state sexual predator law and "Megan's Law" in New Jersey.
Sometimes the crimes at issue, however, had not previously been regarded as sufficiently serious as to deserve lengthy imprisonment, and these are the most controversial. The prime example is the federal requirement that a person convicted of possessing a half kilogram (500 grams) or more of powder cocaine will be sentenced to five years in prison with no parole eligibility. In comparison, just five grams of crack cocaine qualifies for the five-year mandatory term, and this increases to ten years for 50 grams of crack. In the federal criminal justice system, mandatory minima provisions for drug-related activities carry penalties ranging from five years to life (United States Sentencing Commission). These laws emerged from the cocaine scare of the late 1980s, as did many state statutes, but they presented a somewhat different legislative dynamic than the mandatories that were sparked by sex crimes or repeat offending. Although the cocaine-induced death of Maryland basketball star Len Bias in 1986 served perhaps as the horrific event that galvanized this media frenzy, drug use and trafficking is a market whose victims are in some sense consenting. Punishing these criminals with very harsh prison sentences, at least those who are cocaine users and smalltime dealers, initially was regarded as too heavy-handed. But here the issue of race as "the demonizer" enters into the lawmaking equation. Crack cocaine was disproportionately used and sold in minority neighborhoods, while a higher percentage of white suburbanites favored the powder form. Critics of the federal mandatory sentencing drug laws claim that the severely harsher penalties for using/dealing crack versus powder cocaine—a defendant must have possessed one hundred times more powder than crack to be eligible for the five-year or the ten-year mandatory sentence—are correlated with probabilities that an arrested user or dealer will be a member of a racial minority (Tonry, 1995). One study concluded that black offenders received longer sentences than whites not because they were sentenced differently under identical conditions, but because they, not whites, were the ones charged and convicted of trafficking in crack (McDonald and Carlson).
Vigorous criticism of mandatory sentencing has come from scholars, news commentators, groups like Families against Mandatory Minimums, and even the U.S. Sentencing Commission itself when it asked Congress to amend the laws applying to cocaine use. But repealing these penalties is almost impossible politically. Any politician who would do so would immediately be attacked as "soft on crime." In practice, however, the laws have not necessarily had the draconian impact their drafters said they would, at least not in all cases.
Impact of mandatory minima on prosecution and sentencing severity
Any evaluation of how sentencing laws work must take into account how they affect pretrial procedures. This is so because mandatories apply only when an offender is convicted of crimes specified in the legislation, while investigation or evidentiary challenges might point to charges that do not carry the mandatory. Nearly unanimously, studies of the impact of mandatory minima have concluded that their most severe aspects are often moderated in pretrial decisions by prosecutors and defenders who do not believe all offenders deserve the heaviest punishments (Tonry, 1996). For their part, accused defendants are reluctant to plead guilty when the probable sentence will be the harshest possible. Still other impact studies have noted that under some mandatory sentencing laws (for example, some states' three-strikes laws) the justice system can continue functioning mostly as it had before the laws were passed, because the legislation in question did not make drastic changes. Despite the political campaigning surrounding their passage, offenders to whom they applied would have been required to serve very long prison sentences under already existing laws, so the mandatory minima added only a small amount of additional incarceration for a fairly small number of offenders. This is so in states with three-strikes laws that apply only to serious felons, but others, such as California's, cover all felonies of any degree of seriousness and thus have been the subject of prosecutorial discretion (Austin et al.).
Many important issues of equity and proportionality remain, because the conditions and criteria under which prosecutors agree not to seek the harshest penalties are mostly unreviewable and might produce racially or economically disparate outcomes. Furthermore, the role of the judiciary becomes weakened while that of prosecutors, whose decisions about charging determine the applicability of the mandatories, becomes dominant. In the majority of U.S. jurisdictions, judges do not participate in guilty plea negotiations, so the judiciary has little influence over charging (Feeley and Kamin). When a defendant is brought into court charged with a particular crime that carries exposure to a mandatory sentence, the role of the judge is generally limited to accepting the guilty plea or presiding over a trial, and upon conviction imposing the prescribed sentence. Under such a system, the prosecutor's charging decision usually determines the sentence. However, some impact studies from the late 1970s on the application of "add-ons" found that "by a mix of constitutional challenges, motions to quash the charge, sentence negotiations, and adjustments, waiver trials, and other techniques," the system managed to produce sentences roughly similar to those that had prevailed prior to passage of the mandatory sentencing law (Heumann and Loftin, p. 426). Occasionally, the most rigid features of a mandatory sentencing law are loosened when experience indicates that judges should have some discretion. This was the case in California, when the state Supreme Court decided in 1996 that judges had the discretion to determine what should count as a prior felony under the 1994 three-strikes law (People v. Romero, 917 P.2d 628 (1996)). Generally, however, the intent of these laws is to eliminate or at least severely constrain judicial discretion, and to a great extent this has indeed been their impact.
