The Monetary and Social Costs of Mandatory Sentencing Laws
The following paper outlines the history of Mandatory Sentencing Laws throughout the United States. Starting with the history of the underlying theories that helped develop mandatory sentencing laws, this paper analyzes deterrence and incapacitation theories and their effects on crime rates. The success of mandatory sentencing laws is put into serious doubt when taking into consideration the monetary and social costs of its implementation. The intended success of goals to reduce crime rate and deter future criminals is marginal, at best. With billions of dollars being spent, racial disparities in sentencing being apparent, and nonviolent offenders being incarcerated for 25 years to life, it is apparent that legislators must re-evaluate their goals and make changes to these strict laws.
California’s three-strikes law is considered the toughest mandatory sentencing law in the United States (Chen, 2008). Different variations of California’s three-strikes law have been adopted by many states in the United States in order to imprison habitual offenders. The theory behind these laws, selective incapacitation, is that a small percentage of the population commit most of the crime, so if those people are incarcerated, the crime rate will drop dramatically (Chen, 2008).
The passing of California’s strict three-strikes law has had many unintended effects. It has had a major monetary cost, it has caused overcrowding in prisons, and it has imprisoned some people for 25 years to life for a non-violent offense that did not deserve this extremely harsh punishment (Stolzenberg & D’Alessio, 1997). Race and gender also continue to be a factor in sentencing, even with these mandatory sentencing laws in place (Brennan & Spohn, 2008).
Spending on prisons has skyrocketed and it is money that should be spent on education and health. Early prevention programs should be implemented with this money that is going towards keeping criminals incarcerated for life. One of the biggest problems is that politicians don’t want to seem as though they are soft on crime by supporting prevention programs instead of creating laws to keep criminals incarcerated for long periods of time (Welsh & Farrington, 2011).
Mandatory sentencing laws have been put in place in order to increase the severity of punishment for criminal behavior and they are meant to target chronic and habitual offenders. Policy makers have argued that if these small percentages of repeat offenders are incapacitated, crime levels will decrease dramatically (Stolzenberg & D’Alessio, 1997). The three-strikes law is only one of many different “get-tough” policies implemented in the United States in the 1990’s (Chen, 2008). Between 1993 and 1995, 24 states, as well as the federal government, implemented three-strikes laws that mandated life in prison for a third violent felony (although in California, the third strike does not need to be a violent offense) and this had a direct effect on the prison population (Rodriguez, 2003). Prisons are increasingly becoming overcrowded, and along with that, there are huge monetary and social costs of imprisoning millions as a result of mandatory sentencing laws.
Liberals and conservatives alike initially agreed that mandatory sentencing laws would reduce racial disparity since it would potentially eliminate judicial discretion from anyone involved in the sentencing process. Liberals believed that these practices would ensure fairness, although it was prosecutors who held the most control, not judges (Brennan & Spohn, 2008). Recent studies have found that this is not the case. These laws tend to have severe punishments for crimes that Blacks are more likely to be arrested for (not necessarily commit more) like drug offenses. Those who are convicted of a drug offense are usually not allowed to live or even visit public housing, so this makes Blacks more susceptible to being arrested for being at or near public housing. These policies increasingly disproportionately affect Blacks. Racial inequality is masked because these laws are not blatantly racist (Schlesinger, 2008). According to Schlesinger (2008, p. 74), “This system allows White people to believe in the justice of the criminal justice system. Once they believe the system is just, the fact of racial disparity in imprisonment will reinforce White’s beliefs in the criminality of Blacks”. In some cases, sentencing laws directly target racial minorities. In Los Angeles County, it was found that Black offenders were charged with their third strike at a much higher rate than White offenders (13 to 17 times greater) and they accounted for 37% of people convicted for a second strike and 44%of people convicted for a third strike, although they only make up about 7% of the population (Males & Macallair, 1999). A study conducted in Florida concluded that Blacks were especially more likely to be sentenced under habitual offender laws for drug and property crimes as well as get harsher penalties (Crawford et al. 1998).
