Mandatory Sentencing Laws Research Articles

Evaluating the (F)utility of Mandatory Minimum Sentencing Laws in Pennsylvania

In the current criminal justice policy sphere mandatory minimum sentencing serves two important purposes 1) they are used as a punitive response to immediate crime concerns and 2) their removal is viewed as a tool to conserve resources, decarcerate, and promote fairness in sentencing. Though much research explores how the passage of these laws relates to crime, the literature has not focused on the public safety implications of removing mandatory minimum sentences. Using a comparative interrupted time-series approach, the present work investigates whether a Pennsylvania Supreme Court decision that invalidated several mandatory minimum sentencing provisions impacted the state’s crime rate. We find little to no evidence of a discrete shift in overall or type-disaggregated crime rates, or changes in the slope of any crime trend when the state reduced their use of mandatory minimums. These findings tentatively suggest that many mandatory minimums can be repealed without risking public safety.

Advice for a New Sentencing Commission

Freshly stocked with members, the Sentencing Commission has the opportunity to push federal sentencing in the right direction. The Commission should press Congress to abolish mandatory minimum sentencing laws. Such provisions prevent judges from imposing individualized sentences, transfer authority from neutral judges to partisan prosecutors, and generate racial and economic disparities, with no particular crime control benefits. While bipartisan support for sentencing reform appears to be growing, “law enforcement lobby” (comprised of prosecutors, prison guards, and police unions) poses a substantial obstacle to significant change. Prosecutors often resist changes that would reduce their bargaining power and corrections officials and others with a stake in prison expansion often support mandatory sentencing laws. The Commission should use its influence to serve as a counterweight to this lobby, recommending changes to Congress that promote individualized sentencing. The Commission should also address the issue by holding hearings around the country and by working with community groups, scholars, and other interested parties. Such actions are entirely consistent with the Commission’s statutory mission and have the potential to make a real difference in improving the fairness, effectiveness, and efficiency of our criminal justice system. What is needed is a full court press.

(How Much) Do Mandatory Minimums Matter?

For decades, advocates, lawmakers, and scholars have lambasted mandatory minimum sentencing laws, especially in the context of federal drug prosecutions. Low-level drug defendants receiving severe mandatory sentences, including life imprisonment, make national news. In 2013, Attorney General Eric Holder attempted to rectify this problem by enacting a sweeping change to mandatory minimum drug charging policy. The policy instructed all federal prosecutors to stop charging mandatory minimums in drug trafficking cases involving low-level, nonviolent defendants. This paper shows that the charging policy did not work as intended. Although prosecutors meaningfully complied with the Memo’s charging instruction, the policy change only modestly reduced sentences for eligible defendants, and it did not reduce racial disparities in sentencing. Why didn’t the policy change work as intended? The paper examines three possible explanations for the findings. First, it argues that the Holder Memo exemplifies a problem I call redundant leniency: rather than focusing on those who could benefit the most from charging leniency, it targeted a portion of defendants who already had and used opportunities to avoid mandatory minimum sentences. Second, it argues that Holder’s reform failed to account for the many ways in which mandatory minimums are reinforced by other aspects of federal criminal law, policy, and practice, a phenomenon I call mandatory minimum entrenchment. Third, I investigate but ultimately reject the hypothesis that spillover effects on ineligible defendants might mask benefits for eligible defendants. I find suggestive evidence of spillovers among a small portion of ineligible defendants—ineligible defendants with at least one eligible co-defendant experienced sentencing reductions in the post-Memo period, while other ineligible defendants do not. The paper concludes by arguing that those hoping to address mass and racially disparate incarceration must implement more systemic reforms.

