Mandatory Sentencing.

Series: NIJ Research in Action
Published: January 1997
16 pages
26,179 bytes

U.S. Department of Justice
Office of Justice Programs

National Institute of Justice
Research in Action

Jeremy Travis, Director     
January 1997

Key Legislative Issues in Criminal Justice: 
Mandatory Sentencing

by Dale Parent, Terence Dunworth, Douglas McDonald,
and William Rhodes

-----------------------------

Highlights

Mandatory sentencing enhancements, including the
widely discussed three-strikes laws enacted in a
number of jurisdictions, are aimed at deterring
known and potentially violent offenders and
incapacitating convicted criminals through
long-term incarceration.

Studies have described a number of consequences of
earlier mandatory sentencing laws, including the
following:

o Arrest rates, indictments, plea bargains, and
convictions decline after mandatory sentencing laws
go into effect, while early dismissals, early
diversions, trial rates, and sentencing delays
increase.

o The net probability that offenders will be
imprisoned is unaffected (after all variables are
taken into account).

o For those imprisoned, the length of sentence
increases.

o Studies of sentencing practices in the Federal
courts find no compelling evidence that judges are
unfairly applying mandatory minimum sentences to
racial and ethnic minorities. However, African
Americans receive longer sentences than whites in
the Federal courts, according to one study, because
they constitute the majority of those convicted of
trafficking in crack cocaine, a crime Congress
chose to punish severely.

Three-strikes laws are costly. A study of
California's statute projected that the law would:

o Increase the prison population in California over
the next quarter-century by a factor of three.

o Increase costs during the same period by $5.5
billion per year, on average, for a cumulative
additional cost of $137.5 billion.

o Reduce serious crimes by 28 percent, at a total
correctional cost of approximately $16,300 per
crime averted.

An alternative to mandatory minimum sentencing
provisions, which would protect sentencing policy,
preserve legislative control, and still toughen
sentences for repeat violent offenders, is the use
of presumptive sentences.

Other possibilities include:

o Directing mandatory sentencing laws at only a few
especially serious crimes and requiring "sunset"
provisions.

o Subjecting long mandatory sentences to periodic
administrative review to determine the advisability
of continued confinement.

o Including a funding plan in sentencing
legislation to ensure awareness of and
responsibility for long-term costs.

o Developing policy that makes more effective and
systematic use of intermediate sanctions.

------------------------------

By 1994 all 50 States had enacted one or more
mandatory sentencing laws,[1] and Congress had
enacted numerous mandatory sentencing laws for
Federal offenders. Furthermore, many State
officials have recently considered proposals to
enhance sentencing for adults and juveniles
convicted of violent crimes, usually by mandating
longer prison terms for violent offenders who have
a record of serious crimes. Three-strikes laws
(and, in some jurisdictions, two-strikes laws) are
the most prominent examples of such sentencing
enhancements.

Three-strikes laws impose longer prison terms than
earlier mandatory minimum sentencing laws. For
example, California's three-strikes law requires
that offenders who are convicted of a violent
crime, and who have had two prior convictions,
serve a minimum of 25 years; the law also doubles
prison terms for offenders convicted of a second
violent felony.[2] Three-strikes laws vary in
breadth. For example, some stipulate that both of
the prior convictions and the current offense be
violent felonies; others require only that the
prior felonies be violent. Some three-strikes laws
count only prior adult violent felony convictions,
while others permit consideration of juvenile
adjudications for violent crimes.

A second frequently mentioned mandatory sentencing
enhancement is "truth-in-sentencing," provisions
for which are in the Violent Crime Control and Law
Enforcement Act of 1994. States that wish to
qualify for Federal aid under the Act are required
to amend their laws so that imprisoned offenders
serve at least 85 percent of their sentences.

Rationale for mandatory sentencing

Mandatory sentences are based on two goals --
deterrence and incapacitation. The primary purposes
of modest mandatory prison terms (e.g., 3 years for
armed robbery) are specific deterrence, which
applies to already sanctioned offenders, and
general deterrence, which aims to deter prospective
offenders. If the law successfully increases the
imprisonment rate, the effects of incapacitation
also will grow because fewer offenders will be free
to victimize the population at large. The intent of
three-strikes (and even two-strikes) is to
incapacitate selected violent offenders for very
long terms -- 25 years or even life. They have no
specific deterrent effect if those confined will
never be released, but their general deterrent
effect could, in theory, be substantial.

