About Mandatory Sentencing Research Essay

Unquestionably, one of the most contentious and divisive criminal justice practices in use today is mandatory punishment. Mandatory Minimums, which are mandatory sentences placed on offenders found guilty of some heinous crimes, are the result of legislative action intended to combat the rise of violent and violent-related armed crime. However, as Welsh and Harris (2016) demonstrate in their case study, these laws have failed spectacularly in both the incapacitative and deterrent domains. Instead, these laws have only managed to bring about overcrowding in prison facilities while affecting individuals of African American origin disproportionately. Welsh and Harris (2016) evidence these assertions by examining and evaluating a variety of reports and research papers in a bid to identify ways of addressing the flaws in these laws. The discourse sparked by the authors in this examination is of critical importance to various stakeholders in the American criminal justice system with offenders, judges, prosecutors, and even the public all affected by the mandatory sentencing issues. As such, a reexamination of the laws is long overdue with the introduction of greater discretion for the judges in the handing out of these sentences being a particularly good starting point for redressing the imbalances caused by the laws. Whereas Welsh and Harris do a commendable job of exploring this issue, their examination of how mandatory sentencing has failed in its incapacitative role is wanting, and hence further research may be beneficial there. Besides this, future studies should examine whether the expansion of judges discretion will reduce the disparate impact that currently blots the image of mandatory sentencing laws.

Mandatory Sentencing

Thesis

Mandatory sentencing refers to a criminal justice policy in which offenders found guilty of certain heinous crimes, primarily drug-related offenses and violent gun crime, are required to serve a prison term of a minimum predetermined length. Minimum sentences are instituted through the legislature and not the judiciary, as is typically the case for other offenses and are therefore binding on the judges. The primary reasons for the institution of these mandatory sentencing laws are to enable the expediting of sentencing activities while reducing the probability that there will be an occurrence of unpredictable outcomes because of the exercise of judicial discretion (FAMM, n.d.). The idea underlying the widespread legislative support for mandatory sentencing is that the gravity and heinousness of some crimes mean that it is impossible to reaccept the offenders into the community without first ensuring that they have received sufficient, deserved punishment (Welsh & Harris, 2016). Additionally, mandatory sentencing seeks to dissuade both repeat offenders and potential criminals from the engagement in criminal activity since a harsh punishment is sure to follow if they are arrested while also incapacitating serial offenders by locking them away in prison and thus curbing their engagement in crime (Welsh & Harris, 2016).

However, whereas the intentions of instituting mandatory sentencing cannot be faulted, those good intentions are not necessarily synonymous with good policy since it is also imperative to have good results, which are lacking. As Welsh and Harris (2016) point out in their case study, mandatory sentencing legislation is a flawed and redundant policy that is associated with a host of adverse outcomes such as an ineffectiveness in crime reduction, disparate impact on minorities and excessively harsh punishments for marginal offenders. As such, the authors claim that mandatory sentencing legislation has failed to achieve both the deterrent and incapacitation objectives and hence there is a need for reform in the area particularly in light of the massive costs associated with the implementation of this policy.

Significance

Mandatory sentencing is among the most contentious and highly debated topics in the American criminal justice system attracting support and vehement opposition in equal measure. Whereas both sides of the debate present reasonable arguments in support of their position, it is the impact of this policy that makes it such an important issue. The advent of mandatory jail terms was associated with a phenomenal increase in the number of people incarcerated in American prisons, leading to massive overcrowding in those jails (Lamb, 2015). Additionally, there are significant doubts about the cost-effectiveness of this policy since the swollen prison population imposes severe financial stress on the correctional system (Welsh & Harris, 2016). With the policy’s effectiveness in terms of reducing crime also being under scrutiny, it is imperative to examine whether mandatory sentencing is nothing but a waste of the scarce resources available in the criminal justice sector.

Methods

The provision of support for an identified thesis is an integral component of any research study. The type of support or research method that a researcher employs in backing up his or her proposition is typically dependent on the study design selected by the researchers. In criminological research, the typical study designs used are either experimental or non-experimental although in some cases the researchers often choose to combine the two models (Cullick & Zawacki, 2011). The choice of design adopted by the researcher is a critical determinant of the strength of both internal and external validities of the study as well as the conclusions drawn from that study (Cullick & Zawacki, 2011). The selected study design is usually indicative of the dimension which the researchers are prioritizing, for example, the articulation of causal connections, the generalization of the research findings or the development of temporal awareness relating to a specific social phenomenon (Bryman, 2012). When the research entails a causal relationship with a manipulatable independent variable, an experimental approach is often the preferred approach (Lofland, 2009). However, when the study encompasses only one variable as opposed to a statistical relationship between more than one variable, then a non-experimental approach may be more favorable.