One way to conceptualize the effect of mandatory minima on criminal court procedures is to imagine the timing of major decisions shifting from the time of conviction and sentencing to much earlier stages of case processing. Often, police are interested primarily in certain convictions and short jail terms for lower-level drug dealers—which effectively disrupt the economy of open-air drug markets—but are not necessarily willing to endure paperwork and trial testimony to achieve mandatory punishments. Under those conditions, they choose to book suspects for crimes that do not carry a mandatory sentence, such as simple possession of small amounts of drugs. Prosecutors may agree more readily to diversion programs and even outright case dismissal when defendants are not as dangerous as the incapacitative sentencing policy apparently assumes they are (Parent et al.). The most significant procedural stage in terms of numbers of cases affected and potential impact on sentencing outcomes is plea negotiation and the defendant's decision to plead guilty or go to trial. Few defendants will plead guilty to charges carrying mandatory life sentences, but will instead go to trial under the assumption that they have nothing to lose and a jury might find fault with some aspect of the prosecution's case. (Jury nullification of mandatory sentencing is seldom an issue, however, because under the law in most states juries decide on guilt and judges set the sentence.) In some jurisdictions, for some types of mandatories, trial rates increased dramatically. However, in most scenarios the effects of the mandatory minima requirements are blunted in plea negotiations. The factors that trigger a mandatory minimum—use of a gun, amount of drug possessed or sold, a third felony conviction, and so on—must be proven beyond a reasonable doubt in order for a mandatory to be held to apply. In plea bargaining, these factors are somewhat flexible depending on how strong the proof is and what the punishment would be if the defendant were convicted of a crime not covered by the mandatory (Parent et al.). In the case of three-strikes laws, for instance, defenders vigorously advocate for their clients when the prior felony is of low seriousness, if it was committed when the offender was a juvenile, or when it was committed a long time ago. Under these circumstances, prosecutors often agree to allow the defendant to plead to a misdemeanor requiring jail time but not triggering the "strike," especially when the process of getting the criminal records and proving the priors is quite labor intensive (Cushman).
Another significant impact of mandatory minima on plea bargaining is inducement of defendant cooperation. A prosecutor who wishes to obtain incriminating evidence often turns to the most accurate source: the criminals themselves. A defendant who will "snitch" on co-defendants will be rewarded with sentencing concessions. Often, the most efficient and easily understood reward a prosecutor can offer a "cooperator" is the promise not to charge crimes that carry the mandatory sentence. This practice is widespread in the federal system especially, where about half the offenders now sent to federal prison have been convicted of drug crimes, and the mandatories for gun use also often apply. However, a 1993 General Accounting Office report determined that 15 percent of cases involving offenders actually convicted of violating a federal statute carrying a mandatory minimum did not receive the prison time, because they had given "substantial assistance to government authorities" (Caulkins et al.). Moreover, the percentage of suspects who negotiate a "pre-bargain" to charges not carrying a mandatory, in return for testimony or other evidence, is even larger but cannot be measured from public databases.
Finally, one type of mandatory minimum influences the "end" of the system, that is, the parole decision, by requiring that offenders serve a minimum of 85 percent of any term of imprisonment. These truth in sentencing laws proliferated after Congress promised in the 1994 Crime Act to give money for prison construction to any state that would pass an 85 percent law (Ostrom et al.). Many did, though their statutes vary as to which crimes carry the 85 percent requirement. The impetus for these laws was quite different from the typical "horrific crime/media coverage/lawmaker embrace" background of many state mandatory minima laws. Advocacy from the federal government sparked the movement, modeled on the 1984 Sentencing Act, that instituted the federal sentencing guidelines and also remodeled the parole system by requiring 85 percent of every prison term be served. As might be predicted from experience with other mandatory sentencing laws, 85 percent truth in sentencing has not been applied mechanically. In New Jersey, prosecutors and judges often agreed to sentence offenders at lower base terms of imprisonment than had been typical prior to the law's passage, but when the 85 percent requirement was then calculated the final mandatory sentences to be served were longer on average than before (McCoy and McManimon). In sum, the effect of the law was to increase sentencing severity, but not as much as its supporters had expected.
