T O EN F J TM U R ST U.S. Department of Justice A I P C E E D

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O J C S F A V Office of Justice Programs M F O I N A C I J S R E BJ G O OJJ DP O F PR National Institute of Justice JUSTICE National Institute of Justice R e s e a r c h i n A c t i o n Jeremy Travis, Director January 1997

Highlights Key Legislative Issues in Criminal Justice: Mandatory sentencing enhance- ments, including the widely dis- Mandatory Sentencing cussed three-strikes laws enacted in a number of jurisdictions, are by Dale Parent, Terence Dunworth, Douglas McDonald, and William Rhodes aimed at deterring known and po- tentially violent offenders and inca- By 1994 all 50 States had enacted one or A second frequently mentioned mandatory pacitating convicted criminals 1 through long-term incarceration. more mandatory sentencing laws, and sentencing enhancement is “truth-in-sen- Congress had enacted numerous manda- tencing,” provisions for which are in the Studies have described a number tory sentencing laws for Federal offend- Violent Crime Control and Law Enforce- of consequences of earlier manda- ers. Furthermore, many State officials ment Act of 1994. States that wish to tory sentencing laws, including the have recently considered proposals to qualify for Federal aid under the Act are following: enhance sentencing for adults and juve- required to amend their laws so that im- ● Arrest rates, indictments, plea niles convicted of violent crimes, usually prisoned offenders serve at least 85 per- bargains, and convictions decline by mandating longer prison terms for cent of their sentences. after mandatory sentencing laws violent offenders who have a record of go into effect, while early dismiss- serious crimes. Three-strikes laws (and, Rationale for mandatory als, early diversions, trial rates, and in some jurisdictions, two-strikes laws) sentencing sentencing delays increase. are the most prominent examples of such Mandatory sentences are based on two ● sentencing enhancements. The net probability that offend- goals—deterrence and incapacitation. The ers will be imprisoned is unaffected Three-strikes laws impose longer prison primary purposes of modest mandatory (after all variables are taken into ac- count). terms than earlier mandatory minimum prison terms (e.g., 3 years for armed rob- sentencing laws. For example, Cali- bery) are specific deterrence, which applies ● For those imprisoned, the length fornia’s three-strikes law requires that to already sanctioned offenders, and gen- of sentence increases. offenders who are convicted of a violent eral deterrence, which aims to deter pro- crime, and who have had two prior con- spective offenders. If the law successfully ● Studies of sentencing practices in the Federal courts find no com- victions, serve a minimum of 25 years; increases the imprisonment rate, the ef- pelling evidence that judges are the law also doubles prison terms for of- fects of incapacitation also will grow be- unfairly applying mandatory mini- fenders convicted of a second violent cause fewer offenders will be free to mum sentences to racial and ethnic felony.2 Three-strikes laws vary in victimize the population at large. The in- minorities. However, African breadth. For example, some stipulate tent of three-strikes (and even two-strikes) Americans receive longer sentences that both of the prior convictions and the is to incapacitate selected violent offenders than whites in the Federal courts, current offense be violent felonies; oth- for very long terms—25 years or even life. according to one study, because ers require only that the prior felonies be They have no specific deterrent effect if they constitute the majority of violent. Some three-strikes laws count those confined will never be released, but those convicted of trafficking in only prior adult violent felony convic- their general deterrent effect could, in tions, while others permit consideration theory, be substantial. continued . . . of juvenile adjudications for violent crimes. R e s e a r c h i n A c t i o n

