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Making the Crime Fit the Penalty: The Role of Prosecutorial Discretion under Mandatory Minimum Sentencing

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  • Bjerk, David

Abstract

This paper empirically documents one way in which prosecutorial discretion may be used to dampen the effects of mandatory minimum sentencing laws. Specifically, prosecutors can use their discretion over prosecution charges to circumvent a mandatory minimum sentencing law for some defendants by prosecuting defendants who were initially arrested for the crime targeted by the sentencing law for lesser crimes not covered by the law. I document the use of such discretion with respect to several state "three-strikes"-type repeat-offender laws imposed throughout the 1990s, and I find that prosecutors become significantly more likely to lower a defendant's prosecution charge to a misdemeanor when conviction for the initial felony arrest charge would lead to sentencing under a three-strikes law. Moreover, accounting for such behavior is important, as I show that failure to do so can lead to overstating the effects of these laws on average sentencing by almost 30 percent.

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Article provided by University of Chicago Press in its journal Journal of Law and Economics.

Volume (Year): 48 (2005)
Issue (Month): 2 (October)
Pages: 591-625

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Handle: RePEc:ucp:jlawec:y:2005:v:48:i:2:p:591-625

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  1. repec:att:wimass:8908 is not listed on IDEAS
  2. Kessler, Daniel P & Piehl, Anne Morrison, 1998. "The Role of Discretion in the Criminal Justice System," Journal of Law, Economics and Organization, Oxford University Press, vol. 14(2), pages 256-76, October.
  3. Gary S. Becker, 1968. "Crime and Punishment: An Economic Approach," Journal of Political Economy, University of Chicago Press, vol. 76, pages 169.
  4. LaCasse, Chantale & Payne, A Abigail, 1999. "Federal Sentencing Guidelines and Mandatory Minimum Sentences: Do Defendants Bargain in the Shadow of the Judge?," Journal of Law and Economics, University of Chicago Press, vol. 42(1), pages 245-69, April.
  5. James Andreoni, 1991. "Reasonable Doubt and the Optimal Magnitude of Fines: Should the Penalty Fit the Crime?," RAND Journal of Economics, The RAND Corporation, vol. 22(3), pages 385-395, Autumn.
  6. Marvell, Thomas B & Moody, Carlisle E, 2001. "The Lethal Effects of Three-Strikes Laws," The Journal of Legal Studies, University of Chicago Press, vol. 30(1), pages 89-106, January.
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Cited by:
  1. Garoupa, Nuno, 2009. "Some reflections on the economics of prosecutors: Mandatory vs. selective prosecution," International Review of Law and Economics, Elsevier, vol. 29(1), pages 25-28, March.
  2. David S. Abrams, 2012. "Estimating the Deterrent Effect of Incarceration Using Sentencing Enhancements," American Economic Journal: Applied Economics, American Economic Association, vol. 4(4), pages 32-56, October.
  3. Freeborn, Beth & Hartmann, Monica, 2009. "Judicial Discretion and Sentencing Behavior," MPRA Paper 13880, University Library of Munich, Germany.
  4. Fusako Tsuchimoto & Libor Dusek, 2009. "Responses to More Severe Punishment in the Courtroom: Evidence from Truth-in-Sentencing Laws," CERGE-EI Working Papers wp403, The Center for Economic Research and Graduate Education - Economic Institute, Prague.

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