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

8. Other issues

8. Other issues

The US Sentencing Commission (1991) favoured sentencing guidelines over MMS for a number of reasons. To begin with, the guidelines incorporated the MMS as the base-level sentences in their sentencing ranges. The Commission viewed sentencing guidelines as more precise in giving consideration to offence and offender characteristics. While allowing judges to depart from guideline ranges, these departures were rare and certainty of punishment was quite high. On the other hand, the extent of prosecutorial discretion in the case of MMS and the failure to prove all the elements at trial undermine the certainty of punishment and, hence, their potential deterrent effect. The Commission considered MMS a highly blunt instrument, providing low-level drug mules the same sentences as kingpins. As far as inducing the cooperation of defendants with the authorities, the Commission felt that the guidelines achieved this goal just as effectively as the provision for substantial assistance motions in the case of MMS. The guidelines provide for a two-level reduction in the sentence calculation for an offender's “acceptance of responsibility”.

There have been many illustrations of seriously disproportionate sentences under mandatory sentencing laws. A 25-years to life sentence for a shoplifter taking food valued at a few dollars, an individual stealing a slice of pizza on the beach, and a 50-year-old man, with a record of two bicycle thefts as a juvenile, trying to pass a bad check (a hypothetical scenario) illustrate the actual and potential side effects of California's “Three Strikes” law (Owens, 1995). The disproportionate sentences sometimes meted out under mandatory minimum statutes resulted in the enactment of the Violent Crime Control and Law Enforcement Act in 1994 which, among other things, exempted low-level, first-time, nonviolent drug offenders from MMS. The provision instructs courts to follow the sentencing guidelines for this class of offenders, thereby tacitly acknowledging the limitations and excesses of MMS (Oliss, 1995).

Such safety valves are inevitable consequences of very tough legislation. In California, the “Three Strikes” law allows prosecutors to dismiss offenders' prior convictions if they believe the law mandates a seriously disproportionate sentence (Benekos and Merlo, 1995). The hydraulic nature of the justice system (i.e., discretion cannot be removed, only transferred) is also illustrated by the ability of prosecutors to classify borderline offences as misdemeanours rather than felonies, thereby circumventing MMS for repeated felonies. Some prosecutors in California have also reported that victims have occasionally let it be known that they would not testify if a conviction meant the defendant would be subject to the “Three Strikes” law. Jury nullification may also be a side effect of MMS. It may take the form of the refusal to convict due to the view that a penalty is excessive (Harris and Jesilow, 2000). The Romero ruling by California's Supreme Court has added another safety valve by enabling judges to discount previous convictions if justice is thereby served.

Mandatory sentencing laws, such as Canada's minimum terms for murder and California's “Three Strikes” initiative, have also been criticized on the grounds that the discretion of correctional officials to reward good behaviour is severely limited or removed (Owens, 1995). The control of prisoners subject to such sentences is thereby more difficult, producing a potentially more volatile correctional population. Similar side effects include instances in which suspects have resisted arrest and even shot at police officers believing that, if apprehended, they would be prosecuted under a “Three Strikes” law (Benekos and Merlo, 1995). These observations illustrate another hydraulic feature of such laws; the displacement of some violence from the street to the criminal justice system. It has been further argued that the increasing desperation of defendants will lead to more suicides and killings of witnesses, as the harsh sentences leave little room for additional consequences for such actions (Markel, 1996).

The rigidity of MMS results in some grossly disproportionate sentences. The prospects of such disproportionate sentences inevitably lead to compensating behaviours that contravene the sentencing regime. Severe MMS may increase the danger to which police, correctional personnel, and victims/witnesses are exposed as offenders may display more desperation in their attempts to avoid capture or conviction and they may have fewer incentives to behave cooperatively while in custody.

The US Sentencing Commission favours sentencing guidelines to MMS, as sentences are more likely to be proportional to the offence and to take offender characteristics and into account. Sentencing guidelines are also likely to be administered more consistently as they are less likely to be undermined by justice system actors.

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