Friday 21 October 2011

Sentencing floors

Dan Gardner is right that mandatory minimum sentencing often yields perverse outcomes.
Now look at that first mandatory minimum sentence again: It means that anyone who grows six marijuana plants with the intention of sharing even a single joint with a friend will be guilty of an offence punishable with a mandatory minimum sentence of six months in jail.

And remember the phrase "real property that belongs to a third party"? That's what a rented apartment is. Imagine a university student living in a rented apartment with her boyfriend, suggests University of Toronto criminologist Tony Doob. She grows a single marijuana plant. She rolls a joint for her and her boyfriend. And just like that she's a "trafficker" subject to a mandatory minimum sentence of nine months in jail.

Are these outcomes simple, clear, and predictable? Hardly. They're shocking as hell. But mandatory minimums have a nasty tendency to do that.
He argues mandatory minimum sentencing has no deterrent effect. I'm not familiar with that literature, but mandatory minimums in the form of three-strikes legislation have substantial deterrence effects. They just may not be worth the candle.

Gardner nails one other point though:
But mandatory minimums don't actually do away with discretion.

They merely transfer it from judges, by restricting their ability to choose the sentence, to prosecutors, who choose the charge. The system is still ambiguous, uncertain, and unpredictable. It's just ambiguous, uncertain, and unpredictable in a different way.
Discretion lets prosecutors extract plea bargains to lesser charges from risk-averse defendants facing ridiculous minimum sentencing if convicted.

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