Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures
5. The impact of mandatory minimum sentences
Mandatory sentencing laws can apply to an entire class of offences (e.g., felonies) or to just one category of crime. In Canada, MMS apply to both first and second degree murder, high treason, impaired driving and related offences, various firearms offences, betting/bookmaking, and living off the avails of child prostitution (Appendix A). Laws applying to a broad class of offenders are discussed in the next section. The research literature on firearms, impaired driving, and drug offences is examined in separate sections due to the level of attention accorded these offences in discussions of mandatory sentencing.
While murder carries a mandatory life sentence in Canada, systematic evaluations of the impact of the MMS introduced in 1976 have been conspicuously absent. Weighing the merits of MMS relative to the death penalty and other sanctions existing prior to 1976 would be a complex undertaking, given the confounding influence of the capital punishment moratorium prior to its abolition. We suggest that the case of murder be taken up elsewhere, given the extensive literature on the subject and the absence of MMS for murder in most jurisdictions – including most of those with capital punishment. While the death penalty is usually discretionary, mandatory death penalty statutes persist in a number of US states for life-term prisoners who commit murder. These statutes are designed to deter those who need an added disincentive to committing murder as they are already serving life sentences.
Many of these statutes have been repealed by state legislatures or struck down by state courts in keeping with various US Supreme Court decisions since its landmark Furman v. Georgia ruling in 1972 (Galbo, 1985). The gradual disappearance of mandatory death statutes, both before and after Furman, was due to “jury nullification” (i.e., juries preferred to acquit guilty defendants rather than impose the death penalty) and the failure of MMS to consider mitigating individual or offence-related factors. From the Furman ruling in 1972 to 1987, the US Supreme Court had struck down every mandatory death penalty statute it had ruled on and has all but explicitly deemed them unconstitutional (Bowers, 1988). Furthermore, from an international perspective, there is a world-wide trend toward the abolition of capital punishment (Radelet and Borg, 2000).
Gainsborough and Mauer (2000) have pointed out that during the national decline in crime from 1991 to 1998, US states with the greatest increases in the rate of incarceration (often due to MMS) tended to experience the most modest declines in crime. States with above average increases in their incarceration rates increased their use of prison by an average of 72% and experienced a 13% decline in crime, while “below average” states increased their use of prison by 30% and saw their crime rates decline by 17%. While these findings cast doubt on the overall preventive effect of incarceration, the authors do acknowledge that, nationally, crime did decline in the 1990s with increasing incarceration rates. They did not rule out the possibility that the increased use of incarceration may have played a role in this decline, in addition to economic and other factors. Further muddying this analysis was the finding that increasing incarceration rates throughout most of the 1980s were accompanied by increases in crime.
Among the best known and most thoroughly evaluated laws prescribing MMS has been the California “Three-Strikes” law enacted in March, 1994. This law calls for a MMS of 25 years to life in prison for offenders convicted of any felony (roughly equivalent to indictable offences in Canada) following two prior convictions for serious crimes. The law also increases the prison sentence for second-strike offenders, requires consecutive prison sentences for multiple-count convictions, and limits good-time credits to 20% following the first strike. These laws have proliferated and assumed various incarnations across the US, although many are modelled on the California version. They are based on criminal career research, beginning in the 1970s, pointing to the disproportionate involvement in violence of a hardcore group of chronic offenders (e.g., Wolfgang, Figlio, and Sellin, 1972). The policy implications of these studies appeared clear: the incapacitation of these chronic offenders could occasion major reductions in crime.
Projections by researchers at Rand Corporation lent optimism to the California law (Greenwood et al., 1996). They calculated that a fully implemented Three-Strikes law would reduce serious felonies by between 22 and 34 percent. Furthermore, the Rand researchers noted that this expected reduction was based solely on its incapacitation effect and did not consider its potential deterrent effect.
Stolzenberg and D'Alessio (1997) evaluated the impact of the law on the rates of serious (index) crimes in California's ten largest cities. While the rate of these crimes across these cities dropped by 15% from the 9-year pre-implementation period to the 20-month post-implementation period, a time-series analysis conducted by the authors suggests that this reduction was due to a declining trend in these offences already underway before the law was enacted. The authors did find a significant effect in one of the ten jurisdictions. It is also noteworthy that the drop in index crimes in the post-implementation period exceeded by a wide margin the drop in petty theft during the same period. Petty theft served as a control as it was expected to be unaffected by the legislation. While the findings appeared to provide mixed support for the Three-Strikes law, the authors speculated about its limited effect on serious crime. One explanation offered was that California's sentencing system already called for enhanced (longer) sentences for repeat offenders; therefore, many high-risk offenders were already behind bars prior to the new law's enactment. Secondly, the authors conjectured that the third strike will often occur at an age when criminal careers are on the decline, thereby limiting the law's impact.
