AMERICAN PUBLIC UNIVERSITY SYSTEM Charles Town, West Virginia

FINAL THESIS DRAFT/RESEARCH PAPER

MASTER OF ARTS IN LEGAL STUDIES

AMERICAN MILITARY UNIVERSITY

DEPARTMENT OF PUBLIC SERVICE AND HEALTH

Alma Renee Currier

2013

I propose to the Thesis/Research Paper Professor and to the Department a study of the following topic to be conducted in partial fulfillment of the requirements for the degree of Master of Arts in Legal Studies: THE DAMAGE CAUSED BY MANDATORY SENTENCING

The author hereby grants the American Public University System the right to display these contents for educational purposes.

The author assumes total responsibility for meeting the requirements set by United States copyright law for the inclusion of any materials that are not the authors creation or in the public domain.

Copyright 2014 by Alma Renee Currier

All rights reserved.

DEDICATION This thesis is dedicated to my husband and friends, which have continuously supported my decision to pursue my Masters in Legal Studies. To my husband, you constantly reminded me that I can anything I desired and I really appreciate all that you have done. To my friends, your support and positive encouragement to complete my classes to the best of my ability inspired me to be an overachiever. The strong support from everyone throughout the years has inspired me to further my education to reach my ultimate goal and dream, to become an attorney.

ACKNOWLEDGEMENTS Dr. Kerry Erisman has been the supreme thesis supervisor. His advice, critiques, and encouragement helped the writing of this thesis an enjoyable experience. I would also like to thank Program Director Dr. Terri L. Wilkin, whose encouragement, support, and criticism during the Methods of Legal Research & Writing courses inspired and excelled me through the Masters Program.

ABSTRACT OF THE THESIS

THE DAMAGE CAUSED BY MANDATORY MINIMUM SENTENCING by

Alma Renee Currier

American Public University System, January 13, 2014

Charles Town, West Virginia

Professor Kerry Erisman, Thesis Professor This thesis examines the arguments for and against mandatory minimum sentencing. It is the aim of this thesis to show that mandatory minimum sentences have been a complete failure by limiting the discretion of judges, increasing the costs of housing inmates, and failing to significantly deter crime. The research consists of primary and secondary sources including published books, government reports, and case law. The first chapter states the thesis, identifies the sources utilized to support the thesis, and delivers the roadmap for this thesis. The second chapter contains the literature review. The third, fourth, and fifth chapters examine the legal arguments of the discretion of judges, the cost of housing inmates, and crime deterrence. The remaining of the thesis provides a review supporting that mandatory minimum sentencing has been a complete failure. Upon the completion of the thesis shows how mandatory minimum sentencing has damaged the criminal justice system.

TABLE OF CONTENTS

CHAPTER

PAGE

DEDICATION.. 3 ACKNOWLEDGEMENTS.. 4 ABSTRACT OF THE THESIS 5 I. INTRODUCTION. 9 II. LITERATURE REVIEW.. 11 III. DISCRETION OF JUDGES IV. COSTS OF HOUSING INMATES. 27 34

V. CRIME DETERRENCE 38 VI. DISCUSSION.. 42

LIST OF REFERENCES 49 APPENDICES 51

LIST OF TABLES

TABLE 1. National Number of Incarcerated Inmates (1840-1870).. 2. Seven Deadly Sins Average Sentence Length in Years for Incarcerated Offenders 3. State Daily Cost by Offender Placement: 2012. 4. Average Cost per Georgia Offender..

PAGE 51 51 52 54

5. Average Cost to House the Seven Deadly Sins Offenders (see Table 2 and Table 5) 55

LIST OF CHARTS

CHART

PAGE

1. Adult Prisoners by Crime Type Georgia, Fiscal Year 2012.. 53

CHAPTER I INTRODUCTION In quest of proving this thesis, the researcher utilized the following primary and secondary sources: several reports from the Georgia Department of Corrections; a research study by Castillo et. al (2004) provided useful statistics on recidivism rates of Georgians; and a report by the Special Council on Criminal Justice Reform for Georgians (2011) provided useful statistics for prison population and housing costs. Other scholarly sources written about crime deterrence and the incarceration of offenders provided valuable assessments of the theoretical concept of mandatory minimum sentencing. Primary and secondary sources will be employed to test the hypotheses, such as case studies by experts in the field and government reports. Research tools will be EBSCO Suite, ProQuest Suite, LexisNexis, and books (physical and electronic). Charts, tables, and/or graphs will be utilized to aid in data analysis. While reviewing various primary and secondary sources, it became clear that specific problems must be addressed before ascertaining whether mandatory minimum sentencing has been a complete failure. The first problem is whether a significant amount of offenders are given harsher sentences when mandatory minimum sentencing is applied because the discretion of judges is limited. The second problem is whether prisons carry a financial burden from mandatory minimum sentencing because of the over use of such tool to punish all classes of offenders. The third problem is whether mandatory minimum sentencing fails to significantly deter crime. Answering the above-mentioned question is crucial before questioning whether mandatory minimum sentencing is a complete failure. This thesis is outlined as follows: (1) the Introduction and the methodology supporting the thesis; (2) a literature review; (3) a discussion concerning the discretion of judges; (4) a

discussion concerning the costs of housing inmates; (5) a discussion concerning crime deterrence; and, (6) the conclusion. This researcher believes that mandatory minimum sentences have been a complete failure by limiting the discretion of judges, increasing the costs of housing inmates, and failing to significantly deter crime. Therefore, this researcher examined several government reports and other primary and secondary works for indications that mandatory minimum sentencing caused such outcomes as described above.

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CHAPTER II LITERATURE REVIEW During the 1800s, concerns arose when prisons reached its maximum occupancy. Judges started to permit prison officials to award prisoners with parole to confront the issue. The main concern is whether mandatory minimum sentencing has been a complete failure. To confirm that mandatory minimum sentencing has been a complete failure, this thesis must prove that mandatory minimum sentencing limits the discretion of judges, increases the costs of housing inmates, and fails to significantly deter crime. While reviewing various primary and secondary sources, it became clear that specific problems must be addressed before ascertaining whether mandatory minimum sentencing has been a complete failure. The first problem is whether a significant amount of offenders are given harsher sentences when mandatory minimum sentencing is applied because the discretion of judges is limited. The second problem is whether prisons carry a financial burden from mandatory minimum sentencing because of the over use of such tool to punish all classes of offenders. The third problem is whether mandatory minimum sentencing fails to significantly deter crime. Answering the above-mentioned question is crucial before questioning whether mandatory minimum sentencing is a complete failure. The Discretion of Judges In 2008, Dean J. Champion published Sentencing: A Reference Handbook summarizing the history of mandatory minimum sentences and the changes made by the United States Supreme Court allowing judges to have the amount of discretion from the late 1700s to the early 1900s. Dean Champion obtained his Ph.D. from Purdue University and at Brigham Young University his B.S. and M.A. degrees. Further, Dean Champion has written a substantial amount

11

of works in the criminal justice field and belongs to over a dozen of professional organizations relating to criminal justice. Champion (2008) points out that during the mid-1940s the inmate population reduced when parole and probation was utilized; however, after the United States Supreme Court declared that judicial reprieves and suspensions of incarcerative sentences for indefinite periods was unconstitutional, the inmate population increased significantly. 1 The relevance of this study is to prove that declaring the use of parole and probation unconstitutional has increased the housing costs for inmates. Further, the limitation of the discretion of judges has caused the prisons to be overcrowded when alternatives such as utilizing DRCs could be used for crimes that are not classified as heinous. Advocates for mandatory minimum sentencing or determinate sentencing are in favor of the just deserts model. In 1994, J. Junger-Tas published Alternatives to Prison Sentences: Experiences and Developments, which he explains the just deserts model created by Von Hirsch and his colleagues. The purpose of developing the just deserts model was to come to a fairer and more just sentencing policy.2 Junger-Tas (1994) points out that Von Hirsch and his colleagues rejected the indeterminate sentencing and the judges discretion to allow considerations, such as the offenders personality rather than the offenders criminal record and the gravity of the crime.3 Junger-Tas (1994) asserts that the offenders personal circumstances increased the judges discretionary power in an uncontrolled way, causing the notorious indeterminate sentencing policy to develop.4 The Von Hirsh reform focus was to give a suspect a better legal position;

1 2

Dean J. Champion, Sentencing: A Reference Handbook, 17, (ABC-CLIO, 2008). J. Junger-Tas, Alternatives to Prison Sentences: Experiences and Developments, 4, (Kugler Publications, 1994). 3 Id. 4 Id, at 4.

