Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform
Gary T. Lowenthal
affiliation not provided to SSRN
California Law Review, Vol. 81, p. 61, 1993
Recent years have seen significant changes in sentencing law: determinate sentencing schemes and mandatory enhanced sentences have largely displaced discretionary sentencing regimes operating within broad sentencing constraints. Commentators have variously lamented and applauded the advent of both determinate sentencing and mandatory penalties, yet the interaction of these two innovations has been left largely unexamined. Professor Lowenthal provides an analysis of the perverse consequences that ensue when sentencing, guidelines are paired with mandatory sentencing: the very consistency and proportionality that these changes were supposed to engender can be undercut when the two sentencing approaches are combined. Mandatory sentencing emphasizes a single aggravating factor, contrary to determinate sentencing, which directs judges to a whole complex of factors. Mandatory sentencing also is applied unevenly, with those exercising their right to trial often receiving harsher penalties. Thus, a factor that should not be detrimental under determinate sentencing, such as exercising one's constitutional right to trial, is detrimental under mandatory sentencing. In sum, the goals of determinate sentencing-consistent punishment for like crimes and proportional punishment for different crimes-are greatly undermined by mandatory sentencing. Professor Lowenthal concludes by arguing for legislative changes to ameliorate the harsh and undesired effects of mandatory sentencing measures.
Keywords: Sentencing, trial, penaltiesAccepted Paper Series
Date posted: July 17, 2009
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