In addition to racial disparities, mandatory sentencing laws across the United States, and especially California’s strict three-strike law, costs tax payers billions of dollars each year. In 2008, it was estimated the cost of corrections for that year only was $75 billion and that amount is still rising (Welsh & Farrington, 2011). This money could be used for health care, education, welfare, and diversion programs for troubled youth. A well-known study conducted on the cost-effectiveness of California’s three-strikes law compared the law to four prevention and intervention programs. This study concluded that the three-strikes law was second to last in cost-effectiveness in reducing crime. On the top of the list were graduation incentives, parent training, and delinquent supervision (Welsh & Farrington, 2011). In addition to the laws lack of cost-effectiveness, the amount of money spent is astounding. Spending on corrections alone has almost quadrupled over the past two decades. The cost of prisons on average is 13.9% higher than what is represented in their combined corrections budgets. The biggest impact on prison budgets is from the changing sentencing policies. Incarcerating low-risk offenders does not increase public safety, and it costs tax payers more than the value of the crime they could potentially commit. (Henrichson & Delaney, 2012). In their study of the costs of prisons, Henrichson & Delaney (2012, p. 13) conclude that:
Policy makers must have complete information to make the best decisions possible.
They must understand the full fiscal implications of their policy choices, particularly
those related to the criminal justice system, whose costs make up a significant part
of every state budget.
Legislators want to be seen as “tough on crime” so they pass mandatory sentencing laws in order to gain acceptance from the public, especially after a tragic event that instills fear into the public (Shelden et al. 2008, p. 216). Politicians have incentives to pass laws that yield immediate results, since they face re-election every few years. Supporting prevention programs that will not show results for a number of years is not beneficial to them and especially to their re-election campaign (Welsh & Farrington, 2011). Policy makers are more concerned with re-election than educating themselves and implementing policies and supporting programs that will be successful.
Studies conducted on the deterrence and incapacitation effects of mandatory sentencing laws show that there has been little to no effects on crime rates (Stolzenberg & D’Alessio, 1997). Some studies show that there was a preexisting downward trend on crime levels prior to the implementation of the three-strikes laws and many other mandatory sentencing laws (Stolzenberg & D’Alessio, 1997). Not only is there a lack of proof that these laws are working, mandatory sentencing laws have affected non-deserving people as well. There have been a few instances where mandatory sentencing laws have been used to impose harsh punishment on nonviolent offenders. For example, a mother of two was sentenced to life in prison for possessing $40 worth of cocaine. Another man stole $85 worth of videotapes and then $69 worth a few days later. He was sentenced to two consecutive sentences of 25 years to life (Lockyer v. Andrade, 2003). Under California’s strict three-strikes law, a man was sentenced to 25 years to life for stealing a slice of pizza. If this man would have raped a woman or molested a child, he would have received the same sentence. The three-strikes law does not distinguish between offenses. Is this really justice?
This paper will examine the effects of mandatory sentencing laws, and specifically, California’s three strikes law. I will analyze in greater depth whether or not these laws have deterrence and/or incapacitation effects, or if the monetary and social costs of these laws are too high. First, I will discuss which theories these laws have derived from in greater detail. Then, I will provide a literature review that discusses, in detail, past studies that analyze this topic. I will also discuss both the intended and unintended effects of mandatory sentencing laws. Finally, mandatory sentencing laws will be examined in relation to their social and monetary costs in order to conclude whether or not the costs outweigh the benefits.
Incapacitation and Deterrence Theories
The two main theories that mandatory sentencing laws are based on are incapacitation theory and deterrence theory. The main idea behind incapacitation theory is that if you physically remove the most dangerous criminals from society and “incapacitate” them, they will be prevented from committing crimes in society during the time they are incarcerated. Under this theory, the higher the incarceration rates are, the lower crime rates should be (Stahlkopf et al. 2010). The idea behind deterrence theory is that if you make the punishment harsh enough, it will outweigh the benefits of committing the crime, which would prevent any rational person from actually committing the crime (Stahlkopf et al. 2010). Deterrence theory focuses on the omission of criminal acts because of society’s fear of punishment (Paternoster, 2010).