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however, the reform created less consideration for offenders and a harsher sentencing policy. 5 Advocates against mandatory minimum sentencing believe in indeterminate sentencing. In 2005, Geraldine Mackenzie published How Judges Sentence, which explains judicial views for utilizing the prison system for a reformatory effect.6 Geraldine Mackenzie obtained her Ph.D. from the University of New South Wales (UNSW) and Master of Law from Queensland University of Technology (QUT). In 2009, Mackenzie was chosen to be the Dean at Bond University and was responsible for the Office of Research Services and Higher Research Degrees. Mackenzie is also a member of the Queensland Bar Association. Mackenzie (2005) asserts that prison sentences do not significantly help an offenders rehabilitation; moreover, judges believe prisons cause an offenders criminal behavior to intensify, as illicit drugs are freely available and inmates are subjected to prison brutality. 7 The relevance of this study is to prove that prison sentences make an offenders criminal behavior worse. In 2007, Gregg Barak wrote Battleground: Criminal Justice summarizing the outcome of harsh sentences for offenders. Barak is a Professor that specializes in criminology, criminal justice, sociology, and anthropology. Barak has received several awards and served on numerous editorial boards. Advocates against mandatory minimum sentencing believe that mandatory minimum sentencing, in some cases, limits the discretion of judges and gives an offender an unnecessary harsh sentence. Barak (2007) asserts that incarcerating an offender to serve a harsh sentence as punishment for his or her crime may harm the offender. The relevance of utilizing Barak (2007) is to prove that mandatory minimum sentencing must have limits, such as knowing when the
5 6

Id. Geraldine Mackenzie, How Judges Sentence, 97, (Federation Press, 2005). 7 Id, at 97.

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offender is given a harsh sentence not warranted for the crime committed. In 2009, Matthew Lippman wrote Contemporary Criminal Law: Concepts, Cases, and Controversies, which discusses the mandatory minimum sentencing laws, modifications of the laws, and the effect of such laws on prisons and crime deterrence. Matthew Lippman has been a Professor for over twenty years, teaching at the University of Illnoise at Chicago (UIC), for the Department of Criminal Justice. Lippman is a member of the Pennsylvania Bar; further, he obtained his Doctorate from Northwestern University in Political Science and through Harvard Law School a Master or Law. Lippman (2009) explained the Anti-Drug Abuse Act of 1986 and the 1988 amendments and the modifications states, such as Connecticut and Pennsylvania, made to such acts. Lippman (2009) explained that the above-mentioned states modified its laws because of the inflexibility (differences between defendants), disparities of enforcement, [and] growth of the prison population.8 The relevance of this study is to prove that some states are no longer in favor of mandatory minimum sentencing laws. In addition, a few scholars are recognizing that mandatory minimum sentencing overcrowds prisons and is a crime preventative measure rather than significantly contributing to crime deterrence. In 2014, David B. Muhlhausen published Theories of Punishment and Mandatory Minimum Sentences, explaining the issues with indeterminate sentencing. Muhlhausen is an expert at The Heritage Foundations Center for Data Analysis for criminal justice. He received his doctorate from the University of Maryland-Baltimore County in public policy and a bachelors degree from Frostburg State University in justice studies. In 1999, Muhlhausen was a member of the Senate Judiciary Committee specializing in policies for juvenile justice and crime. Mulhausen (2014) explains that two persons with the same crime and circumstance
8

Matthew Lippman, Contemporary Criminal Law: Concepts, Cases, and Controversies, 77, (SAGE, 2009).

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receive different sentences with indeterminate sentencing. The relevance of this study is to prove that indeterminate and mandatory minimum sentencing causes unfairness to an extent. Further, Muhlhausen (2014) brings to light the difference of indeterminate and mandatory minimum sentencing, which is that one is deemed light and unjust and the other harsh and unfair. In 2014, Michael J. Sullivan published Have Mandatory Minimum Jail Sentences Been an Effective Tool in the War on Drugs?, compares the arguments for and against mandatory minimum sentences. Sullivan is a formal U.S. Attorney in Massachusetts and graduated from Suffolk University Law School specializing in health-care fraud and national security. He also served on the Massachusetts House of Representatives and was a Massachusetts District Attorney. Sullivan (2014) cites Jodi L. Avergun, which she argues for mandatory minimum sentencing asserting that incapacitating offenders increases public policy. Also, Sullivan (2014) cites Marc Mauer, which he argues that experts in the field back up the fact of mandatory minimum sentencing failed to increase public safety and promoted injustice. The relevance of utilizing Sullivan (2014) is to prove that support against mandatory minimum sentencing is growing amongst experts in the field. In 2009, Charles J. Ogletree published Exploring the National Criminal Justice Commission Act of 2009, explains that a lengthy sentence turns an offender into a hardened criminal. Ogletree is a well-known legal theorist and is a Professor at Harvard Law School. He has obtained several doctorates from various universities (i.e. New England School of Law and University of Miami School of Law). Also, Ogletree is the Director of the Trial Advocacy Workshop at Harvard Law School. The relevance of Ogletree (2009) is to prove that mandatory minimum sentencing is only harming an offender. 15

Cost of Housing Inmates Opponents of mandatory minimum sentencing believe the higher cost of housing inmates, higher incarceration rates, and the overcrowding of prisons outweigh the justification for such laws without limits. Junger-Tas (1994) believes new sentencing methods are needed to overcome the over-crowding of prisons and the cost of managing and repairing the prisons that resulted from the current sentencing guidelines.9 Actions must be taken to control the current incarceration rate; however, to create a plan studies must be conducted to counter the damage caused by mandatory minimum sentencing on society. In 2011, a council was formed including gubernatorial, senate, house, and judicial branch appointees to develop a report to reform the criminal justice system in Georgia titled Report of the Special Council on Criminal Justice Reform for Georgians. Each member of the council dedicated over 20 years in the criminal justice field, as each member held a distinguished position (i.e. judge, district attorney, president of the GA State Bar, senate or house representative, Judicial Qualifications Commission member). The report given by abovementioned council is critical to this study, as many of the percentages and figures found within this study will be collected and analyzed from the report. Special Council on Criminal Justice Reform for Georgians (2011) asserts that the Georgia prison population has significantly increased raising the cost of housing inmates. The council reports that Georgia had the fourth highest incarceration rate in the country in 2007. 10 Further, the council reports [t]oday, corrections costs the state [GA] more than $1 billion per year, up

See Junger-Tas, supra note 2. Report of the Special Council on Criminal Justice Reform for Georgians, (2011). Retrieved from http://www.legis.ga.gov/documents/gacouncilreport-finaldraft.pdf.
10

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from $492 million in FY 1990.11 The relevance of this report is to prove that the cost of housing inmates significantly increases as the prison population grows. In 2008, Bernard E. Harcourt published Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age, pointing out that a cost cap does not exist for the incapacitation theory. Harcourt obtained a bachelors degree from Princeton University in political theory and earned his J.D. and Ph.D. in political science from Harvard Law School. Harcourt has over 35 years of experience in the field of political science. Harcourt is a Professor of Law teaching at several universities, such as Columbia Law School, Harvard University, and the University of Arizona. Several factors are involved to determine if incapacitation helps to reduce crime and the factors are weighed against the costs for incapacitation. Harcourt (2008) points out it is necessary to provide a cost-benefit analysis to determine whether the potential reduction in crime attributable to an incapacitation effect outweighs the costs associated with the increased incarceration, even if the results are not favorable.12 Harcourt (2008) is relevant to this thesis because such study acknowledges that the incarceration theory must be controlled to a known extent. In 2011, Marc A. Levin and Vikrant P. Reddy published an article titled Peach State Criminal Justice: Controlling Costs, Protecting the Public, which reviewed the criminal justice system in Georgia. Levin is an attorney that has concentrated on public policy and legal issues for over 15 years. Levin studied at the University of Texas School of Law and graduated with a J.D. as a honor student. Reddy is an attorney and a senior policy analyst. Reddy has written several works on criminal justice policy, a well-known lecturer, and media commentator on
11 12

Id, at 7. Bernard E. Harcourt, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age, 27, (University of Chicago Press, 2008).

