Stephen Schulhofer, Robert B. McKay Professor of Law, testified before the United States Sentencing Commission on the subject of mandatory minimum sentences at a public hearing on May 27 in Washington, D.C. Recent legislation has directed the Commission to prepare for Congress a detailed report on federal statutes that mandate a minimum sentence in certain criminal cases. Congress instructed the Commission to assess, among other matters, the compatibility of mandatory minimums with the Federal sentencing guidelines system, the interaction of mandatory minimums with the practice of plea bargaining, and the availability of other mechanisms for achieving Congress’s sentencing goals.

In his testimony, Schulhofer addressed these issues by insisting that plea agreements must be the central focus of the analysis. Schulhofer, who has studied the criminal justice system for more than 35 years, was actively involved in the work that went into the establishing the U.S. Sentencing Commission and drafting its initial set of guidelines pursuant to the Sentencing Reform Act of 1984. At that time, Schulhofer, together with Sentencing Commissioner Ilene Nagel, led an ambitious project to investigate actual sentencing practice by examining confidential case files and conducting candid interviews with front-line decision-makers in districts large and small, throughout the country. With the support of the Commission and the Department of Justice, the study continued for a period of nearly six years, spanning the administrations of Presidents Ronald Reagan, George H.W. Bush and Bill Clinton.

Schulhofer testified that this study and subsequent research establish that so-called mandatory minimum sentences are not mandatory at all. These sentences, he explained, “are discretionary punishments, with many of the very worst consequences that sentencing discretion can imply.” Schulhofer noted that in the minds of most voters, mandatories appear to be a straightforward way to send potential offenders a chilling and unequivocal message. But, he said, “in operation, mandatories are nothing of the sort.” In plea bargaining, which accounts for more than 95% of all federal convictions, prosecutors have wide freedom to decide whether to pursue charges that carry a mandatory minimum. As a result, mandatories are circumvented in well over half the cases in which they are ostensibly applicable. And when mandatories are imposed, this happens only because a prosecutor decided not to bypass them. Thus, the application of so-called mandatory sentences depends on low-visibility decisions made with little oversight, a situation that has actually aggravated racial disparities in sentencing.

Schulhofer urged the Commission and Congress to pursue a policy of “truth in sentencing,” by abandoning the misleading and discriminatory current system of non-mandatory mandates. In its place, he suggested, Congress can express its preference for stringent sentences by legislating suitably severe base sentencing levels for certain offenses, while leaving room for judges to consider aggravating and mitigating circumstances within the framework of the federal sentencing guidelines system.

Published June 18, 2010