Message framing to reduce stigma and increase support for policies to improve the wellbeing of people with prior drug convictions

BackgroundIndividuals with drug convictions are at heightened risk of poor health, due in part to punitive public policies. This study tests the effects of message frames on: (1) public stigma towards individuals with felony drug convictions and (2) support for four policies in the United States (U.S.) affecting social determinants of health: mandatory minimum sentencing laws, ‘ban-the-box’ employment laws, and restrictions to supplemental nutrition and public housing programs. MethodsA randomized experiment (n = 3,758) was conducted in April 2018 using a nationally representative online survey panel in the U.S. Participants were randomized to a no-exposure arm or one of nine exposure arms combining: (1) a description of the consequences of incarceration and community reentry framed in one of three ways: a public safety issue, a social justice issue or having an impact on the children of incarcerated individuals, (2) a narrative description of an individual released from prison, and (3) a picture depicting the race of the narrative subject. Logistic regression was used to assess effects of the frames. ResultsSocial justice and the impact on children framing lowered social distance measures and increased support for ban-the-box laws. ConclusionThese findings can inform the development of communication strategies to reduce stigma and advocacy efforts to support the elimination of punitive polices towards individuals with drug convictions.

Mandatory Minimums Sentencing: Psychological Effects on Inmates, Developmental Effects on Children & Delinquency

Mass incarceration is a problem in the United States. Each year, an unprecedented number of people are being incarcerated. Prisons are overcapacity, and the number continues to increase. Strict sentencing structures have contributed to this mass incarceration crisis, including three-strikes-laws, truth-in-sentencing laws, or mandatory minimum sentencing laws. These practices are keeping non-violent offenders in prison for longer than necessary. In addition, the psychological and societal consequences for inmates and their families are destructive, especially for children. This research argues that strict sentencing structures are a strong predictor of future juvenile delinquency by inmates’ children.

(Grossly) disproportionate sentences: Can charters of rights make a difference?

A comparison between United Kingdom (UK) and Australian law concerning grossly disproportionate sentences indicates that human rights charters and/or other strong human rights guarantees in a jurisdiction can produce improved protections for offenders against penal populism. While the relevant Australian case law suggests that there are virtually no restrictions on the state’s ability to enact mandatory sentencing laws in those jurisdictions without a charter of rights, the UK and Strasbourg courts have now made it clear that grossly disproportionate sentences cannot be imposed compatibly with art 3 of the European Convention on Human Rights (‘ECH R’), and that mandatory sentencing schemes are particularly likely to produce breaches of that article. When further developing the law in this area, the UK courts and the European Court of Human Rights (ECtHR) should learn from the relevant North American jurisprudence, avoiding the excessively deferential approach evident in many of those authorities and embracing the Canadian Supreme Court’s more interventionist stance recently in The Queen and Attorney General of Canada v Nur and Charles (‘Nur’). In turn, Nur provides further evidence that, when they are armed with a charter of rights, the courts can make a difference if they are courageous enough to do so.

,,,From Warfare to Welfare: Reconceptualizing Drug Sentencing During the Opioid Crisis

The War on Drugs officially began in 1971 when President Nixon decried drug abuse as “public enemy number one.” The goal of the war rhetoric was clear — to cast drug abuse and the drug offender as dangerous adversaries of the law-abiding public, requiring military-like tactics to defeat. Criminal sentencing would come to be the main weapon used in this pressing combat. In continuation of the war efforts, the Anti-Drug Abuse Act of 1986 was passed under President Reagan, establishing a weight-based, and highly punitive, mandatory minimum sentencing approach to drug offenses that has persisted in some form for the last thirty years. When the Act passed, crack cocaine was touted as the greatest drug threat, and crack cocaine offenders — the vast majority of whom were Black — were subjected to the harshest mandatory minimum penalties. Like any war, the consequences of the War on Drugs has had widespread casualties, including (but not limited to) the devastation of many communities, families, and individuals; the increase in racial disparities in punishment; and fiscal catastrophe in penal systems across the country. What the War on Drugs has not done is eradicate drug abuse in the United States. And now, nearly fifty years after drugs became our national enemy, we have a new face of drug crime — the opioid addict. The current Administration has recognized that “[d]rug addiction and opioid abuse are ravaging America.” However, rather than ramping up punishment for opioid offenders through lengthier drug sentencing, in October 2017 the opioid crisis officially became a Public Health Emergency under federal law. And while it is largely understood that this was mostly a symbolic statement with little practical effect, the rhetoric is markedly different than it was during the purported crack epidemic of the 1980s. Rather than drug offenders being the enemy, the opioid addict has been cast as the American Everyman, and the opioid addiction problem has become known as the “crisis next door” that “can affect any American, from all-state football captains to stay-at-home mothers.” Now that the drug emergency is portrayed as destroying wholesome American communities — as opposed to poor, crime-ridden communities of color — the tone has changed from punishment toward treatment and rehabilitation. The National Institute on Drug Abuse (NIDA) at the National Institutes of Health (NIH) has described opioid misuse and addiction as “a serious national crisis that affects public health as well as social and economic welfare.” While we are in the midst of this shift in messaging about drug addiction, it is an ideal time for drug sentencing as a whole to be reconceptualized from use as a weapon — designed to destroy — to having a public welfare agenda. To do this it requires recasting potential drug offenders as community members, rather than enemies. This change in perspective and approach also necessitates understanding drug crime as undeterred by incarceration. The tasks must be to decide on a goal of drug sentencing, and to develop multifaceted approaches to address and eradicate the underlying sources of the drug problem. When this is done, we may find that more appropriate purposes of punishment — rehabilitation and retribution — compel us to think beyond incarceration, and certainly mandatory minimum sentencing laws, as the appropriate punishment type at all.