In supporting their thesis that mandatory sentencing is a flawed policy that has failed to achieve its stipulated objectives and should be reconsidered, Welsh and Harris (2016) employ the non-experimental method. Specifically, the authors do this by reviewing the existent literature on the issue including empirical studies conducted on the effectiveness of mandatory sentencing. The authors also examine, analyze, and synthesize evidence about the outcomes associated with this policy, which helps to reaffirm their position that compulsory sentencing does more harm than good. An example of this manifests where the authors examine the disparate impact caused by the application of these laws whereby they cite one study, which established the existence of racially-impacted sentencing differences even after controlling for differences resulting from other characteristics (Meierhoefer, 1992b). The application of this method of supporting their thesis is correct because it enables the authors to draw conclusions that support their supposition based on reliable evidence. Additionally, the application was excellent, and no errors were observed in the selected method. A proper examination of the issues from all sides was present, which was vital to eliminating bias in the conclusions drawn.

Evidence

Since criminology is an empirical field, it demands the existence of a carefully collected and adequately documented body of evidence. Regardless of whether a researcher is making a theoretical argument, a critical discussion relating to a particular text or group of texts, or a data-focused debate, it is imperative for the researcher to provide proper substantiation for the argument by using the relevant evidence (Lanier & Briggs, 2014). Evidence in criminological research comes from a variety of social studies fields, for example, biology, philosophy, law, political science, and history. Evidence deemed acceptable in this area is generally classifiable into two categories, which are quantitative and qualitative data.

Qualitative data refers to a type of data that primarily focuses on variables differing in quality as opposed to kind (Lanier & Briggs, 2014). This type of data, which is typically based on texts, observation, and interviews usually expresses behavioral qualities and can thus be used to develop an understanding about the descriptive patterns relating to a particular behavior (Johnson, Rettig, Scott, & Garrison., 2006). An example includes the observation of gang membership perceptions or probation officer experiences in rural setups. Quantitative data, on the other hand, entails the measurement of objects or subjects characteristics or behaviors that have quantitative differences (Johnson, Rettig, Scott, & Garrison., 2006). A numerical expression of this data is necessary, and it is typically founded on statistics, experiments, surveys, and the analysis of the content of the identified written documents. For example, one might choose to examine incarceration rates or the number of individuals in a particular group who engage in criminal activity.

Evidence presented

Welsh and Harris (2016) obtain proof for their assertion through the analysis and evaluation of both quantitative and qualitative studies relating to crime and mandatory sentencing as conducted by other researchers. The conclusions drawn from the examination of previous research is then used to inform the position adopted by the researchers. The first study examined by the authors relating to the effect of mandatory sentencing was the Pierce and Bowers (1981) study that sought to assess the effect of a Massachusetts law that instituted compulsory jail time for individuals convicted for the possession of unlicensed firearms. According to this research, this law led to a reduction in armed robbery and gun assault rates in Boston while increasing citizen reporting of criminal activity (Pierce & Bowers, 1981). However, while there was a reduction in those crimes as well as criminal homicide, this decline was not attributable to the punishments actually handed out in accordance to this law (Pierce & Bowers, 1981). Hence, from this, the researchers concluded that no deterrent effect resulted from mandatory sentencing laws in the short-term. However, given that this study also established that the reduction in gun crime was offset by an increase in non-armed assaults, it is doubtful whether the deterrent objective was achieved (Pierce & Bowers, 1981).

The researchers then examined similar studies in other cities to enable them to make a comparison and thus draw conclusions from those studies. One such study entailed similar laws in Michigan where Loftin, Heumann, and McDowall (1983) established that there was no evidence that the introduction of mandatory sentencing was associated with a reduction in the use of firearms to conduct criminal activity. These findings mirrored the research done in Florida where once again no noticeable decrease in gun-related crime was observed even after the introduction of stiff mandatory punishments for such offenses (Loftin & McDowall, 1984).

The researchers went on to investigate even more studies on the issue with one of these examining six large cities where legislation had introduced tough mandatory sentences to rein in the spiraling gun crime. However, these laws proved to be unsuccessful in deterring any other violent crimes except homicides, which reduced by a significant margin (McDowall, Loftin, & Wiersema, 1992). Similarly, the researcher evaluated a New York study on the punitive Rockefeller drug legislation, which had proved to be ineffectual in deterring drug-related crime despite prescribing severe mandatory sentences for drug offenses (Joint Committee on New York Drug Law Evaluation, 1978).

