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This House supports mandatory sentencing
This House supports mandatory sentencing
Mandatory sentences are prison terms that are set by the legislature and remove discretion from the judiciary. The usual practice is for legislatures to set maximum sentences for crimes and provide non-mandatory guidelines to be applied by judges. While the exact form of mandatory sentencing varies, commons forms include 3-strike laws and minimum sentences for a particular offense. Debaters may want to focus on a particular country when considering this debate, as the impact of mandatory sentencing varies depending on the country’s government structure and the nature of its crime problems. Mandatory sentences laws are often targeted at a particular form of crime For example, Australia’s Northern territory introduced minimum sentences for theft in 1997, while the British government has a minimum sentence of life imprisonment for murder (though this is coupled with a discretionary tariff). The following debate is not exclusive to the United States, but largely focuses on this nation, which has the highest incarceration rate in the world. In the U.S. the most controversial mandatory minimums concern drug laws. Arguments in this debate may focus on the system of checks and balances between branches, as mandatory minimums shift power from the judiciary to the legislative and executive branches. Arguments may also focus on the impact on crime rates, as well as the impact on individuals sentenced under these restrictions. Debaters may also want to note that there are 4 generally accepted purposes to incarceration; rehabilitation (reforming the criminal), incapacitation (criminals cannot harm the public if they are in prison), deterrence (the threat of punishment prevents people from committing crime), and retribution (punishment gives a criminal their fair due). Debaters may wish to consider how mandatory sentencing impacts each of these factors of punishment.
|Points For||Points Against|
|Mandatory minimum sentences remove undue judicial discretion.||Mandatory sentencing gives prosecutors undue power.|
|Mandatory minimum sentences increase deterrence.||Mandatory minimum sentences make juries reluctant to convict guilty defendants.|
|Mandatory minimum sentencing can be designed to avoid injustices.||Mandatory sentencing fills the system with “small fish.”|
|Minimum sentences increase the effectiveness of incapacitation.||Minimum mandatory sentences reduce the chance of rehabilitation.|
|Mandatory sentencing increases consistency in the justice system.||Minimum mandatory sentences are unjust.|
Remember to choose a winning argument!
Mandatory minimum sentences remove undue judicial discretion.
Discretion allows for both intentional and unintentional bias. The U.S. Supreme Court recently heard a case concerning alleged corruption when a West Virginia judge ruled in favor of a plaintiff that had donated over $3 million to the judge’s election campaign. Though this case is not directly linked to minimum sentences, it demonstrates that judicial corruption is an issue in the legal system today; mandatory sentencing reduces the discretion that allows unethical judicial action. Furthermore, judges may attempt to be impartial, but data shows that humans are inclined to be more sympathetic towards particular groups. For example, female defendants are less likely to receive a death sentence than male defendants, while defendants in general are seven times more likely to receive the death penalty if the victim is female; scholars suggest that these disparities are caused by societal perceptions that women need greater protection rather than any actual difference in the severity of the crime. Thus even decisions that seem impartial are often not. Strict sentencing mandates are more likely to yield just decisions because they are less vulnerable to individual bias.
 Dahlia Lithwick, “The Great Caperton Caper: The Supreme Court Talks About Judicial Bias. Kinda,” Slate, June 8, 2009.
 “Studies: Gender Bias in Death Sentencing,” Death Penalty Information Center, 2011.
Mandatory sentences do not eliminate undue discretion; they merely shift the power from judges to prosecutors. Prosecutors may decide whether or not to charge defendants for violations other than the main charge. For example, a prosecutor may add weapons possession to a charge for drug sales- this additional count can drastically increase the defendant’s sentence. In the United States, defendants often cooperate with prosecutors and provide information in order to avoid such hefty sentences. Michael Simmons explains, “[…] A cooperation departure is usually the only significant sentencing factor over which a defendant has any control and– because the average cooperation departure cuts a defendant’s sentence in half- it is often a defendant’s only hope for a reduced sentence. Thus, it is not surprising that cooperation departures have fundamentally changed federal prosecutions.” Prosecutors may wield this power to coerce defendants into accepting a plea bargain in cases where they might reasonably be acquitted at trial. Because prosecutors are part of the executive branch, they are more susceptible to political influence than federal judges, who are often appointed, not elected. Thus for a balance of power, it is better to allow judges to have discretion.
