Minimum mandatory sentencing

Minimum mandatory sentencing


One major aspect of the criminal justice system is the punishment imposed for crimes committed against society. One controversial method of sentencing that grew over time was the establishment of mandatory minimum sentencing. According to the U.S. Sentencing Commission (USSC) mandatory minimums are defined as: “statutory provisions requiring the imposition of a sentence of at least a specified minimum term of imprisonment when criteria set forth in the relevant statute have been met” (U.S. Sentencing Commission, 2008). By 1994, mandatory sentencing laws were in place in all states (135) (Abadinsky, 2006). The Commission went further to state that there are at least 171 individual provisions in federal statutes and over 31,000 convictions with mandatory minimums (U.S. Sentencing Commission, 2008). Through the discourse of this essay, the history of these minimums will be explored, goals and practices examined, benefits and negatives discussed, and the present status of these minimums covered.


The first implementation of mandatory minimum sentencing has its roots in illicit drug enforcement and punishment. The first measure in the development of mandatory sentencing was the Boggs Act of 1951 which imposed federal minimums for drug offenses (FAMM, 2005). Much of the will behind passing this legislation was that Representative Boggs and others believed some federal judges had been less stringent in enforcing drug laws (Drug Library, 2009). In order to remedy this perceived lack of enforcement, the act was passed by Congress and was aimed to reduce judicial discretion in sentencing across the nation (FAMM, 2005).

However, after many years, the problem of drugs became more prevalent throughout the country. This perception led to the Controlled Substances Act of 1970 by Richard Nixon which repealed the Boggs Act in favor of more liberal sentencing guidelines with judicial discretion and more rehabilitative measures (FAMM, 2005). However, by this point, many states had already followed the federal government in enacting legislation with minimum sentences. For instance, in 1973, New York passed minimum penalties for drug offenses known as the ‘Rockefeller Drug Laws' (Jones, 2007). Following close on the heels of New York, Michigan passed its ‘650 Lifer Law—“mandating life imprisonment without parole for offenders convicted of intent to deliver 650 grams …of heroin or cocaine (81)” (Jones, 2007).

Even after the passage of the Controlled Substances Act in 1970 and the repeal of the Boggs Act, the federal government once again passed minimum imprisonment standards in 1984 with the Comprehensive Crime Control Act for drug offenses and the presence of a firearm (FAMM, 2005). It is important to note that the Comprehensive Crime Control Act also created the United States Sentencing Commission (US Sentencing Commission, 2009). Congress went on to define what the Commission should concentrate on by saying in a report by the US Sentencing Commission, Congress deliberated whether the guidelines established by the commission should be compulsory or not compulsory (US Sentencing Commission: Simplification, 2009). Further, the Senate Judiciary Committee “surveyed all state guideline systems…and concluded that a mandatory approach was necessary in order to effectively address disparity concerns” (8). At the time, Senator Mathias (R-MD) suggested that these guidelines be more advisory than mandatory—the Senate Committee rejected Senator Mathias and endorsed the solution endorsed by the National Academy of Sciences (8). By creating the sentences that the Commission hands down to be binding, mandatory minimum sentencing found their way into the US Sentencing Commission.

However, after the Comprehensive Crime Control Act was passed in 1984, there have been a couple of noteworthy attempts to reform mandatory sentencing in the United States through the Supreme Court. One of the cases was Mistretta v. United States in which the plaintiff argued that the sentencing guidelines of the Comprehensive Crime Control Act of 1984 were unconstitutional because it violated separation of powers (2009). However, the court found that the act was constitutional because Congress did not violate the ‘separation-of-powers' clause by creating the Sentencing Commission in the judicial branch (Mistretta v. United States, 2009). Also, the Supreme Court weighed in on a case concerning Michigan's ‘650 Lifer' minimum sentencing law in Harmelin v. Michigan (2009). The case hinged on whether or not mandatory life-imprisonment was ‘cruel and unusual' under the 8th Amendment of the Constitution (Harmelin v. Michigan, 2009). The court ruled in a five-four decision that the mandatory sentence did not violate the Constitution (Harmelin v. Michigan, 2009).

