The Challenge of Imposing Just Sentences Under Mandatory Minimum Statutes: A Qualitative Study of Judicial Perceptions

Published date01 March 2022
Date01 March 2022
Subject MatterArticles
Criminal Justice Policy Review
2022, Vol. 33(2) 177 –205
© The Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/08874034211030555
The Challenge of Imposing
Just Sentences Under
Mandatory Minimum
Statutes: A Qualitative
Study of Judicial Perceptions
Esther Nir1 and Siyu Liu2
Mandatory minimums limit judicial discretion in many jurisdictions in the United
States, often compelling judges to impose harsh incarcerative terms. Using
qualitative interviews with 41 criminal term judges presiding in a state in the United
States, we explore how mandatory minimums influence the judicial sentencing
function. We find that judges vary in their approaches to sentencing and that
their approaches correspond with their perceptions of mandatory minimum
statutes. While our respondents consider case-level, systemic, and pragmatic
factors, the majority of judges are focused on the case level and perceive that
mandatory minimums often strip away the flexibility they need to craft appropriate
sentences in individual cases, leading to punishments that are unduly harsh, and
sometimes preventing the imposition of promising alternatives to incarceration.
Some judges experience moral dilemmas and guilt feelings during this process.
In contrast, judges who highlight pragmatic factors (e.g., public perceptions) are
more receptive to statutory restrictions.
courts, in-depth interviews, judicial discretion, mandatory minimums, sentencing
1New Jersey City University, USA
2Penn State Harrisburg, Middletown, USA
Corresponding Author:
Esther Nir, Criminal Justice Department, New Jersey City University, Professional Studies Building,
Room 226, 2039 John F. Kennedy Boulevard, Jersey City, NJ 07305, USA.
1030555CJPXXX10.1177/08874034211030555Criminal Justice Policy ReviewNir and Liu
178 Criminal Justice Policy Review 33(2)
Sentencing convicted defendants is a complex process, requiring judges to consider
a myriad of relevant factors; indeed, every criminal case presents unique nuances
and intricacies that may need individualized attention at the case level (Reitz,
1998). Sentencing judges are often familiar with specific case and defendant related
issues, and may be best situated to understand and evaluate all of the circumstances
necessary to deliver just sentences within the boundaries of their judicial discre-
tion. In recent decades, the use of guidelines designed by a sentencing commission
has become a prominent feature of the sentencing process in the federal system and
nearly half of the states (Frase, 2019). In these jurisdictions, guidelines delineate
penalties for specific offenses and situations but may permit judges to depart from
the guidelines when they conclude that justice demands a departure (e.g., Federal
Sentencing Guidelines; Michigan, Pennsylvania, and other states, see Frase, 2019).
Nevertheless, other states have penal codes with mandatory minimums for certain
offenses that afford judges little or no leeway to impose their perceived appropriate
alternatives to incarceration or even shorter prison terms (see Luna, 2017).
While mandatory minimum sentences may potentially reduce sentencing dispari-
ties and support efforts to deter particular conduct by requiring harsh penalties,
empirical literature has shown little support to demonstrate that these statutes
accomplish those objectives. For example, the use of mandatory minimums has
often been found to lack uniform application and, consequently, may contribute to
disparate and unjust sentences (Chappell & Maggard, 2007; Lamb, 2014; U.S.
Sentencing Commission [USSC], 2017). Moreover, reports from the National
Academy of Sciences (NAS) twice concluded that the deterrent function of incar-
ceration is inefficient in preventing crime (Blumstein et al., 1978; Travis et al., 2014;
see Bagaric, 2013 and Chalfin & McCrary, 2017 for a discussion on deterrence
achieved by sentencing polices). Perhaps more significantly, mandatory minimum
statutes may contribute to a host of unintended negative consequences, including
exacerbating mass incarceration (Garland, 2018; Schlesinger, 2011; Travis et al.,
2014), shifting judicial sentencing discretion from judges to less neutral court actors
(i.e., prosecutors; Bjerk, 2005; Nagel & Schulhofer, 1992; Schulhofer, 1993; Travis
et al., 2014, p. 79; Wright & Engen, 2006), draining financial resources (Caulkins
et al., 1997; Helland & Tabarrok, 2007), reducing proportionality and fairness in
sentencing (Chappell & Maggard, 2007; Schulhofer, 1993; Tonry, 2009; Ulmer
et al., 2007), and drastically curtailing judicial discretion (Adelman & Deitrich,
2006, 2008; Beety, 2015; Johnson, 2019; Luna, 2017; Tonry, 2014, 2019).
The devastating consequences of mass incarceration are also supported by a
wealth of empirical research demonstrating that it contributes to physical and
mental health issues as well as the loss of earning potential among justice-involved
individuals, an overwhelmed criminal justice system, and widespread disruption
to families and communities, among others (Clear, 2007; Kirk & Wakefield, 2018;
Rich et al., 2011; Travis et al., 2014). Despite these serious drawbacks and the
public outcry for suitable alternatives for decades, scores of criminal defendants
(including first-time offenders and non-violent offenders in certain jurisdictions)
continue to receive lengthy prison sentences that are harmful and unproductive

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