Comment

Public Choice and the Mandatory Minimum Temptation

Public Choice and the Mandatory Minimum Temptation

John Ehrett

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Contemporary debates over the problem of mass incarceration have often explored the relationship between booming prison populations and mandatory minimum sentencing schemes—provisions in state and federal law that constrain the sentencing discretion of the court system, requiring convicted persons to endure a fixed punishment prescribed by specific provisions of criminal law. For decades, proponents of criminal justice reform have critiqued this sentencing model at great length, noting how it perpetuates racial disparities and strips adjudicators of the ability to consider potential mitigating factors.

On some fronts, progress has been made. But in the wake of the much-reported Brock Turner rape case, recent legislative developments in California have revealed a previously unforeseen vulnerability in criminal justice reform efforts: what happens when, under conditions of public uproar, institutional pressures work to actively roll back reform projects? The forces identified by public choice theory help explain this phenomenon. Even within an ostensibly progressive state, structural incentives may operate to unintentionally thwart efforts to make the criminal justice system more humane.

This Comment evaluates the persistent intractability of this problem and proposes a path forward: future state-level efforts to reform or abolish mandatory minimum sentencing schemes should take the form of state constitutional amendments instead of session laws, through a political strategy this Comment terms the plebiscitary approach. Entrenching mandatory minimum reform measures via a maximally democratic process helps overcome the barriers articulated by public choice theory and provides a stronger foundation for subsequent criminal justice reforms. This strategy undoubtedly poses its own set of challenges, but ultimately may prove to be the best way of achieving lasting change in lieu of fragile quick-fix solutions.

Given the far broader range of potential crimes addressed by state criminal law than by federal criminal law, this Comment’s focus is generally limited to the context of state law. While mandatory minimum sentencing is problematic on both the federal and state levels (for the same structural and ethical reasons), much talk of reform has centered only on federal mandatory minimum laws. This analysis aims to advance the ongoing conversation in the context of sentencing reform at the state level.

Yale Law School, J.D. 2017. Thanks to Allison Tilden, Victoria Pasculli, Will Bekker, Will Kukin, and the other editors of the Yale Law & Policy Review for their thoughtful suggestions. 

Cite this article:

John Ehrett

, Comment, 

Public Choice and the Mandatory Minimum Temptation

, 35 Yale L. & Pol'y Rev. 603 (2017).