By passing mandatory sentencing laws, legislators
convey the message that certain crimes are deemed
especially grave and that people who commit them
deserve, and may expect, harsh sanctions. These
laws are a rapid and visible response to public
outcries following heinous or well-publicized
crimes. The high long-term costs of mandatory
sentencing are deferred because the difficult
funding choices implicit in this policy can be
delayed or even avoided.

Impact of mandatory sentencing laws

Mandatory sentencing has had significant
consequences that deserve close attention, among
them its impact on crime and the operations of the
criminal justice system. The possible differential
consequences for certain groups of people also bear
examination.

Crime. Evaluations of mandatory sentencing have
focused on two types of crimes -- those committed
with handguns and those related to drugs (the
offenses most commonly subjected to mandatory
minimum penalties in State and Federal courts). An
evaluation of the Massachusetts law that imposed
mandatory jail terms for possession of an
unlicensed handgun concluded that the law was an
effective deterrent of gun crime,[3] at least in
the short term.

However, studies of similar laws in Michigan[4] and
Florida[5] found no evidence that crimes committed
with firearms had been prevented. An evaluation of
mandatory gun-use sentencing enhancements in six
large cities (Detroit, Jacksonville, Tampa, Miami,
Philadelphia, and Pittsburgh) indicated that the
laws deterred homicide but not other violent
crimes.[6] An assessment of New York's Rockefeller
drug laws was unable to support the claim for their
efficacy as a deterrent to drug crime in New York
City.[7] None of the studies examined the
incapacitation effects of these laws.

The criminal justice system. The criminal courts
rely on a high rate of guilty pleas to speed case
processing and thus avoid logjams. Officials can
offer inducements to defendants to obtain these
pleas. If only in the short term, mandatory
sentencing laws may disrupt established
plea-bargaining patterns by preventing a prosecutor
from offering a short prison term (less than the
new minimum) in exchange for a guilty plea.
However, unless policymakers enact long-term
mandatory sentences that apply to many related
categories of crimes, prosecutors usually can shift
strategies and bargain on charges rather than on
sentences.

The findings of research on the impact of mandatory
sentencing laws on the criminal justice system have
been summarized by a prominent scholar.[8] He found
that officials make earlier and more selective
arrest, charging, and diversion decisions; they
also tend to bargain less and to bring more cases
to trial. Specifically, he found that:

o Criminal justice officials and practitioners
(police, lawyers, and judges) exercise discretion
to avoid application of laws they consider unduly
harsh.

o Arrest rates for target crimes decline soon after
mandatory sentencing laws take effect.

o Dismissal and diversion rates increase at early
stages of case processing after mandatory
sentencing laws take effect.

o For defendants whose cases are not dismissed,
plea-bargain rates decline and trial rates
increase.

o For convicted defendants, sentencing delays
increase.

o Enactment of mandatory sentencing laws has little
impact on the probability that offenders will be
imprisoned (when the effects of declining arrests,
indictments, and convictions are taken into
account).

o Sentences become longer and more severe.

The research review concluded that mandatory
sentencing laws:

o Do not achieve certainty and predictability
because officials circumvent them if they believe
the results are unduly harsh.

o Are redundant with respect to proscribing
probation for serious cases because such cases
generally are sentenced to imprisonment anyway.

o Are arbitrary for minor cases.

o May occasionally result in an unduly harsh
punishment for a marginal offender.[9]

Racial and ethnic minorities. One issue that has
received considerable attention in recent years is
whether racial or ethnic minorities are treated
unfairly in the courts' application of mandatory
minimum sentences. The question cannot be answered
simply by comparing the proportion of minority
offenders sentenced before and after introduction
of, or changes in, mandatory sentencing laws. If,
for example, it is objectively determined that
minorities are more likely than the general
population to commit offenses that carry mandatory
sentences, an equitable application of the law
would result in an increase in the proportion of
imprisoned minorities -- and probably in the
lengths of their average sentences.

Consequently, the central question is whether
criminal justice officials' discretionary choices
in the application of mandatory sentencing laws are
made in a racially neutral manner.

Results of particular studies are relevant. In one
study involving cases of Federal offenders
sentenced for crimes subject to mandatory minimums,
the researcher examined whether sentencing severity
varied by amount and type of drugs involved in the
current crime, weapons, offense record, role in
offense, history of drug use, age, gender, and
race.[10] She found sentencing differences
associated with the offender's race, even after
accounting for differences associated with these
other characteristics. However, the magnitude of
this difference was small.