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criminal justice policy. Levin and Reddy (2011) provides a summary of the results from the report by the Special Council on Criminal Justice Reform for Georgians (the Council)13 The authors assert that public safety is the ultimate goal of government, however, scope and size should not be excused from inspection. The authors point out the size and cost to house inmates and acknowledge that the Council recommended treatment programs and other evidence-based practices in community supervision. The relevance of this study is to prove that alternative methods (i.e. DRCs) can be utilized to reduce the costs of housing inmates and reduce recidivism rates. For example, Barak (2007) believes that DRCs reduce the costs associated with jails, as offenders will not need to be housed or confined. Crime Deterrence In 2011, William J. Chambliss published Courts, Law, and Justice summarizing the theoretical concept of deterrence. Chambliss is a Professor at The George Washington University specializing in sociology and published over 35 books on the subject matter. Chambliss has been awarded numerous awards such as the Edwin H. Sutherland Award and the Lifetime Achievement Award. Mandatory minimum sentencing was created to deter crime. Chambliss (2011) defines deterrence by stating that deterrence depends upon the belief that the risk of detection, apprehension, and adjudication is greater than the immediate reward of violating the law.14 In other words, advocates for mandatory minimum sentencing believed that the offender will assess the punishment prior to committing a crime. The relevance of utilizing Chambliss (2011) is to accurately define deterrence.
13

Marc A. Levin & Vikrant P. Reddy, Peach State Criminal Justice: Controlling Costs, Protecting the Public, 1, (Georgia Public Policy Foundation, 2011). 14 William J. Chambliss, Courts, Law, and Justice, 71, (SAGE, 2011).

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In 2011, James K. Austin and John Irwin published Its About Time: Americas Imprisonment Binge, which discusses the debate concerning incarceration.15 James Austin graduated from University of California with a Ph.D. in Sociology. Austin specializes in research and planning for corrections more than twenty-five (25) years experience. Austin is the President of the JFA Institute. John Irwin obtained his Ph.D. from the University of California in Sociology. At San Francisco State University he was a professor, which he taught for twentyseven (27) years until he retired. Combined, Austin and Irwin have an ample amount of knowledge concerning the incarceration concept. Austin and Irwin (2011) assert that advocates for mandatory minimum sentencing believe utilizing such laws is a successful crime deterrence tool, as incarceration rates increases crime rates are reduced.16 Austin and Irwin (2011) state that starting in the 1980s the U.S. Department of Justice funded studies to demonstrate that a causal relationship existed between crime and imprisonment.17 Austin and Irwin (2011) explain that the Crime Bill of 1994 required convicted violent crime offenders to serve, at minimum, 85 percent of his or her sentence so the government could have the funds available for the additional beds in the prisons.18 In 2013, Bruce Carruth and Thomas C. Rowe published Federal Narcotics Laws and the War on Drugs: Money Down a Rat Hole, which is one of the most influential studies found within this paper. Thomas Rowe has been a college educator for approximately 30 years relating to drug use. Bruce Carruth, a well-known psychologist, specialized in mental health for over 50 years. Carruth and Rowe provided a vast amount of experience and knowledge into their study.

15 16

James Austin & John K. Irwin, Its About Time: Americas Imprisonment Binge, (Cengage Learning, 2011). Id. 17 Id. 18 Id.

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Advocates against mandatory minimum sentencing believe utilizing such laws is a not successful crime deterrence tool, as the offender is not being treated for the crime committed. Carruth and Rowe (2013) believed that penalties in which are set and enforced do not significantly work to deter crime. In addition, the authors provide insight on how mandatory minimum sentencing does not affect the crime deterrence rates. Carruth and Rowe (2013) ascertain that mandatory minimum sentencing causes additional issues, as a result of using harsh laws. The relevance of this study is to prove that many factors contribute to crime rates and a harsher sentence does not significantly help crime rates. In 2012, Wilbur R. Miller published The Social History of Crime and Punishment in America: A-De, which supports the concept of mandatory minimum sentencing for heinous crimes. In 1973, Wilbur Miller received his Ph.D. from Columbia University; thereafter, he taught a variety of courses such as the History of Crime & Criminal Justice in the U.S. and other history courses.19 Wilbur Miller has dedicated over 40 years of studying and teaching social history in the United States. Miller (2012) believed that in some situations, mandatory minimum sentencing is justified such as cases involving serial killers and mass murderers and defining such individuals as the most dangerous, callous, and capricious criminals known to man.20 Miller (2012) admits that no single factor is contributed to cause individuals to become a serial killer, mass murderer, etc; however, rejection is a key factor that is present in serial killings and mass murders.21 The relevance of this study is to prove that mandatory minimum sentencing is justified in some cases and many factors determine if an individual will be a danger to society. In 2007, Heather Ahn-Redding published The Million Dollar Inmate: The Financial
19 20

Wilbur R. Miller, The Social History of Crime and Punishment in America: A-De, 1635, (Sage, 2012). Id, at 1635. 21 Id, at 1638.

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Burden of Nonviolent Offenders, which asserts that studies have not been conducted to support the conclusion that mandatory minimum sentencing is a successful crime deterrence tool or a reduction in the probability of incarceration. Heather Ahn-Redding is an assistant Professor of Criminal Justice at High Point University and has contributed over 20 years studying and teaching in such field. Ahn-Redding (2007) refers that the utilization of incarceration is an addiction, causing social and financial expenses. In that study, Ahn-Redding describes that the length of time the offenders serves in prison as an investment and the return on the investment would be the recidivism rates. However, Ahn-Redding points out that the investment is not returned, as the recidivism rates are at 40 percent.22 The relevance of this study is to prove that evidence does not exist to support the argument that mandatory minimum sentencing is a successful crime deterrence tool. In 2004, Castillo et. al. (hereafter called The Commission) produced a report called Recidivism and the First Offender, with the ultimate goal of launching a major study of recidivism under the guidelines.23 The Commission consisted of judges, general counsel members, an inspector general, college professors, and ex officio commissioners representing an ample amount of subject knowledge. The commission analyzed all crimes committed by offenders with zero, one, and two or more point categories. Castillo et. al (2004) represents an analytical report drawn from offender recidivism data in 2003, which presents results supporting that offenders with a prior arrest record has an increased recidivism rate. The report explains that offenders with an arrest record but without prior convictions, produces a recidivism rate three times the rate for offenders without a prior
22

Heather Ahn-Redding, The Million Dollar Inmate: The Financial Burden of Nonviolent Offenders , (Lexington Books, 2007). 23 Castillo et. al, Recidivism and the First Offender, 14, (United States Sentencing Commission, 2004).

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arrest history.24 Therefore, the relevance of this report is to prove that offenders with a prior arrest history will have increased probability to recidivate. In 2011, Ikponwosa O. Ekunwe and Richard S. Jones published Global Perspectives on Re-entry: Exploring the Challenges Facing Ex-prisoners summarizing implementation and the deterioration of support from advocates for the deterrence concept. Ekunwe obtained his Ph.D. in Social Science from the University of Tampere in Finland and has presented a variety of lectures at the University of Tampere related to political science. Ekunwe has over twenty (20) years of experience in the political science field. Jones is a Professor at Marquette University in the field of social and cultural sciences. Jones has experience with social problems, sociology principles, incarceration, crime and punishment. In 1986, Jones obtained his Ph.D. from Iowa State University in Sociology. Jones has contributed over 35 years to the field of sociology writing several publications and involved in a vast amount of research projects. The relevance of using the Ekunwe and Jones (2011) study is to explain the deterioration of support from advocates of the deterrence concept. Ekunwe and Jones (2011) assert that the United States utilized the prison system with the primary goal of deterring crime and brought about the indeterminate sentence with the primary purpose of corrections being the rehabilitation of offenders.25 Ekunwe and Jones (2011) points out correction facilities failed to rehabilitate offenders; therefore, the concept of utilizing treatment programs came into light and utilizing the concept of incarceration should be only for the most serious offenders.26 In addition, Ekunwe and Jones (2011) explain that the implementation of the deterrence concept for a decade was not

24 25

Id. Ikponwosa O. Ekunwe & Richard Statler Jones, Global Perspectives on Re-entry: Exploring the Challenges Facing Ex-prisoners, 445, (University of Tampere, 2011). 26 Id, at 445.

