The Impact of Mandatory Minimum Penalties in Federal Sentencing

By Mauer, Marc | Judicature, July/August 2010 | Go to article overview

The Impact of Mandatory Minimum Penalties in Federal Sentencing


Mauer, Marc, Judicature


Mandatory minimum penalties have not improved public safety but have exacerbated existing racial disparities within the criminal justice system.

The U. S. Sentencing Commission's examination of the effects of mandatory sentencing is very timely and will be of great benefit to both policy-makers and practitioners. While the Commission's 1991 report on these issues was quite valuable, much lias changed in the interim and there is now more than two decades of experience with these penalties. In addition, congressional action regarding cocaine sentencing issues and Senator Webb's proposed commission to study the criminal justice system indicate that sentencing issues are now in a period of reexamination, and so the field will bent-fit from a comprehensive assessment of current policies.

There are a variety of issues io be addressed in examining mandatory sentencing, but I will focus on two in particular. Firsi, what effect have federal mandatory minimum penalties liad on public safety? And second, to what extent have these penalties exacerbated existing racial disparities within the criminal justice system?

Public safety

Mandatory minimum penalties have been enacted over time for a variety of reasons. Foremost among these are legislators' professed belief thai such penalties will bring greater certainty to the sentencing process and that they will "send a message" to potential offenders that specified behaviors will be met wirb harsh and certain punishment.

Looking at the experience of the past several decades, some observers have contended that mandaioiT minimums, including such federal penalties, have produced significant benefits in reducing crime. At a 2009 congressional hearing, for example, former U.S. Attorney Michael J. Sullivan asked, "Has the role that Congress played in sentencing, including the passage of mandatory minimum semences, had an impact on public safety and crime?" He concluded thai "The answer to lhat question can easily be found in crime statistics and is buttressed by anecdotal story after story from across our nation. Crime rates over the past 30 years certainly paini a picture of continuing success of reducing crime and victimization through sound public policy."1

What, then, do we know about the extent to which federal mandatory penalties have been responsible for declines in crime? To date, there is virtually no data that is capable of demonstrating a direct link between federal mandatory penalties in particular and any declines in crime. Further, a broad range of research suggests lhat it is quite unlikely that these penalties would have such an impact.

In examining the effect of lederai mandatory penalties, the key data problem is that the lederai court system handles only a small fraction, less than 10 percent, of all criminal cases. Therefore, attempting to draw any conclusions about die specific impact of federal mandatory pennliics on crime rates Js fraught with imprecision. To state that the adoption of such penalties by Congress in the 1980s was directly responsible for reductions in a wide variety of crimes that are generally prosecuted in state conns requires a great leap of failli that is not supported by the evidence.

We can see this most clearly in the realm of drug offenses, the categoiT in which federal mandatory penalties most often apply. Since drug offenses are widely prosecuted in both state and federal courts, a potential offender has no means of knowing in which court system he or she would be likely to be prosecuted (assuming, of course, that the offender is even thinking about the prospects of apprehension). Therefore, it is virtually impossible to break out any uniquely iedemi impact of mandatory sentencing.

Even asido from this problem, measuring the impact of harsh sentencing policies on crime rates is a complex undertaking. While it is the case that crime rates have a ve generally been declining; since Mie early 1990s and that this has taken place at a lime when the prison population was rising, this docs not necessarily suggest that there is a clear and unambiguous relationship between these two factors. …

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