The U.S. Sentencing Commission expanded this study
and found significant differences in the proportion
of whites (54 percent), Hispanics (57 percent), and
African Americans (68 percent) who received
mandatory minimum sentences for the most serious
offense charged against them.[11] A reanalysis of
the U.S. Sentencing Commission data drew different
conclusions, however.[12] The reanalysis showed
that when legally relevant case-processing factors
were considered, a defendant's race/ethnicity was
unrelated to the sentence. Also examined in the
reanalysis was why more than 40 percent of the
cases apparently eligible for mandatory sentences
did not receive them. Reasonable explanations
include evidentiary problems and instances in which
defendants provided substantial assistance to
prosecutors in preparing cases against others.

In an analysis of the Federal sentencing
guidelines, other researchers found that African
Americans received longer sentences than whites,
not because of differential treatment by judges but
because they constituted the large majority of
those convicted of trafficking in crack cocaine --
a crime Congress had singled out for especially
harsh mandatory penalties.[13] This pattern can be
seen as constituting a "disparity in results" and,
partly for this reason, the U.S. Sentencing
Commission recommended to Congress that it
eliminate the legal distinction between crack and
regular cocaine for purposes of sentencing (a
recommendation Congress rejected).

Three-strikes laws. The recent wave of
three-strikes laws has not yet been evaluated, but
the costs and benefits of California's
three-strikes law have been simulated.[14] Assuming
that the law would produce incapacitation effects
but not deterrent effects, the researchers
projected it would:

o Triple California's prison population over the
next 25 years, creating a prison population about
equal in size to that of the entire U.S. prison
population in 1980.

o Cost an average of $5.5 billion more each year
for the next 25 years than the previous law, for a
cumulative additional cost of $137.5 billion.

o Reduce serious crime by 28 percent, at a total
correctional cost of about $16,300 for each crime
averted. 

The researchers found that California's
three-strikes law would avert crimes inefficiently
because many offenders would be confined for long
periods after their criminal activity became
negligible because of the effects of aging. They
calculated that if the law were limited to
offenders whose current crime and both of the two
prior offenses were violent, serious crime could be
cut 18 percent, at a total correctional cost of
$12,000 per averted crime. 

The effects on future California budgets of funding
the three-strikes law were estimated. In their
calculations, the researchers assumed that health
and welfare costs would not increase (an assumption
they labeled as unlikely) and that educational
spending for grades K-12 would increase only as a
direct result of foreseeable demographic changes.
They found that corrections would consume 18
percent of State spending by the year 2002 --
double the 1994 percentage. Together, corrections,
health and welfare, and K-12 education would
consume 99 percent of the State's budget by 2002,
leaving just 1 percent to fund everything else.

Future issues

In the interviews conducted for this review of
mandatory sentencing, State policymakers expressed
the need to respond to the public's fear of crime
and call for tougher sanctions, but also recognized
the need to rein in spiraling costs of corrections.
If the costs of government are cut, spending more
on prisons means spending less on other public
purposes. The fiscal analysis of California's
three-strikes law, for example, has implications
for that State's future.

In a major study of sentencing policy, Michael
Tonry of the University of Minnesota suggested that
States consider the following options:[15]

o Pursue presumptive rather than mandatory
sentences.

Presumptive sentences, which are developed by
sentencing commissions and set forth as guidelines,
can shift overall sentencing patterns in ways
acceptable to policymakers. For example, they can
seek to imprison more violent offenders and fewer
property offenders. A sentencing commission can
help maintain sentencing policy while still
preserving ultimate legislative control.
Presumptive sentences have generally achieved their
intended goals, and research shows high rates of
conformity to the sentences by judges.

In the rare instance in which a presumptive
sentence is inappropriate (i.e., either too harsh
or too lenient, given the facts of the case),
judges can depart from the guidelines by providing
in writing reasons that can be reviewed by higher
courts. If legislatures so instruct sentencing
commissions, they can craft the guidelines to
control future costs and, at the same time, toughen
sentences for repeat violent offenders.

o Include sunset provisions to require periodic
reconsideration of the propriety of the laws, if
mandatory sentencing laws are enacted.

o Limit the duration and scope of 
mandatory sentencing laws.