Highlights By passing mandatory sentencing laws, a deterrent to drug crime in New York 7 continued . . . legislators convey the message that cer- City. None of the studies examined the tain crimes are deemed especially grave incapacitation effects of these laws. and that people who commit them de- crack cocaine, a crime Congress serve, and may expect, harsh sanctions. The criminal justice system. The chose to punish severely. criminal courts rely on a high rate of These laws are a rapid and visible re- guilty pleas to speed case processing Three-strikes laws are costly. A study sponse to public outcries following hei- and thus avoid logjams. Officials can of- of California’s statute projected that nous or well-publicized crimes. The high fer inducements to defendants to obtain the law would: long-term costs of mandatory sentencing these pleas. If only in the short term, are deferred because the difficult fund- ● Increase the prison population in mandatory sentencing laws may disrupt ing choices implicit in this policy can be California over the next quarter-cen- established plea-bargaining patterns by delayed or even avoided. tury by a factor of three. preventing a prosecutor from offering a ● Increase costs during the same short prison term (less than the new Impact of mandatory sentencing minimum) in exchange for a guilty plea. period by $5.5 billion per year, on laws average, for a cumulative additional However, unless policymakers enact cost of $137.5 billion. Mandatory sentencing has had signifi- long-term mandatory sentences that ap- cant consequences that deserve close at- ply to many related categories of crimes, ● Reduce serious crimes by 28 per- tention, among them its impact on crime prosecutors usually can shift strategies cent, at a total correctional cost of and bargain on charges rather than on approximately $16,300 per crime and the operations of the criminal justice averted. system. The possible differential conse- sentences. quences for certain groups of people also The findings of research on the impact of An alternative to mandatory mini- bear examination. mum sentencing provisions, which mandatory sentencing laws on the crimi- would protect sentencing policy, Crime. Evaluations of mandatory sen- nal justice system have been summa- preserve legislative control, and still tencing have focused on two types of rized by a prominent scholar.8 He found toughen sentences for repeat violent crimes—those committed with handguns that officials make earlier and more se- offenders, is the use of presumptive and those related to drugs (the offenses lective arrest, charging, and diversion sentences. most commonly subjected to mandatory decisions; they also tend to bargain less Other possibilities include: minimum penalties in State and Federal and to bring more cases to trial. Specifi- courts). An evaluation of the Massachu- cally, he found that: ● Directing mandatory sentencing setts law that imposed mandatory jail • Criminal justice officials and prac- laws at only a few especially serious terms for possession of an unlicensed titioners (police, lawyers, and judges) ex- crimes and requiring “sunset” provi- handgun concluded that the law was an sions. ercise discretion to avoid application of effective deterrent of gun crime,3 at least laws they consider unduly harsh. ● Subjecting long mandatory sen- in the short term. tences to periodic administrative re- • Arrest rates for target crimes decline However, studies of similar laws in view to determine the advisability of soon after mandatory sentencing laws Michigan4 and Florida5 found no evi- continued confinement. take effect. dence that crimes committed with fire- ● Including a funding plan in sen- arms had been prevented. An evaluation • Dismissal and diversion rates increase tencing legislation to ensure aware- of mandatory gun-use sentencing en- ness of and responsibility for long- at early stages of case processing after hancements in six large cities (Detroit, mandatory sentencing laws take effect. term costs. Jacksonville, Tampa, Miami, Philadel- ● Developing policy that makes phia, and Pittsburgh) indicated that the • For defendants whose cases are not more effective and systematic use of laws deterred homicide but not other dismissed, plea-bargain rates decline intermediate sanctions. violent crimes.6 An assessment of New and trial rates increase. York’s Rockefeller drug laws was unable to support the claim for their efficacy as • For convicted defendants, sentencing delays increase.

