“In the Furtherance of Justice”: The Effect of Discretion on the ...

Mandatory Sentences
In response to findings that judicial discretion produced sentencing disparity, legislatures across
<strong>the</strong> nation began to impose mandatory minimum sentences as a way to reduce variation and to assist with
crime control efforts (National Institute <strong>of</strong> Justice 1982). 4 By “conveying [a] message that certain crimes
are especially grave,” mandatory penalties for specific crimes would deter potential violators from
pursuing those particular <strong>of</strong>fenses (National Institute <strong>of</strong> Justice 1997, 2). Despite <strong>the</strong> enhancements,
however, researchers have concluded that mandatory laws have had no measurable deterrent effect on <strong>the</strong>
targeted <strong>of</strong>fenses (National Institute <strong>of</strong> Justice 1982; National Institute <strong>of</strong> Justice 1997; Tonry 1996).
Similarly, <strong>the</strong> incapacitation effects <strong>of</strong> mandatory minimums have been difficult to isolate, given that
effects will not show until after <strong>the</strong> original sentence was scheduled to end (Kessler and Levitt 1998) and
<strong>the</strong> possibility that measured effects may also be explained by o<strong>the</strong>r external factors such as demographic
changes or policing practices (National Institute <strong>of</strong> Justice 1982; Tonry 1996).
Although <strong>the</strong> implementation <strong>of</strong> mandatory minimums also sought to limit <strong>the</strong> amount <strong>of</strong>
discretion being exercised in sentencing decisions, discretion within <strong>the</strong> criminal justice system appears to
imitate <strong>the</strong> physical law <strong>of</strong> matter: it is nei<strong>the</strong>r created nor destroyed— it merely changes in composition.
Despite numerous attempts at eliminating discretion through determinate sentencing schemes, mandatory
sentences, and prohibitions against plea bargaining, research has repeatedly demonstrated that discretion
has not disappeared but has been displaced (Alschuler 1978; Jesilow 1997; National Institute <strong>of</strong> Justice
1982; Stith and Cabranes 1998; Tonry 1996). One metaphorical description <strong>of</strong> this displacement
compares <strong>the</strong> use <strong>of</strong> discretion within <strong>the</strong> criminal justice system to a tube <strong>of</strong> toothpaste. Squeezing
discretion out <strong>of</strong> one area does not diminish <strong>the</strong> amount <strong>of</strong> discretion; it just moves <strong>the</strong> “bulge” <strong>of</strong>
discretion to ano<strong>the</strong>r part <strong>of</strong> <strong>the</strong> system (Stith and Cabranes 1998, 126).
4 By 1994, <strong>the</strong> U.S. Department <strong>of</strong> Justice reported that Congress and all 50 States had enacted at least one mandatory
sentencing law (Tonry 1996).
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