Crime is, quite literally, an activity of young
men. As the study of the California law emphasized,
extremely long mandatory sentences (e.g., 25 years 
to life) are inefficient because they confine
offenders for long periods (at great cost) after
they would have "aged out" of crime. Sentencing
could be mandated for only a few especially serious
crimes. If such laws are aimed at repeat serious
offenders, they could include a requirement that
only particularly serious prior and current
convictions trigger them.

o Conduct some form of periodic 
administrative review to determine if continued
confinement of the offender is required, in the
event mandatory sentences are imposed.

o Closely link sentencing and fiscal policy
decisions to enhance the legislative process.
Legislatures could ensure that they know the
financial impact of proposed sentencing legislation
and, where substantial long-term costs will be
incurred, a funding plan might be a required
provision of the enabling law. This would prevent
today's legislature from avoiding the fiscal
implications of its sentencing policies.

Cultivating alternative sanctions

Legislatures also may want to develop policy that
makes more effective and systematic use of
intermediate sanctions, if the twin objectives of
punishment and lower correctional costs are to be
achieved. Such policy might specify goals for each
particular sanction, locate each category of
intermediate sanctions along the continuum between
standard probation and total confinement, and
define target populations for each category. For
example, it could specify which confined offenders
will be considered for early release, which
sanctions should enhance standard probation, and
which offenders need treatment or services.

In addition, States may want to develop a financial
structure to steer development of intermediate
sanctions in intended directions. This could be a
variant of current community corrections acts, for
which a central State agency sets standards for
local programs and administers performance-based
financial aid to local governments. For
intermediate sanctions, the State could provide
greater support to jurisdictions whose program met
or exceeded the performance objectives specified by
the agency.

Finally, States that make greater use of
intermediate sanctions may want to develop policies
that govern their use in individual cases. Examples
are the development of presumptive guidelines for
nonconfinement as well as confinement sanctions.
Such policies could be designed to ensure that
overall use of nonconfinement sanctions is
consistent with goals established by the
legislature and broad principles that govern
sentencing generally (e.g., proportionality,
uniformity, and neutrality). In particular,
guidelines could limit additive use of sanctions
(imposing two or three nonconfinement sanctions on
a particular offender) and control revocation
decisions in order to minimize needless confinement
for minor rule violations.

-------------------------------

About the Key Legislative Issues Series

In 1995 the National Institute of Justice (NIJ)
contracted with Abt Associates Inc. to interview
legislators and policymakers throughout the country
to identify important criminal justice topics being
considered by State legislatures and to determine
the information they need to help them make more
informed decisions. Altogether, 89 legislators,
legislative staff members, and other criminal
justice policymakers (e.g., sentencing commission
members) were interviewed in 23 States. The
interviews were conducted during the opening weeks
of the 1995 State legislative sessions.

The sites and the respondents were chosen to
reflect the diversity of the States. Some of the
factors taken into consideration were geographic
size and region, urban/rural mix, and existence (or
nonexistence) of a sentencing commission in the
State government. The respondents selected included
the chairpersons of relevant legislative committees
(such as the criminal justice, judiciary, and
corrections committees), a representative from the
governor's staff, and an official with the
executive branch (such as the commissioner of
corrections or the sentencing commission
chairperson). Other people whom they suggested were
also interviewed, and, as might be expected,
legislators frequently referred the interviewers to
their staff.

These policymakers identified four topics as
important items on their legislative agendas:

o Sentencing commissions.

o Intermediate sanctions.

o Mandatory sentencing, including three-strikes
laws.

o Transferring serious juvenile offenders to adult
courts.

State policymakers expressed a strong desire for
more timely and useful information about research
findings on important criminal justice policy
issues they were addressing. However, they voiced
reservations about gleaning useful information from
technical research reports.

Reviews and summaries of the research literature on
the four key topics identified present the
information in a way that is more accessible to
policymakers. Of the four reports, this one
summarizes what is known about mandatory sentencing
and its impact on crime and the operation of the
criminal justice system. Particular attention is
paid to the impact on racial and ethnic minorities
and to three-strikes 
laws.