The origins of incapacitation theory date back to the 18th and 19th century, when criminals in Britain would be exiled from their native country to Australia or North or South America in order to be prevented from reoffending. There are different methods of incapacitation that have been used throughout history. Criminals have been exiled, sexual offenders have been castrated, and at its most extreme form, offenders have been given the death penalty. Although capital punishment is a form of incapacitation, incarceration has been the most popular form of incapacitating offenders from reoffending (Barton, 2010). Throughout time, incapacitation has become one of the main reasons for incarcerating criminals. There has been a shift from rehabilitation being the prime goal, to incapacitation. Society has been taught by the media and government to be afraid of criminals. And, since only five global firms own almost all media (Time Warner, The Walt Disney Company, Murdoch’s News Corporation, Viacom, and Bertelsmann), they control society’s view of the world (Bagdikian, 2004). The media sensationalizes the most serious crimes, the government declares we have a drug epidemic and wages a war on drugs, and there is public outcry to “fix” the crime and drug problem. This fear is what allows the shift from concern about the offender and being able to help them be a functioning member of society, to locking them up for long periods of time to prevent them from reoffending. In the book The Culture of Fear, Glasner (1999) discusses society’s irrational fear of young men because of the media’s dramatic headlines like “Teenage Time Bombs” and “Children Without Souls” referring to rare cases where youths committed extremely violent acts. Americans estimated that juveniles commit approximately half of violent crimes in a time where the number was closer to 13 percent and youth crime was on a decline. “We have managed to convince ourselves that just about every young American male is a potential mass murderer” (Glasner, 1999, p. xxii). A study by Greenwood & Turner (1987) testing selective incapacitation concluded that it is difficult to identify those high-rate offenders that need to be incarcerated in order to reduce crime rate. Arrest rates compared to self-reported crime rates only slightly correlate, which shows that selective incapacitation cannot work when one doesn’t know whom it is they must incarcerate to reduce crime.
Deterrence theory was proposed in 1764 by philosopher Cesare Beccaria who claimed that criminals were selfish and if the legal system can assure punishment that is certain, proportional, and swift, the costs of crime would outweigh the benefits and there would be less crime. Beccaria also believed in preventing crime by education versus punishing it (Paternoster, 2010). This idea was eventually dismissed in favor of a biological positivism view of crime until the twentieth century. Some argue that it is difficult to prove this theory since every individual has his or her own motivations and each of their costs and benefits differ, so there is no set equation to measure the effects of deterrence (Paternoster, 2010). There are two types of deterrence that have been developed. Specific deterrence focuses on individuals who have been caught committing a crime and keeping them from committing any additional crimes. General deterrence focuses on society as a whole and preventing people who have not committed crimes from offending. According to Onwudiwe et al. (2004, p. 237), the “death penalty, longer imprisonments, three-strikes laws, mandatory sentencing, and a plethora of other “get tough” policies have not demonstrated greater deterrent effects of punishment than less severe penalties. Indeed, increases in the severity of punishment, rather than reduce crime, may actually increase it.” There is still much debate on whether or not deterrence works, and there are still many people who support this theory, although it has very little to no empirical support that it helps reduce crime rates.
According to Barton (2010, p. 464), “The three-strikes policy is partly informed by the theory of deterrence but is primarily underpinned by the concept of incapacitation. Incapacitative sentences such as the three-strikes principle effectively repunish individuals for previous crimes.” Both of these theories are the central idea behind all mandatory sentencing laws. As long as these theories have the public’s support, mandatory sentencing laws will be here to stay.
