Sentencing: Allocation of Authority

An important variation on the theme of statutory determinate sentencing occurs when legislatures fix exact penalties, or exact minimum penalties, for particular crimes. For example, some states have laws stating that the sentence for first-degree murder must be a life term in prison without the possibility of parole. This is an instance of a mandatory penalty. In other states, Figure 3 the authorized punishments for first-degree murder may include a death sentence or, at a minimum, a life term in prison without possibility of parole. This is an instance of a mandatory minimum penalty: Following a conviction of the designated offense, no one at the case-specific level holds sentencing discretion to impose a punishment any less severe than a life term of incarceration. Case-specific sentencing discretion exists to exceed the mandatory minimum penalty, but not to undercut it.

Since the 1970s, federal and state legislatures have enacted large numbers of mandatory penalty provisions, and the public popularity of such measures remains high. Such laws commonly apply to crimes involving serious violence, drugs, or firearms. Another species is keyed to criminal record: "habitual offender" laws have long been used to require heavier-than-normal sentences for criminals with substantial prior convictions. In the 1990s a new incarnation of the habitual-offender approach appeared in the form of "three-strikes" laws. Congress and many states have now adopted such laws, which operate on a similar plan: Upon conviction for a third serious felony (these are defined differently from place to place), the judge must sentence the offender to a life term of imprisonment without parole.

As opposed to statutory determinate sentencing, mandatory penalty provisions do not attempt to rework a jurisdiction's overall sentencing structure. They apply to one offense at a time. Mandatory sentencing statutes have been adopted in jurisdictions that otherwise use indeterminate sentencing for the bulk of offenses, in jurisdictions that follow the statutory determinacy approach for most crimes, and in jurisdictions with sentencing commissions and guidelines. In other words, American legislatures have regarded mandatory penalties as a desirable means to produce zones of hyperdeterminacy within every available structural environment.

Suppose that a legislature has passed a statute providing that anyone convicted of a designated offense (e.g., possession of a weapon in connection with a drug transaction) must be sentenced by the trial judge to five years in prison, and may not be granted parole or good time credit toward release. Figure 4 attempts to capture the most salient discretionary features of such mandatory penalty schemes in operation.

At the systemic level, Figure 4 depicts the legislature as an important discretionary actor. The legislature has exercised an especially direct form of sentencing discretion because it has pronounced that, for all defendants convicted of crime x, the punishment shall be sentence y. Indeed, the legislature means to be the one-and-only sentencer for such cases, and has sought to bring about this result by eliminating other discretionary Figure 4 actors from the decisional process. In contrast, the sentencing commission, even if one exists in the jurisdiction, typically holds no authority to modify or soften the statutory punishments in a mandatory penalty scheme. Thus, the commission is crossed out in Figure 4.

Jumping down to the case-specific level, the probation office and courts are also canceled in the discretionary diagram. Following a conviction for the specified crime, nothing is left for such players to do beyond the rote motions of functionaries. Similarly, any parole authority that may exist in the jurisdiction for other crimes is no longer in force for this offense. And corrections officials, under the imagined statute, have lost their discretion to award or withhold good time credits.

Turning our attention to the enlarged shape in Figure 1 that indicates "the parties," experience has shown that the legislative enactment of mandatory penalties, intentions aside, does not succeed in removing the parties' capabilities to make discretionary choices that carry enormous impact on sentences imposed. For example, in cases where the prosecutor has evidence that an offender has committed the kind of gun-and-drug crime covered by the law, the prosecutor may still decline to bring the charge. If the government charges a lesser offense, out of a sense that five years is too much for this particular case, or from a belief that the required facts will be difficult to prove, or as part of a plea bargain, the outcome is almost certain to be a sentence well below that required by the statute. Thus, charging discretion, while not formally a part of sentencing proceedings, can exert a powerful impact on the sentencing outcome. Similarly, the plea bargaining process, in which both parties participate, can and frequently does operate to avoid the force of a mandatory penalty.

Taking stock of the discretionary configurations of mandatory penalty provisions, it is apparent that legislatures have succeeded in part, and have failed in part, in bringing about the structural adjustments attempted in such laws. Legislatures have surely succeeded in eliminating the decision-making authority of many familiar players in the sentencing structure. This much comports exactly with the theory of mandatory sentencing: the legislature is trying to impose its own judgments about appropriate sentences on everyone else in the system. Getting rid of the input of sentencing commissions, probation officers, judges, corrections officials, and parole boards is consistent with such a purpose.

At the same time, mandatory penalties greatly heighten the importance of discretionary decisions by the parties. Through charging and plea bargaining discretion, the parties have become the only actors at the case-specific level who may pass upon the application of the mandatory sentence. Moreover, their choices are effectively unreviewable. In most other discretionary arrangements, the parties' authority is diluted by the later-in-time discretions of other case-specific players, such as trial courts, departments of corrections, and parole boards. Mandatory sentencing—which at first glance would appear to privilege the discretion of legislatures—instead produces a hegemony of the charging and plea bargaining decision points. It is hardly surprising that empirical studies of mandatory penalties have concluded that such laws actually work to increase arbitrariness and disparities in sentencing.