Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures

6. Mandatory penalties and sentencing disparities

6. Mandatory penalties and sentencing disparities

6.1 General Disparities and the Shift from Judicial to Prosecutorial Discretion

One rationale for MMS is that excessive judicial discretion in sentencing results in unacceptable disparities. Scholars dealing with the issue of disparity have distinguished between that which is warranted and unwarranted. The “unwarranted” form refers to disparities in sentencing that are not accounted for by offender or offence characterisitics. Tonry (1996) has shown that such disparities are an international problem. Roberts (1999:156) has demonstrated that there is “substantial cross-jurisdictional variation” in sentencing in Canada. Furthermore, Palys and Divorski (1986) have documented the presence of unwarranted sentencing disparities through the presentation of a number of scenarios to judges from across Canada. David Daubney, a former MP who headed the House of Commons Committee on Sentencing and Parole in 1988, stated, “ Clearly, the kind of disparity we're seeing is unacceptable and doesn't do anything for the public image of the criminal justice system ” (quoted in Roberts, 1999:156). Proponents of MMS assert that these penalties can minimize such disparities.

Experience with MMS in the US, however, has shown that reducing judicial discretion may merely shift it to police and prosecutors. The police have the power to arrest an individual or let him/her go with a warning. Prosecutors have the power to proceed, dismiss, or stay a charge. Wallace (1993:13) has argued that by removing discretion from the sentencing process, MMS have “succeeded only in shifting it…from the judge, in public proceedings conducted on the record in the courtroom, to the prosecutor's office, off the record and behind closed doors.” The lack of openness and accountability of charging and plea negotiation processes may undermine the integrity of the entire sentencing process. Judges, according to Wallace, have been so limited in their discretion that they have been compelled, at times, to impose wildly disproportionate sentences.

One example of such a sentence is provided by a case in the UK in which a secondary participant in a robbery received a mandatory life sentence under the Crime (Sentences) Act of 1997, as a result of a previous conviction, while the primary participants (lacking a prior record) were given five-year prison terms (Davies, 2000). Furthermore, considerable disparities have been introduced in the US federal system by conferring upon prosecutors the power to unilaterally reward a defendant's cooperation. The defendant's “substantial assistance” in prosecuting somebody else is the only statutory basis for a judge to sentence below a MMS. US Attorneys can define “substantial” as they wish and the beneficiaries of this discount tend to be high-level, rather than small-scale, offenders.

One US federal prosecutor has argued that the reduction of judicial discretion brought about by MMS occurred as a result of grossly inadequate sentences imposed by judges on serious offenders (Baylson, 1993). Such inadequate and disproportionate sentences and the resulting mistrust of the judiciary prompted legislators to enact MMS to ensure the incapacitation of the violent. Baylson adds that exemptions from MMS accorded offenders who provide “substantial assistance” in the prosecution of others allows for the capture, prosecution, and sentencing of co-conspirators who would otherwise evade detection. This lever available to the prosecution yields a net benefit as more high-level offenders are neutralized. Finally, Baylson notes that MMS do not increase prosecutorial discretion--the discretion relating to seeking indictments for multiple levels of crime has always existed--but merely adds teeth to prosecutorial decisions.

Harris and Jesilow (2000) examined the implementation of the 1994 “ Three Strikes ” legislation in six California counties. Interviews were conducted with a total of 96 prosecutors, defence attorneys, judges, high-ranking court administrators, and support personnel. In addition, 226 questionnaires sent to judges, district attorneys, and public defenders across the six counties were analyzed. The study revealed that judges routinely offered second-strike defendants the lowest possible sentence in return for a guilty plea and the district attorney partially nullified the law in one county as he would file Three Strikes cases only when the current offence was serious or violent. The study also showed the critical role played by prosecutors in determining the presence of past “ strike ” convictions in a case. Prosecutors ignore or count the past conviction, depending on whether they believe the case deserves leniency. Approximately 70% of the judges and 90% of the public defenders surveyed believed that prosecutors counted prior convictions as “strikes” too frequently. These actors presumably viewed the outcome in such cases as disproportionate relative to the attributes of the defendant. Overall, the Three Strikes law increased tension between courtroom actors, placed tremendous stress upon public defenders as a result of massive increases in trials, and led to efforts by judges to regain control over sentencing by dismissing prior strikes in accordance with the Romero decision in California. The net effect was that the predictability of case outcomes, a principal rationale of MMS, was undermined.

The United States Sentencing Commission (1991) issued a special report to Congress on the application of minimum penalties. Using sentencing data covering the period 1984-1990, the Commission found that a MMS was not imposed in 41% of the cases in which a charge carrying a minimum penalty was warranted by offence and offender characteristics. In addition, the Commission found that disparity was occurring in two ways. First, similar defendants were being charged and convicted differently. These differences seemed to be based on factors such as race, circuit, and prosecution practices. Secondly, very different defendants, in terms of the nature of the offence and their role in it, were receiving similar reductions below the mandatory minimum provision.