From the analysis of the existent research, it was evident that all but one of the studies indicated that no deterrent effect could be deduced from the implementation of the sentencing. Consequently, the researchers concluded that mandatory sentencing laws were ineffective when it came to deterring both violent, gun-related crime or drug offenses. However, none of these cited studies examined the potential incapacitation effect that could result from the application of these pieces of legislation and hence it was not possible for the researchers to offer an opinion on whether or not those laws would be useful in achieving that goal (Welsh & Harris, 2016).

Besides reviewing articles examining the deterrent effect of this legislation, the researchers also sought to investigate how the inherent systemic failings in criminal justice contributed to the ineffectiveness of the mandatory sentencing policies. Evidence for this supposition was obtained through the examination of a research study conducted by a prominent criminal justice scholar into this problem. One of the primary objectives of mandatory sentencing legislation was to do away with the issue of sentencing discretion by removing the power to make unrestricted decisions on the appropriate punishment for serious offenses from the judges (Tonry, 1987). However, mandatory sentencing only served to shift this power from the judges and grant it to prosecutors. Whereas judges are obligated by these laws to hand down sentences involving some jail time for some crimes, the prosecutors have no concurrent responsibility to charge suspects with an offense that carries a mandatory sentence. Thus, the researchers posited that this was a severe flaw in the mandatory sentencing legislation because it compromised the effectiveness of the policy. Allowing other criminal justice stakeholders to exercise unbridled discretion in the determination of whether or not to apply mandatory sentencing laws led to their non-application in instances where the individuals with discretion felt that implementing them would be excessively harsh (Tonry, 1987).

The study examined also found that there was a reduction in the arrest rates for the crimes targeted by these laws immediately after they were introduced which was accompanied by high diversion and dismissal rates. Additionally, there was a reduction in the plea-bargain rates for offenders whose cases were not dismissed, which then lead to an increase in the trial rates for those crimes (Tonry, 1987). An increase in delays before sentencing was also noticeable. When all these factors were combined, it was evident that the existence of these mandatory minimum laws did not affect the probability of imprisonment for the targeted offenders.

Thus, Tonry (1987) deduced that mandatory minimum legislation was unreliable in terms of predictability and certainty since their circumvention by those tasked with implementing them was possible if they decided to misuse their discretion. Additionally, it was apparent that the laws were in themselves redundant because the offenses they sought to prescribe minimum sentences for were already highly likely to attract prison terms (Tonry, 1987). These laws also usually led to unduly severe punishment for marginal offenders who ended up receiving similar sentences to repeat offenders since the consideration of mitigating factors was not permissible for the grave offenses (Tonry, 1987). Consequently, Welsh and Harris (2016) had ample evidence from this study that established that mandatory minimum laws were ineffective.

Another problem with mandatory minimum laws according to Welsh and Harris (2016) was that they brought about a disparate impact on individuals belonging to ethnic and racial minorities. The authors set out to prove the existence of this unfair treatment by examining the relevant studies on sentencing severity. Welsh and Harris (2016) were particularly interested in establishing whether the application of discretion by criminal justice officials in matters relating to mandatory sentencing was conducted in a manner that was not prejudicial to any ethnic or racial grouping. In one such study, the authors identify evidence indicating that sentencing severity for mandatory minimum offenses was determined to a small extent by the offender’s race since there were disparities even after controlling for other confounding characteristics (Meierhoefer, 1992a; Meierhoefer, 1992b).

Further evidence on this issue was obtained from an evaluation of an expanded study conducted by the U.S Sentencing Commission to build on the findings of the earlier research on the existence of racial disparities. The results of this latest established that the proportions of White, Hispanic, and African-American individuals (54%, 57%, and 68% respectively), who had been subject to mandatory minimum sentence differed significantly (U.S. Sentencing Commission, 1991). However, when this data was subjected to further scrutiny, which considered the specific case factors for each individual, it was established that the ethnicity or race of the defendant had no bearing on the sentence handed down (Langan, 1992). The reanalysis also sought to determine why over 40% of individuals who should ideally have received mandatory sentences did not receive them and it concluded that this was due to defendant cooperation with the prosecution and evidentiary limitations (Langan, 1992).