Perhaps one of the most important steps in mandatory sentencing from states' perspectives was the passage of AB 971 in California. With the perception that violent crimes were on the rise, the stage was perfectly set for California politicians to advocate for stricter sentences. In addition, there was a highly televised death of a 12 year-old in California that served as a ‘focusing event' for action (legislation) to occur. In 1994, they passed what is commonly referred to as ‘the Three Strikes Law' (Kieso, 2005). This law provided that any offender that had a felony or any prior serious convictions that they be subject to the harsher mandatory sentences. The numbers of individuals that fell under this new statute became almost immediately concerning. In the first six weeks, “Los Angeles County filed 152 third strike cases and 489 second strike cases (13)” (Kieso, 2005). Further, the California three strikes law began to encounter some problems as crimes committed during one action could be considered for the harsher penalties (65). Additionally, by 2001, the three strikes law had seen more than 67,000 ‘second strikers' and over 7,000 third strikers (79). California began to see increasing jail populations and subsequently needed more money for jails to increase capacity. This lead to what, Peter Greenwood of the RAND Corporation predicted, “that most likely the bill's stiff penalties would be applied selectively because the system could not handle such an increase” (99). This fulfilling prophecy almost defeated the main point of the law—uniform punishment.

Goals and Practices

The strategy of mandatory minimum sentencing seems fairly simple—it seeks to eliminate or reduce discrepancies in sentencing that arise in a judicial system that utilizes judges to decide matters. In the aforementioned portion of this paper, much of the legislation regarding mandatory minimum sentencing was with sentencing regarding illicit substances, but with the California case study, it was concerned with violent offenders. The goal was clearly to reduce crime by taking repeat offenders off the streets to ensure that they could not commit more crimes. In theory, this policy makes sense—lock up perpetual perpetrators and they will cease to commit offenses against society.

The practice of this theory seems a little more troublesome. For instance, when California implemented their three strikes law, they did not anticipate that some in the court system would sentence first time offenders with more than one offense at one time harshly under the three strikes law. In other words, if someone was caught for robbing three people during one spree of crime—they could be sentenced harshly with the mandatory minimums—possibly serving 25 years to life for what could have been less than ten years given good behavior.

Benefits and Negatives: Legal and Moral Issues


Many of the positives of mandatory minimum sentences can be seen in the attempt to limit judicial discretion when it comes to sentencing. Before minimum sentences, one could imagine that lawyers might enter the courtroom with their client and not know which judge would be presiding and whether or not that judge was lenient or strict. The court could fluctuate on a daily basis in circumstances where judges move around the system like many local district courts. It could also be easily stated that without the imposition of mandatory minimums, sentences could vary across various regions and various counties with different judges. Further, it is not unreasonable to hypothesize that sentences could develop discrepancies simply because of the judge's mood at the moment. Such discrepancies are obviously undesirable under a justice system that is founded on the ideal of “equal justice under the law”. With the previous aspects in mind, it is easy to see why mandatory minimums could be a positive influence on the justice system. Further, minimum sentences allow well-published information for would-be criminals to know what punishment they would face for criminal acts. In this illustration, deterrence from crime would certainly be a positive of minimum sentences.


While there are numerous positive benefits to mandatory minimums, there are also many negatives. For instance, much research has been completed on whether or not judicial discretion has been curbed by minimums. In an article by Jeffery Ulmer, he hints that prosecutors do not generally have to ‘impose' the minimum sentences that are prescribed in the law (Ulmer et al, 2007). Further, in an article by David Bjerk, he states that the presence of mandatory sentencing laws have the tendency to transfer the previously cited judicial discretion straight to the prosecutors (2) (Bjerk, 2005). If prosecutors are given the discretion to impose mandatory minimums, it seems clear that prosecutors can simply be another discrepancy in sentencing rather than the previously cited discrepancy by judges. One form of prosecutorial discretion that is prevalent is whether or not they seek the death penalty. While the death penalty is prescribed as a minimum sentence in certain offenses, it is rarely sought in some states and sought often in other states—a clear discrepancy in sentencing.

Following the passage of many mandatory minimum laws, there is usually a rise in prison populations as a result of minimum prison sentences. Statistics provided by the Office of Justice Programs indicate that the prison population has more than tripled since 1984 to almost 1.5 million in 2004 (Hill et al, 2005). Despite the building of more prisons and increasing capacities, there are still many jurisdictions that are overcrowded. It seems reasonable to conclude that a portion of the increased prison population could be due to mandatory sentencing. Along the lines of overcrowding, is the enormous cost to the governments that house these additional prisoners. In 2001, the average cost to house an inmate was $22,650—such a number provides immediate implications as to the costs that can be attributed to mandatory sentencing (Stephan, 2004). Some of the inmates that fall under previously mentioned three strikes law might have only faced probation or shorter sentences. However, with the implementation of mandatory sentences, costs obviously will increase with the prison population. Additionally, with the current economic crisis and many states exhibiting budget shortfalls, it should raise the question over whether or not these mandatory minimum sentences are worth the funds that they take from other government initiatives. The funds from the respective governments that are spent on housing these inmates could have easily been allocated to rehabilitation programs that might reduce recidivism.

