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

• Author: Siyu Liu,Esther Nir
• DOI: 10.1177/08874034211030555
• Published date: 01 March 2022
• Date: 01 March 2022
• Subject Matter: Articles

https://doi.org/10.1177/08874034211030555

Criminal Justice Policy Review

2022, Vol. 33(2) 177 –205

© The Author(s) 2021

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DOI: 10.1177/08874034211030555

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Article

The Challenge of Imposing

Just Sentences Under

Mandatory Minimum

Statutes: A Qualitative

Study of Judicial Perceptions

Esther Nir1 and Siyu Liu2

Abstract

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.

Keywords

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.

Email: enir@njcu.edu

1030555CJPXXX10.1177/08874034211030555Criminal Justice Policy ReviewNir and Liu

research-article2021

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