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• Enactment of mandatory sentencing laws has little impact on the probabil- ity that offenders will be imprisoned About the Key Legislative Issues Series (when the effects of declining arrests, indictments, and convictions are taken I n 1995 the National Institute of Jus- State policymakers expressed a strong de- into account). tice (NIJ) contracted with Abt Associates sire for more timely and useful informa- Inc. to interview legislators and policy- tion about research findings on important • Sentences become longer and more makers throughout the country to iden- criminal justice policy issues they were ad- severe. tify important criminal justice topics being dressing. However, they voiced reserva- considered by State legislatures and to tions about gleaning useful information The research review concluded that determine the information they need to from technical research reports. mandatory sentencing laws: help them make more informed deci- sions. Altogether, 89 legislators, legisla- Reviews and summaries of the research • Do not achieve certainty and pre- tive staff members, and other criminal literature on the four key topics identified dictability because officials circum- justice policymakers (e.g., sentencing present the information in a way that is vent them if they believe the results commission members) were interviewed more accessible to policymakers. Of the are unduly harsh. in 23 States. The interviews were con- four reports, this one summarizes what is ducted during the opening weeks of the known about mandatory sentencing and • Are redundant with respect to pro- 1995 State legislative sessions. its impact on crime and the operation of scribing probation for serious cases the criminal justice system. Particular at- because such cases generally are sen- The sites and the respondents were cho- tention is paid to the impact on racial and sen to reflect the diversity of the States. ethnic minorities and to three-strikes tenced to imprisonment anyway. Some of the factors taken into consider- laws. • Are arbitrary for minor cases. ation were geographic size and region, urban/rural mix, and existence (or nonex- Titles in the series istence) of a sentencing commission in • May occasionally result in an un- The Impact of Sentencing Guidelines the State government. The respondents duly harsh punishment for a marginal (NCJ 161837) offender.9 selected included the chairpersons of rel- evant legislative committees (such as the Intermediate Sanctions (NCJ 161838) Racial and ethnic minorities. One criminal justice, judiciary, and corrections issue that has received considerable committees), a representative from the Mandatory Sentencing (NCJ 161839) governor’s staff, and an official with the attention in recent years is whether ra- executive branch (such as the commis- Transferring Serious Juvenile Offend- cial or ethnic minorities are treated sioner of corrections or the sentencing ers to Adult Courts (NCJ 161840) unfairly in the courts’ application of commission chairperson). Other people These summary reports have been pub- mandatory minimum sentences. The whom they suggested were also inter- lished in NIJ’s Research in Action series. question cannot be answered simply viewed, and, as might be expected, legis- Copies can be obtained from the National by comparing the proportion of minor- lators frequently referred the interviewers Criminal Justice Reference Service to their staff. ity offenders sentenced before and af- (NCJRS), Box 6000, Rockville, MD 20849– ter introduction of, or changes in, These policymakers identified four topics 6000; telephone 800–851–3420; or e- mandatory sentencing laws. If, for ex- as important items on their legislative mail [email protected]. The reports can ample, it is objectively determined agendas: also be viewed and downloaded from the that minorities are more likely than NCJRS World Wide Web site, the Justice the general population to commit of- ● Sentencing commissions. Information Center (http://www.ncjrs.org), fenses that carry mandatory sentences, or through the NCJRS Bulletin Board ● Intermediate sanctions. an equitable application of the law System (direct dial through computer modem: 301–738–8895; telnet to would result in an increase in the pro- ● Mandatory sentencing, including three- ncjrsbbs.ncjrs.org or gopher to portion of imprisoned minorities—and strikes laws. ncjrs.org:71). probably in the lengths of their aver- ● age sentences. Transferring serious juvenile offenders to adult courts.

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Consequently, the central question is that African Americans received two prior offenses were violent, serious whether criminal justice officials’ dis- longer sentences than whites, not be- crime could be cut 18 percent, at a to- cretionary choices in the application of cause of differential treatment by tal correctional cost of $12,000 per mandatory sentencing laws are made judges but because they constituted averted crime. in a racially neutral manner. the large majority of those convicted of trafficking in crack cocaine—a crime The effects on future California bud- Results of particular studies are rel- Congress had singled out for espe- gets of funding the three-strikes law evant. In one study involving cases of cially harsh mandatory penalties.13 were estimated. In their calculations, Federal offenders sentenced for crimes This pattern can be seen as constitut- the researchers assumed that health subject to mandatory minimums, the ing a “disparity in results” and, partly and welfare costs would not increase researcher examined whether sentenc- for this reason, the U.S. Sentencing (an assumption they labeled as un- ing severity varied by amount and type Commission recommended to Con- likely) and that educational spending of drugs involved in the current crime, gress that it eliminate the legal dis- for grades K–12 would increase only weapons, offense record, role in of- tinction between crack and regular as a direct result of foreseeable demo- fense, history of drug use, age, gender, cocaine for purposes of sentencing (a graphic changes. They found that cor- 10 and race. She found sentencing dif- recommendation Congress rejected). rections would consume 18 percent of ferences associated with the offender’s State spending by the year 2002— race, even after accounting for differ- Three-strikes laws. The recent wave double the 1994 percentage. Together, ences associated with these other of three-strikes laws has not yet been corrections, health and welfare, and characteristics. However, the magni- evaluated, but the costs and benefits K–12 education would consume 99 tude of this difference was small. of California’s three-strikes law have percent of the State’s budget by 2002, been simulated.14 Assuming that the leaving just 1 percent to fund every- The U.S. Sentencing Commission ex- law would produce incapacitation ef- thing else. panded this study and found signifi- fects but not deterrent effects, the re- cant differences in the proportion of searchers projected it would: Future issues whites (54 percent), Hispanics (57 percent), and African Americans (68 • Triple California’s prison population In the interviews conducted for this re- percent) who received mandatory over the next 25 years, creating a view of mandatory sentencing, State minimum sentences for the most seri- prison population about equal in size policymakers expressed the need to ous offense charged against them.11 A to that of the entire U.S. prison popu- respond to the public’s fear of crime reanalysis of the U.S. Sentencing Com- lation in 1980. and call for tougher sanctions, but also mission data drew different conclu- recognized the need to rein in spiral- sions, however.12 The reanalysis • Cost an average of $5.5 billion more ing costs of corrections. If the costs of showed that when legally relevant each year for the next 25 years than government are cut, spending more on case-processing factors were consid- the previous law, for a cumulative ad- prisons means spending less on other ered, a defendant’s race/ethnicity was ditional cost of $137.5 billion. public purposes. The fiscal analysis unrelated to the sentence. Also exam- • Reduce serious crime by 28 percent, of California’s three-strikes law, for ined in the reanalysis was why more at a total correctional cost of about example, has implications for that than 40 percent of the cases appar- $16,300 for each crime averted. State’s future. ently eligible for mandatory sentences did not receive them. Reasonable ex- The researchers found that Califor- In a major study of sentencing policy, planations include evidentiary prob- nia’s three-strikes law would avert Michael Tonry of the University of lems and instances in which Minnesota suggested that States con- crimes inefficiently because many of- 15 defendants provided substantial assis- fenders would be confined for long pe- sider the following options: tance to prosecutors in preparing cases riods after their criminal activity • Pursue presumptive rather than against others. became negligible because of the ef- mandatory sentences. fects of aging. They calculated that if In an analysis of the Federal sentenc- the law were limited to offenders Presumptive sentences, which are ing guidelines, other researchers found whose current crime and both of the developed by sentencing commissions

