Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform Gary T. Lowenthalt Recent years have seen significant changes in sentencing law: deter- minate sentencing schemes and mandatory enhanced sentences have largely displaced discretionarysentencing regimes operating within broad sentencing constraints. Commentators have variously lamented and applauded the advent of both determinate sentencing and mandatorypen- alties, yet the interaction of these two innovations has been left largely unexamined. Professor Lowenthal provides an analysis of the perverse consequences that ensue when sentencing, guidelines are paired with mandatorysentencing: the very consistency and proportionality that these changes were supposed to engender can be undercutwhen the two sentenc- ing approaches are combined. Mandatory sentencing emphasizes a single aggravating factor, contrary to determinate sentencing, which directs judges to a whole complex offactors. Mandatorysentencing also is applied unevenly, with those exercising their right to trial often receiving harsher penalties. Thus, a factor that should not be detrimental under determi- nate sentencing, such as exercising one's constitutional right to trial, is detrimental under mandatory sentencing. In sum, the goals of determi- nate sentencing-consistentpunishment for like crimes and proportional punishment for different crimes-are greatly undermined by mandatory sentencing. Professor Lowenthal concludes by arguing for legislative changes to ameliorate the harsh and undesired effects of mandatory sen- tencing measures. Two developments in the last twenty years have transformed felony sentencing in the United States. First, most jurisdictions have adopted determinate sentencing schemes that narrow the range of sanctions avail- able to trial courts and reduce or eliminate the broad discretion previ- ously exercised by corrections administrators and parole boards.1 At the t Professor of Law, Arizona State University. A.B. 1966, Harvard University; J.D. 1969, University of Chicago. I wish to thank Jane Aiken, David Kaye, Ilene Nagel, Stephen Schulhofer, and Jim Weinstein, whose wise suggestions improved earlier drafts of this paper. Jennie Gorrell, Randall Hodgkinson, and Janissa Strabuk provided valuable research assistance. 1. Under indeterminate sentencing systems that previously existed, legislatures established broad parameters of permissible punishment for each offense category. Penalties ranged from no CALIFORNIA LAW REVIEW [Vol. 81:61 same time, legislatures have enacted mandatory sentencing laws that require significantly enhanced punishment in a large number of felony prosecutions, particularly those involving violent crimes and drug traf- ficking.2 While the success of the determinate sentencing reforms has been debated extensively,3 the joint effect of determinate sentencing and incarceration at all to life imprisonment, even for relatively minor offenses. See In re Lynch, 503 P.2d 921, 922 (Cal. 1972) (statute authorizing indeterminate sentence of up to life imprisonment for indecent exposure held unconstitutional). Judges in most of these systems set the maximum terms of individual sentences, and parole boards set actual periods of confinement within judicially determined maximums. See Mistretta v. United States, 488 U.S. 361, 364-65 (1989) (describing the allocation of sentencing discretion under the federal system of indeterminate sentencing). On the relationship between the respective roles of judge and parole board in indeterminate sentencing, see Alan M. Dershowitz, Indeterminate Confinement: Letting the Therapy Fit the Harm, 123 U. PA. L. REv. 297, 298-301 (1974). For a discussion of the historical foundations of indeterminate sentencing, which became the predominant approach to punishment in American courts in the latter decades of the 19th century, see generally Howard B. Gill, A New Prison Discipline"Implementing the Declarationof Principlesof 1870, FED. PROBATION, June 1970, at 29. By 1922, only four states were without some form of parole or indeterminate sentencing system. Edward Lindsey, HistoricalSketch of the Indeterminate Sentence and Parole System, 16 J. CRIM. L. CRIMINOLOGY & POLICE SC. 9, 69 (1925). Parole board participation in sentencing has diminished in many jurisdictions in recent years. For example, the Minnesota Legislature limited the authority of the Minnesota Corrections Board. See MINN. STAT. ANN. § 244.09 (West 1991). Congress abolished the United States Parole Commission and restricted the availability of good-time credit for federal prisoners as part of the Sentencing Reform Act of 1984. Pub. L. No. 98-473, § 235(b), 98 Stat. 1837, 2031 (codified at 18 U.S.C. § 3624(b) (1988)). Parole boards in most states nevertheless retain the authority to grant an early release from a prison sentence imposed in court. See, e.g., FLA. STAT. ANN. § 947.13 (West 1985 & Supp. 1992); MAss. GEN. LAWS. ANN. ch. 127, § 128 (West 1991). 