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bringing down the recidivism rates as projected; therefore, the abandonment of the deterrence concept began and the idea of mass incarceration developed. Two subset theoretical concepts to the deterrence concept involve just deserts and incapacitation. In 2008, Richard Lawrence and Craig Hemmens published Juvenile Justice: A Text/Reader, explaining similar concerns between the justice model and just deserts model. Richard Lawrence is a Professor at St. Could State University in Criminal Justice. He received a Ph.D. at Sam Houston State University in Criminal Justice. He has written over forty works throughout his career in criminal justice. Craig Hemmens is a Professor and Department Head at Missouri State University in the Criminology and Criminal Justice Department. He has published several works and received several award. Hemmens graduated from North Carolina Central University School of Law with a J.D. in Criminal Justice. Recently, Hemmens was deemed the President of the Association of Criminal Justice Sciences (ACJS). Lawrence and Hemmens (2008) points out the just deserts model focuses on crime committed more than the individual that committed the crime.27 Lawrence and Hemmens (2008) explain just deserts, [E]mphasis was placed on the criminal sanction and on determining the appropriate sentence for the severity of the crime. A common theme in the deserts model is the concern with reducing sentencing disparity, that is, the wide range of sentences that specific offenders have received for a particular crime, even when their criminal histories have been similar. This new emphasis has led many states to abolish parole and to develop determinate sentencing guidelines.28

27 28

Id. Id, at 426.

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Therefore, Lawrence and Hemmens (2008) believe that the just deserts model has caused sentencing disparity because offenders are given different sentences for a specific crime with a similar criminal background. The relevance of using the Lawrence and Hemmens (2008) study is to explain why advocates of mandatory minimum sentencing support determinate sentences. Advocates for mandatory minimum sentencing support the concept of the incapacity theory. Harcourt (2008) states that the incapacitation theory suggest there will simply be more detection of crimeand, correlatively, fewer undetected tax evaders, fewer drug-couriers on the highway, and fewer recidivists preying on society.29 Harcourt (2008) asserts that incapacitating a repeat offender for a lengthy period of time prevents such individual from committing future crimes, not increased his future criminality.30 Harcourt (2008) explains the incapacitation theory and how an incapacitation cap does not make our communities socially optimal.31 Harcourt (2008) is relevance to the thesis because he explains that a theory without a limit can be over utilized and can cause a burden to a society. Therefore, without an incapacitation cap, a high probability exists that mandatory minimum sentencing will cause a negative effect on society or a possible ratchet effect.32 In addition, Mackenzie (2005) states, Prison was seen [by judges] as a sentence that did little for the offenders chances of rehabilitation, in fact probably produced the opposite effect. A recurring theme was the judges belief that illicit drugs were freely available in prisons, together with the fact that the brutality of prison would serve to reinforce and intensify criminal behavior, rather than have a reformatory effect.33

29 30

Id, at 27. Id, at 25. 31 See Harcourt, supra note 12, at 27. 32 Id, at 31. 33 See Mackenzie, supra note 6, at 97.

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Harcourt (2008) and Mackenzie (2005) have the same belief that making offenders serve time in prisons causes the offender to continue committing crimes, as the offenders were not being treated. The relevance of such studies is to prove that lengthy sentences cause offenders to slip further into crime. In 2008, Cassia Spohn published How Do Judges Decide?: The Search for Fairness and Justice in Punishment, explaining the argument that rehabilitation reduces crime. Cassia Spohn obtained her B.A, M.A. and Ph.D. from the University of Nebraska-Lincoln in political science. She is a professor at the Arizona State University in the Criminology and Criminal Justice Department. Spohn has published over 100 articles and has received several awards in the field of criminal justice. In addition, Spohns research was utilized in the case of McCleskey v. Kemp, 481 U.S. 279 (1987). Spohn (2008) states that [a]lthough they acknowledge that some treatments work with some types of offenders, these critics contend that no generic treatments routinely produce major reductions in recidivism.34 Critics believe that rehabilitation cannot be the primary justification for punishment; however, supporters believe that rehabilitation is the preferred method of crime prevention because it responds to the needs of the offender.35 The relevance of using the Spohn (2008) study is to prove that utilizing incarceration in conjunction with treatment programs (i.e. DRCs) may have a more positive effect on deterring crime.

34 35

See Champion, supra note 1, at 15. Id, at 15.

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CHAPTER III DISCRETION OF JUDGES A. Determinant and Indeterminate Sentencing From late 1700s to early 1800s, the discretion of English judges increased by granting judicial reprieves or judicial leniency for convicted offenders in criminal cases.36 However, by 1916, the practice of judicial reprieves and suspensions of incarcerative sentences for indefinite periods was deemed to be unconstitutional by the United States Supreme Court, even though such actions were practiced during the nineteenth century by innovated judges.37 One innovative judge during such timeframe was Peter Oxenbridge Thatcher, a municipal judge in Boston, who believed that such sentences would encourage convicted offenders to practice good behavior and refrain from committing new crimes.38 The U.S. Supreme Court declared that judicial leniency practiced during such time infringed upon the separation of powers principle by contravening the powers of the legislative and executive branches to write laws and ensure their enforcement.39 Within a decade after the U.S. Supreme Court declared judicial leniency to be unconstitutional, the national inmate population dramatically increased.40 In 1944, the overcrowding of prisons was a significant issue and all states used parole to reduce the amount of inmates.41 According to Champion (2008), Parole is the early release of inmates from incarcerative sentences originally imposed by judges. The parole decision is usually, though not always, made by parole boards consisting of prison administrators, other correctional personnel, and prison psychiatrists or group counselors.42 Probation was also
36 37

Id, at 27. Id, 17. 38 Id, at 17. 39 Id, at 17. 40 Id, at 17. 41 Id. 42 Id, at 16.

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implemented, which offenders had to report to probation officers and during the sentenced time, judges ensured probationers obeyed the conditions for probation. Proponents of mandatory minimum sentencing are in favor of the just deserts model, which is also referred as determinate sentencing. The purpose of developing the just deserts model was to come to a fairer and more just sentencing policy.43 Junger-Tas (1994) asserts that the offenders personal circumstances increased the judges discretionary power in an uncontrolled way, causing the notorious indeterminate sentencing policy to develop.44 The Von Hirsh reform focus was to give an offender a better legal position; however, the reform created less consideration for offenders and a harsher sentencing policy.45 Junger-Tas (1994) points out that Von Hirsch and his colleagues rejected the indeterminate sentencing and the judges discretion to allow considerations, such as the offenders personality rather than the offenders criminal record and the gravity of the crime.46 For example, in the case of Wilson v. State of Georgia, Genarlow Wilson was convicted at 17 years old for aggravated child molestation by engaging in oral sex with a female that was 15 years old.47 Wilson was sentenced to a 10 year mandatory sentence; however, after serving more than four (4) years of his sentence the Georgia State Supreme Court declared that the sentence was not proportionate.48 Congress set out to provide fair sentencing guidelines. According to Barak (2007), the Sentencing Reform Act of 1984 was passed to provide certainty and fairness in meeting the purposes of sentencing and established by the United States Sentencing Commission.49 Such guidelines were declared mandatory and judges were required to sentence the offender based off
43 44

See J. Junger-Tas, supra note 2, at 2. Id, at 4. 45 Id. 46 Id. 47 Wilson v. State of Georgia, 282 Ga. 520, (2007). 48 Id. 49 See Barak, supra note 50, at 102.

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a number grid rather than using discretion on a case-by-case basis.50 Barak (2007) asserts [a]lthough the U.S. Attorney Generals office applauds the Federal Sentencing Guidelines, many have criticized them.51 For example, Honorable Nancy Gerner, Federal District Court Judge in Massachusetts, wrote: While sentencing prior to the Sentencing Reform Act of 1984...was far from perfect, criticism of the federal sentencing guideline regime has come from all corners of the legal profession, including the judiciary and academia.52 Opponents, such as Judge Gerner, claim that the Federal Sentencing Guidelines are not uniform and the guidelines caused regional and racial disparities.53 Such guidelines are viewed as harsh and prosecutors having the discretionary power can increase the offenders sentence. Opponents believe in indeterminate sentencing. Mackenzie (2005) and Barak (2007) assert that prison sentences do not significantly help an offenders rehabilitation, but instead can harm the offender.54 Mackenzie (2005) states judges believe prisons cause an offenders criminal behavior to intensify, as illicit drugs are freely available and inmates are subjected to prison brutality.55 Currently, mandatory minimum sentences are generally for crimes involving drugs and guns; however, significant evidence has not been found to conclude mandatory minimums have reduced crime or the probability of incarceration.56 The most recent introduction of mandatory minimum sentences by the federal government was with the Anti-Drug Abuse Act of 1986 and the 1988 amendments.57 Some states, such as Connecticut and Pennsylvania, have already modified mandatory minimum laws and other states are considering modifying its laws
50 51

Id, at 102. Id. 52 Id, at 102. 53 Id. 54 See Mackenzie, supra note 6, at 97. See Barak, supra note 50. 55 Id, at 97. 56 See Ahn-Redding, supra note 22. 57 See Lippman, super note 8, at 77.

