Sentencing

B. Mandatory Minimum Sentences

Mandatory minimums are similar to determinate sentencing laws in that they involve legislatures passing fixed penalties, but they differ in that these laws are applied selectively to specific offenses and offenders, and they only establish statutory minimums, not maximum penalties. For these cases, judges can sentence qualifying offenders above the required minimum but not below it.

The modern history of mandatory minimums is one of extremes. Although they have long existed in milder forms for most of U.S. history, mandatory minimums were categorically repealed by Congress in 1970 (Tonry, 1996). This was at the height of the indeterminate sentencing movement, and under the rehabilitative ideal it made little sense to have fixed minimum punishments that would result in some offenders remaining incarcerated after they were successfully rehabilitated. Sentence lengths needed to be flexible enough to account for individual differences in rehabilitative potential. Soon after, though, rehabilitation fell drastically out of favor, and between the mid-1970s and mid-1980s, every single state reenacted various mandatory minimum laws, making them the most prolific of the modern sentencing reforms. The federal system alone has more than 100 different mandatory minimum sentences.

Most mandatory minimums target drug, violent, or firearms offenses, or they are designed specifically to punish repeat offenders. Mandatory minimums that apply to repeat offenders are called habitual offender laws because they are triggered by the offender’s prior criminal record rather than or in addition to the current offense. For instance, in Florida, two prior felony convictions or one prior violent felony makes an offender eligible for a habitual offender mandatory minimum enhancement (Crawford, Chiricos, & Kleck, 1998). When mandatory minimums are applied to a case, they can substantially increase the sentence, and they often require the offender to serve a more significant portion of his or her sentence before being eligible for release.

One particular type of habitual offender law that has been widely popularized is three strikes and you’re out. Drawing upon a baseball analogy, three-strikes mandatory minimums require that offenders convicted of a third serious felony serve 25 years to life imprisonment, often without possibility of parole. These laws rely on a philosophy of punishment known as selective incapacitation because they aim to selectively remove serious repeat offenders permanently from society (Wolfgang, Figlio, & Sellin, 1972). The first of these laws was passed in Washington State in 1993, but they have quickly spread; currently, just over half the states and the federal government have some form of three strikes law. In most states, three-strikes laws apply to very few criminals, but in a few jurisdictions, like California, they have been broadly defined to apply to a wide spectrum of offenders (Zimring, Hawkins, & Kamin, 2003).

Some commentators point out that mandatory minimum sentences are important for the political and symbolic goals that they achieve. Politicians often favor mandatory sentences because they are perceived to be tough on crime, but once passed into law they can be difficult to amend or repeal because they require formal legislative action to do so. Perhaps the most infamous example of this is the 100:1 crack/cocaine ratio in federal sentencing. Five grams of crack cocaine are all that is needed to invoke a 5-yearmandatory prison sentence in federal court, whereas 500 grams of powdered cocaine are required for the same minimum punishment. The tough mandatory minimum for crack cocaine was passed during the war on drugs in the 1980s when political hyperbole surrounding crack cocaine was rampant. Today, because minority offenders are disproportionately convicted of crack cocaine offenses, this mandatory minimum has been harshly criticized for contributing to racial injustices in sentencing (Tonry, 1995). Although the U.S. Sentencing Commission has encouraged that steps be taken to eliminate this disparity, and the Supreme Court recently affirmed the judge’s authority to sentence offenders below the crack cocaine minimum (Kimbrough v. United States, 2007), these sentencing laws at present remain on the books. One solution that has been proposed is to include “sunset clauses” in the passage of mandatory minimums, which would mean that they would be automatically repealed if not renewed by the legislature (Tonry, 1996). Currently, though, this type of legal clause is rare in the policy world of mandatory minimum sentencing provisions.

Although public support for mandatory minimum sentences is often high, they have been repeatedly criticized for various other reasons as well. Academic research provides little evidence of their effectiveness as a crime deterrent, and prosecutors are known to selectively apply them in a limited subset of eligible cases. Some evidence suggests mandatory sentencing provisions target offenses disproportionately committed by minority offenders and are disproportionately applied to minority defendants. There are also dramatic geographic variations in the application of mandatory minimums such that the location of the court impacts the likelihood of receiving a mandatory sentence (Ulmer, Kurlychek, & Kramer, 2007). Moreover, dismissal rates for some mandatory sentences have increased dramatically after their passage, suggesting prosecutors and judges take instrumental steps to selectively avoid application of these procrustean penalties. When mandatory minimums are invoked, they almost always result in sentences that are substantially more severe than they would be otherwise. In many jurisdictions, little effort has been made to adequately reconcile mandatory penalties with other structured sentencing approaches, such as sentencing guidelines, which have been a more popularly received sentencing innovation for a variety of reasons.

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