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

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  • David Bjerk

Abstract

This paper empirically documents one way in which prosecutorial discretion can be used to dampen the effects of mandatory minimum sentencing laws. Specifically, I show prosecutors use their discretion over prosecution charges to circumvent a mandatory minimum sentencing law for some defendants, by prosecuting these de- fendants 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 through- out the 1990s, where 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 likely 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 thirty percent.

Suggested Citation

  • David Bjerk, 2004. "Making the Crime Fit the Penalty: The Role of Prosecutorial Discretion Under Mandatory Minimum Sentencing," Department of Economics Working Papers 2004-12, McMaster University.
  • Handle: RePEc:mcm:deptwp:2004-12
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    File URL: http://socserv.mcmaster.ca/econ/rsrch/papers/archive/2004-12-sentencing_WP.pdf
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    References listed on IDEAS

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    1. Gary S. Becker, 1974. "Crime and Punishment: An Economic Approach," NBER Chapters,in: Essays in the Economics of Crime and Punishment, pages 1-54 National Bureau of Economic Research, Inc.
    2. 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 245-269, April.
    3. Franzoni, Luigi Alberto, 1999. "Negotiated Enforcement and Credible Deterrence," Economic Journal, Royal Economic Society, vol. 109(458), pages 509-535, October.
    4. 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.
    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 256-276, October.
    6. 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.
    7. 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.
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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 Bjerk, 2017. "Mandatory Minimums and the Sentencing of Federal Drug Crimes," The Journal of Legal Studies, University of Chicago Press, vol. 46(1), pages 93-128.
    3. Bindler, Anna & Hjalmarsson, Randi, 2016. "The Fall of Capital Punishment and the Rise of Prisons: How Punishment Severity Affects Jury Verdicts," Working Papers in Economics 674, University of Gothenburg, Department of Economics.
    4. Bjerk, David J., 2016. "Mandatory Minimum Policy Reform and the Sentencing of Crack Cocaine Defendants: An Analysis of the Fair Sentencing Act," IZA Discussion Papers 10237, Institute for the Study of Labor (IZA).
    5. Christmann, Robin, 2018. "Prosecution and Conviction under Hindsight Bias in Adversary Legal Systems," MPRA Paper 84870, University Library of Munich, Germany.
    6. M. Marit Rehavi & Sonja B. Starr, 2014. "Racial Disparity in Federal Criminal Sentences," Journal of Political Economy, University of Chicago Press, vol. 122(6), pages 1320-1354.
    7. Alma Cohen & Alon Klement & Zvika Neeman, 2015. "Judicial Decision Making: A Dynamic Reputation Approach," The Journal of Legal Studies, University of Chicago Press, vol. 44(S1), pages 133-159.
    8. 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 - Economics Institute, Prague.
    9. Nutting Andrew W., 2017. "Preferences Toward Leniency under Mandatory Criminal Sentencing Guidelines: Role-in-the-Offense Adjustments for Federal Drug Trafficking Defendants," The B.E. Journal of Economic Analysis & Policy, De Gruyter, vol. 17(1), pages 1-18, February.
    10. 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.
    11. Freeborn, Beth & Hartmann, Monica, 2009. "Judicial Discretion and Sentencing Behavior," MPRA Paper 13880, University Library of Munich, Germany.
    12. Richard T. Boylan, 2012. "The Effect of Punishment Severity on Plea Bargaining," Journal of Law and Economics, University of Chicago Press, vol. 55(3), pages 565-591.

    More about this item

    JEL classification:

    • J24 - Labor and Demographic Economics - - Demand and Supply of Labor - - - Human Capital; Skills; Occupational Choice; Labor Productivity

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