The latter statement is a fair summary of the effect of all these laws. Mandatory minimum sentencing laws have drastically affected the operation of the various components of the justice system, which have adapted so as to ameliorate their harshest aspects. However, this also means that these laws have not caused the full incarcerative effect that their drafters apparently wanted. A great proportion of offenders eligible for mandatory sentences do not receive them; however, on the whole, these offenders are probably punished more severely than they would have been had the mandatory sentences not acted as threats hanging over their guilty pleas. A much smaller proportion of offenders are actually sentenced under these laws. For them, there is no doubt that punishments are more severe than had been typical prior to these laws' implementation.
Effects of mandatory minima on crime
Of course, the entire point of mandatory minimum sentencing is crime reduction. To these laws' supporters, their narrower applicability than expected or their adverse impact on the justice system matter little as long as the laws serve the greater good of preventing serious crime. But it is difficult to prove a deterrent effect, and it is hard to know definitely whether any observed drops in the crime rate were caused by strict laws, strong economies, age-crime curves, or some other factors that have been said to influence crime. Furthermore, what we do know about the general deterrent effect of legislation is that it works best on people who have something to lose if they are punished; the rational choice is to be deterred, unless one is so poor or emotionally disturbed as to have nothing to lose by breaking the law. We also know that rational criminals are deterred more by the likelihood that they will be caught at all than by the severity of possible punishment. Finally, the deterrent effect of severe mandatory minimum laws is predicted to be weak because the people against whom they apply—recidivists, drug users and dealers, violent felons—are the type of offenders whose criminality defines their lifestyles and choices. Thinking about possible punishments deters few of them from the much more powerful daily rhythms of a way of life (von Hirsch and Ashworth).
The incapacitative as opposed to general deterrent effects of mandatory sentencing are probably more powerful. A felon in prison cannot commit crimes at the same rate as before, and this rate is measurable (Wilson). Economic models based on data from actual offenders demonstrate that the incapacitative effects of three-strikes laws, for example, reduce felony crime. The reductions vary depending on which crimes are covered as "strikes" and how often they will actually be applied (Greenwood et al.). However, over time the incapacitative effects diminish because older offenders serving life terms would not have been involved in crime at that point of their lives (Schmertmann et al.). Furthermore, these benefits are only one part of a traditional cost/benefit analysis. The very high costs of incarcerating so many offenders, and also ancillary social costs—impoverishing families when parents go to prison for life, fostering resentment and distrust of the justice system when mandatories are perceived as needlessly harsh and racially discriminatory—go a long way toward erasing the benefits (Tonry, 1995).
An important study of the effect of mandatory minimum drug sentences reached similar conclusions (Caulkins et al.). Although extremely severe punishments against drug traffickers does disrupt their businesses and prevent them from dealing, the researchers found that conventional enforcement casting a wider "net" of drug confiscation from all levels of drug users and dealers, and much less prison time, would also have incapacitative effects and be more cost-effective. Combining traditional enforcement and sentencing with mandatory drug treatment, they said, would produce the most crime reduction at the least cost (Caulkins et al.).
Such rational arguments have not been the basis for mandatory minima legislation in the past, and politicians are unlikely to embrace them publicly in the future. However, if mandatory sentences over time are applied only to the most serious felons and other correctional options are developed for mid-level offenders, the worst features of these laws may eventually erode.
See also Guilty Plea: Plea Bargaining; Prosecution: Prosecutorial Discretion; Sentencing: Allocation of Authority; Sentencing: Alternatives; Sentencing: Disparity; Sentencing: Guidelines; Sentencing: Presentence Report; Sentencing Procedural Protection.
Austin, James; Clark John; Hardyman, Patricia; and Henry, D. Alan. "The Impact of 'Three Strikes and You're Out.' " Punishment and Society: The International Journal of Penology 1, no. 2 (1999): 131–162.
Caulkins, Jonathan P.; Rydell, C. Peter; Schwabe , William L.; and Chiesa, James. Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers' Money? Santa Monica, Calif.: RAND, 1997.
Clark, John; Austin, James; and Henry, D. Alan. "Three Strikes and You're Out": A Review of State Legislation. Washington, D.C.: U.S. Department of Justice, National Institute of Justice Research in Brief, September, 1997.