Possible reasons for the disparities that saw African Americans incarcerated at significantly higher rates than individuals of other racial groups were also examined as part of the evidence. One analysis posited that this differential impact was not attributable to racial bias but instead to the fact that African Americans formed the bulk of individuals convicted for offenses relating to crack cocaine, which attracted unusually severe mandatory minimum sentences (McDonald & Carlson, 1993). Consequently, it was suggested that one way of rectifying this disparity was to remove the legal distinction between regular and crack cocaine for sentencing purposes (Greenwood, et al., 1994). However, the rejection of this proposal is evidence enough that the mandatory minimum sentences were merely an indirect way of instituting racial bias in sentencing thus making such laws unfair and discriminatory, which compromised their effectiveness.

Strengths of evidence

The evidence presented by the authors to back up their assertions was very robust for various reasons. One strong point of this evidence was that the data used is precise, consistent, and highly reliable (Bryman, 2012). The authors’ evidence was obtained from peer-reviewed sources such as academic journal articles and books as well as reports, which meant that it had been subjected to the highest verification standards. Consequently, it was easy to rely on such information and the conclusions drawn from it. Another strength of this evidence was that the findings were readily generalizable because the samples of the cited studies were well representative of the populations and the selection processes had excellent designs (Denscombe, 2010). Additionally, the type of evidence selected by the researchers was relatively easy to analyze hence avoiding the creation of confusion that could potentially bring about distorted results.

Weaknesses of evidence

However, the evidence provided by the researchers did suffer from some fundamental inadequacies chief among them being the non-availability or accessibility of the related secondary data (Bryman, 2012). Since the authors primarily cited peer-reviewed sources for their evidence base, it was necessary to examine the data used to obtain the conclusions arrived at in those articles. However, some of this information was over two decades old thus not readily available, which meant there were question marks about its reliability. Another weakness of this evidence was the possibility of confirmation bias arising whereby the researchers could have ignored or missed some phenomena or data because they were fixated on validating their thesis (Denscombe, 2010). For example, the researchers could deliberately leave out research that indicated that mandatory sentencing was not racially discriminatory because such information did not align with their claim.

Balance

The presentation of evidence by the authors was commendable and generally very reliable. The thesis was well-supported with a clear link evident between the evidence provided and the authors’ hypothesis. However, one noticeable issue was that the articles and reports cited only examined the efficiency of the deterrent effect and did not delve into the effectiveness of mandatory sentencing in incapacitating offenders. Consequently, it was not possible to determine whether or not the policy was ineffective in this regard.

Evaluation

Beneficiaries of the case study

The debate over mandatory sentencing and its accompanying effects is one which is very pertinent more so today in a world of increasing consciousness about discriminatory practices and ensuring equity. Through its exploration of a variety of issues that inhibit the success of mandatory sentencing as a policy, this case study opens up an avenue for engagement about what is a long-criticized policy in the hope that reforms and improvement may be the ultimate outcome. Specifically, the examination of this case study promises to be of significant benefit to the major stakeholders in the criminal justice sector. The first beneficiaries are undoubtedly the convicted criminals, especially those condemned to long and unnecessarily severe prison sentences for relatively minor offenses. The arbitrary and inconsiderate imposition of mandatory sentences destroys young lives by incarcerating unlucky offenders for disproportionately long periods compared to their culpability. For example, while an individual convicted of the possession of a 0.9 grams quantity of a prohibited substance such as LSD may not spend much time behind bars, a mere fraction of a gram over this amount may condemn that person to a five-year jail term. This jail term would be handed down irrespective of the fact that such a quantity is hardly likely to be distributable. Consequently, the removal or reevaluation of these sentencing policies may benefit such individuals in the future.

Another group likely to benefit from the debates ignited by the case study is the judges tasked with handing down these severe penalties. Whereas judges are typically cognizant of the harshness of the sentences resulting from mandatory sentencing, there is often very little they can do to mitigate such concerns since they are legally obligated to pass those sentences. In fact, the only two ways in which judges can stop the imposition of those harsh penalties is via the exceptions present in the 1986 Anti-Drug Abuse Act. The first exception occurs when the defendant provides substantial assistance to prosecutors, for example by informing on other members of his drug network, and the government requests for a downward departure from the prescribed minimum sentence (FindLaw, n.d.). Secondly, there is the safety-valve exception, which permits judges to avoid handing out mandatory minimums, but which only covers nonviolent drug crimes where the defendant has satisfied certain stated criteria relating to leadership, history of criminal activity, the absence of injury to other people, and violence (FindLaw, n.d.). Apart from these two instances, judges are duty bound to impose mandatory minimums hence addressing the issues raised in the case study and reforming this policy will give judges a degree of leeway.