Debaters might instead argue that mandatory sentences are not an effective means of subduing corrupt judges, as a judge has many venues for disrupting a trial.
 Michael A. Simons, “Departing Ways: Uniformity, Disparity, and Cooperation in Federal Drug Sentences,” Villanova Law Review, Vol. 47, Issue 2, 2002, 935.
Mandatory minimum sentences increase deterrence.
Deterrence works through several mechanisms; likelihood of getting caught, severity of punishment, and perceived public disapproval. Mandatory minimum sentences increase the effectiveness of severity as a deterrent. If potential criminals know a mild sentence is possible, they are more likely to commit crime in the hopes that they may charm a judge into sympathetically lowering their sentence. By establishing a set minimum punishment, a potential criminal with any knowledge of the penal code knows that, if caught, he/she will face a substantial punishment for his/her crime. The pro need not demonstrate that every, or even a strong majority, of would-be criminals will be deterred by mandatory minimum sentences; so long as the mandate has a reasonable deterrent effect, it will reduce crime and therefore improve the overall standard of living.Improve this
Minimum sentences have only a theoretical impact on crime rates; in reality they make no difference. The pro makes two major assumptions; first, that criminals have reasonably accurate perceptions of the legal code. Second, the pro assumes that harsh penalties have a psychological impact on potential criminals. Interviews with convicted felons found that a mere 22% even thought they knew what the punishment would be. Another 18% did not know at all, and more than a third reported that they had not thought about punishment at all at the time of the crime. Thus minimum sentences are not sufficiently well publicized to have a significant deterrent effect. Furthermore, substantial evidence demonstrates that additional severity has a relatively small deterrent effect. Criminals respond much more to the chance of getting caught rather than the consequences that occur if they get caught; if a criminal’s chance of getting caught is 10%, the deterrent effect is virtually zero. Thus mandatory sentences do not have a substantial deterrent effect.
 Bruce Western, Punishment and Inequality in America, Russell Sage Foundation, NY, 2006, 178.
 Western, 179.
Mandatory minimum sentencing can be designed to avoid injustices.
The negative side effects of minimum sentencing guidelines can be avoided via “safety valves.” The U.S. federal government introduced safety valves in 1994; mandatory sentencing is suspended if the defendant meets certain criteria, such as being a low-level participant or having no prior criminal history. The safety valve allows flexibility so that low-risk offenders do not receive excessively harsh punishment. Thus mandatory sentencing guidelines have enough flexibility to recognize varying circumstances, while retaining enough rigidity to deliver consistent punishment.Improve this
Safety valves are simply a reflection of the problem with mandatory sentencing. Safety valves are proof that the inflexibility of minimum sentencing leads to injustice. Safety valves are a step in the right direction, but are themselves an inflexible form of relief. For example, safety valves often do not apply if the defendant has a history of more than one very minor offense, such as passing a bad check. The better way to reduce the injustice of mandatory minimum sentences would be to eliminate the system and allow judicial discretion.
 “Federal Mandatory Minimum Reforms: Improve and Expand the Federal ‘Safety Valve,’” Smart on Crime: Recommendations for the Next Administration and Congress, 2008. [http://2009transition.org/criminaljustice/index.php?option=com_content&view=article&id=43&Itemid=96]
Minimum sentences increase the effectiveness of incapacitation.
Incapacitation is one of the 4 basic reasons for punishment. Mandatory minimum sentences keep criminals out of society for a longer period of time than they might otherwise be in jail, thereby reducing their window of opportunity to commit crime. The criminal justice system is obligated to refrain from cruel or unusual punishment, but its main purpose is to protect society from law-breakers through various means of preventing and punishing illegal activity. Mandatory minimum sentences should be proportionate to the severity of the crime, thus satisfying the requirement of humane punishment. Thus mandatory minimum sentencing is a just method of protecting the public.Improve this
Imprisonment only yields the benefits of incapacitation if the offenders are a likely threat to society. If the criminal that is given an extensive prison sentence was unlikely to commit another crime, then his/her incapacitation did not actually protect society. Studies within prison populations demonstrate that most offenders commit relatively little crime, while a core group commits a large portion of the crime. For example, a Rand Corporation survey found that half of all burglars committed fewer than six crimes per year, while the top 10% committed over two hundred. Thus society is not particularly well serve when the bottom half of burglars face long prison sentences; few burglaries are avoided, and these criminals will now have more difficulty rejoining society.