Titles in the series

The Impact of Sentencing Guidelines (NCJ 161837) 

Intermediate Sanctions (NCJ 161838)

Mandatory Sentencing (NCJ 161839)

Transferring Serious Juvenile Offenders to Adult
Courts (NCJ 161840)

These summary reports have been published in NIJ's
Research in Action series. Copies can be obtained
from the National Criminal Justice Reference
Service (NCJRS), Box 6000, Rockville, MD 20849-
6000; telephone 800-851-3420; or e-mail
askncjrs@ncjrs.org. The reports can also be viewed
and downloaded from the NCJRS World Wide Web site,
the Justice Information Center
(http://www.ncjrs.org). 

------------------------------

Notes

1. Tonry, M., Sentencing Matters, Oxford, 
England: Oxford University Press, 1995.

2. In mid-1996 the California Supreme Court ruled
the State's three-strikes law an undue intrusion on
judges' sentencing discretion. State legislative
leaders immediately announced plans to introduce
legislation that would reinstate the law. 

3. Pierce, G.L., and W.J. Bowers, "The Bartley-Fox
Gun Law's Short-Term Impact on Crime in Boston,"
Annals of the American Academy of Political and
Social Science 455 (1981):120-132.

4. Loftin, C., M. Heumann, and D. McDowall,
"Mandatory Sentencing and Firearms Violence:
Evaluating an Alternative to Gun Control," Law and
Society Review 17 (1983):287-318.

5. Loftin, C., and D. McDowall, "The Deterrent
Effects of the Florida Felony Firearm Law," Journal
of Criminal Law and Criminology 75 (1984):250-259.

6. McDowall, D., C. Loftin, and B. Wiersema, "A
Comparative Study of the Preventive Effects of
Mandatory Sentencing Laws for Gun Crimes," Journal
of Criminal Law and Criminology 83, 2 (Summer
1992):378-394.

7. Joint Committee on New York Drug Law Evaluation,
The Nation's Toughest Drug Law: Evaluating the New
York Experience, a project of the Association of
the Bar of the City of New York, the City of New
York and the Drug Abuse Council, Inc., Washington,
D.C.: U.S. Government Printing Office, 1978.

8. Tonry, M., Sentencing Reform Impacts,
Washington, D.C.: U.S. Department of Justice,
National Institute of Justice, 1987.

9. Ibid.

10. Meierhoefer, B.S., General Effect of Mandatory
Minimum Prison Terms, Washington, D.C.: Federal
Judicial Center, 1992; Meierhoefer, B.S., "Role of
Offense and Offender Characteristics in Federal
Sentencing," Southern California Law Review 66, 1
(November 1992) :367-404; and Meierhoefer, B.S.,
General Effect of Mandatory Minimum Prison Terms: A
Longitudinal Study of Federal Sentences Imposed,
Washington, D.C.: Federal Judicial Center, 1992.

11. U.S. Sentencing Commission, Federal Sentencing
Guidelines: A Report on the Operation of the
Guidelines System and Short-Term Impacts on
Disparity in Sentencing, Use of Incarceration, and
Prosecutorial Discretion and Plea Bargaining,
Washington, D.C.: U.S. Sentencing Commission, 1991.

12. Langan, P., "Federal Prosecutor Application of
Mandatory Sentencing Laws: Racially Disparate?
Widely Evaded?" Washington, D.C.: U.S. Department
of Justice, Bureau of Justice Statistics, 1992.

13. McDonald, D.C., and K.E. Carlson, Sentencing in
the Courts: Does Race Matter? The Transition to
Sentencing Guidelines, 1986-90, Washington, D.C.:
U.S. Department of Justice, Bureau of Justice
Statistics, 1993.

14. Greenwood, P.W., et al., Three Strikes and
You're Out: Estimated Benefits and Costs of
California's New Mandatory-Sentencing Law, Santa
Monica, California: RAND Corporation, 1994.

15. Tonry, Sentencing Matters.

-------------------------------

Dale Parent, associate; Terence Dunworth, Ph.D.,
senior associate; Douglas McDonald, Ph.D., senior
associate; and William Rhodes, Ph.D., senior
scientist, are with Abt Associates Inc. This study,
sponsored by the National Institute of Justice, was
prepared under contract 94-IJ-CX-C007.

Points of view in this document are those of the
authors and do not necessarily reflect the official
position of the U.S. Department of Justice.

The National Institute of Justice is a component of
the Office of Justice Programs, which also includes
the Bureau of Justice Assistance, the Bureau of
Justice Statistics, the Office of Juvenile Justice
and Delinquency Prevention, and the Office for
Victims of Crime.

NCJ 161839