The Violent Crime and Law Enforcement Act of 1994

percent in fiscal year 2000, 42.5 percent in fiscal year 2005, and 46.5 percent in fiscal
year 2010."
Arguments For and Against
Opponents of mandatory sentencing point to studies that show criminals are deterred
more effectively by increasing the chances of their conviction, rather than increasing the
sentence if they are convicted. In a hearing of the House Judiciary Committee, Judge
Paul G. Cassell, from the United States District Court for the District of Utah, described
mandatory sentencing as resulting in harsh sentencing and cruel and unusual
punishment, stating that the sentencing requirements punish defendants "more harshly
for crimes that threaten potential violence than for crimes that conclude in actual
violence to victims". A hearing in 2009 heard testimony from the American Bar
Association which stated that "Sentencing by mandatory minimums is the antithesis of
rational sentencing policy". In 2004 the association called for the repeal of mandatory
minimum sentences, stating that "there is no need for mandatory minimum sentences in
a guided sentencing system." A 1997 study by the RAND Corporation found that
mandatory minimums for cocaine offenses were not cost-effective in regards to either
cocaine consumption or drug crime.
Some judges have expressed the opinion that mandatory minimum sentencing,
especially in relation to alcohol-fueled violence, is not effective. In R v O’Connor,
the High Court of Australia gave the opinion that when an offender is intoxicated, there
will likely be a change in their personality and behavior, which will then affect their selfcontrol;
that, while an offender may commit an act which is voluntary and intentional, it
is not something that they would have done in a sober state. Intoxication is not a
justification for criminal behavior, nor (in most jurisdictions in the U.S. and
Commonwealth) a legal defense; but since an intoxicated person's decisions are less
likely to be shaped by rational assessment of consequences than those of a sober
person, deterrence is likely to be less effective for intoxicated people.
Research indicates that mandatory minimum sentencing effectively shifts discretion
from judges to the prosecutors. Prosecutors decide what charges to bring against a
defendant, and they can "stack the deck", which involves over-charging a defendant in
order to get them to plead guilty. Since prosecutors are part of the executive branch,
and the judicial branch has almost no role in the sentencing, the checks and balances of
the democratic system are removed, thus diluting the notion of separation of
powers. Opponents of mandatory sentencing argue that it is the proper role of a judge,
not a prosecutor, to apply discretion given the particular facts of a case (e.g., whether a
drug defendant was a kingpin or low-level participant, or whether sex offender
registration is an appropriate measure for a given crime and offender). When
prosecutors apply discretion, they tend to invoke sentencing disparities when choosing
among a variety of statutes with different sentencing consequences. In addition to
fairness arguments, some opponents believe that treatment is more cost-effective than
long sentences. They also cite a survey indicating that the public now prefers judicial
discretion to mandatory minimums.
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