4 R e s e a r c h i n A c t i o n and set forth as guidelines, can shift • Conduct some form of periodic based financial aid to local govern- overall sentencing patterns in ways ac- administrative review to determine if ments. For intermediate sanctions, the ceptable to policymakers. For ex- continued confinement of the offender State could provide greater support to ample, they can seek to imprison more is required, in the event mandatory jurisdictions whose program met or ex- violent offenders and fewer property sentences are imposed. ceeded the performance objectives offenders. A sentencing commission specified by the agency. can help maintain sentencing policy • Closely link sentencing and fiscal while still preserving ultimate legisla- policy decisions to enhance the legis- Finally, States that make greater use of tive control. Presumptive sentences lative process. intermediate sanctions may want to have generally achieved their intended develop policies that govern their use Legislatures could ensure that they in individual cases. Examples are the goals, and research shows high rates of know the financial impact of proposed conformity to the sentences by judges. development of presumptive guide- sentencing legislation and, where sub- lines for nonconfinement as well as In the rare instance in which a pre- stantial long-term costs will be in- confinement sanctions. Such policies sumptive sentence is inappropriate curred, a funding plan might be a could be designed to ensure that over- (i.e., either too harsh or too lenient, required provision of the enabling law. all use of nonconfinement sanctions is given the facts of the case), judges can This would prevent today’s legislature consistent with goals established by depart from the guidelines by provid- from avoiding the fiscal implications the legislature and broad principles ing in writing reasons that can be re- of its sentencing policies. that govern sentencing generally (e.g., viewed by higher courts. If legislatures proportionality, uniformity, and neu- so instruct sentencing commissions, Cultivating alternative trality). In particular, guidelines could they can craft the guidelines to control sanctions limit additive use of sanctions (impos- future costs and, at the same time, Legislatures also may want to develop ing two or three nonconfinement sanc- tions on a particular offender) and toughen sentences for repeat violent policy that makes more effective and offenders. systematic use of intermediate sanc- control revocation decisions in order to tions, if the twin objectives of punish- minimize needless confinement for mi- • Include sunset provisions to require nor rule violations. periodic reconsideration of the propri- ment and lower correctional costs are ety of the laws, if mandatory sentencing to be achieved. Such policy might Notes laws are enacted. specify goals for each particular sanc- tion, locate each category of interme- 1. Tonry, M., Sentencing Matters, Oxford, • Limit the duration and scope of diate sanctions along the continuum England: Oxford University Press, 1995. mandatory sentencing laws. between standard probation and total 2. In mid-1996 the California Supreme Court confinement, and define target popu- ruled the State’s three-strikes law an undue in- Crime is, quite literally, an activity of lations for each category. For example, trusion on judges’ sentencing discretion. State young men. As the study of the Cali- it could specify which confined of- legislative leaders immediately announced fornia law emphasized, extremely long plans to introduce legislation that would rein- fenders will be considered for early re- state the law. mandatory sentences (e.g., 25 years lease, which sanctions should enhance 3. Pierce, G.L., and W.J. Bowers, “The Bartley- to life) are inefficient because they standard probation, and which offend- confine offenders for long periods (at Fox Gun Law’s Short-Term Impact on Crime in ers need treatment or services. Boston,” Annals of the American Academy of great cost) after they would have “aged Political and Social Science 455 (1981):120– out” of crime. Sentencing could be In addition, States may want to de- 132. mandated for only a few especially velop a financial structure to steer de- 4. Loftin, C., M. Heumann, and D. McDowall, serious crimes. If such laws are aimed velopment of intermediate sanctions in “Mandatory Sentencing and Firearms Violence: at repeat serious offenders, they could intended directions. This could be a Evaluating an Alternative to Gun Control,” Law include a requirement that only par- variant of current community correc- and Society Review 17 (1983):287–318. ticularly serious prior and current con- tions acts, for which a central State 5. Loftin, C., and D. McDowall, “The Deterrent victions trigger them. agency sets standards for local pro- Effects of the Florida Felony Firearm Law,” Journal of Criminal Law and Criminology 75 grams and administers performance- (1984):250–259.