28

because of the inflexibility (differences between defendants), disparities of enforcement, [and] growth of the prison population.58 Many scholars have conducted studies on the effect of mandatory minimum sentencing; however, few scholars have recognized that mandatory minimum sentencing aids in overcrowding of the prisons and prevents crime instead of deterring crime. 59 B. Judicial Abuse The one of the goals for mandatory minimum sentencing is to create a fair sentencing guideline for the government and the offender. Proponents of mandatory minimum sentencing argue that serious crimes considered to be routine were treated as routine by judges, therefore, causing lenience in sentencing over time. For example, Muhlhausen (2014) asserts, [T]wo persons who have committed precisely the same crime under the precisely the same circumstances might receive very different sentences, thereby violating the offenders and our sense of justice. Such an approach led to the indeterminate sentencing systems that federal and state governments had used being largely abandoned due to the widespread view that they were too lenient and unjust.60 Muhlhausen (2014) has a good point that complacency can set in at any point; however, two persons with the same crime and circumstance can still receive different sentences with mandatory minimum sentencing. The difference between judicial discretion and mandatory minimum sentencing is that a judge has a minimum sentencing requirement for specific crimes; therefore, judges are required to give an offender regardless of the circumstances a sentence that might not be fitting or fair for the situation.

58 59

Id, at 77. Id. 60 David B. Muhlhausen, Theories of Punishment and Mandatory Minimum Sentences, 2, (The Heritage Foundation, 2014).

29

In opposition, Ogletree (2009) states that putting people who have committed lowlevel offenses, who are perfectly capable of being rehabilitated, away for lengthy sentences and [are] turning them into hardened criminals.61 Ogletree (2009) believes that firm laws can misjudge the severity of the crime. Further, Ogletree (2009) asserts an offender that is given a lengthy and harsh sentence have less of a chance to be rehabilitated. C. Sentencing Disparity The second goal for mandatory minimum sentencing is to reduce sentencing disparity. Proponents of mandatory minimum sentencing argue that sentencing by judges is not consistent when the situations are similar. For example, Muhlhausen (2014) asserts that sentencing disparities existed nationally by citing a 1977 study deriving out of Virginia.62 The study consisted of 47 district court judges giving their verdict for five (5) cases.63 The judges received identical descriptions of the cases provided. 64 Muhlhausen (2014) states that the judges tended to agree on the same verdicts for each case, they administered widely varying sentences in the above referenced study.65 Proponents argue that ranging disparity in sentencing is unfair and creates sentencing disparity, as some offenders are given the same verdict but various sentence lengths when the situations are similar. Opponents argue that mandatory minimum sentencing laws has its disparities too. For example, Muhlhausen (2014) states, The Constitution Project concluded that the 100-1 weight ratio upon which guideline and mandatory minimum sentences for powdered and crack cocaine are based is unjustifiable
61

Charles J. Ogletree, Exploring the National Criminal Justice Commission Act of 2009, 3, (United States Senate Committee on the Judiciary, 2009). 62 See Muhlhausen, supra note 61. 63 Id. 64 Id. 65 Id, at 3.

30

as a matter of policyCongress intended the mandatory minimum crack cocaine sentences to be targeted toward traffickers.66 The minimum sentence for an offender in possession of crack cocaine in the amount of five (5) grams or more will receive five years.67 The issue is that a user of crack cocaine typically consumes approximately three (3) to sixteen (16) grams of cocaine per week; therefore, the probability that simple crack cocaine users being charged with a minimum sentence for traffickers is high.68 Although the U.S. Senate is in the process of correcting such issue, the debate on the 100-1 ratio lasted for 24 years before the Administration would take action to adjust the ratio.69 D. Public Safety Public safety is the third goal for mandatory minimum sentencing, which proponents believe increasing an offenders sentence limit will increase public safety, in turn, enhancing public safety.70 Sullivan (2014) cites proponent Jodi L. Avergun (for the Drug Enforcement Administration (DEA)), who states, The Department of Justice supports mandatory minimum sentences [because] mandatory minimum statutes provide a level of uniformity and predictability in sentencing.... And mandatory minimum sentences can also incapacitate dangerous offenders for long periods of time, thereby increasing public safety. In opposition, Sullivan (2014) cites Marc Mauer (Executive Director of the Sentencing Project) asserting, Since the 1970s the federal government and virtually every state legislative body have enacted various types of mandatory sentencing policies. These policies have been

66 67

Id, at 8. Id. 68 Id, at 8. 69 Id. 70 Michael J. Sullivan, Have Mandatory Minimum Jail Sentences Been an Effective Tool in the War on Drugs?, (ProCon.org, 2014).

31

targeted most frequently to drug offenses, but have also been imposed for a variety of other crimes... we now have three decades of experience with the current generation of mandatory sentencing policies. I believe it is fair to state that there is a growing consensus among leading legal and policy experts that these laws have failed to promote public safety, but have instead produced unintended consequences that frequently result in injustice.71 Mauers statement can be supported by Muhlhausen (2014), as the 100-1 ratio issue was not addressed until 24 years after the mandatory minimum sentences went into effect, which most opponents would agree that is unjust.

71

Id, at 2.

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CHAPTER IV COSTS OF HOUSING INMATES A. The Seven Deadly Sins Prior to 1815, offenders served their full sentences; however, overcrowding became an issue and federal district judges allowed prison officials to award prisoners parole.72 From 1840 to 1870, the national inmate population added 29,000 inmates (See Table 1).73 The construction projects to build additional prisons were not able to keep up with the rapid growth of inmates, in turn causing the jail and prisons to be overcrowded.74 Opponents believe the higher cost of housing inmates, higher incarceration rates, and the overcrowding of prisons outweighs the justification for such laws without limits. Junger-Tas (1994) believes new sentencing methods are needed to overcome the over-crowding of prisons and the cost of managing and repairing the prisons that resulted from the current sentencing guidelines.75 Actions must be taken to control the current incarceration rate; however, to create a plan studies must be conducted to counter the damage caused by mandatory minimum sentencing on society. The prison sentence for convicted offenders that are charged with one of the Seven Deadly Sins is a minimum of ten (10) years without parole.76 According to the Georgia Department of Corrections Sentencing Legislation Report (2013), the Seven Deadly Sins include murder, rape, armed robbery with [a] firearm, aggravated child molestation, aggravated sodomy, aggravated sexual battery, and voluntary manslaughter.77 If the offender has one of the

72 73

See Champion, supra note 1. Id, at 16. 74 Id. 75 See Junger-Tas, supra note 2. 76 Department of Corrections, Sentencing Legislation, 1, (2013). 77 Id, at 1.

33

above-mentioned charges on their record, then the offender will serve life without parole (mandatory) in prison referred to as the two strikes law.78 According to the Georgia Department of Corrections Sentencing Inmate Statistical Profile Report (2013): 5,466 inmates convicted of murder had the average sentence of life; 1,761 inmates convicted of rape had the average sentence of 24.1 years; armed robbery was 15.8 years; kidnapping was 20.7 years; aggravated sodomy was 22.6 years; aggravated sexual battery was 20.1 years; and aggravated child molestation was 23.5 years (see table 2).79 The purpose of stating the crimes and average sentencing is to prove that sentencing convicted offenders for the above-mentioned crimes alone is very costly; therefore, only incarcerating the most serious offenders is critical.80 B. Criminal Justice Reform Bill of 2012 In 2012, the Criminal Justice Reform Bill was passed, which aimed to curb the growth of [the] prison population and improve public safety, while saving tax payers money.81 The Bill utilizes pre-trial intervention, diversion, drug courts and treatment programs (alternative methods) to steer the least dangerous, least hardened offenders away from prison.82 These approved alternative methods help to reserve beds in prisons for serious offenders.83 Offenders with mental illnesses and drug addictions receive treatment from the Criminal Justice Reform Bill; in addition, remaining sober and working is required of such offenders.84 Many offenders currently in Georgia prisons will benefit from the Criminal Justice Reform Bill. According to the Governors Office of Planning and Budget (2013), Three out of four (75%) of Georgias prisoners have substance abuse problems, and 53% of the inmates receive mental health
78 79

Id, at 1. Department of Corrections, Inmate Statistical Profile, 1, (2013). 80 See Miller, supra note 19. 81 Department of Corrections, Sentencing Legislation, 1, (2013). 82 Id, at 1. 83 Id. 84 Id.