 Bruce Western, Punishment and Inequality in America, Russell Sage Foundation, NY, 2006, 178.
Mandatory sentencing increases consistency in the justice system.
Former Supreme Justice Sandra Day O’Connor once said, “liberty finds no refuge in a jurisprudence of doubt.” Without mandates, judges may have radically different ideas of just sentences. Michael Simons gives the example of Mutt and Jim- two criminals of identical background who commit the same crime. Judge Lenient sentences Mutt, while Judge Harsh sentences Jeff. Mutt might receive one day in prison while Jeff receives a sentence of twenty-five years. While such an extreme is unlikely, it is noteworthy that the legal system emphasizes the importance of consistency. Consistent precedent is essential because citizens need to be able to make decisions knowing the legal consequences of their actions. Mandatory sentencing need not be overly harsh, but there should be some sort of rigidity to establish reliability in the legal system.
 Planned Parenthood v. Casey, 505 U.S. 83, (1992). http://www.law.cornell.edu/supct/html/91-744.ZS.html
 Michael A. Simons, “Departing Ways: Uniformity, Disparity, and Cooperation in Federal Drug Sentences,” Villanova Law Review, Vol. 47, Issue 2, 2002, 926.
Judges are capable of delivering consistency. Judges are trained professionals and must demonstrate competence in order to be appointed- they are unlikely to administer completely random sentences. In order to further reduce inconsistency, the Con supports government-issued sentencing guidelines so that judges are aware of the precedent concerning sentencing for a particular crime, so long as these guidelines are not compulsory. In the unusual occurrence that a judge administers an unjustly harsh sentence, defendants may appeal their case to a higher court. Thus judicial discretion is unlikely to result in widespread inconsistent sentencing.Improve this
Mandatory sentencing gives prosecutors undue power.
Prosecutors can stack charges, which they can use to scare a defendant into accepting a plea bargain. Prosecutors are part of the executive branch; they are directly answerable to elected officials (and are often elected themselves), whereas judges are generally more removed from political influence. Politicians often promote themselves as being “tough on crime.” In order to make good on this claim, they may pressure prosecutors to increase conviction rates, get longer sentences, etc. Thus political pressure may lead prosecutors to handle cases in a way that makes them more popular with the public, rather than one which gives the criminal their fair due. Because judges are less susceptible to public pressure, it is safer to entrust discretion to them.
 Michael A. Simons, “Departing Ways: Uniformity, Disparity, and Cooperation in Federal Drug Sentences,” Villanova Law Review, Vol. 47, Issue 2, 2002, 923.
Mandatory sentencing does not provide prosecutors any additional power to do anything unethical. “Stacking charges” is another way of saying the prosecutor charges the defendant for each crime he/she committed, meaning that the defendant is being held accountable for all of his/her actions. The Con fails to demonstrate why this is problematic. Furthermore, having democratic checks ensures that the prosecution will not bring trumped-up charges. First, a jury will dismiss such charges, and possibly dismiss all charges if they feel the prosecutor is being abusive. Second, the public is unlikely to respond positively to a district attorney that wastes time and resources on putting low-level criminals in prison for long sentences rather than focusing on serious threats to public safety. Thus the ability to “stack charges” is unlikely to have an adverse impact on justice.Improve this
Mandatory minimum sentences make juries reluctant to convict guilty defendants.
