RECOMMENDATION 6
Ensure that judges may consider relevant facts and circumstances when imposing long sentences
For most of the 20th century, judges had substantial discretion to consider the facts and circumstances of individual cases when sentencing people to long periods of imprisonment.1 That changed from the 1970s through the 1990s.2 During this period, communities across the country experienced severe and prolonged spikes in violent crime, and in response, legislators enacted a wide range of legislation to expand the use of incarceration.3 These laws included those that removed the discretion judges traditionally had held over sentencing and required them to impose mandatory minimum prison terms for violent, drug-based, and repeat offending.4
The primary justification for laws that fix the periods of time people must serve for certain convictions is that traditional judicial discretion makes sentencing unpredictable and inconsistent with legislative intent.5 Supporters of mandatory minimums argue that this lack of consistency leads to a wide range of sentencing disparities among otherwise similar cases and too often fails to incapacitate people who have committed serious and violent crimes.6 Supporters also contend that unchecked judicial discretion undermines the certainty of punishment that criminal law requires to deter people from committing crimes.7
There is a large body of research on mandatory minimum sentencing.8 Although studies do not generally focus specifically on long sentences, overall findings indicate that mandatory minimums do not work as intended.9 Decades of evaluations show that mandatory minimums fail to produce significant deterrent effects, are associated with increased racial disparities in sentencing, and can lead to the application of unduly harsh sentences in cases with compelling mitigating factors.10
"Mandatory minimums fail to produce significant deterrent effects, are associated with increased racial disparities in sentencing, and can lead to the application of unduly harsh sentences."
The reason for the disconnect between the intention and outcomes of mandatory minimums is that such penalties are based on a flawed assumption—that requiring judges to impose minimum prison terms for certain crimes will remove discretion from sentencing. In practice, however, that discretion, along with the associated problems described above, is transferred from judges to other criminal justice actors, especially prosecutors.11 Research shows that prosecutors tend to use the prospect of charging people with long mandatory minimum sentences to incentivize them to plead guilty to offenses with shorter sentences.12
To address the issues associated with both traditional judicial discretion and mandatory minimums, lawmakers have adopted statutory-based sentencing policies like “safety valves” to create a middle ground.13 Mostly reserved for low-level and non-violent crimes, such safety valves allow judges to depart from legislatively established minimum prison terms if they find that statutorily specified mitigating factors exist.14
While Task Force members had diverse views about the appropriate application of long sentences, they did agree that the strict application of mandatory minimum penalties can lead to unjust results that do not serve public safety interests. It is the Task Force’s consensus that state legislatures and Congress should ensure that when judges are considering imposing prison terms of 10 years or more, they may consider not just the statutory elements of defendants’ crimes, but all relevant facts and circumstances.15 (The Task Force did not consider mandatory minimum sentences below 10 years, as they were outside of its scope.)
Recommendation
State legislatures and Congress should allow judges to consider individualized mitigating and aggravating factors whenever imposing a sentence that includes 10 or more years of imprisonment.
Implementation Steps
1
Legislatures should allow judges to consider and discuss on the record both mitigating and aggravating factors whenever imposing a prison sentence that includes 10 or more years of imprisonment, specifying that such sentences should be generally given in cases where there are multiple aggravating factors or one particularly severe aggravating factor.
2
State legislatures and Congress should create safety valves for mandatory minimum sentences that require prison terms of 10 years or more, allowing judges to sentence below prescribed terms if the judge determines that such a long sentence would constitute a miscarriage of justice.
3
State legislators and Congress should eliminate sentences that statutorily require judges to impose terms of 10 years or more in prison for non-violent offenses for parties who were not liable for violent offenses as principals, accessories, or conspirators.
4
State and federal authorities should support data collection and analysis, including demographic impact, to help legislatures, policymakers, and the public assess the impact of mandatory minimums and sentencing reforms.
- State legislators and Congress should place a moratorium on creating new long mandatory minimum sentences until such research and evaluations are completed.