34

treatment.85 In 2012, Georgia State Prisons reported to have 57,570 inmates, which 54 percent of the crimes were of a non-violent nature (i.e. property, sexual, drug).86 Further, the Governors Office of Planning and Budget (2013) states that [d]uring FY 2011, 69% of parolees were employed and 67% of parolees who entered drug treatment successfully completed their treatment; therefore, prior to the enactment of Criminal Justice Reform Bill drug treatment programs were already a success.87 C. Offender Placement Costs Special Council on Criminal Justice Reform for Georgians (2011) asserts that the Georgia prison population has significantly increased raising the cost of housing inmates. The council reports that Georgia had the fourth highest incarceration rate in the country in 2007. 88 Further, the council reports [t]oday, corrections costs the state [GA] more than $1 billion per year, up from $492 million in FY 1990.89 Several factors are involved to determine if incapacitation helps to reduce crime and the factors are weighed against the costs for incapacitation. Harcourt (2008) points out it is necessary to provide a cost-benefit analysis to determine whether the potential reduction in crime attributable to an incapacitation effect outweighs the costs associated with the increased incarceration, even if the results are not favorable.90 Harcourt (2008) acknowledges that the incarceration theory must be controlled to a known extent. Levin and Reddy (2011) provides a summary of the results from the report by the

85

Governors Office of Planning & Budget, Safe Georgia: Protecting Georgias Publics Safety and Security, 74, (2013). 86 Id. 87 Id, at 77. 88 Report of the Special Council on Criminal Justice Reform for Georgians, (2011). Retrieved from http://www.legis.ga.gov/documents/gacouncilreport-finaldraft.pdf. 89 Id, at 7. 90 See Harcourt, super note 12, at 27.

35

Special Council on Criminal Justice Reform for Georgians (the Council)91 The authors assert that public safety is the ultimate goal of government, however, scope and size should not be excused from inspection. The authors point out the size and cost to house inmates and acknowledge that the Council recommended treatment programs and other evidence-based practices in community supervision. Alternative methods (i.e. probation, DRCs, drug courts, and treatment programs) can be utilized to reduce the costs of housing inmates and reduce recidivism rates. For example, Barak (2007) believes that DRCs reduce the costs associated with jails, as offenders will not need to be housed or confined.92 According to the Governors Office of Planning and Budget (2013), The average cost per Georgia offender in state prison is $16,246 per year compared to $463.55 for regular probation supervision and $1,569.50 for intensive probation supervision; in addition, DRCs has an average cost of $5,960 per offender, which is one-third the cost of utilizing prisons and the offender is seeking treatment (see Table 3).93 Therefore, the utilization of alternative method could save taxpayers thousands of dollars.

91

Marc A. Levin & Vikrant P. Reddy, Peach State Criminal Justice: Controlling Costs, Protecting the Public, 1, (Georgia Public Policy Foundation, 2011). 92 See Barak, supra note 50. 93 See Governors Office of Planning & Budget, supra note 86, at 78.

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CHAPTER V CRIME DETERRENCE A. Deterrence Defined Mandatory minimum sentencing was created to deter crime. Chambliss (2011) defines deterrence by stating that deterrence depends upon the belief that the risk of detection, apprehension, and adjudication is greater than the immediate reward of violating the law.94 In other words, advocates for mandatory minimum sentencing believed that the offender will assess the punishment prior to committing a crime. The relevance of utilizing Chambliss (2011) is to accurately define deterrence. B. Deterrence Tool Austin and Irwin (2011) assert that advocates for mandatory minimum sentencing believe utilizing such laws is a successful crime deterrence tool, as incarceration rates increases crime rates are reduced.95 Austin and Irwin (2011) state that starting in the 1980s the U.S. Department of Justice funded studies to demonstrate that a causal relationship existed between crime and imprisonment.96 Austin and Irwin (2011) explain that the Crime Bill of 1994 required convicted violent crime offenders to serve, at minimum, 85 percent of his or her sentence so the government could have the funds available for the additional beds in the prisons.97 Opponents believe utilizing such laws is a not successful crime deterrence tool, as the offender is not being treated for the crime committed. Carruth and Rowe (2013) believed that penalties in which are set and enforced do not significantly work to deter crime. In addition, the authors provide insight on how mandatory minimum sentencing does not affect the crime

94 95

William J. Chambliss, Courts, Law, and Justice, 71, (SAGE, 2011). Id. 96 Id. 97 Id.

37

deterrence rates. Carruth and Rowe (2013) ascertain that mandatory minimum sentencing causes additional issues, as a result of using harsh laws. The relevance of this study is to prove that many factors contribute to crime rates and a harsher sentence does not significantly help crime rates. Miller (2012) believed that in some situations, mandatory minimum sentencing is justified such as cases involving serial killers and mass murderers and defining such individuals as the most dangerous, callous, and capricious criminals known to man.98 Miller (2012) admits that no single factor is contributed to cause individuals to become a serial killer, mass murderer, etc; however, rejection is a key factor that is present in serial killings and mass murders.99 The relevance of this study is to prove that mandatory minimum sentencing is justified in some cases and many factors determine if an individual will be a danger to society. Ahn-Redding (2007) refers that the utilization of incarceration is an addiction, causing social and financial expenses. In that study, Ahn-Redding describes that the length of time the offenders serves in prison as an investment and the return on the investment would be the recidivism rates. However, Ahn-Redding points out that the investment is not returned, as the recidivism rates are at 40 percent.100 The relevance of this study is to prove that evidence does not exist to support the argument that mandatory minimum sentencing is a successful crime deterrence tool. C. Recidivism Rates Castillo et. al (2004) represents an analytical report drawn from offender recidivism data in 2003, which presents results supporting that offenders with a prior arrest record has an increased recidivism rate. The report explains that offenders with an arrest record but without
98 99

Id, at 1635. Id, at 1638. 100 See Ahn-Redding, supra note 22.

38

prior convictions, produces a recidivism rate three times the rate for offenders without a prior arrest history.101 Therefore, the relevance of this report is to prove that offenders with a prior arrest history will have increased probability to recidivate. Ekunwe and Jones (2011) assert that the United States utilized the prison system with the primary goal of deterring crime and brought about the indeterminate sentence with the primary purpose of corrections being the rehabilitation of offenders.102 Ekunwe and Jones (2011) points out correction facilities failed to rehabilitate offenders; therefore, the concept of utilizing treatment programs came into light and utilizing the concept of incarceration should be only for the most serious offenders.103 In addition, Ekunwe and Jones (2011) explain that the implementation of the deterrence concept for a decade was not bringing down the recidivism rates as projected; therefore, the abandonment of the deterrence concept began and the idea of mass incarceration developed. D. Just Deserts and Incapacitation Theories Two subset theoretical concepts to the deterrence concept involve just deserts and incapacitation. Lawrence and Hemmens (2008) points out the just deserts model focuses on crime committed more than the individual that committed the crime.104 Lawrence and Hemmens (2008) explain just deserts, [E]mphasis was placed on the criminal sanction and on determining the appropriate sentence for the severity of the crime. A common theme in the deserts model is the concern with reducing sentencing disparity, that is, the wide range of sentences that specific offenders have received for a particular crime, even when their criminal histories

101 102

Id. See Ekunwe, super note 25, at 445. 103 Id, at 445. 104 Id.

