Mandatory Sentencing

Strictly speaking, mandatory sentencing refers to the practice of a legislature setting a fixed penalty for the commission of a criminal offense. Usually, however, the expression is used to refer to a particular form of mandatory sentencing involving the imposition of a significant minimum penalty for an [Page 1030]offense. This penalty is typically a period of incarceration, often with escalating penalties for subsequent offenses. “Three strikes and you're out” statutes are the best-known example of this form. These and other forms of mandatory sentencing are overwhelmingly directed at “street crime”—offenses involving violence, as well as some drug and property related offenses.

Mandatory sentencing removes a judge's discretion to select a sentence in light of an offender's background and the circumstances in which a crime was committed. Instead, for certain legislated offenses, a judge is bound to impose a prescribed penalty on every offender convicted. This practice has a long history, dating back at least as far as the seventeenth century in England and colonial America. In the course of the nineteenth century, however, this approach was abandoned in favor of legislatures setting a maximum, but no minimum, penalty, with the sentencing judge being responsible for selecting the appropriate sentence for individual offenders. Only toward the end of the twentieth century did the practice have a significant revival. During the 1980s and 1990s, more than twenty-four states, as well as Congress, passed some form of mandatory sentencing, despite widespread opposition from judges, lawyers, and researchers.

Mandatory sentencing is said to serve the instrumental functions of preventing crime and promoting consistency and certainty in sentencing. It is possible, though, that in reality these functions are less important than the expressive function of these laws and that mandatory sentencing legislation is primarily a response to a community's outrage at particular crimes.