The Context of Mandatory Sentencing
The “War on Drugs”
President Richard Nixon declared there was a “war on drugs” in 1972 and since then, there has been major monetary and social costs that stem from it. The primary weapon in the fight against drugs has been mandatory sentencing laws (Ferranti & Bush-Baskette, 2004). These laws have increased racial disparities in sentencing even more drastically. About 40% of people serving prison sentences for drug offenses are black, although they are estimated to account for only 13-15% of drug users (Ferranti & Bush-Baskette, 2004). One of the primary focuses of the war on drugs has been crack cocaine, which is widely known to be a drug used by the poor, as well as bought and sold out in the open, which holds a higher risk of being caught. The mandatory sentence for crack is much greater than for cocaine. Cocaine is a drug used predominantly by white, middle or upper class men, which is bought and sold in the privacy of people’s homes. The war on drugs has helped increase incarceration, especially for minorities, for possession of small quantities of drugs, because of mandatory sentencing laws. The war on drugs is not targeting the major drug dealers. Instead, it is incarcerating the small time street dealer, whose arrest does not stop anyone from abusing drugs. Mass incarceration has come at a very high price to the poor minorities of the United States.
Consequences of Mandatory Sentencing
Aging Prison Population
The goal of mandatory sentencing has been to incapacitate habitual offenders as well as deter them and society as a whole of committing crimes. The “get tough on crime” movement has had many unintended effects, including many financial and social costs. California’s three-strikes law is the toughest mandatory sentencing law in the country. There has been a major rise in the prison population across the United States, and especially in California. The incarceration rate has more than tripled in the past 20 years (Shelden, 2004). The large increase in the amount of inmates directly affects the aging of the prison population. There are two major reasons why this is problematic. First, it is much more expensive to care for elderly inmates than younger ones. Second, the main reason for California’s three-strikes law is selective incapacitation, and elderly inmates are little danger to public safety (Auerhahn, 2002). By the time these inmates reach elderly status, they have become less violent, which trumps the goal of incapacitation of the most dangerous offenders. A study by Kathleen Auerhahn (2002), where she used a simulation model to predict future prison populations, predicts that by 2030, almost 80% of California’s prison population could potentially be sentenced under the three-strikes law. The law would double or triple sentences for approximately 29% and 50% of prisoners. In addition, caring for an elderly prisoner costs California 3 ½ times what it costs to care for the average prisoner, $21,000 versus $69,000. Even if elderly prisoners are released, the state would most likely need to provide care for them. The cost of caring for them outside of prisons comes at a lower cost ($40,000 per year on average) (Auerhahn, 2002). It would benefit financially as well as socially, because the elderly should be with their families instead of in a prison hospital. If the prison population keeps increasing, King & Mauer (2001, p. 12) suggest that “we may be incarcerating ourselves into an epidemic”.
Does it Work?
In order to determine whether the social and monetary costs of mandatory sentencing laws outweigh the benefits of the laws, one must first determine if these laws have an effect on crime rates. In a study, Elsa Chen (2008) uses a cross-sectional time series to analyze the impacts of California’s three-strikes law in relation to deterrence and incapacitation effects. Chen finds that although there have been about 100,000 offenders incarcerated under this law, the effects on crime in California are almost undetectable. Chen also suggests that the law could have the unintended effect of using limited prison space to house nonviolent offenders who have aged past their criminal years. When taking into consideration a preexisting downward trend of crime rates, California’s –three strikes law had very little effect on crime. According to this study, the law did not reduce crime, like intended (Stolzenberg & D’Alessio, 1997).
Mass “Racialized” Incarceration
Mandatory sentencing laws have disproportionately affected black men (Chen, 2008, Rodriguez, 2003, Schlesinger, 2008). A study conducted by Schlesinger (2008) found that black men have increased admission rates in every type of crime, especially violent offenses, where they are incarcerated at a rate of 6 to 1. According to Schlesinger (2008, p. 56), “The findings are consistent with theories of modern racism, which argue that, in the post-civil rights era, racial disparities are primarily produced and maintained by colorblind policies and practices.” Almost 50% of the increase in the U.S. prison population since the 1970’s is comprised of African Americans, which only constitute 12% of the population (Roberts, 2003).
