Sentencing: Mandatory and Mandatory Minimum Sentences

Any evaluation of how sentencing laws work must take into account how they affect pretrial procedures. This is so because mandatories apply only when an offender is convicted of crimes specified in the legislation, while investigation or evidentiary challenges might point to charges that do not carry the mandatory. Nearly unanimously, studies of the impact of mandatory minima have concluded that their most severe aspects are often moderated in pretrial decisions by prosecutors and defenders who do not believe all offenders deserve the heaviest punishments (Tonry, 1996). For their part, accused defendants are reluctant to plead guilty when the probable sentence will be the harshest possible. Still other impact studies have noted that under some mandatory sentencing laws (for example, some states' three-strikes laws) the justice system can continue functioning mostly as it had before the laws were passed, because the legislation in question did not make drastic changes. Despite the political campaigning surrounding their passage, offenders to whom they applied would have been required to serve very long prison sentences under already existing laws, so the mandatory minima added only a small amount of additional incarceration for a fairly small number of offenders. This is so in states with three-strikes laws that apply only to serious felons, but others, such as California's, cover all felonies of any degree of seriousness and thus have been the subject of prosecutorial discretion (Austin et al.).

Many important issues of equity and proportionality remain, because the conditions and criteria under which prosecutors agree not to seek the harshest penalties are mostly unreviewable and might produce racially or economically disparate outcomes. Furthermore, the role of the judiciary becomes weakened while that of prosecutors, whose decisions about charging determine the applicability of the mandatories, becomes dominant. In the majority of U.S. jurisdictions, judges do not participate in guilty plea negotiations, so the judiciary has little influence over charging (Feeley and Kamin). When a defendant is brought into court charged with a particular crime that carries exposure to a mandatory sentence, the role of the judge is generally limited to accepting the guilty plea or presiding over a trial, and upon conviction imposing the prescribed sentence. Under such a system, the prosecutor's charging decision usually determines the sentence. However, some impact studies from the late 1970s on the application of "add-ons" found that "by a mix of constitutional challenges, motions to quash the charge, sentence negotiations, and adjustments, waiver trials, and other techniques," the system managed to produce sentences roughly similar to those that had prevailed prior to passage of the mandatory sentencing law (Heumann and Loftin, p. 426). Occasionally, the most rigid features of a mandatory sentencing law are loosened when experience indicates that judges should have some discretion. This was the case in California, when the state Supreme Court decided in 1996 that judges had the discretion to determine what should count as a prior felony under the 1994 three-strikes law (People v. Romero, 917 P.2d 628 (1996)). Generally, however, the intent of these laws is to eliminate or at least severely constrain judicial discretion, and to a great extent this has indeed been their impact.

One way to conceptualize the effect of mandatory minima on criminal court procedures is to imagine the timing of major decisions shifting from the time of conviction and sentencing to much earlier stages of case processing. Often, police are interested primarily in certain convictions and short jail terms for lower-level drug dealers—which effectively disrupt the economy of open-air drug markets—but are not necessarily willing to endure paperwork and trial testimony to achieve mandatory punishments. Under those conditions, they choose to book suspects for crimes that do not carry a mandatory sentence, such as simple possession of small amounts of drugs. Prosecutors may agree more readily to diversion programs and even outright case dismissal when defendants are not as dangerous as the incapacitative sentencing policy apparently assumes they are (Parent et al.). The most significant procedural stage in terms of numbers of cases affected and potential impact on sentencing outcomes is plea negotiation and the defendant's decision to plead guilty or go to trial. Few defendants will plead guilty to charges carrying mandatory life sentences, but will instead go to trial under the assumption that they have nothing to lose and a jury might find fault with some aspect of the prosecution's case. (Jury nullification of mandatory sentencing is seldom an issue, however, because under the law in most states juries decide on guilt and judges set the sentence.) In some jurisdictions, for some types of mandatories, trial rates increased dramatically. However, in most scenarios the effects of the mandatory minima requirements are blunted in plea negotiations. The factors that trigger a mandatory minimum—use of a gun, amount of drug possessed or sold, a third felony conviction, and so on—must be proven beyond a reasonable doubt in order for a mandatory to be held to apply. In plea bargaining, these factors are somewhat flexible depending on how strong the proof is and what the punishment would be if the defendant were convicted of a crime not covered by the mandatory (Parent et al.). In the case of three-strikes laws, for instance, defenders vigorously advocate for their clients when the prior felony is of low seriousness, if it was committed when the offender was a juvenile, or when it was committed a long time ago. Under these circumstances, prosecutors often agree to allow the defendant to plead to a misdemeanor requiring jail time but not triggering the "strike," especially when the process of getting the criminal records and proving the priors is quite labor intensive (Cushman).

Another significant impact of mandatory minima on plea bargaining is inducement of defendant cooperation. A prosecutor who wishes to obtain incriminating evidence often turns to the most accurate source: the criminals themselves. A defendant who will "snitch" on co-defendants will be rewarded with sentencing concessions. Often, the most efficient and easily understood reward a prosecutor can offer a "cooperator" is the promise not to charge crimes that carry the mandatory sentence. This practice is widespread in the federal system especially, where about half the offenders now sent to federal prison have been convicted of drug crimes, and the mandatories for gun use also often apply. However, a 1993 General Accounting Office report determined that 15 percent of cases involving offenders actually convicted of violating a federal statute carrying a mandatory minimum did not receive the prison time, because they had given "substantial assistance to government authorities" (Caulkins et al.). Moreover, the percentage of suspects who negotiate a "pre-bargain" to charges not carrying a mandatory, in return for testimony or other evidence, is even larger but cannot be measured from public databases.

Finally, one type of mandatory minimum influences the "end" of the system, that is, the parole decision, by requiring that offenders serve a minimum of 85 percent of any term of imprisonment. These truth in sentencing laws proliferated after Congress promised in the 1994 Crime Act to give money for prison construction to any state that would pass an 85 percent law (Ostrom et al.). Many did, though their statutes vary as to which crimes carry the 85 percent requirement. The impetus for these laws was quite different from the typical "horrific crime/media coverage/lawmaker embrace" background of many state mandatory minima laws. Advocacy from the federal government sparked the movement, modeled on the 1984 Sentencing Act, that instituted the federal sentencing guidelines and also remodeled the parole system by requiring 85 percent of every prison term be served. As might be predicted from experience with other mandatory sentencing laws, 85 percent truth in sentencing has not been applied mechanically. In New Jersey, prosecutors and judges often agreed to sentence offenders at lower base terms of imprisonment than had been typical prior to the law's passage, but when the 85 percent requirement was then calculated the final mandatory sentences to be served were longer on average than before (McCoy and McManimon). In sum, the effect of the law was to increase sentencing severity, but not as much as its supporters had expected.

The latter statement is a fair summary of the effect of all these laws. Mandatory minimum sentencing laws have drastically affected the operation of the various components of the justice system, which have adapted so as to ameliorate their harshest aspects. However, this also means that these laws have not caused the full incarcerative effect that their drafters apparently wanted. A great proportion of offenders eligible for mandatory sentences do not receive them; however, on the whole, these offenders are probably punished more severely than they would have been had the mandatory sentences not acted as threats hanging over their guilty pleas. A much smaller proportion of offenders are actually sentenced under these laws. For them, there is no doubt that punishments are more severe than had been typical prior to these laws' implementation.