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6. McDowall, D., C. Loftin, and B. Wiersema, posed, Washington, D.C.: Federal Judicial Cen- “A Comparative Study of the Preventive Effects ter, 1992. Dale Parent, associate; Terence of Mandatory Sentencing Laws for Gun Dunworth, Ph.D., senior associate; Crimes,” Journal of Criminal Law and Crimi- 11. U.S. Sentencing Commission, Federal Sen- nology 83, 2 (Summer 1992):378–394. tencing Guidelines: A Report on the Operation Douglas McDonald, Ph.D., senior of the Guidelines System and Short-Term Im- associate; and William Rhodes, 7. Joint Committee on New York Drug Law pacts on Disparity in Sentencing, Use of Incar- Ph.D., senior scientist, are with Abt Evaluation, The Nation’s Toughest Drug Law: ceration, and Prosecutorial Discretion and Plea Evaluating the New York Experience, a project Bargaining, Washington, D.C.: U.S. Sentenc- Associates Inc. This study, spon- of the Association of the Bar of the City of New ing Commission, 1991. sored by the National Institute of York, the City of New York and the Drug Justice, was prepared under con- Abuse Council, Inc., Washington, D.C.: U.S. 12. Langan, P., “Federal Prosecutor Applica- Government Printing Office, 1978. tion of Mandatory Sentencing Laws: Racially tract 94–IJ–CX–C007. Disparate? Widely Evaded?” Washington, 8. Tonry, M., Sentencing Reform Impacts, D.C.: U.S. Department of Justice, Bureau of Points of view in this document are those of the Washington, D.C.: U.S. Department of Justice, Justice Statistics, 1992. authors and do not necessarily reflect the official National Institute of Justice, 1987. 13. McDonald, D.C., and K.E. Carlson, Sen- position of the U.S. Department of Justice. tencing in the Courts: Does Race Matter? The 9. Ibid. Transition to Sentencing Guidelines, 1986–90, The National Institute of Justice is Washington, D.C.: U.S. Department of Justice, 10. Meierhoefer, B.S., General Effect of Manda- a component of the Office of Jus- tory Minimum Prison Terms, Washington, D.C.: Bureau of Justice Statistics, 1993. tice Programs, which also includes Federal Judicial Center, 1992; Meierhoefer, 14. Greenwood, P.W., et al., Three Strikes and B.S., “Role of Offense and Offender Character- You’re Out: Estimated Benefits and Costs of the Bureau of Justice Assistance, istics in Federal Sentencing,” Southern Califor- California’s New Mandatory-Sentencing Law, the Bureau of Justice Statistics, the nia Law Review 66, 1 (November 1992) Santa Monica, California: RAND Corporation, Office of Juvenile Justice and :367–404; and Meierhoefer, B.S., General Ef- 1994. fect of Mandatory Minimum Prison Terms: A Delinquency Prevention, and the Longitudinal Study of Federal Sentences Im- 15. Tonry, Sentencing Matters. Office for Victims of Crime.

NCJ 161839

U.S. Department of Justice BULK RATE Office of Justice Programs POSTAGE & FEES PAID National Institute of Justice DOJ/NIJ Permit No. G–91

Washington, D.C. 20531 ______

Official Business Penalty for Private Use $300