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

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Author Info
Bjerk, David

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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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Publisher Info
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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References listed on IDEAS
Please report citation or reference errors to , or , if you are the registered author of the cited work, log in to your RePEc Author Service profile, click on "citations" and make appropriate adjustments.:
  1. Marvell, Thomas B & Moody, Carlisle E, 2001. "The Lethal Effects of Three-Strikes Laws," Journal of Legal Studies, University of Chicago Press, vol. 30(1), pages 89-106, January.
  2. Gary S. Becker, 1968. "Crime and Punishment: An Economic Approach," Journal of Political Economy, University of Chicago Press, vol. 76, pages 169. [Downloadable!] (restricted)
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  3. 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 & Economics, University of Chicago Press, vol. 42(1), pages 245-69, April.
  4. 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. [Downloadable!] (restricted)
  5. 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.
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Cited by:
(explanations, Please report citation or reference errors to , or , if you are the registered author of the cited work, log in to your RePEc Author Service profile, click on "citations" and make appropriate adjustments.)

  1. Nuno Garoupa, 2008. "Some reflections on the economics of prosecutors: Mandatory v selective prosecution," Working Papers 2008-04, Instituto Madrileño de Estudios Avanzados (IMDEA) Ciencias Sociales. [Downloadable!]
    Other versions:
  2. Freeborn, Beth & Hartmann, Monica, 2009. "Judicial Discretion and Sentencing Behavior," MPRA Paper 13880, University Library of Munich, Germany. [Downloadable!]
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This page was last updated on 2009-11-16.

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