Chris Uggen's Blog: mandatory sentencing

Friday, January 20, 2006

mandatory sentencing

i posted recently about my preference for indeterminate sentences (warts n' all) over mandatory minimums. frankly, one can find egregious miscarriages of justice under every sentencing scheme. nevertheless, the federal drug laws take the cake. here's the latest from

david powell, a 32-year-old with an IQ of 72, was sentenced to life-without-parole for distributing crack. he had two "nickel and dime" drug possession convictions at 16 and 17, which required judge david hurd of new york to lock him up forever on his third drug conviction. as appears to be the case for mr. powell, the full weight of such mandatories often falls upon the "mules" rather than the "kingpins." the only way powell could have avoided a life sentence would have been to provide "substantial assistance" to the prosecution. as a small-timer, however, he couldn't offer anything (or, more precisely, anybody) of prosecutorial value. here's how judge hurd sees it:

"The increment of harm in this case bears no rational relationship to the increment of punishment that I must impose," Hurd said at a sentencing proceeding last week in Utica, N.Y. "This is what occurs when Congress sets [a] mandatory minimum sentence which distorts the entire judicial process... . As a result, I am obligated to and will now impose this unfair and, more important, unjust sentence."

aside from injustice, such policies are expensive. although old dudes are generally much less dangerous than young dudes, it costs a lot more to lock them up. in particular, generations of californians will pay sizable medical costs for the aging prison population delivered by that state's two- and three-strike sentencing policies. here are some conservative* back-of-the-envelope calculations from the sentencing project:

Assuming that a typical lifer is sentenced at the age of 30 and will live until 70, we can estimate conservatively that incarceration costs of $20,000 a year from age 30 to age 60 will total $600,000. From age 60 to 70, costs are conservatively at least $40,000 a year, yielding a total lifetime cost of $1 million.

whatever you think of mr. powell's crimes, do we really need to spend a million dollars on him? and these costs don't even consider his lost productivity over the next forty years -- when he could be paying social security and income taxes. there's a nice RAND cost effectiveness analysis by jonathon caulkins and colleagues that attempts to account for some of these complexities. here is the authors' bottom line:

a million dollars spent extending sentences to mandatory minimum lengths would reduce cocaine consumption less than would a million dollars spent on the pre-mandatory-minimum mix of arrests, prosecution, and sentencing. Neither would reduce cocaine consumption or cocaine-related crime as much as spending a million dollars treating heavy users.

*i characterize these estimates as conservative because $20k and $40k are lower than anything else i've seen. it varies by jurisdiction, but i'd guess that $25k and $65k would be closer to the mark in the federal system.


At 10:00 AM, Blogger Mike W. said...

In a time where, culturally, any judge who exacts an amount of discretion that appears egregious to anybody with a mouthpiece is chastised an "activist," the opposite is an interesting scenario here. While I'd never consider myself "Beccarian" in my thinking, the crux of some of his arguments (certainty not severity of punishment, reduction/elimination of judicial discretion) manage to frequently underlie many of my thoughts and positions.

The scenario you posted shows what occurs in the absence of such discretion, and it's yet another moment where I've had to come to realize that my certainty of the certainty of something was called into question.

In the end, creating effective reform in our criminal justice and corrections systems relies, in my opinion, on convincing the public that the criminal justice system needs significant changes and potential improvements, and that the means of acheiving those may not rely on the promises of politicians to "get tough on crime" that appear to do little more than increase our prison and parole/probation populations. (Though, I'm interested on reading research that tries to tie the reductions in crime rates since 1993 or so to particular political/historical changes, if you can think of anything that may be out in the field).

At 7:03 PM, Anonymous chris said...

mike, other judges have made similar complaints (including fed. judge rosenbaum, of mpls). i had been a big believer in determinant sentences, but have seen the judicious (and, to my mind, unbiased) use of discretion work productively in several jurisdictions. i guess my opinion depends on the degree of professionalization in the system.

there was a book by blumstein et al. on the "crime drop" from a conference in '97 or '98 at northwestern law (i remember presenting my "asymmetrical causation" piece with piliavin at the conference, but i don't think it appears in the book). the sentencing project has a new publication on the incarceration/crime relationship, but i haven't read it closely enough to offer an informed opinion.


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