Fifty Years of American Sentencing Reform: Nine Lessons

Efforts to standardize sentences and eliminate disparities in a state or the federal system cannot succeed; distinctive practices and norms, diverse local cultures, and practical and political needs of officials and agencies assure major local differences in sentencing practice. Presumptive sentencing guidelines developed by sentencing commissions, however, are the most effective means to improve consistency, reduce disparity, and control corrections spending. Federal sentencing guidelines have been remarkably unsuccessful; they should be rebuilt from the ground up. Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime. Black and Hispanic defendants are more likely than whites and Asians to be sentenced to imprisonment, and for longer; presumptive sentencing guidelines reduced racial disparities initially and over time, but most states do not have presumptive guidelines. Use of predictions of dangerousness to determine who is imprisoned and for how long is unjust; predictive accuracy has improved little in 50 years and current methods too often lengthen prison terms of people who would not have committed violent crimes. Except in the handful of states that have effective systems of presumptive sentencing guidelines, parole release is an essential component of a just and cost-effective sentencing system in the United States.

Land of the Free: Prison Reform Following the War on Drugs

ince its beginnings in 1971, the war on drugs has been largely unsuccessful in reducing drug use. Instead, it has had many unintended consequences, one of which is a huge increase in the federal prison population over the past 40 years. Despite making up only five percent of the world population, the U.S. is home to 25 percent of its prisoners. Since the 1970s, the prison population in the U.S. has skyrocketed due to the implementation of War on Drugs policies. The main reason for the failure of the War on Drugs can be attributed in part to mandatory minimum sentencing laws. Implemented as a part of the Anti- Drug Abuse Act of 1986, these one-size-fits-all policies require a certain punishment based on the amount and type of drug in possession without allowing for flexibility based on context.

“Nothing” Works: Sentencing “Reform” in Canada and the United States

Anthony Doob has documented the evolution of knowledge about sentencing and sentencing policy in Canada since the 1970s, and the social, attitudinal, and psychological forces that influenced them. Except for the enactment, in 1996, of a statute specifying general purposes of sentencing and the enactment of mandatory minimum sentencing laws of limited scope, not much has happened in Canada. By contrast, enormous numbers of changes in law, policy, and practice have occurred in the United States, with mostly negative effects in terms of diminution of justice, crowded prisons, unprecedented imprisonment rates, and worsened racial disparities. Americans would have benefitted from something like Canadian inertia. Canadians have little that is positive and much that is negative to learn from the American sentencing reform experience.

