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ENACTMENT OF MANDATORY SENTENCING LAWS

A historically unprecedented number of mandatory sentencing laws were enacted during the 1970s and 1980s. Most involve drugs, firearms, or both. Between 1978 and 1981, forty-nine states enacted mandatory sentencing laws. Every state and the federal government enacted mandatory sentencing laws during the 1980s. In 2000, over a hundred separate mandatory minimum penalty provisions were contained in federal criminal statutes.

Apart from specific offenses that carry mandatory sentences, state and federal sentencing guidelines mandate that judges impose minimum sentences based on the crime committed, aggravating factors, and the criminal history of the defendant. These guidelines increased punishment for criminal offenses and limited judicial discretion in sentencing by identifying the punishment required upon conviction for a particular offense. Many of these statutes eliminated or greatly restricted parole for prison inmates. Congress passed the Sentencing Reform Act of 1984 (SRA). The SRA eliminated parole for federal prisoners and reduced the amount of time off granted for good behavior. The SRA also established the U.S. Sentencing Guidelines Commission and directed it to create a new sentencing system. In 1987, the commission's guidelines became effective.

The popularity of sentencing guidelines in the United States marked a rejection of indeterminate sentencing. Under indeterminate sentencing, judges set maximum lengths of prison sentences, and sometime minimums, but parole boards decide when a prisoner will be released. In contrast, the Federal Sentencing Guidelines shift the focus in sentencing from the offender to the offense. The guidelines categorize offenses and identify the sentence required upon conviction. Judges are allowed to increase or decrease sentences, which are called departures, only if they have good reasons and cite these reasons into the trial record. Upward departures are easy to achieve, as judges are allowed to consider all relevant conduct. This conduct can include the circumstances surrounding the crime, offenses that were committed at the same time as the charged offense but were not charged, prior convictions, and acts for which the defendant was previously tried but acquitted. Federal judges have a more difficult time decreasing a sentence. A downward departure is acceptable if the defendant accepts responsibility for the crime, or committed the crime to avoid a more serious offense. Prosecutors often successfully challenge decreases sentences on appeal.

Mandatory sentencing laws have long been controversial. The American Law Institute, an association of lawyers, judges, and law professors that created the Model Penal Code, a model law on which the criminal laws of nearly half the states are patterned, opposes enactment of mandatory sentencing laws. So does the American Bar Association. In 1991, a survey of U.S. federal judges showed that 62 percent favored repeal of federal laws calling for mandatory sentences in drug cases. Federal and state judges have continued to chafe under these statutory mandates.

OBJECTIONS TO MANDATORY SENTENCING LAWS

Opponents of mandatory sentencing laws oppose them for a variety of reasons. Many judges and lawyers believe that mandatory sentencing laws are arbitrary and sometimes require judges to impose sentences that are unduly harsh. They think that justice requires that sentences be individualized to fit the circumstances of the offender and of the crime. They also think that sentences should vary depending on considerations such as whether the offender was a ringleader or a follower; whether the offender played a major role or a minor one; whether he or she was motivated by greed or poverty; whether a seller of drugs was an addict raising money to support a drug habit or a professional drug dealer; and whether the quantity involved was large or small. A law requiring that anyone convicted of selling more than a small amount of heroin receive a five-year prison sentence ignores all such distinctions.

Opponents also complain that mandatory sentencing laws adversely affect court operations. Because prosecuting attorneys decide what charges to file in each case, mandatory sentencing laws shift power from the judge to the prosecutor. Most crimes are not covered by mandatory sentencing laws. Typically, for example, trafficking in drugs is subject to mandatory penalties, but possession of drugs is not. Since nearly every drug trafficker also possesses drugs, prosecutors can decide which charge to file; a trafficking charge ties the judge's hands; a possession charge gives the judge discretion.

Another objection is that mandatory penalties remove much of the defendant's incentive to plead guilty and thus increase the frequency of trials and lengthen the time required to resolve cases. In most courts, 85 to 95 percent of convictions result from guilty pleas. Many result from plea bargains, in which the prosecutor agrees either to dismiss some charges or to approve a particular sentence if the defendant pleads guilty. If mandatory penalties remove incentives from plea bargains, then trials, backlogs, and delays increase.

Yet another objection is that mandatory sentencing laws sometimes result in deceptive practices on the part of judges. To avoid imposing sentences that they believe are too severe, judges sometimes ignore the mandatory sentence law and impose some other sentence, or acquit defendants of crimes that bear mandatory penalties.

