Mandatory Sentences

In response to findings that judicial discretion produced sentencing disparity, legislatures across the nation began to impose mandatory minimum sentences as a way to reduce variation and to assist with crime control efforts (National Institute of Justice 1982)⁴. By �conveying [a] message that certain crimes are especially grave,� mandatory penalties for specific crimes would deter potential violators from pursuing those particular offenses (National Institute of Justice 1997, 2). Despite the enhancements, however, researchers have concluded that mandatory laws have had no measurable deterrent effect on the targeted offenses (National Institute of Justice 1982; National Institute of Justice 1997; Tonry 1996). Similarly, the incapacitation effects of mandatory minimums have been difficult to isolate, given that effects will not show until after the original sentence was scheduled to end (Kessler and Levitt 1998) and the possibility that measured effects may also be explained by other external factors such as demographic changes or policing practices (National Institute of Justice 1982; Tonry 1996).

Although the implementation of mandatory minimums also sought to limit the amount of discretion being exercised in sentencing decisions, discretion within the criminal justice system appears to imitate the physical law of matter: it is neither created nor destroyed-it merely changes in composition. Despite numerous attempts at eliminating discretion through determinate sentencing schemes, mandatory sentences, and prohibitions against plea bargaining, research has repeatedly demonstrated that discretion has not disappeared but has been displaced (Alschuler 1978; Jesilow 1997; National Institute of Justice 1982; Stith and Cabranes 1998; Tonry 1996). One metaphorical description of this displacement compares the use of discretion within the criminal justice system to a tube of toothpaste. Squeezing discretion out of one area does not diminish the amount of discretion; it just moves the �bulge� of discretion to another part of the system (Stith and Cabranes 1998, 126).

The persistence of discretion likely has much to do with our concept of justice. Given our common-law heritage, we have come to expect variation within the law in order to accommodate personal circumstance. We anticipate that first-time offenders will be given a lighter sentence and that recidivists will be punished more severely. We also expect juvenile offenders to be treated differently from adult offenders. In implementing sentencing policies, it is expected that criminal justice personnel will be allowed a measurable amount of discretion in order to distinguish between offense and offender circumstances (Alschuler 1978). This discretion is used to combat the arbitrariness that is inherent of all mandatory sentencing laws. The arbitrariness of these laws �is apparent on their face: all defendants, whatever their personal circumstances and whatever the circumstances of their crimes, are subject to the same minimum amount of punishment� (Stith and Cabranes 1998, 123).

The inflexibility of the mandatory sentences has led to various avoidance strategies on the part of police, prosecutors, and judges. When harsh sentences are required, and all other traditional discretionary options have been removed, prosecutors and judges will use their remaining influence to side-step the requirements of the law in order to avoid imposing sentences they feel are unjust. Police may decrease arrests for that particular crime (Tonry 1996), prosecutors may change plea negotiation practices �to circumvent what they felt were �unreasonable� sentencing policies� (Miethe and Moore 1989, 5), and judges have balked at mandatory statutes by purposely acquitting defendants that would have otherwise been convicted (Tonry 1996, 147).

California's Version of Three-Strikes

At first glance, the 1994 California three-strikes law seems like just another mandatory sentence, enacted as another crime control strategy by a legislature and a public that was weary from doing battle with crime. Yet, despite overwhelming bipartisan support, high public opinion ratings (Balzar 1994; Hayward and Izumi 1996), and recent evidence which suggests that the crime rate has in fact decreased since its enactment (Lungren 1998), the California three-strikes law has been severely criticized in both mainstream and academic press. Among concerns about high cost and aging prison populations

⁴By 1994, the U.S. Department of Justice reported that Congress and all 50 States had enacted at least one mandatory sentencing law (Tonry 1996).

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