39

have been similar. This new emphasis has led many states to abolish parole and to develop determinate sentencing guidelines.105 Therefore, Lawrence and Hemmens (2008) believe that the just deserts model has caused sentencing disparity because offenders are given different sentences for a specific crime with a similar criminal background. Proponents of mandatory minimum sentencing support the concept of the incapacity theory. Harcourt (2008) states that the incapacitation theory suggest there will simply be more detection of crimeand, correlatively, fewer undetected tax evaders, fewer drug-couriers on the highway, and fewer recidivists preying on society.106 Harcourt (2008) asserts that incapacitating a repeat offender for a lengthy period of time prevents such individual from committing future crimes, not increased his future criminality.107 Harcourt (2008) explains the incapacitation theory and how an incapacitation cap does not make our communities socially optimal.108 Harcourt (2008) is relevance to the thesis because he explains that a theory without a limit can be over utilized and can cause a burden to a society. Therefore, without an incapacitation cap, a high probability exists that mandatory minimum sentencing will cause a negative effect on society or a possible ratchet effect.109 In addition, Mackenzie (2005) states, Prison was seen [by judges] as a sentence that did little for the offenders chances of rehabilitation, in fact probably produced the opposite effect. A recurring theme was the judges belief that illicit drugs were freely available in prisons, together with the fact that

105 106

Id, at 426. Id, at 27. 107 Id, at 25. 108 See Harcourt, supra note 12, at 27. 109 Id, at 31.

40

the brutality of prison would serve to reinforce and intensify criminal behavior, rather than have a reformatory effect.110 Harcourt (2008) and Mackenzie (2005) have the same belief that making offenders serve time in prisons causes the offender to continue committing crimes, as the offenders were not being treated. The relevance of such studies is to prove that lengthy sentences cause offenders to slip further into crime. Spohn (2008) states that [a]lthough they acknowledge that some treatments work with some types of offenders, these critics contend that no generic treatments routinely produce major reductions in recidivism.111 Proponents believe that rehabilitation cannot be the primary justification for punishment; however, supporters believe that rehabilitation is the preferred method of crime prevention because it responds to the needs of the offender.112

110 111

See Mackenzie, supra note 6, at 97. Id, at 15. 112 Id, at 15.

41

CHAPTER VI DISCUSSION The Discretion of Judges is Limited The first problem identified in this thesis is whether a significant amount of offenders are given harsher sentences when mandatory minimum sentencing is applied because the discretion of judges is limited. Yes, offenders are given harsher sentences when mandatory minimum sentences are applied because the discretion of judges is limited. Proponents of mandatory minimum sentencing are in favor of the just deserts model, which is also referred as determinate sentencing. The purpose of developing the just deserts model was to come to a fairer and more just sentencing policy.113 Junger-Tas (1994) asserts that the offenders personal circumstances increased the judges discretionary power in an uncontrolled way, causing the notorious indeterminate sentencing policy to develop.114 Proponents view that indeterminate sentencing was out of control when judges allowed the offenders personal circumstances to be considered is not viable. Personal circumstances are critical in some cases. For example, in the case of Wilson v. State of Georgia, a 17-year-old was convicted of aggravated child molestation when engaging in oral sex with a 15-year-old.115 In that case, Wilson was sentenced to 10 years based on the mandatory minimum guidelines and after he served four years of his sentence that Georgia Supreme Court declared that the sentence was not proportionate.116 A 17-year-old seeking pleasure from a 15-year-old is custom because only a two year age difference exists. Judges are able to calculate sentences based on the norm, whereas mandatory sentencing guidelines cannot do so. The above-mentioned case is clear example that

113 114

See J. Junger-Tas, supra note 2, at 2. Id, at 4. 115 Wilson v. State of Georgia, 282 Ga. 520, (2007). 116 Id.

42

the guidelines are too harsh when the Georgia Supreme Court had to reverse a sentence. Barak (2007) points out that the Sentencing Reform Act of 1984 sentencing guidelines are based on a number grid, which is prevented from making an assessment of the situation.117 Further, the sentencing guidelines removed the discretionary power from judges and given to prosecutors causing a harsher sentence to be imposed, as the prosecutor can see the entire record of the offender and charge the offender with whichever crime he or she deems fit (i.e. imposing vehicular homicide charge rather than reckless driving). Ogletree (2009) clearly explains that low-level offenders are able to be rehabilitated; however, mandatory minimum sentencing turns offenders into hardened criminal because sentencing guidelines misjudge the severity of the crime.118 Therefore, the discretion of judges is necessary. Mackenzie (2005) and Barak (2007) assert that prison sentences do not significantly help an offenders rehabilitation, but instead can harm the offender.119 Mackenzie (2005) states judges believe prisons cause an offenders criminal behavior to intensify, as illicit drugs are freely available and inmates are subjected to prison brutality.120 Therefore, the findings significantly supported that offenders are given harsher sentences when mandatory minimum sentencing is applied because the discretion of judges is limited. The goal of mandatory minimum sentencing was to reduce sentencing disparity, as sentencing by judges caused such issue; however, disparity exists for mandatory minimum sentencing as well (i.e. powder and crack cocaine ratio) making such argument unconvincing.121 Proponents argue that sentencing disparities exist nationally when judges are given the

117 118

See Barak, super note 50, at 102. See Ulgetree, supra not 62, at 3. 119 See Mackenzie, supra note 6, at 97. See Barak, supra note 50. 120 Id, at 97. 121 See Muhlhausen, supra note 61.

43

discretionary power citing a study conducted in 1977.122 The verdicts tended to be the same, however, the sentences varied between the 47 district court judges.123 The number of district court judges nationally during such time is unknown to this researcher. Further, sentencing disparity varying by region is understandable; however, sentencing disparity varying by substance within policy guidelines is not understandable. Proponents argue that judges were being too lenient and unjust; however, mandatory minimum sentencing made the situation worse, as it is too harsh and unjust making the argument lack support of merit.124 Lippman (2009) explained that by creating a mandatory federal policy to correct sentencing disparities by judges in all regions of all states hinders judges discretion or flexibility, as the policy cannot detect the differences between defendants.125 Therefore, some states (i.e. Connecticut and Pennsylvania) have chosen to modify its mandatory minimum laws.126 Proponents argument that by increasing an offenders sentence limit will increase public safety, in turn, enhancing public safety is not viable.127 Sullivan (2014) cites Marc Mauer whom asserts there is a growing consensus among leading legal and policy experts that these laws have failed to promote public safety, but have instead produced unintended consequences that frequently result in injustice.128 Strong support opposing mandatory minimum sentencing policies and practices exists from numerous experts in the field and supports the conclusion that offenders are given harsher sentences when mandatory minimum sentences are applied because the discretion of judges is limited.
122 123

Id. Id, at 3. 124 Id, at 2. 125 See Lippman, super note 8, at 77. 126 Id. 127 Michael J. Sullivan, Have Mandatory Minimum Jail Sentences Been an Effective Tool in the War on Drugs?, (ProCon.org, 2014). 128 Id, at 2.

44

Mandatory Minimum Sentences Imposes a Financial Burden The second problem is whether prisons carry a financial burden from mandatory minimum sentencing because of the over use of such tool to punish all classes. Yes, punishing all classes of offenders through the prison system serving a mandatory minimum sentence is a significant financial burden. Mandatory minimum sentencing applies to first offenders. Therefore, a first offender serving such a sentence is not necessary or justifiable, as this thesis has already concluded an offender is turned into a hardened criminal by serving a lengthy sentence. Proponents believe in mass incarceration for the ultimate goal of reducing recidivism rates; however, incarcerating all offenders at the cost of taxpayers is not justified when other successful methods exist. Junger-Tas (1994) believes new sentencing methods are needed to overcome the over-crowding of prisons and the cost of managing and repairing the prisons that resulted from the current sentencing guidelines and the Criminal Justice Reform Bill has been proven to help with the over-crowding and financial burden of prisons.129, 130 According to the Governors Office of Planning and Budget (2013), Three out of four (75%) of Georgias prisoners have substance abuse problems, and 53% of the inmates receive mental health treatment.131 In 2012, Georgia State Prisons reported to have 57,570 inmates, which 54 percent of the crimes were of a non-violent nature (i.e. property, sexual, drug) (see Table 4).132 Further, the Governors Office of Planning and Budget (2013) states that [d]uring FY 2011, 69% of parolees were employed and 67% of parolees who entered drug treatment successfully completed their treatment; therefore, prior to the enactment of Criminal Justice Reform Bill drug
129 130

See Junger-Tas, supra note 2. Department of Corrections, Sentencing Legislation, 1, (2013). 131 Governors Office of Planning & Budget, Safe Georgia: Protecting Georgias Publics Safety and Security, 74, (2013). 132 Id.

