Sentencing: Mandatory and Mandatory Minimum Sentences

Mandatory sentencing is not new. Sentencing "enhancements" for habitual felons have been used in most states for decades (Austin et al.) and the idea can be easily traced back to Dickensian England and, no doubt, earlier (Simon). The difference, if any, lies in the fact that modern mandatories often purport to eliminate discretion; by contrast, mercy from the judiciary or executive was explicitly possible, historically. In a particularly stark application of the modern notion of mandatory sentencing, several states enacted mandatory death penalty statutes after the U.S. Supreme Court had placed a moratorium on capital punishment in Furman v. Georgia, 408 U.S. 238 (1972). The Court struck these down as a violation of individualized justice in favor of a system in which death would be imposed on a convicted murderer only if an "aggravating factor" was alleged and proven to the trial court's satisfaction (Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976)). In a line of case law that seems contradictory, however, the Supreme Court upheld a Texas mandatory three-strikes law when it required that life imprisonment be imposed on an offender who had committed three minor thefts (Rummel v. Estelle, 445 U.S. 263 (1980)). Perhaps the contradiction is resolved by the fact that, as Chief Justice Rehnquist pointed out in the majority opinion, parole from the life term was possible under the Texas statute. Contemporary three-strikes laws, however, have withstood individualized justice/due process and disproportionality challenges based on the Eighth Amendment's prohibition of cruel and unusual punishment, even though these statutes seldom permit parole (Zeigler and Del Carmen).

Soon after Rummel was decided in 1980, political campaigns and popular sentiment in favor of mandatory sentencing laws became widespread throughout the nation. In the 1980s and 1990s, demands for harsher and more certain sentencing became extremely popular. A grassroots campaign by Mothers Against Drunk Driving in the early 1980s, which successfully changed laws nationwide so as to require mandatory jail terms for drunk drivers, began the trend. Recognizing an emotionally appealing way to establish themselves in electoral politics as tough hard-liners, and thus to harness popular alarm over the high crime rates of the 1970s, political candidates promised to pass tougher and tougher sentencing laws if they were elected. They were and they did (Tonry, 1996).

Media portrayals of crime and criminals heightened the fears. Media outlets may encourage "moral panics" by demonizing offenders, drumming up widespread anxiety, and riding the wave of public concern with high viewership ratings and ad revenues. Although the media's influence on policy is not clearly causal—many factors influence lawmaking and public opinion—it is almost always present to some degree in the development of mandatory sentencing legislation. A news cycle can begin with "a preexisting social construction of predator criminals" from the entertainment media (Surette, p. 194) to which is added news of a horrific crime in some locality, which is widely reported nationally and thus dramatized everywhere as an ongoing firsthand threat. The media coverage can create "victim heroes" and build politicians' careers when they promise tough sentencing (Surette, 1996). (The instantaneous spread of three strikes law in twenty-four states is attributed to such a cycle, sparked by the kidnap/murder of young Polly Klaas in Petaluma, California.) Sometimes the furor addresses sensational crimes that were indeed very serious but that already had very heavy punishments on the books; in such cases, reformers have demanded abolition of parole or additional controls such as community notification when an offender is released. Examples include the Washington state sexual predator law and "Megan's Law" in New Jersey.

Sometimes the crimes at issue, however, had not previously been regarded as sufficiently serious as to deserve lengthy imprisonment, and these are the most controversial. The prime example is the federal requirement that a person convicted of possessing a half kilogram (500 grams) or more of powder cocaine will be sentenced to five years in prison with no parole eligibility. In comparison, just five grams of crack cocaine qualifies for the five-year mandatory term, and this increases to ten years for 50 grams of crack. In the federal criminal justice system, mandatory minima provisions for drug-related activities carry penalties ranging from five years to life (United States Sentencing Commission). These laws emerged from the cocaine scare of the late 1980s, as did many state statutes, but they presented a somewhat different legislative dynamic than the mandatories that were sparked by sex crimes or repeat offending. Although the cocaine-induced death of Maryland basketball star Len Bias in 1986 served perhaps as the horrific event that galvanized this media frenzy, drug use and trafficking is a market whose victims are in some sense consenting. Punishing these criminals with very harsh prison sentences, at least those who are cocaine users and smalltime dealers, initially was regarded as too heavy-handed. But here the issue of race as "the demonizer" enters into the lawmaking equation. Crack cocaine was disproportionately used and sold in minority neighborhoods, while a higher percentage of white suburbanites favored the powder form. Critics of the federal mandatory sentencing drug laws claim that the severely harsher penalties for using/dealing crack versus powder cocaine—a defendant must have possessed one hundred times more powder than crack to be eligible for the five-year or the ten-year mandatory sentence—are correlated with probabilities that an arrested user or dealer will be a member of a racial minority (Tonry, 1995). One study concluded that black offenders received longer sentences than whites not because they were sentenced differently under identical conditions, but because they, not whites, were the ones charged and convicted of trafficking in crack (McDonald and Carlson).

Vigorous criticism of mandatory sentencing has come from scholars, news commentators, groups like Families against Mandatory Minimums, and even the U.S. Sentencing Commission itself when it asked Congress to amend the laws applying to cocaine use. But repealing these penalties is almost impossible politically. Any politician who would do so would immediately be attacked as "soft on crime." In practice, however, the laws have not necessarily had the draconian impact their drafters said they would, at least not in all cases.