The most publicized form of jury nullification is in the case of the death penalty, wherein jurors are reluctant to sentence a person to death. However, Nancy King of the University of Chicago finds that juries are increasingly likely to acquit if a defendant might receive an unduly harsh sentence under mandatory sentencing laws or “three-strike” laws. This kind of jury nullification has two implications. First, it is harmful because defendants that are guilty and ought to go to prison (albeit not for the term demanded by sentencing laws) are not held accountable for their actions at all. Second, jury nullification (a contested practice in and of itself) is a signal in a democratic society that the public considers current legislation to be unjust. Thus the jury nullification demonstrates public opposition to the unintentionally unjust consequences of mandatory sentencing.
 Nancy King, “Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom,” The University of Chicago Law Review, Vol. 65, No. 2, 1998, 438.
(1) There are checks against jury nullification. The judicial system can reduce the impact of jury nullification by explaining to juries that their responsibility is to determine the guilt of the defendant. The judge can explain that nullification is not a legally acceptable form of dissenting from a law that one perceives as unjust. While King makes the observations noted by the Pro, she also notes that prosecutors may dismiss potential jurors that admit they will consider the severity of the punishment.
(2) A careful jury is a good jury. When juries are reluctant to convict because of the death penalty, they are often asking themselves, “am I so sure that this person committed this crime that I am willing to bet their life on it?” Such hesitation is beneficial to the justice system- it reduces the number of wrongful convictions. Similarly, mandatory minimum sentences make juries realize the significance of their decisions. While this may allow some lucky criminals to evade justice, it also prevents innocent civilians from suffering punishments they do not deserve.
 Nancy King, “Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom,” The University of Chicago Law Review, Vol. 65, No. 2, 1998,435.
Mandatory sentencing fills the system with “small fish.”
As noted above in response to the Pro, most convicts are not high-repeat criminals; a study similar to the one mentioned above found that in a sample of a cohort of teenage boys in Philadelphia, 33% had engaged in delinquent behavior at some point, but 60% of the crime was committed by a group of recidivists that made up only 7% of the population. Harsh punishments for all offenders have led to an overcrowded prison system; overcrowding decreases safety within prisons and reduces the chance of rehabilitation because prisons have fewer resources per prisoner to provide educational and work training. By filling the system with “small fish,” the Pro reduce the prison system’s ability to address serious threats to society.
 Bruce Western, Punishment and Inequality in America, Russell Sage Foundation, NY, 2006, 176.
 Craig Haney, “Prison Overcrowding: Harmful Consequences and Dysfunctional Reactions,” Vera Institute of Justice, 6. [http://www.veradc.org/statements/haney_craig.pdf]
Mandatory sentences need not be excessively harsh. The Pro supports mandatory sentences that account for a criminal’s prior history and the severity of the crime; mandatory sentences can be proportionate to the scope of the crime. A crime such as murder, which poses a serious threat to public safety, should have a greater minimum punishment than petty theft. But by arguing that we should not have minimum sentences for low-level criminals, the con is essentially arguing that we should not imprison offenders unless they singlehandedly pose a dire threat to society at large. All crimes are violations of the law; if the government ignores crime on the basis that the offense is “not that serious,” it signals that laws against such offenses are not legitimate and may be ignored. Thus mandatory minimum sentences are relevant and beneficial to reducing low-level crime.Improve this
Minimum mandatory sentences reduce the chance of rehabilitation.
Minimum sentences force minor criminals to spend more time in prison, thereby increasing their exposure to more hardened criminals. This exposure reduces their chance of rehabilitation- other inmates act as a “bad influence.” Furthermore, studies of labor market participation demonstrate that the more time a person spends outside the labor force, the more their human capital (i.e. marketable skills) deteriorate; their chance of finding well-paid work decreases with more time outside the labor force. Longer prison sentences keep people from working, thereby keeping them in a cycle of unemployment that leads them back into crime.
 Craig Haney, “Prison Overcrowding: Harmful Consequences and Dysfunctional Reactions,” Vera Institute of Justice, 8. http://www.veradc.org/statements/haney_craig.pdf
 Francine Blau, Mariannne Ferber, and Anne Winkler, The Economics of Women, Men, and Work, 5th Edition, Pearson, NJ, 2006.