2. For a discussion of these statutes, see infra Part I. .3. See DALE G. PARENT, STRUCTURING CRIMINAL SENTENCES: THE EVOLUTION OF MINNESOTA'S SENTENCING GUIDELINES (Daniel J. Freed ed., 1988) (evaluating difficulties encountered in establishing a sentencing commission and promulgating guidelines); ANDREW VON HIRSCH ET AL., THE SENTENCING COMMISSION AND ITS GUIDELINES (1987) (comparing the guidelines experience in several states); Albert W. Alschuler, The Failureof Sentencing Guidelines:,A Pleafor Less Aggregation, 58 U. CHI. L. REv. 901, 908-15 (1991) (discussing the failure of guidelines systems to take into account individual differences among offenders); John C. Coffee, Jr. & Michael Tonry, Hard Choices: Critical Trade-offs in the Implementation of Sentencing Reform Through Guidelines, in REFORM AND PUNISHMENT: ESSAYS IN CRIMINAL SENTENCING 155 (Michael Tonry & Franklin E. Zimring eds., 1983) (analyzing difficulties in accomplishing goals of determinate sentencing reform); Richard S. Frase, Sentencing Reform in Minnesota, Ten Years After: Reflections on Dale G. Parent's Structuring Criminal Sentences: The Evolution of Minnesota's Sentencing Guidelines, 75 MINN. L. REV. 727 (1991) (discussing effects of political pressures on the state sentencing commission); Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 YALE L.J. 1681, 1690, 1730-40 (1992) (arguing that the federal guidelines are too rigid, complex, and severe and that appellate courts have been narrow-minded in applying the guidelines); Gerald W. Heaney, The Reality of Guidelines Sentencing: No End to Disparity, 28 AM. CRiM. L. REV. 161 (1991) (empirical evaluation of the federal sentencing guidelines); Stephen J. Schulhofer, Assessing the FederalSentencing Process: The Problem Is Uniformity, Not Disparity, 29 AM. CRIM. L. REV. 833, 851-70 (1992) (arguing that the greatest failure of federal sentencing reform is excessive uniformity, not undue disparity); Stephen J. Schulhofer & Ilene H. Nagel, Negotiated Pleas Under the Federal Sentencing Guidelines: The First Fifteen Months, 27 AM. CRIM. L. REV. 231 (1989) (plea bargaining evasions undermine the goals of guideline sentencing); Andrew von Hirsch & Julia M. Mueller, California'sDeterminate Sentencing Law: An Analysis of Its Structure, 10 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 253 (1984) (evaluating problems existing under California sentencing reforms); Franklin E. Zimring, Sentencing 1993] MANDA TORY SENTENCING LAWS mandatory minimum punishments has not been subjected to careful scrutiny. Determinate sentencing's principal goal has been the elimination of unwarranted disparity, with legislatures seeking proportional punish- ment for different offenses and consistent punishment for similar crimes.4 Accordingly, most jurisdictions have abandoned rehabilitation, once the central purpose of the indeterminate sentence, as a principal end of pun- ishment. Current sentencing policy instead reflects a preference for retributive justice, with punishment commensurate with the seriousness of each type of offense.' Some state legislatures, following the lead of California's 1976 Uniform Determinate Sentencing Law,6 have pre- scribed a presumptive sentence for each statutory offense, with a narrow range of permissible deviations from the legislative presumption.7 Other states and Congress have structured sentencing discretion by requiring judges to follow guidelines promulgated by a sentencing commission.' Reform in the States:Lessons From the 19 70, in REFORM AND PUNISHMENT: ESSAYS IN CRIMINAL SENTENCING, supra, at 101 (analyzing problems of determinate sentencing laws). Much of the debate over the wisdom of determinate sentencing reform has centered on the federal sentencing guidelines. Critics have charged that the federal guidelines are unduly complex, rigid, and likely to result in unwarranted disparities. Others have defended the guidelines. See infra note 117. 4. Many critics of indeterminate sentencing in the 1970s and early 1980s argued that disparate treatment of similar cases required a move toward determinate punishment. See infra note 223. The modem goals of uniformity and proportionality in sentencing sometimes conflict with one another. See William W. Wilkins, Jr., The FederalSentencing Guidelines: Striking an Appropriate Balance, 25 U.C. DAvIs L. Ray. 571, 573-76 (1992). 5. For a discussion of the ascendance and decline of rehabilitation as a principal goal of sentencing, see FRANCIS A. ALLEN, THE DECLINE OF THE REHABILITATIVE