Juries can also assist judges in bypassing mandatory minimums where they are blatantly disproportional to the offenses committed by nullifying the sentence through an acquittal of a defendant whom they would have otherwise found guilty. Where the trial involves a jury and the judge finds him or herself highly reluctant to pass an excessively severe sentence, he or she can take a gamble. A judge does this by permitting the jury to learn about the severity of the mandatory sentence that will result from a guilty verdict, in the hope that this will influence the jury to engage in a sua sponte application of this nullification power (Sauer, 1995).

The American taxpayer is another principal beneficiary of the knowledge derived from the examination of this case study. Mandatory sentencing is a massively cost inefficient process, which imposes an unnecessary burden on the taxpayer. The seriousness of the punishment instituted has a far lower deterrent impact than the asssurance of arrest followed by conviction does (Sauer, 1995). Consequently if sentencing a defendant to a one-year jail term is equally as effective in deterring criminal activity as imposing a 5-year sentence, then the extra four years only serve to increase taxpayer costs and inflict distress on the defendants. Consequently, understanding that there are other more beneficial criminal justice policies to which funds can be allocated can potentially spur much-needed reforms in this area and bring considerable savings.

Benefits

One of the primary benefits of the case study and the application of its findings is that it may eventually lead to the elimination of the unbridled and dangerous discretion currently enjoyed by prosecutors. One fundamental reason for the failure of mandatory sentencing to eliminate disparities in sentencing is that they only shifted sentencing discretion from the judges to the prosecutors (Ulmer, Kurlychek, & Kramer, 2007). Whereas it was mandatory for the judges to impose the minimum sentences on guilty offenders, there was no such requirement for the prosecutors who had no obligation to charge defendants with the commission of offenses that could lead to the imposition of the mandatory minimum sentences (Ulmer, Kurlychek, & Kramer, 2007). Hence, the decision of which crimes to charge defendants with as well as whether or not to request for the reduction of minimum sentences rested solely in the hands of the prosecutors (Bjerk, 2005).

This unlimited discretion meant that it was effectively the prosecutors who determine whether or not defendants would receive mandatory sentences. This situation is potentially perilous because unlike judges, prosecutors lack training on matters related to sentencing and hence cannot be expected to be transparent in their exercise of that discretion (Alschuler, 1978). However, as the case study highlights, sentencing disparities still exist and addressing the identified flaw that contributes to the existence of this discrepancy can assist in the development of a fairer criminal justice system and thus boost the dwindling public confidence in this system.

Importance and extent of benefits

The elimination of prosecutorial discretion and the introduction of presumptive sentences are just two of the beneficial measures that will have a far-reaching impact on the criminal justice system. Presumptive sentences, for example, would enable the implementation of sentencing policies that are acceptable across the board (Tonry, 1987). For example, allowing offenders of non-violent crimes to serve lesser sentences, which may even not entail jail time while reserving custodial sentences for violent offenders will decongest the prisons and reduce the issues of disparate impact (Tonry, 1987). Additionally, massive cost savings stand to be realized from such measures with these resources being diverted to other federal projects or reallocated to other areas within the system such as community policing and officer training. Besides this, allowing both prosecutors and judges to have some discretion will result in a fairer and more balanced judicial process because the two will serve as checks for one another without undercutting the deterrent, punitive, and incapacitative effects of criminal laws. For example, where a judge feels that it is unnecessary to impose a mandatory sentence on an offender as suggested by a prosecutor, he or she will be able to ameliorate this while citing reasons thus reducing the occurrence of unjust sentences.

Evaluation of case study

Overall, Welsh and Harris (2016) perform an admirable job in this case study. The case identifies pertinent issues that relate to the American criminal justice system and back up their assertions with a well-researched body of evidence. The authors demonstrate why mandatory sentencing, while a well-intentioned policy, is ineffective. They go further to show how policymakers can fill these loopholes and confirm that a stronger, fairer, and more desirable criminal justice system that works for everyone is a realizable objective.

Suggestions for future studies

Whereas the study does superbly in its examination of the underlying concerns in mandatory sentencing, the authors do not investigate why this policy has failed to achieve the incapacitation objective. The dearth of research in this area provides a possibe area of exploration for other researchers who can build on this work and provide a thorough overview of all aspects of mandatory sentencing. Another probable area of research would be a repeat study that explores the impact of mandatory sentencing with increased judge discretion. It would be interesting to observe whether providing judges with a more considerable amount of leeway can help to address the nagging issue of disparate impact and thus help the criminal justice system to redeem itself in the eyes of a population that views it as merely another tool of systemic oppression.

References

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