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Sentencing Laws and How They Contribute to Mass Incarceration

To fight for fairer sentencing, we first need to understand how the system works.

  • James Cullen
October 5, 2018

What factors decide how long someone spends in prison? The answer is, it’s complic­ated. If you care about crim­inal justice reform, the tech­nical nature of senten­cing makes it hard to under­stand the laws that determ­ine the length of someone’s prison term — and even harder to under­stand how those laws might be creat­ing unjust outcomes. 

Here, we explain a few of the most common terms you’re likely to hear in any debate around senten­cing. We also give simple, clear-cut explan­a­tions of how, based on our research, those laws contrib­ute to mass incar­cer­a­tion. There’s a lot more to know about senten­cing law and policy. But this will give you a good start so you can join the conver­sa­tion. 

Mandat­ory minim­ums 

A lot of the debate on crim­inal justice reform focuses on mandat­ory minim­ums. What are they and why do people — includ­ing us — think they’re unfair? 

Simply put, anyone convicted of a crime under a “mandat­ory minimum” gets at least that sentence. The goal of these laws when they were developed was to promote uniform­ity; it does­n’t matter how strict or leni­ent your judge is, as the law and the law alone determ­ines the sentence you receive. 

Regret­tably, the adop­tion of mandat­ory minim­ums has not led to a fairer system. In fact, it’s had the oppos­ite effect. By tying judges’ hands, mandat­ory minim­ums effect­ively took power away from judges and gave it to prosec­utors, who could threaten to charge defend­ants with crimes that would “trig­ger” a mandat­ory minimum. Facing a harsh sentence from which there’s no other escape, a defend­ant can often feel coerced into admit­ting their guilt — even some­times falsely confess­ing.  

Inter­est­ingly, federal judges have come to dislike mandat­ory minim­ums, espe­cially in drug cases. Mandat­ory minim­ums often apply to nonvi­ol­ent drug offend­ers, forcing judges to harshly punish those who pose the least phys­ical danger to communit­ies. While the goal of mandat­ory minim­ums may have been fair­ness, they’ve instead caused an imbal­ance in the courtroom that has helped drive mass incar­cer­a­tion

While mandat­ory minim­ums have been in place in some states since the 1950s, their use grew after the 1984 Senten­cing Reform Act, which added signi­fic­ant mandat­ory minim­ums for many federal crimes and abol­ished federal parole. States followed, and soon mandat­ory minim­ums became a stand­ard response to drug epidem­ics and crime spikes. What star­ted as a well-inten­tioned attempt to impose uniform­ity became too restrict­ive, creat­ing new dispar­it­ies and injustices in the process. 

Three-strikes laws

“Three-strikes” laws are another way legis­latures have removed senten­cing discre­tion that judges used to have. Under these laws, which star­ted in Cali­for­nia, a person is considered to be beyond rehab­il­it­a­tion after commit­ting three crimes. As a result, once they’ve reached the “third strike,” the penalty is much more severe than it would usually be. Some­times a life sentence can result from a combin­a­tion of relat­ively minor offenses, just because the third strike requires the judge to impose a very long prison sentence. There are people today spend­ing their lives in prison for commit­ting three petty crimes

These punish­ments are inhu­mane and nonsensical, even from a public safety perspect­ive. It costs money to keep people in prison, so a three-strikes law can result in the govern­ment spend­ing $500,000 to incar­cer­ate someone for commit­ting three $500 crimes. 

And it’s unclear whether these laws even have the desired effect. The theory is that if someone knows they’ll face a seri­ous punish­ment for their third offense, they won’t commit it — or won’t even commit their first offense. But it’s been shown that that’s not how people think, and it’s defin­itely not how people think about crime. In tech­nical terms that means it’s unclear whether three-strikes laws have the desired “deterrent effect.” 

Truth-in-senten­cing laws

If you’re sentenced to “10 years in prison,” you gener­ally don’t spend 10 years in prison. That’s because the federal system — and most states — let people earn time off their sentence for “good beha­vior,” creat­ing an incent­ive for people to improve them­selves and turn away from crime while in prison. People also become eligible for parole, a type of early release after which a former inmate contin­ues to be super­vised by govern­ment offi­cials. But parole has to be earned — again, giving people a reason to spend their time behind bars product­ively, on educa­tion or work programs. 

“Truth-in-senten­cing laws” elim­in­ate those oppor­tun­it­ies for early release, requir­ing people to serve (for example) 75 percent of their prison term phys­ic­ally behind bars. The goal is to ensure that the sentence the judge imposes is what a person will actu­ally serve in prison — in other words, “what you see is what you get.” 

That may seem like a reas­on­able goal, but elim­in­at­ing early release options actu­ally gives people less of an incent­ive to comply with prison rules or take advant­age of educa­tion or train­ing oppor­tun­it­ies. It also means that there’s no way around prison sentences that are already too long.

Differ­ent sentences for differ­ent drugs 

Gener­ally, possess­ing 5 grams of marijuana will earn you less prison time than possess­ing 5 grams of cocaine. The idea is that more danger­ous drugs should be punished more severely. But that hasn’t always been the case. Crack and powder cocaine are chem­ic­ally the same substance. But posses­sion of crack cocaine, which is more common in communit­ies of color, is punished much more severely than posses­sion of powder cocaine, which is more common in wealth­ier white communit­ies. While some­what reduced, this dispar­ity remains, even after the Fair Senten­cing Act of 2010. 

What can be done? 

Now that you’ve learned about some of the more contro­ver­sial senten­cing decisions of the last 30 years, you can join the conver­sa­tion about how to fix them. There are ways to restore fair­ness to crim­inal senten­cing and help end mass incar­cer­a­tion in the process. You can read about them here and find the Bren­nan Center’s detailed analysis of how 40 percent of Amer­ican pris­on­ers are behind bars without any public safety justi­fic­a­tion here.

(Image: Shut­ter­