45

treatment programs were already successful.133 First-time offenders must be given the chance to seek treatment initially to reduce the cost of housing inmates. Opponents believe the higher cost of housing inmates, higher incarceration rates, and the overcrowding of prisons outweighs the justification for such laws without limits is a viable concern. According to the Governors Office of Planning and Budget (2013), The average cost per Georgia offender in state prison is $16,246 per year compared to $463.55 for regular probation supervision and $1,569.50 for intensive probation supervision; in addition, DRCs has an average yearly cost of $5,960 per offender, which is one-third the cost of utilizing prisons and the offender is seeking treatment (see Table 2 and Table 5).134 Sentencing convicted offenders for the Seven Deadly Sins alone is very costly (see Table 6); therefore, only incarcerating the most serious offenders is critical.135 Mandatory minimum sentencing should only be utilized for hardened and/or violent offenders who already shown the criminal justice system that he or she does not plan or want to seek treatment. An example is pointed out by Miller (2012) who believes that in some situations, mandatory minimum sentencing is justified such as cases involving serial killers and mass murderers and defining such individuals as the most dangerous, callous, and capricious criminals known to man.136 Crime Deterrence The third problem is whether mandatory minimum sentencing fails to significantly deter crime. Yes, mandatory minimum sentencing fails to significantly deter crime. Proponents argument that mandatory minimum sentencing is a successful crime deterrence tool since crime

133 134

Id, at 77. See Governors Office of Planning & Budget, supra note 86, at 78. 135 See Miller, supra note 19. Department of Corrections, Sentencing Legislation, 1, (2013). 136 Id, at 1635.

46

rates reduce as incarceration rates increase is not viable.137 Proponents depend upon studies conducted by the U.S. Department of Justice that incorrectly demonstrate that a causal relationship existed between crime and imprisonment.138 Carruth and Rowe (2013) counter-argue the causal relationship between crime and imprisonment stating that setting and enforcing harsh penalties in efforts to deter crime, then, does not seem to work very well. Mandatory minimum sentences do nothing to change the equation.139 Harcourt (2008) and Mackenzie (2005) have the same belief that making offenders serve time in prisons causes the offender to continue committing crimes, as the offenders were not being treated, which is a viable belief. General deterrence means that the offender will be able to assess whether the risk of detection, apprehension, and adjudication is greater than the immediate reward of violating the law after completing treatment.140 Harcourt (2008) asserts that incapacitating a repeat offender for a lengthy period of time prevents such individual from committing future crimes.141 However, the offender is not given the chance to make a choice to violate the law for a lengthy amount of time if he or she is sentenced under the mandatory minimum sentencing laws. Therefore, the success of recidivism would remain unknown and by such time the offender is released to make a choice. After serving a lengthy sentence, a high possibility exists that the offender turned into a hardened criminal.142 Mackenzie (2005) clarifies how an individual became a hardened criminal while serving a sentence by stating, [I]llicit drugs were freely available in prisons, together with the fact that the brutality of prison would serve to reinforce and intensify criminal behavior, rather than have a
137 138

See Chambliss, super note 14, at 71. Id. 139 Bruce Carruth & Thomas C. Rowe, Federal Narcotics Laws and the War on Drugs: Money Down the Rat Hole, 95, (Routledge, 2013). 140 See Chambliss, super note 14, at 71. 141 Id, at 25. 142 See Ulgetree, supra not 62, at 3.

47

reformatory effect.143 The prison system was developed to deter crime and had the primary purpose of corrections being the rehabilitation of offenders.144 However, as Ekunwe and Jones (2011) points out, correction facilities failed to rehabilitate offenders; therefore, the concept of utilizing treatment programs came into light and utilizing the concept of incarceration should be only for the most serious offenders.145 The deterrence concept was not working as effectively to bring down the recidivism rates as projected and the concept of mass incarceration developed.146

143 144

See Mackenzie, supra note 6, at 97. See Ekunwe, super note 25, at 445. 145 Id, at 445. 146 See Ekunwe, super note 25.

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List of References Ahn-Redding, Heather. The Million Dollar Inmate: The Financial Burden of Nonviolent Offenders, (Lexington Books, 2007). Barak, Gregg. 2007. Battleground: Criminal Justice, 31. ABC-CLIO. Carruth, Bruce & Thomas C. Rowe. 2013. Federal Narcotics Laws and the War on Drugs: Money Down a Rat Hole, 95. New York, NY: Routledge. Chambliss, William J. 2011. Courts, Law, and Justice, 71. Thousand Oaks, CA: SAGE. Champion, Dean J. 2008. Sentencing: A Reference Handbook, Santa Barbara, CA: ABC-CLIO. Department of Corrections, Inmate Statistical Profile, 1, (2013). Department of Corrections, Sentencing Legislation, 1, (2013). Ekunwe, Ikponwosa O. & Richard S. Jones. 2011. Global Perspectives on Re-entry: Exploring the Challenges Facing Ex-prisoners. Finland: University of Tampere. Governors Office of Planning & Budget, Safe Georgia: Protecting Georgias Publics Safety and Security, 74, (2013). Harcourt, Bernard E. 2008. Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age, 27. Chicago: University of Chicago Press. Junger-Tas, J. 1994. Alternatives to Prison Sentences: Experiences and Developments, 4. New York, NY: Kugler Publications. Lawrence, Richard & Craig Hemmens. 2008. Juvenile Justice: A Text/Reader, 426. Thousand Oaks, CA: SAGE. Lippman, Matthew. 2009. Contemporary Criminal Law: Concepts, Cases, and Controversies, 77. Thousand Oaks, CA: SAGE. Mackenzie, Geraldine. 2005. How Judges Sentence, 97. Sydney: Federation Press.

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Miller, Wilbur R. 2012. The Social History of Crime and Punishment in America: A-De, 1635. Thousand Oaks, CA: SAGE. Muhlhausen, David B. 2014. Theories of Punishment and Mandatory Minimum Sentences, 2. The Heritage Foundation. Ogletree, Charles J. 2009. Exploring the National Criminal Justice Commission Act of 2009, 3. United States Senate Committee on the Judiciary. Spohn, Cassia. 2008. How Do Judges Decide?: The Search for Fairness and Justice in Punishment, 14. Thousand Oaks, CA: SAGE. Sullivan, Michael J. 2014. Have Mandatory Minimum Jail Sentences Been an Effective Tool in the War on Drugs? ProCon.org.

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Year
1840 1870

Number of Inmates Nationally

4,000 33,000

Table 1: National Number of Incarcerated Inmates (1840-1870).147

Crime
Murder Rape Armed Robbery Kidnapping Aggravated Sodomy Aggravated Sexual Battery Aggravated Child Molestation

Count
5,466 1,761 5,610 1,590 210 183 1,295

Sentence Length
Life 24.1 15.8 20.7 22.6 20.1 23.5

Table 2: Seven Deadly Sins Average Sentence Length in Years for Incarcerated Offenders148

147 148

See Champion, supra note 43. Department of Corrections, Inmate Statistical Profile, 1, (2013).

51

Cost
$1.27 $4.30 $4.94 $16.33 $33.09 $36.76 $42.43 $44.51

Placement
Regular Probation Supervision Intensive Probation Supervision Parole Supervision Day Reporting Centers Pre-Release Centers Transition Centers Detention Centers State Prisons

Table 3: State Daily Cost by Offender Placement: 2012149

149

See Governors Office of Planning & Budget, supra note 50, at 78.

52

"Adult Prisoners by Crime Type Georgia, Fiscal Year 2012"

4.1% 13.9% Violent Sexual Property

Drug
21.5% Habitual Traffic Violations/DUI Others 46.0% 14.3% Table 4 150

150

See Governors Office of Planning & Budget, supra note 50, at 74.

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Average Yearly Cost

$463.55 $1,569.50 $5,960 $16,246

Placement
Regular Probation Supervision Intensive Probation Supervision Day Reporting Centers State Prisons

Table 5: Average Cost per Georgia Offender151

151

Id, at 78.

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Crime

Count

Sentence Length Cost for Prison Placement (Years)

Murder

5,466

Life (calculated at 20 years)

$1,776,012,720+

Rape Armed Robbery Kidnapping Aggravated Sodomy Aggravated Sexual Battery Aggravated Child Molestation

1,761 5,610 1,590 210 183

24.1 15.8 20.7 22.6 20.1

$689,481,864.6 $1,440,012,948 $534,704,598 $77,103,516 $59,757,661.8

1,295

23.5

$494,406,395

Table 6: Average Cost to House the Seven Deadly Sins Offenders (see Table 2 and Table 5) 152
*To calculate: State Prison Yearly Cost x Sentence Length x Count =Approximate Cost for Prison Placement

152

Id, at 78.

55