Another short-term analysis of the impact of California's Three Strikes law indicated that major crime dropped more sharply in the state than it did nationwide (Vitiello, 1997). In the first year of the law (1994), crime in the state dropped by 4.9%, compared to 2% in the US as a whole. In the second year, California's major crime rate dropped by 7% as opposed to a 1% reduction nationwide. While these findings are noteworthy, no systematic attempt has been made to examine the role played by the law as opposed to economic and demographic factors.
Austin (1993) found that in four states with sentencing guidelines and enhancements (Pennsylvania, Florida, Minnesota, and Washington), the crime trends were similar to national trends. Wichiraya (1996) examined 31 states that have implemented some sentencing enhancements and found no significant declines in crime rates in most of these states and even increases in a few cases. Maxwell (1999) notes, however, that such studies should not be interpreted as an indication of the failure of MMS to reduce crime rates. As MMS apply to only a fraction of those entering the justice system, they are likely to only marginally affect crime rates. As of August, 1998, of the 22 states adopting Three-Strikes laws, six or less individuals had been sentenced under these laws in eight states (Schultz, 2000). Only in California have these laws been applied to a sizable group of offenders. Furthermore, 85% of those convicted under California's law were nonviolent or drug offenders, thereby limiting the laws ability to prevent violent crime.
A spate of fatalities in Western Australia, stemming from car pursuits often involving young offenders with stolen vehicles, resulted in the enactment of the Crime (Serious and Repeat Offenders) Sentencing Act 1992 (Broadhurst and Loh, 1993). The most controversial aspect of the Act was an 18-month mandatory prison term for those convicted four times within a period of 18 months for a violent offence or convicted seven times, with the seventh being for a serious offence. The sentence was both mandatory and indeterminate, as release following the 18-month period required approval by the Supreme Court, in the case of juveniles, and by the Governor, in the case of adults.
The authors first provided a general critique of the Act, arguing that it offended the principle of proportionality by relying excessively on the offender's criminal record, embraced preventive detention, and adopted the dubious strategy of selective incapacitation. Due to the poor quality of Western Australian juvenile offending records, the authors asserted that accurate estimates of the number of individuals likely to be subject to the legislation were not possible. Using South Australian data, it was predicted that between 1.3% and 3.2% of the juvenile population would be subject to the Act within 12 months of its implementation. South Australian cohort data indicated that there was no empirical basis to the idea that the four or seven offence threshold triggering the legislation would capture the most persistent offenders. Sixteen months following its implementation, only two offenders had been sentenced under the Act. The authors attributed its lack of application to the vagueness of the Act regarding the meaning of a prior offence and reluctance on the part of key players in the justice system to enforce it. The infrequent application of the Act makes it unlikely that, as enforced, it could yield a significant incapacitation effect. Also, observed declines in car thefts and chases around the introduction of the law were found to be short lived and were viewed as resulting from changes in police practices and factors other than a deterrent effect.
Morgan (2000), also in Western Australia, examined the impact of a 12-month MMS for a third home burglary offence. Enacted in November, 1996, the law was not accompanied by a significant reduction in reported home burglary offences when the pre-intervention (1991-96) and post-intervention (1997-98) periods were compared. Although claims have been made that just a small proportion of those serving these MMS and subsequently released committed a further burglary, Morgan asserts that these claims were based on an analysis with a very small sample (57 cases) and plagued by other methodological flaws.
Chief Justice Rehnquist (1993) of the US Supreme Court has observed that MMS allocate scarce prison space to low-level criminals (e.g., the “mules” in drug trafficking) for long periods, rather than those directing criminal activity. Hence, the costs of these penalties are substantial and their benefits, in terms of crime reduction, are few.
To summarize, the evidence was mixed in terms of the effectiveness of more general mandatory sentencing laws such as “Three Strikes.” Some studies show modest crime preventive effects. California's Three Strikes legislation has been the most extensively researched of these initiatives. While that state experienced a sharper decline than other states following the law's implementation, communities in California showed inconsistent effects. Also, studies comparing states with and without such a law showed no difference in their crime trends. Reasons given for the lack of a more pronounced effect of such sweeping laws include their inconsistent application, the small number of individuals to whom these laws apply, and the possibility that the most serious and persistent offenders already tend to be serving long sentences under existing legislation.
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