In keeping with our national heritage and ideals, the United States must ensure that people with criminal records are given a fair chance to succeed in becoming productive members of society, judged on their merits and not on stereotypes or prejudice.
-Debbie Mukamal & Paul Samuels
One of the most obvious consequences of mandatory sentencing laws and a major contributor to what Alexander (2010) calls the “New Jim Crow” are the laws against drug offenders living in or visiting public housing. The Anti-Drug Abuse Act (1988) allows for tenants to be evicted if there is any drug activity at or near their public housing, whether or not they possess any knowledge of it. (Alexander, 2010). Americans who have been convicted of misdemeanors or have been arrested but never convicted of any crime could also be excluded from public housing (Carey, 2004). Unfortunately for many young Black men, they have been the target of a drug war and with a drug conviction and no government assistance or housing, they have a slim chance of staying out of prison. Drug offenders are prohibited from visiting any family who resides in public housing, which can contribute to weak family ties and a higher chance of reoffending. In addition, a drug offender could lose custody of his or her children if they are denied housing (Alexander, 2010). All former prisoners are subjected to being homeless or having to stay in overcrowded shelters, which reduces their chances of gaining employment and becoming a productive member of society (Carey, 2004).
Roberts’ study (2003) on the public opinion about mandatory sentencing for drug offenders, nonviolent offenders, and three-strikes law, show that a large portion of the country does not to know much about the specifics of mandatory sentencing laws. 61% of respondents did not agree with having mandatory sentencing laws for nonviolent offenders, and 80% believed drug offenders should get treatment as opposed to a mandatory prison sentence. When asked if they support three-strikes laws, a sizable majority did (88%), although when put in a specific context, only 17% supported it (Roberts, 2003). This shows that the public needs to be more educated about what policies it is they are supporting and in favor of, and what the implications and consequences are of these laws.
Mandatory sentencing laws have drained state and local budgets throughout the years since they have been implemented. As mentioned previously, once prisoners reach a certain age, they are much more costly to take care of. In addition, diverting costs from prison construction to prevention programs could potentially save taxpayers up to $2 billion and crime rates could potentially be lower. Spending on corrections has increased by $13 billion in the last decade, and does not seem as though it’s slowing down (Welsh & Farrington, 2011). The total cost for the prison system in 2010 was $39 billion and every single state went over their corrections budget. California alone spent almost $8 billion on corrections that year, and Connecticut alone went 34% over their corrections budget (What Incarceration Costs Taxpayers, 2012). California’s three-strikes law in itself is estimated to cost approximately $5.5 billion in its first 20 years of being implemented (Dichiara, 2008). Often in analyzing costs of prisons, there are many additional costs that are not included. Costs like welfare, childcare, and education. The drain on the economy is undeniable.
One simple way to keep organizations from becoming cancerous might be to rotate all jobs on a regular, frequent and mandatory basis, including the leadership positions.
Mandatory sentencing laws have had many intended effects. These laws, by incarcerating so many, have undoubtedly kept many criminal justice institutions in business, including schools that offer criminal justice and law degrees. Society as a whole feels safer because so many offenders are being incarcerated for longer periods of time. Politicians are being re-elected because they are taking a tough stance on crime.
In addition to all of these intended effects, these laws have had many unintended effects as well. Racial minorities have been disproportionally targeted and incarcerated, and especially black males, at an astonishing rate (Schlesinger, 2008). The policy makers are the ones who create these laws that have their vested interest. The vast majority of these government officials are white males, and the laws are created to incarcerate the minorities and the poor. This is no coincidence. Since the poor commit crimes more frequently out in the open than the rich, they are more susceptible to be targets of mandatory sentencing laws. California’s harsh three-strikes law has incarcerated some nonviolent offenders for extremely long sentences for crimes that are considered petty (like our earlier example of the man who stole a slice of pizza and was sentenced to 25 years in prison). Some findings even suggest that three-strikes laws sometimes increase homicide rates, suicide rates, prison escapes and attacks on law enforcement officers. These felons have nothing to lose if they are or will be incarcerated for life either way (Shadeed & Helfgott, 2012).