In the context of drug laws, the controversy over disparate mandatory minimum sentences for dealers of crack and powder cocaine has raged since the late 1980s. Under a 1986 federal law, one gram of crack is equivalent to one hundred grams of powder cocaine. The U.S. Sentencing Guideline Commission adopted this ratio when it revised its guidelines that year. However, in 1988 Congress amended the law to establish mandatory minimum sentences for cocaine dealing. Thus, selling five grams of crack cocaine is punishable by a mandatory minimum sentence of five years. To receive the same sentence for trafficking in powder cocaine, a defendant would have to sell five hundred grams. This has resulted in longer prison sentences for small-time crack dealers than for cocaine wholesalers. The federal law and similar state laws have been challenged as violations of equal protection, as African Americans have been charged with more crack cocaine offenses than whites. Similarly, whites have been charged with selling powder cocaine more often than African Americans. These legal arguments have met with little success. By the mid-1990s, the U.S. Sentencing Guideline Commission sought to reduce the disparity in sentencing. As of late 2000, however, it had been unsuccessful in its efforts.

ARGUMENTS FOR MANDATORY SENTENCING LAWS

Supporters of mandatory sentences are not troubled by the harshness of the laws or the fact that they shift power from the judge to the prosecutor. One of the goals of such laws is to assure that the mandated sentence will be imposed whether the judge agrees with the sentence or not. Supporters are troubled by deceptive efforts of judges (and sometimes of prosecutors) to avoid applying them. They argue that judges are wrong to try to circumvent mandatories, that if legislatures pass laws, judges should enforce them whether or not they agree with them. Finally, supporters say they are sorry if mandatory sentencing affects guilty pleas, trial rates, and court delays, but they regard those problems as a price worth paying.

Proponents of mandatory sentencing laws make four arguments. First, that the laws allow legislators to assure citizens their concerns are being taken seriously. Second, that harsh mandatory sentencing laws deter offenders from committing crimes. Third, that certain crimes are so serious that people who commit them should be severely punished and that legislators should insist judges impose severe penalties in such cases. Fourth, that mandatory sentencing laws are a device for assuring that offenders who commit the same crime will receive the same penalty.

RESEARCH ON MANDATORY SENTENCING LAWS

Evaluations of mandatory sentencing laws offer greater support to their opponents than to their supporters. The Panel on Sentencing Research of the National Research Council, the research wing of the National Academy of Sciences, examined all research on mandatory penalties through 1983. Studies on the deterrent effect of mandatory sentencing laws conclude either that passage of such laws has no deterrent effect or that they have a modest deterrent effect that soon disappears. Research on how mandatory sentencing laws affect court operations shows that such laws do shift power from judges to prosecutors, do sometimes result in lower guilty plea rates and higher trial rates, often cause case processing delays, and frequently result in imposition of sentences that the judges and lawyers involved believe are harsher than the defendant deserves. All of these conclusions were reached by the evaluators of the ROCKEFELLER DRUG LAWS in New York State in the mid-1970s.

The conclusions of earlier research were con-firmed by the most ambitious and sophisticated study of mandatory penalties ever completed—a report on mandatory penalties in the U.S. federal courts by the U.S. Sentencing Commission. That study concluded that people convicted of crimes subject to mandatory penalties were two and one-half times more likely to be convicted after trials (30% of convictions) than are other federal defendants (12.5%). The study found that "mandatory minimums transfer sentencing power from the court to the prosecutor," that "honesty and truth in sentencing" are compromised by prosecutors' and judges' efforts to work around mandatory sentences, and that "lack of uniform application [of mandatories] creates unwarranted disparity in sentencing."

Thus, on the major empirical issues about which opponents and supporters of mandatory penalties disagree, the great weight of the evidence supports opponents' views. Empirical evidence, however, cannot refute supporters' normative claims that mandatory penalties should be enacted to assure citizens that their concerns about crime are taken seriously or that certain crimes deserve severe punishment and that mandatory sentencing laws should be enacted to increase the likelihood that such punishments will be imposed. Opponents of mandatory penalties do not necessarily disagree that lawmakers should try to respond to citizens' concerns, or that some crimes deserve harsh penalties; they do believe that mandatory penalties are an ineffective way to achieve those goals.

(SEE ALSO: Civil Commitment; Drug Laws: Prosecution of; Legal Regulation of Drugs and Alcohol; Treatment Alternatives to Street Crime)

MICHAEL TONRY

REVISED BY FREDERICK K. GRITTNER