Cushman, Robert C. "Effect on a Local Criminal Justice System." In Three Strikes and You're Out: Vengeance as Public Policy. Edited by David Shichor and Dale K. Sechrest. Thousand Oaks, Calif.: Sage Publications, 1996.
Feeley, Malcolm. Court Reform on Trial: Why Simple Solutions Fail. New York: Basic Books, 1983.
Feeley, Malcolm, and Kamin, Sam. "The Effect of 'Three Strikes and You're Out' on the Courts: Looking Back to See the Future." In Three Strikes and You're Out: Vengeance as Public Policy. Edited by David Shichor and Dale K. Sechrest. Thousand Oaks, Calif.: Sage Publications, 1996.
Greenwood, Peter; Rydell, C. Peter; Abrahamse, Allan F.; Caulkins, Jonathan P.; Chiesa, James; Model, Karyn E.; and Klein, Stephen P. "Estimated Benefits and Costs of California's New Mandatory-Sentencing Law." In Three Strikes and You're Out: Vengeance as Public Policy. Edited by David Schicher and Dale K. Sechrest. Thousand Oaks, Calif.: Sage Publications, 1996.
Heumann, Milton, and Loftin, Colin. "Mandatory Sentencing and the Abolition of Plea Bargaining: The Michigan Felony Firearm Statute." Law and Society Review 13 (1979): 426.
Humphries, Drew. Crack Mothers: Pregnancy, Drugs, and the Media. Columbus: Ohio State University Press, 1999.
McCoy, Candace. "Determinate Sentencing, Plea Bargaining Bans, and Hydraulic Discretion in California." Justice Systems Journal 9 (1984): 256.
McCoy, Candace, and McManimon, Patrick. The Impact of New Jersey's '85 percent Truth in Sentencing Law' on Victims' Satisfaction, Prosecution, and Sentencing: Final Report. Washington, D.C.: U.S. Department of Justice, National Institute of Justice, 2000.
McDonald, Douglas C., and Carlson, Kenneth E. Sentencing in the Courts: Does Race Matter? Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics, 1993.
Ostrom, Brian; Cheesman, Fred; Jones, Ann; Peterson, Meredith; and Kauder, Neil. Truth-in-Sentencing in Virginia: Evaluating the Process and Impact of Sentencing Reform. Williamsburg, Va.: The National Center for State Courts, 1999.
Parent, Dale; Dunworth, Terence; McDonald , Douglas; and Rhodes, William. Key Legislative Issues in Criminal Justice: Mandatory Sentencing. Washington, D.C.: U.S. Department of Justice, National Institute of Justice, 1997.
Schmertmann, Carl P.; Adansi, Amankwaa A.; and Long, Robert D. "Three Strikes and You're Out: Demographic Analysis of Mandatory Prison Sentencing." Demography 35, no. 4 (1998): 445–463.
Shichor, David, and Sechrest Dale K. "Introduction." In Three Strikes and You're Out: Vengeance as Public Policy. Edited by David Shichor and Dale K. Sechrest. Thousand Oaks, Calif.: Sage Publications, 1996.
Simon, Jonathan. "Criminology and the Recidivist." In Three Strikes and You're Out: Vengeance as Public Policy. Edited by David Shichor and Dale K. Sechrest. Thousand Oaks, Calif.: Sage Publications, 1996.
Surette, Ray. "News From Nowhere, Policy to Follow: Media and the Social Construction of 'Three Strikes and You're Out." In Three Strikes and You're Out: Vengeance as Public Policy. Edited by David Shichor and Dale K. Sechrest. Thousand Oaks, Calif.: Sage Publications, 1996.
United States Sentencing Commission. Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System. Washington, D.C.: U.S. Sentencing Commission, 1991.
von Hirsch, Andrew, and Ashworth. Andrew Principled Sentencing. Boston, Mass.: Northeastern University Press, 1992.
Wilson, James Q. Thinking About Crime. New York: Vintage, 1985.
Zeigler, Frank A., and Del Carmen, Rolando V. "Constitutional Issues Arising from 'Three Strikes and You're Out' Legislation." In Three Strikes and You're Out: Vengeance as Public Policy. Edited by David Shichor and Dale K. Sechrest. Thousand Oaks, Calif.: Sage Publications, 1996.
Furman v. Georgia, 408 U.S. 238 (1972).
People v. Romero, 917 P.2d 628 (1996).
Roberts v. Louisiana, 428 U.S. 325 (1976).
Rummel v. Estelle, 445 U.S. 263 (1980).
Woodson v. North Carolina, 428 U.S. 280 (1976).