Present Status

With past efforts in mind, it is also important to turn attention to present attempts to impose or reform mandatory sentencing laws. For example, H.R. 2837 seeks to impose mandatory sentences for illegal immigrants under section 276 of the Immigration and Nationality Act (THOMAS, 2009). The act imposes a mandatory sentence of five years for the first offense of someone caught re-entering the United States (8). Further, the act allows for the imposition of punishment for any individual who “aids” any immigrant to “allow, procure, or permit” an alien to reenter the United States (12). This effort to enhance punishment for repeat offenders of the Immigration and Nationality Act is clearly a politically expedient move on the part of the Congressman. This act has been referred only to a committee and will, like most bills, never leave committee. It is quite plausible that Darren Issa (R-CA) will use this introduces bill to further reelection goals in the upcoming election. While this legislation is not politically viable in this session of Congress, it could be down the road should more stringent punishments arise as remedies to the illegal immigration problem.

Further, a prominent case that was around the media was the incident that happened near the border and involved two border patrol agents, Jose Compean and Ignacio Ramos, who shot at a moving vehicle with drug dealers inside. Compean and Ramos were sentenced to jail time due to mandatory minimum sentencing in federal court. However, HR 3327, the Ramos-Compean Justice Act seeks to allow a federal judge to “impose a sentence below a statutory minimum to prevent an unjust sentence (5)” (THOMAS, 2009). This is clearly an effort to bring back more judicial discretion on the part of the sponsor of the bill, Robert Scott (D-VA). In this court case, it seemed clear to many parties that these border patrol agents were about to be unjustly sentenced due to the laws that were passed to ‘secure the public interest'. However, mandatory minimums had to be imposed as prescribed by existing laws—something that seemed clearly unjust as these border patrol agents were executing the duties of their job. With this in mind, it is clear that should the Ramos-Compean Justice Act be passed, it would open up a lot of ground in the way of judicial discretion.


With the aforementioned positives and negatives, it seems that there is a significant justification for both supporters of mandatory minimums and those that oppose them. For example, laws such as Michigan's ‘650 Lifer Law' seem to be unjust because they set an arbitrary standard. If an individual has just 651 grams of cocaine, they would be subject to the mandatory sentence, but if they only had 649 grams of cocaine, they would not fall subject to the mandatory sentence. Therefore, it would appear that when the legislature of various jurisdictions set a numerical standard, they also create some unintended consequences. These unintended consequences, if examined further, have their root in that the legislature has attempted to set a universal standard where one cannot exist.

Further, one more interesting case study should be considered when attempting to enact new sentencing reform—California. As Peter Greenwood said, “the bill's stiff penalties would be applied selectively because the system could not handle such an increase”. The irony behind California's attempt to establish universal punishment is that the mandatory punishment was in fact, not mandatory. In other words, the very thing the law attempted to circumvent, it ended up creating. Much of this is due to the increasing prison population in California. With this in mind, it could be said that this problem could be remedied with the construction of new prisons. However, it could be hypothesized that construction of new prisons would not be the most politically popular measure because they don't directly benefit constituencies. The benefits are much more diffuse than a visible public works project. So, the problem of prison over-crowding with mandatory sentences could be solved, but it would presumably not be an incredibly popular measure and probably not worth the hassle to get it passed.

It seems that many of the purposes of the mandatory sentences have been negated by the previously described ‘shift' in discretion from judge to prosecutor. In this sense, the main purpose that was cited by the Boggs Act of curbing judicial discretion seems to have fallen by the wayside with the rise of importance of prosecutorial discretion (FAMM, 2005). Since the main point of mandatory minimums has fallen by the wayside, it would seem that either prosecutorial discretion should be curbed, or that the laws should be repealed. In thinking about this problem, it could be properly stated that prosecutorial discretion could only be restricted by taking away the remaining flexibility from the justice system. With no judicial discretion and no prosecutorial discretion, the only individuals that would have discretion would be the police. In other words, yet another shift in discretion would occur—something that could produce even less desirable results.

Therefore, the most reasonable option that exists is to give back the judicial discretion to the judges in all jurisdictions. The role of judge has historically been to provide an impartial viewpoint of society in making reparations for committed crimes. There is truly no reason to believe that judges are incapable of exercising discretion within the law. Also, it makes more sense to have one individual decide the fate of criminals than a collective group of officials that are not familiar with the specifics of individual cases. In fact, many of the judges that create some discrepancy in sentencing are elected—it would seem that it would be easier to hold individual elected officials accountable for their either harsh or lenient sentencing practices. In conclusion, sentencing discrepancies exist with or without arbitrary legislation that attempts to impose mandatory sentences. It would seem reasonable to repeal inflexible laws that simply shift discretion from judges to prosecutors and that allow officials that are supposed to uphold the laws to be unjustly sentenced under them—Ramos and Compean.

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