Source: papers.ssrn.com 8/10/26
JaneAnne Murray
University of Minnesota – Minneapolis
Abstract:
Mandatory minimum sentencing regimes, once touted as key elements in a prosecutor’s arsenal, are under fire. Empirical analysis of mass incarceration reveals the outsize role these laws have played in erasing trials, transferring sentencing power to prosecutors, and fueling guilty pleas. States have begun to repeal them; bipartisan bills in Congress propose judicial escape hatches from them; judges and professional organizations have condemned them. But what of the view of the public, in whose name the relevant statutes and regulations were originally enacted? More saliently, what role does (and should) public opinion play in the development of sentencing policy and practice? Through the lens of unique national surveys—including embedded experiments—of large diverse samples of respondents over five election cycles, including three presidential ones, this paper presents and analyzes public attitudes to mandatory minimum sentences and, uniquely, the public’s attitude to granting judges discretion to set such mandatory sentences aside in extraordinary cases.
The results are unambiguous. Over 60% in 2016 opposed the inflexible imposition of a mandatory minimum sentence even in relatively short mandatory minimum sentences: five years for first-time offenders and ten years for repeat offenders (sentences that one judge has described are “small dose injustices”), a position that holds across experimental conditions involving the race, prior criminal history and mitigating personal factors of the offender. Overall support for judicial discretion to set aside mandatory minimum sentences only increases over election cycles, culminating in 77% in 2022, and holding steady at 75% in 2024. Perhaps most notably, in each election cycle, the factor that (by far) predicts a respondent’s opposition to judicial discretion in the face of mandatory minimum statutes is racial resentment. These findings have important implications for the constitutionality of mandatory minimum sentencing statutes, for legislative efforts to repeal and/or amend them, for prosecutorial charging policies, for “second look” amelioration, and for the sentencing process itself.