The Resurgence of Character: Criminal Responsibility in the Context of Criminalisation

This paper argues that the standard account of contemporary criminal responsibility as founded in engaged agentic capacities may be in need of revision in at least two respects. First, there is reason to doubt whether assumptions about responsibility as founded in bad character have ever been evacuated from criminal law doctrine in its path towards the refinement of a notion of individual capacity-responsibility. Second, there is particular reason to think that assumptions about character are enjoying a revival in contemporary English (and American) criminal responsibility-attribution in phenomena such as mandatory sentencing laws applying to particular categories of ‘dangerous’ offender; in phenomena such as sex offender notification requirements; in the substantive law, particularly that dealing with terrorism; and in the operation of evidential presumptions, detention rules and the renewed admissibility of evidence of bad character. The paper offers a differentiated conceptual framework for identifying and analysing the waxing and waning influence of ‘character’ in criminal law. Second, drawing on this model, it demonstrates the variety of ways in which contemporary criminal law is marked by a resurgence of ‘character’, paying particular attention to the ways in which this resurgence both resembles and differs from the reliance on ‘character’ typical of pre-modern or 18th Century criminal justice. Third, it sketches an explanation of why we have seen a resurgence of interest in and reliance on ideas of character responsibility. And finally, it draws some conclusions from this analysis for methodology in criminal law theory, and in particular for the appropriateness of a framework which typically distinguishes between issues going to substance and those going to procedure; between issues of doctrinal structure and those of substantive scope; and between questions of responsibility and questions of criminalisation and punishment more generally.

Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform

Recent years have seen significant changes in sentencing law: determinate sentencing schemes and mandatory enhanced sentences have largely displaced discretionary sentencing regimes operating within broad sentencing constraints. Commentators have variously lamented and applauded the advent of both determinate sentencing and mandatory penalties, yet the interaction of these two innovations has been left largely unexamined. Professor Lowenthal provides an analysis of the perverse consequences that ensue when sentencing, guidelines are paired with mandatory sentencing: the very consistency and proportionality that these changes were supposed to engender can be undercut when the two sentencing approaches are combined. Mandatory sentencing emphasizes a single aggravating factor, contrary to determinate sentencing, which directs judges to a whole complex of factors. Mandatory sentencing also is applied unevenly, with those exercising their right to trial often receiving harsher penalties. Thus, a factor that should not be detrimental under determinate sentencing, such as exercising one's constitutional right to trial, is detrimental under mandatory sentencing. In sum, the goals of determinate sentencing-consistent punishment for like crimes and proportional punishment for different crimes-are greatly undermined by mandatory sentencing. Professor Lowenthal concludes by arguing for legislative changes to ameliorate the harsh and undesired effects of mandatory sentencing measures.

Mandatory sentencing and the role of the academic

The 1990s witnessed an increase in the number of mandatory sentences created around the common law world. Australia was part of this trend and along with England1 adopted versions of the United States three strikes laws. Canada also passed a record number of mandatory sentences between 1982 and 1999.2 In Australia during the 1990s, mandatory sentencing laws for property offences were enacted in Western Australia and the Northern Territory in response to a moral panic based on a perception that the criminal justice system was not taking victims rights seriously, and that sentencing courts were passing inconsistent and excessively lenient sentences as a consequence of taking into account factors such as race and socioeconomic deprivation.3 In response, from at least 1998 and through to 2002, there was a plethora of journal articles, conference papers, book chapters, reports and other commentary addressing the issue of mandatory sentencing. The torrent of publications has slowed to a trickle but the themes underlying the debate, namely discriminatory sentencing practices and legislative attempts to promote both consistency and harsher sentences remain.

Making the Crime Fit the Penalty: The Role of Prosecutorial Discretion under Mandatory Minimum Sentencing

This paper empirically documents one way in which prosecutorial discretion may be used to dampen the effects of mandatory minimum sentencing laws. Specifically, prosecutors can use their discretion over prosecution charges to circumvent a mandatory minimum sentencing law for some defendants by prosecuting defendants who were initially arrested for the crime targeted by the sentencing law for lesser crimes not covered by the law. I document the use of such discretion with respect to several state “three‐strikes”‐type repeat‐offender laws imposed throughout the 1990s, and I find that prosecutors become significantly more likely to lower a defendant’s prosecution charge to a misdemeanor when conviction for the initial felony arrest charge would lead to sentencing under a three‐strikes law. Moreover, accounting for such behavior is important, as I show that failure to do so can lead to overstating the effects of these laws on average sentencing by almost 30 percent.

