minimal sentences on drug offenders judges discretion is limited by law prisoners dilemma Californian three strikes law
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By this article we will explore two
examples of minimal sentencing imposed in US courts. These are cases
whereby the judges discretion is limited by law. In civil law
countries, law clearly stipulate maximal sentences possible for each
crime as well as mitigating factors that need to be taken into
account to reduce the sentence. This is a sharp contrast to US
minimal sentencing laws.
Federal Law enacted in 1986 called
for minimal sentences on drug offenders – a federal crime. Amongst
others this included three cumulative factors: type of drug, weight
of drug and prior convictions. The problem with this law is that it
forgets very important factors which should be taken into account on
a case per case basis mitigating factors such as the persons role in
the crime (brain – master mind of the operation or just the human
instrument – such as mules) nor the chances of recidivism (the
likelihood that a person repeats the crime). The prisoners dilemma
(often taught in economics will be discussed in a subsequent paper)
comes into play in this scenario as a perversion of this law.
Offenders who are willing to “snitch” on fellow offenders have
their sentences reduced – unfortunately the brain of the operation
often has important information and will thus get a reduced
sentence, whilst the mules, often due to poverty are driven into
selling drugs have very little information of use to federal
authorities, have limited reduction of sentences. This hard line on
drugs is not effective as has not deterred crime, instead it has led
to prison overcrowding and racial disparities (already endemic in
American society).
Californian three strikes law and
mandatory minimal sentences enacted in 1994. Similar laws have been
enacted in other US states. This law as has already been noted in
“CRIMINAL JUSTICE: Perversity of the American Justice System” -
calls for a minimal sentence of 25 years for a third serious felony.
Proponents of these draconian laws believe that this deters crime!
Unfortunately nothing is further from the truth – when states that
practice three strikes laws are compared with other US states' crime
trends over a significant period such as 50 to 100 years, no
significant difference in crime trend is perceptible. There is no
observable difference in crime trends with western Europe where such
sentencing is not applicable (with the notable exception of the UK).
Evidence suggests that crime is deterred when offenders feel that
the likelihood of being caught is higher rather than that when
caught the sentences are longer. There is therefore a relationship
between risk of getting caught and reduction of crime.
American Law is also different in
another non-negligible way to most European countries. For
concurrent crimes committed by the same offender, in US law, the
sentences are added (simple arithmetic), i.e: an offender is caught
selling drugs and has an illegal hand gun, each offense is judged
and a sentence laid out. If the sentence for drug possession is 10
years and that for an illegal weapon is 5 years then the offender is
jailed for a total of 15 years. In some European countries the
sentences could be served concurrently. Simple arithmetic is almost
never practiced.
Once again the perversion of the US
criminal justice system is clearly demonstrated by these three
examples. These are laws clearly based on emotional considerations of
the moment and for impacting public opinion. These laws have no
influence on crime trends.
Holder of an MLAW Legal Issues, Crime and Security of New
Technologies as well as a BSc in Business Information Systems of the
University of Lausanne (Switzerland).
