Making the Crime Fit the Penalty: The Role of Prosecutorial Discretion under Mandatory Minimum Sentencing
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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- Kessler, Daniel P & Piehl, Anne Morrison, 1998.
"The Role of Discretion in the Criminal Justice System,"
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Oxford University Press, vol. 14(2), pages 256-76, October.
- Daniel P. Kessler & Anne Morrison Piehl, 1997. "The Role of Discretion in the Criminal Justice System," NBER Working Papers 6261, National Bureau of Economic Research, Inc.
- 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.
- Andreoni, J., 1989. "Reasonable Doubt And The Optimal Magnitude Of Fines: Should The Penalty Fit The Crime," Working papers 8908, Wisconsin Madison - Social Systems.
- Gary S. Becker, 1968.
"Crime and Punishment: An Economic Approach,"
Journal of Political Economy,
University of Chicago Press, vol. 76, pages 169.
- 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.
- 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.
- Shepherd, Joanna M, 2002. "Fear of the First Strike: The Full Deterrent Effect of California's Two- and Three-Strikes Legislation," The Journal of Legal Studies, University of Chicago Press, vol. 31(1), pages 159-201, January.
- Franzoni, Luigi Alberto, 1999. "Negotiated Enforcement and Credible Deterrence," Economic Journal, Royal Economic Society, vol. 109(458), pages 509-35, October.
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