Sentencing: Mandatory and Mandatory Minimum Sentences

Of course, the entire point of mandatory minimum sentencing is crime reduction. To these laws' supporters, their narrower applicability than expected or their adverse impact on the justice system matter little as long as the laws serve the greater good of preventing serious crime. But it is difficult to prove a deterrent effect, and it is hard to know definitely whether any observed drops in the crime rate were caused by strict laws, strong economies, age-crime curves, or some other factors that have been said to influence crime. Furthermore, what we do know about the general deterrent effect of legislation is that it works best on people who have something to lose if they are punished; the rational choice is to be deterred, unless one is so poor or emotionally disturbed as to have nothing to lose by breaking the law. We also know that rational criminals are deterred more by the likelihood that they will be caught at all than by the severity of possible punishment. Finally, the deterrent effect of severe mandatory minimum laws is predicted to be weak because the people against whom they apply—recidivists, drug users and dealers, violent felons—are the type of offenders whose criminality defines their lifestyles and choices. Thinking about possible punishments deters few of them from the much more powerful daily rhythms of a way of life (von Hirsch and Ashworth).

The incapacitative as opposed to general deterrent effects of mandatory sentencing are probably more powerful. A felon in prison cannot commit crimes at the same rate as before, and this rate is measurable (Wilson). Economic models based on data from actual offenders demonstrate that the incapacitative effects of three-strikes laws, for example, reduce felony crime. The reductions vary depending on which crimes are covered as "strikes" and how often they will actually be applied (Greenwood et al.). However, over time the incapacitative effects diminish because older offenders serving life terms would not have been involved in crime at that point of their lives (Schmertmann et al.). Furthermore, these benefits are only one part of a traditional cost/benefit analysis. The very high costs of incarcerating so many offenders, and also ancillary social costs—impoverishing families when parents go to prison for life, fostering resentment and distrust of the justice system when mandatories are perceived as needlessly harsh and racially discriminatory—go a long way toward erasing the benefits (Tonry, 1995).

An important study of the effect of mandatory minimum drug sentences reached similar conclusions (Caulkins et al.). Although extremely severe punishments against drug traffickers does disrupt their businesses and prevent them from dealing, the researchers found that conventional enforcement casting a wider "net" of drug confiscation from all levels of drug users and dealers, and much less prison time, would also have incapacitative effects and be more cost-effective. Combining traditional enforcement and sentencing with mandatory drug treatment, they said, would produce the most crime reduction at the least cost (Caulkins et al.).

Such rational arguments have not been the basis for mandatory minima legislation in the past, and politicians are unlikely to embrace them publicly in the future. However, if mandatory sentences over time are applied only to the most serious felons and other correctional options are developed for mid-level offenders, the worst features of these laws may eventually erode.