Minimum mandatory sentences increase the chance of rehabilitation. If a person receives a light punishment for his/her action, he/she sees that the action has a low cost. Conversely, if a person has firsthand experience with strong punishment for an action, they will be more reluctant to take that action in the future. Furthermore, prisons have literacy and work training programs to benefit criminals; the majority of (American) prisoners are functionally illiterate. If these criminals are in prison for a short period of time, they will not be able to reap the benefits of these rehabilitating programs. Thus longer sentences (within reason) can actually be beneficial to inmates.
 Craig Haney, “Prison Overcrowding: Harmful Consequences and Dysfunctional Reactions,” Vera Institute of Justice, 85. http://www.veradc.org/statements/haney_craig.pdf
Minimum mandatory sentences are unjust.
In the United States, federal minimum sentences for narcotics-related offences have forced judges on countless occasions to deliver sentences of 20 year, 30 years, or even life imprisonment to offenders that were tangentially connected to the offense. Often, such offenders are low-income young adults that turn to drug sales for a month or two out of desperation. Sometimes defendants find themselves entangled in drug busts because they are living with family members that are involved in the drug trade. In a well-publicized case, Weldon Angelos was sentenced to 55 years in prison for selling marijuana because he was also in possession of a firearm. All criminals are not the same; there are significant differences in the level of threat that individuals pose to society, as well as the likelihood of rehabilitation. Rigid mandatory sentences are unjust because they inevitably lead to numerous cases of disproportionate punishment. These harsh punishments consequently have disastrous impacts on the individuals, as well as their family and community.
 “DeJarion Echols,” Profiles of Injustice, Families Against Mandatory Minimums.
 “Hamedah Hasan,” Profiles of Injustice, Families Against Mandatory Minimums.
 “Weldon Angelos,” Profiles of Injustice, Families Against Mandatory Minimums.
Mandatory sentences are fairer than judicial discretion. The Con assumes that individual judges will deliver fair and proportionate punishment. However, as is discussed in the Pro arguments, judges are susceptible to many forms of implicit and explicit bias. For example, studies consistently show that minorities receive longer sentences than whites in the U.S. for comparable offenses. Mandatory sentencing eliminates the danger of individual partiality and replaces it with consistent standards. The Pro advocates a well-defined set of sentencing standards that account for factors such as prior history and cooperation so as to avoid the injustices discussed in the Con’s argument. The Pro acknowledges that sentencing standards may be imperfect, however, the flaws of these imperfections are outweighed by the elimination of personal judicial bias.Improve this
Blau, Francine, Mariannne Ferber, and Anne Winkler. The Economics of Women, Men, and Work, 5th Edition. Pearson, NJ, 2006.
“DeJarion Echols,” Profiles of Injustice, Families Against Mandatory Minimums.
“Federal Mandatory Minimum Reforms: Improve and Expand the Federal ‘Safety Valve.’” Smart on Crime: Recommendations for the Next Administration and Congress, 2008. http://2009transition.org/criminaljustice/index.php?option=com_content&v...
“Hamedah Hasan,” Profiles of Injustice, Families Against Mandatory Minimums.
Haney, Craig. “Prison Overcrowding: Harmful Consequences and Dysfunctional Reactions.” Vera Institute of Justice. http://www.veradc.org/statements/haney_craig.pdf
King, Nancy. “Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom.” The University of Chicago Law Review, Vol. 65, No. 2, 1998.
Lithwick, Dahlia. “The Great Caperton Caper: The Supreme Court Talks About Judicial Bias. Kinda.” Slate, June 8, 2009.
Planned Parenthood v. Casey, 505 U.S. 83, (1992). http://www.law.cornell.edu/supct/html/91-744.ZS.html
Simons, Michael A. “Departing Ways: Uniformity, Disparity, and Cooperation in Federal Drug Sentences.” Villanova Law Review, Vol. 47, Issue 2, 2002.
“Studies: Gender Bias in Death Sentencing,” Death Penalty Information Center, 2011.
“Weldon Angelos,” Profiles of Injustice, Families Against Mandatory Minimums.
Western, Bruce Western. Punishment and Inequality in America. Russell Sage Foundation, NY, 2006.
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