The effect that mandatory sentencing laws are having on society is apparent, but only in poor Black neighborhoods. Most people are oblivious of the harsh effects these laws are having on poor families that are experiencing their loved ones be incarcerated for long periods of time for minor, nonviolent offenses. These laws are largely not affecting middle and upper class communities, and they are the ones who have the power to change them. Educating the public is the key to changing these policies.
Giving a 10-year mandatory minimum for a second offense fist fight is not going to reduce the chance that someone will be stabbed 16 times when you are not funding any of the programs that are desperately needed to actually reduce crime.
Mandatory sentencing laws’ biggest goals are to incapacitate habitual offenders and punish them, as well as deterrence to keep them and others from committing crimes. The policy makers who create these laws have ignored the fact that there has been no empirical evidence that these laws are effective in reducing crime. Both deterrence and incapacitation theories have their share of proponents as well as critics, and neither theory has overwhelming evidence that it reduces crime.
In this tough economy, it is difficult to justify spending billions of dollars on putting people in prisons for extremely lengthy terms for nonviolent offenses, although no one is asking the government to justify it. There are starving children, homeless people, many people who cannot find employment and need government assistance, drug addicts who need help, sick people with no insurance, and the list goes on. Taxpayers’ money should go towards education, creating job opportunities in poor communities, feeding the homeless, preventive programs, and drug treatment programs. Incarcerating parents for small amounts of drugs or other nonviolent offenses and keeping them from their children helps the vicious cycle continue. Children need their parents to guide them and set a good example for them. A large proportion of Black children grow up without a father, whether they are incarcerated or have abandoned them, and that helps the cycle continue.
The costs of mandatory sentencing laws largely outweigh the benefits. The only benefit to society is that incarcerating certain prisoners could potentially prevent a few crimes, but the chances are that they are petty crimes, where the monetary and social cost of the crime will be much less than keeping that prisoner incarcerated for a lengthy term. The costs are overwhelming. Billions of tax dollars are being spent on imprisonment, dollars that are diverted from prevention programs, health care, education, shelters, and many other places who need funding and could potentially help reduce crime by helping those in need. Minorities, especially Black males, have been targeted with mandatory sentencing laws as well as the war on drugs. They are leaving their families behind to serve lengthy prison terms and continuing the cycle of young Black men without father figures. There are people serving life sentences for stealing pizza, or golf clubs, or videotapes. That in itself is absurd. If that happened to a rich White person, there would be public outcry and they would find some way to overturn that conviction, whether it be hiring expensive lawyers or going to the media. Society, as a whole, supports mandatory sentencing laws because they don’t know the details. Asked on a case-by-case basis, they largely oppose it. Education of society is important in order to change these policies. If a middle to upper class family had their grandfather incarcerated for a nonviolent offense that he committed decades ago, there would be public outcry. Since these things occur to poor Black families, no one pays any attention. These are the costs of mandatory sentencing laws that society needs to be aware of.
In addition to the monetary and social costs of mandatory sentencing laws, the bottom line is that they do not work. These laws do not reduce crime. In some states, they marginally reduce some crimes, but not serious crimes, like murder. Deterrence and incapacitation theories have both been tested over and over again, and there is still no empirical support for either theory. If we were able to identify the small number of offenders who commit the most crimes, incapacitation could work, but we can’t. Without being able to prove whom those offenders are, it is pointless to keep incarcerating people by the masses without undeniable proof that it is largely reducing crime. The media needs to step in and help educate our society about the harsh consequences of mandatory sentencing policies and how they are draining our society.
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 Mayra Figueroa is a graduate student in the Department of Criminal Justice at UNLV. This is a revision of a paper she wrote for a graduate class.