NCPA - National Center for Policy Analysis

Unintended Consequences Of Sentencing Reforms

May 6, 1999

The interaction of mandatory minimum sentencing and sentencing guidelines is "a good example of the law of unintended consequences," says Supreme Court Chief Justice William Rehnquist. "Prison terms in America have become appallingly long, especially for conduct that, arguably, should not be criminal at all," says federal appeals court Judge Richard A. Posner, a Reagan appointee.

The federal government and many states have adopted mandatory minimum sentencing, which means a fixed minimum jail time regardless of extenuating circumstances. And sentencing guidelines implemented at the federal level in 1987 require judges to impose sentences according to a point-scale system with little discretion. In addition, Congress and some states have abolished parole for many crimes -- meaning prisoners will serve more time behind bars.

  • Thus, whereas two decades ago federal prisons held almost twice as many violent offenders as drug offenders, today drug offenders outnumber violent convicts by three to one.
  • Although some violent offenders are charged for drug offenses because those are easier to prove, a recent study of New York state drug inmates found 78 percent had no prior convictions for violent felonies and almost half had no violent adult arrests.
  • A 1994 Justice Department study found 36 percent of federal drug inmates are "low-level offenders" with "minimal criminal histories" but serve an average of almost six years in prison.

Furthermore, since 85 percent of defendants are indigents, whereas just 15 percent have a private lawyer, how prosecutors charge them is very important. Federal prosecutors obtain convictions in 89 percent of felony arrests, and 93 percent of federal convictions are on guilty pleas.

A 1994 survey by the Federal Judicial Center found 86 percent of federal trial judges want Congress to restore their discretion to reduce sentences; 70 percent think most mandatory sentences should be repealed.

Source: Gregg Easterbrook, "Run-on Sentencing," New Republic, April 26 & May 3, 1999.


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