Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures

9. Conclusions (continued)

9. Conclusions (continued)

9.4 Mandatory sentences for impaired driving

There are some methodological impediments to assessing the effects of MMS on impaired driving, as legal sanctions are often accompanied by treatment for alcohol abuse. Further confounding evaluations in this area is the role of educational campaigns. High-profile publicity campaigns tend to accompany new legislative initiatives on impaired driving, making it difficult to sort out the relative importance of deterrent and denunciatory effects. Research that has attempted to isolate these effects has found that people may respond more to the shame associated with impaired driving than to the threat of legal sanctions. However, the level of shame is undoubtedly influenced by the nature and severity of sanctions and accompanying publicity campaigns. While the evidence overall underscores the critical role played by vigorous law enforcement and the certainty of punishment in this area, studies provide little reason for optimism with regard to the efficacy of tough sanctions. While not unanimous, studies indicate that MMS and sanctions of increasing severity do not appear to reduce recidivism rates or alcohol-related road accidents. One author asserts that impaired driving is a unique offence in that alcohol consumption and, often, abuse is inherent to it. He notes that repeat offenders commit a disproportionate number of these offences and do not tend to respond to punishments (such as license revocations) due to their substance abuse problem.

9.5 Mandatory sentences for drug offences

Severe MMS seem to be least effective in relation to drug offences. Studies using a variety of methodologies seriously question the value of the “drug war” approach. The draconian penalties in Malaysia are routinely circumvented by the judiciary and the tough MMS in the US (both at the state and federal levels) have imprisoned mostly low-level, nonviolent offenders. Drug consumption and drug-related crime seem to be unaffected, in any measurable way, by severe MMS. Both mathematical modeling techniques and field work arrive at the conclusion that treatment-oriented approaches are more cost effective than harsh prison terms. Most drug dealers operate at a low-level and are not committed to this activity in a single-minded way. MMS are blunt instruments that provide a poor return on taxpayers' dollars because they fail to distinguish between low and high-level, as well as hardcore versus transient dealers. An optimal approach might require a mix of accessible treatment for addicted dealers, employment opportunities for part-time dealers, and tough sentences for hardcore, high-level dealers.

9.6 The impact of hypothetical mandatory sentencing policies

Studies examining the crime preventive effects of hypothetical MMS triggered by a violent crime have consistently found that the benefits would be modest relative to the elevated prison costs. This is due to the relatively low number of individuals who would reconvicted on other violent offences during the time these penalties would be in effect. From a utilitarian point of view, such collective incapacitation strategies would needlessly incarcerate many individuals not at risk of reconviction. Selective incapacitation strategies targeting high-rate offenders would be more efficient; however, prediction problems abound and they are unlikely to be implemented due to concerns that they would undermine fundamental legal principles.

9.7 Sentencing disparity

There is no evidence that either discretion or disparities are reduced by MMS. While judicial discretion in the sentencing process is reduced (not removed), prosecutors play a more pivotal role as their charging decisions become critical. The shift in influence over sentencing from the judicial to the prosecutorial level also represents a loss of transparency in decision-making, as prosecutorial decisions are less open to scrutiny than those made by judges. In California, under the Three Strikes law, prosecutors have been inconsistent in their application of the law from case to case and across jurisdictions. They often ignore “strikes” if they feel that a case deserves leniency. In the US federal system, the only statutory exemptions to MMS apply when defendants have been shown to provide “substantial assistance” in the prosecution of other cases. High-level offenders are more likely to provide useful information and therefore are usually the beneficiaries of such discounts. This situation also undermines the rationale for mandatory sentencing policies in many jurisdictions – targeting drug kingpins and violent offenders.

In California, trial judges have dismissed previous “strikes”, arguing that the MMS would have constituted “cruel and unusual” punishment, in violation of the state's constitution. The state's Supreme Court upheld the right of judges to overlook previous convictions on the grounds that the dismissal of cases is a judicial rather than an executive function. Such rulings affirming the separation of powers between the judicial and executive branches, and the right of judges to dismiss prior convictions in the interests of justice may be inevitable consequences of draconian mandatory sentencing policies. Furthermore, racial disparities in sentencing have been exacerbated by MMS in the US, both at the federal and state levels. Taken together, therefore, prosecutorial and judicial practices, inter-jurisdictional differences in these practices, advantages to high-level offenders, and racial disparities indicate that MMS do not necessarily provide for more equitable, consistent, or predictable sentencing.

It has also been argued that the uniformity in sentencing ostensibly imposed under MMS may create other disparities as different offenders are treated similarly. By focusing exclusively on the nature of the infraction, the offender's degree of culpability and role in the crime is ignored. Women, for example, may be pressured into participating in crimes by abusive partners. Also, gender neutral sentencing may place a special burden on women due to their familial responsibilities and the dearth of programs in correctional facilities for women.

Disparities may be exacerbated by MMS in another way. To the extent that sentences under mandatory sentencing policies are more severe, the gap may increase between cases in which charges are bargained down and those that receive a lengthy MMS.