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

  • David Bjerk

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.

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File URL: http://socserv.mcmaster.ca/econ/rsrch/papers/archive/2004-12-sentencing_WP.pdf
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Paper provided by McMaster University in its series Department of Economics Working Papers with number 2004-12.

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Length: 44 pages
Date of creation: Dec 2004
Date of revision:
Handle: RePEc:mcm:deptwp:2004-12
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  1. 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.
  2. 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.
  3. Gary S. Becker, 1968. "Crime and Punishment: An Economic Approach," Journal of Political Economy, University of Chicago Press, vol. 76, pages 169.
  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.
  5. 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.
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