A Pound of Flesh: The Psychological, Familial and Social Consequences of Mandatory Long-Term Sentencing Laws for Drug Offenses

ABSTRACT Since the 1970s individual states in the United States have enacted mandatory long-term sentencing laws for drug offenses. These laws resulted in a 12-fold increase in prison population. The majority of people sentenced under these laws are nonviolent, first-time felony offenders with no or minimal drug use history. Based on open-ended qualitative interviews with 12 formerly incarcerated men and women sentenced for 15–20 years under these laws, the author describes the psychological, familial and social consequences of these mandatory long-term sentencing laws for drug offenses.

Public Opinion and Mandatory Sentencing

All Western nations have passed mandatory sentencing legislation that removes or greatly curtails judicial discretion. These mandatory sentencing laws have proliferated in recent years with predictable consequences for prison populations. A response to public demand for more severe sentencing is one of the justifications for mandatory sentences of imprisonment. In addition, politicians use mandatory sentencing legislation to enhance their standing in the eyes of the public. Politicians appear to assume that the public is strongly supportive of these laws, though scientifically valid surveys are never cited to support these assumptions. This article reviews the international findings from surveys that reveal that the public is deeply divided about mandatory sentencing. Part of the reason for this is that there is more support for proportional sentencing than for utilitarian goals, such as deterrence or incapacitation. In addition, survey data suggest that the electoral advantage of promoting these laws has been considerably overstated.

Race, youth violence, and the changing jurisprudence of waiver.

This article analyzes the legal history and jurisprudential theory of legislative offense-exclusion and prosecutorial waiver laws over the past quarter-century. Initially concerns about racial discrimination and civil rights motivated the Supreme Court in Kent v. United States to require due process in judicial waiver hearings. Offense-exclusion and "direct file" laws evolved and expanded in direct reaction to Kent as lawmakers sought simple and expedient alternatives to judicial waiver hearings. The "just deserts" sentencing movement of the 1970s, which advocated determinate and presumptive offense-based sentences, provided a conceptual alternative to judicial discretion and a jurisprudential rationale for offense exclusion laws. Research on delinquent and criminal careers in the 1970s, which initially promised empirically grounded selective incapacitation sentencing strategies, provided another conceptual foundation for offense-based waiver laws that focused on youths' prior records. Finally, offense exclusion provided a politically attractive strategy for "get tough" public officials who proposed to "crack down" on "baby boom" increases in youth crime. The jurisprudential shift in sentencing emphases from considerations of the offender to characteristics of the offense relocated waiver and sentencing discretion from judges to prosecutors. By the early 1990s, as a result of political "crack-downs" on youth crime, the scope of excluded offense legislation increased substantially, became overly inclusive and excessively rigid, and exhibited many of the negative features associated with mandatory sentencing laws.

Australia's Mandatory Sentencing Laws, Ethnicity and Human Rights

AbstractNo Abstract

Sentencing and the practice of peacemaking*

Almost all major court systems are now beset by a range of problems relating to sentencing policy and practice. These include crowded dockets that result in minimal consideration of individual sentencing decisions, a limited range of sentencing options, and mandatory sentencing policies that unduly restrict judicial discretion. These policies have contributed to dramatic increases in prison and jail populations. Several policy changes would help create a more rational and effective sentencing system: establish a more individualized approach to the sentencing of offenders; repeal mandatory sentencing laws and other overly restrictive sentencing policies; and, reallocate resources between the criminal justice system and other societal institutions.

Evaluating Effects of Changes in Gun Laws

Research on the public health consequences of changes in gun laws is difficult because of the large number of potentially confounded variables. As an analysis strategy, interrupted time series require fewer and easier assumptions because the preintervention period provides a baseline against which to judge the effect of an intervention. This article describes a methodology for interrupted time series analysis of gun control laws and illustrates it with studies of mandatory sentencing laws in six cities and a restrictive licensing law in the District of Columbia.