Oliss (1995) expands upon the last-mentioned issue by referring to drug-related provisions. He notes that excessive uniformity in sentencing reduces disparity only in regard to the one factor upon which the system focuses – drug quantity. Attention to only one factor, he adds, creates a misplaced equality that undermines the goals of imposing consistent sentences for similar crimes. He contends that new disparities emerge when judges are prevented from considering the offender's prior record, role in a conspiracy, or culpability. Sager (1999) has further pointed out that the quantity of drugs for which one is charged is also subject to prosecutorial discretion, as police can lay separate charges for each drug transaction or wait until a dealer completes several sales and charge for the total amount of drugs involved. A third source of disparity with regard to MMS based on drug quantity is the large increase in sentences associated with miniscule increases in quantity (US Sentencing Commission, 1991). One-tenth of a gram of cocaine (from 5. to 5.1 grams) can elevate a prison sentence by four or more years under federal provisions in the US.

Lacasse and Payne (1999) assessed the impact of the federal sentencing reforms in the US by examining plea negotiation and sentences in two New York State federal district courts. The authors found that when all offences were considered, guilty pleas actually increased from the pre-reform period (1981-1987) to the post-reform period (1988-1995). The guilty plea rate was the same or lower for offences carrying MMS. As expected, sentence lengths increased in the post-reform era. The increase in sentence length when MMS are imposed paradoxically creates a greater disparity between those cases in which a defendant pleads guilty and those in which a conviction is achieved at trial. Lacasse and Payne found that the discount for a guilty plea was greater after the sentencing reforms as plea sentences, on average, were just 15% of the trial sentences. Surprisingly, variation in sentences actually increased in the post-reform period and were substantial across the two districts. Furthermore, the variation in sentences attributable to the judge increased rather than decreased following the reforms. Thus, this study found that the sentencing guidelines and MMS did not succeed in removing the judge as an influence on sentences.

6.2 Racial Disparity

There is a concern that MMS may be imposed disproportionately upon members of minority groups. Provine (1998) notes that the federal sentencing guidelines, established in the US in 1984 to promote equity and transparency in sentencing, have ironically increased racial disparities. Much of this increasing disparity has been attributed to MMS introduced in the 1980s for selected drug offences. Between 1976 and 1989, white drug arrests grew by 70%, while black drug arrests grew by 450% (Tonry, 1996). Free (1997) has pointed out that African Americans, who in 1990 constituted 28.2% of all federal (US) defendants in the US, accounted for 38.5% of all federal defendants convicted under mandatory minimum provisions. African Americans in the federal system were also more likely to be sentenced at or above the MMS than were white or Hispanic defendants. Maxwell (1999) corroborates the idea of a differential impact of MMS, showing that the number of African Americans, both male and female, sentenced to state or federal prisons between 1985 and 1995 has grown at a faster rate than the number of white Americans of both sexes. Furthermore, Austin (1993) found that the Florida habitual offender law was applied twice as often to black as opposed to white offenders. In California, African Americans constitute only 7% of the state's population and 20% of those arrested for felonies, but they constitute 43% of those sentenced under the Three Strikes law (Schultz, 2000).

Free argues that much of the disproportionate impact of MMS on African Americans has been due to the harsh sentences attached to crack cocaine offences. While crack cocaine consumption is more likely to produce dependence and result in criminality associated with dependence than cocaine hydrochloride, the physiological and psychoactive effects of the two are similar (Hatsukami and Fischman, 1996). The properties of crack do not appear to warrant the substantial difference in the MMS imposed for the two forms of cocaine. Since law enforcement efforts dealing with the traffic in crack are concentrated in lower income and minority neighbourhoods, African Americans are more likely to be prosecuted for these offences. Duster (1995) indicates that it has become an increasingly common practice for police to intercept citizens who fit the profile of an offender and that such profiles have assumed a racial dimension. Also, Provine notes that drug markets operated by blacks tend to be more open and vulnerable to police action than the more clandestine markets run by whites from private premises. Furthermore, Provine asserts that the disproportionate incarceration of black Americans is not due to higher consumption levels as national survey data indicate that 76 percent of illicit drug users in the US are white.

Free adds that racial bias in prosecutorial decision-making becomes a greater concern, as MMS shift greater power to the prosecutorial level. Moreover, MMS are often tied to the defendant's criminal record and African Americans are more likely than their white counterparts to have prior convictions. While criminal records themselves may reflect previous racial biases in law enforcement, they elevate the likelihood that MMS will be imposed on black defendants.

In Western Australia, evidence from the Children's Court indicates that aboriginal offenders are seriously over-represented in three-strikes cases (Morgan, 2000). Such over-representation is thought to be due to both the nature of offences eligible for MMS--those often committed by aboriginal people are more likely to be targeted--and to the more aggressive charging practices used in cases involving aboriginal offenders. In Canada, MMS for various firearms and impaired driving offences are triggered or enhanced for a second conviction. To the extent that aboriginal defendants may be more likely to have a criminal record in some of these areas (Hartnagel, 2000), they will be more susceptible to the imposition of MMS.

Aside from creating disparities in sentence length, MMS may have a different impact upon certain minority groups. Perera (2000) argues that MMS for property crimes in Australia, involving the perpetrator's removal to a remote institution, are particularly traumatic for aboriginal people who have experienced a long history of dislocation and dispersal.

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