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Truth-in-Sentencing Laws The term “truth-in-sentencing,” a 1980s neologism, alludes to federal “truth-in-lending” laws of the 1970s that required consumer lenders and merchants to disclose interest rates and other key financing terms. The implication is that there is something untruthful about parole release and other mechanisms that allow discretionary decisions about release dates 6 The evidence suggests that changes in sentencing laws have only short-term effects on the probability of plea-bargaining versus going to trial. Once the system adjusts to new standards, usually within 1 year or 2, traditional patterns reemerge (Feeley, 1983; Tonry, 1996, Chapter 5).

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The Growth of Incarceration in the United States: Exploring Causes and Consequences

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to be made. Under the indeterminate sentencing systems that pervaded the United States before 1975, however, there was nothing unwarranted or untruthful about parole release. The system was meant to allow tailoring of prison terms to the rehabilitative prospects and other circumstances of individuals. Maximum sentences—for example, in the American Law Institute’s (1962) Model Penal Code—were not meant to indicate how long individuals should remain in prison but by what final date they must be released.

Policy advocates in the second phase of sentencing reform, however, defined the differences between the sentences announced by judges and the time served by prisoners as a problem that needed fixing. For example, U.S.

Attorney General William Barr, writing a preface to a U.S. Department of Justice (1992) report titled The Case for More Incarceration, for example, argued that “prison works,” urged that the number of people in prison be increased, and proposed a major national program of prison construction.

Barr emphasized that most prisoners were released before their maximum sentences expired, pointed out that some committed offenses after release that would not have occurred had they been locked up, and implicitly urged that discretionary parole release be abandoned as a way to achieve more incarceration.7 Proposals like Barr’s were later enacted in the Violent Crime Control and Law Enforcement Act of 1994. The act authorized $8 billion for distribution to states to pay for the construction of additional prisons, although much less was ultimately appropriated.8 To qualify for a substantial portion of these funds, states had to demonstrate that violent offenders would be required to serve at least 85 percent of the sentence imposed. Twenty-eight states and the District of Columbia satisfied this and the other federal criteria (Sabol et al., 2002, Table 1.3).

Evaluators at the Urban Institute sought to determine how truth-insentencing laws affected sentencing patterns and prison populations. They were unable “to draw general conclusions about the effects of truth-insentencing on sentencing practices throughout the nation” (Sabol et al., 2002, p. vi), but found that the laws had large projected effects in some of the seven states they examined closely. When implemented as part of a comprehensive change to the sentencing system, “truth-in-sentencing laws were associated with large changes in prison populations.” In one state, “the increase in the percentage of sentences required to be served before 7 Parole abolition was also a goal of policy advocates in the first sentencing reform phase but for different reasons—because parole release disparities were unfair to prisoners and frustrated achievement of the goals of consistency and proportionality in sentencing (von Hirsch and Hanrahan, 1979). Sixteen states abolished parole for those reasons from the 1970s through the 1990s.

8 The average annual state grant was $7,885,875, which U.S. Department of Justice officials estimated would pay for construction of space for 50 prisoners (Sabol et al., 2002, p. 28).

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The Growth of Incarceration in the United States: Exploring Causes and Consequences

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release led to larger increases in length of stay and consequently a larger effect of length of stay on the expected number of prisoners” (Sabol et al., 2002, p. vii).

In the seven case study states, the percentages of terms to be served under truth-in-sentencing were much higher than the actual percentages of sentences served by prisoners released in 1993 and the estimated percentages for those entering prison in 1991, as Table 3-1 shows. In most cases, the percentages at least doubled. The Urban Institute evaluators observed that the effects on the prison population would have been much greater had violent crime rates not fallen substantially after 1991: “Were the sentencing practices of 1996 to persist during a time when the number of violent offenses increases, the impacts on prison populations and corrections management could be dramatic” (Sabol et al., 2002, p. 31).

The RAND Corporation carried out another federally funded assessment of the effects of the federal truth-in-sentencing initiative (Turner et al., 2001). The assessment covered data only through 1997. Even so, the authors concluded, “We do know that nationwide, the imposed maximum sentence length, the average length of prison term, and the percent of term served for violent offenses have increased for TIS [truth-in-sentencing] states between 1993 and 1997. For non-TIS states, sentence lengths have been dropping, and months served have dropped slightly” (Turner et al., 2001, p. 134).





A 50-state analysis by the Vera Institute of Justice looked at the prison population effects of a wide range of sentencing policy changes (Stemen

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The Growth of Incarceration in the United States: Exploring Causes and Consequences

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The authors of the Urban Institute study (Sabol et al., 2002) defined any state that had eliminated the possibility of parole release for some or all prisoners as a “truth-in-sentencing state.” Marvell and Moody (1996) examined the prison population effects of parole abolition and, using 1971state prison data, found that only 1 of 10 abolition states experienced a higher rate of increase in the prison population than the 50-state average.9 The lowest rates of growth were in Minnesota and Washington. The states included in that study, however, abolished parole release as part of the first phase of modern sentencing reform when no state had enacted a modern truth-in-sentencing law. The early parole abolition initiatives were aimed at greater transparency and in some cases at reductions in unwarranted sentencing disparities. Findings that the early abolitions of parole release operated to restrain growth in prison populations thus are not inconsistent with the findings of the Urban Institute (Sabol et al., 2002), the Vera Institute of Justice (Stemen et al., 2006), RAND (Turner et al., 2001), and Spelman (2009) that truth-in-sentencing laws operated to increase growth. Unlike the truth-in-sentencing initiatives, the earlier parole abolitions typically were not intended to increase the durations of prison sentences.

The Urban Institute, Vera, and RAND studies underestimate the effects of truth-in-sentencing laws on prison population growth because they cover periods ending, respectively, in 1996-1998 (for Ohio), 2002, and

1997. Mandatory minimum sentence, truth-in-sentencing, and three strikes laws requiring decades-long sentences inevitably have a “sleeper” effect.

For many years, newly admitted prisoners accumulate; their numbers are not offset by others being released. The ultimate effects of the enactment 9 Reitz (2006) concluded that parole abolition states generally had lower rates of prison population increase than parole retention states.

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The Growth of Incarceration in the United States: Exploring Causes and Consequences

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of truth-in-sentencing legislation in the mid-1990s thus are not yet apparent. This is true of many laws mandating decades-long sentences that were enacted during the second phase of sentencing reform. Under the three strikes laws of California and other states mandating 25-year minimum sentences, for example, most of which were enacted during 1993-1996, not a single prisoner’s 25-year term expired by 2014. Under an 85 percent rule, a prisoner serving a 25-year sentence is not eligible for release before 21 years and 3 months. Only after several more years pass will newly admitted prisoners begin to be offset by the release of others admitted decades earlier.

Mandatory Minimum Sentence and Three Strikes Laws Mandatory minimum sentence and three strikes laws have little or no effect on crime rates, shift sentencing power from judges to prosecutors, often result in the imposition of sentences that practitioners believe to be unjustly severe, and for those reasons foster widespread circumvention.

Between 1975 and 1996, mandatory minimums were the most frequently enacted change in sentencing law in the United States. By 1983, 49 of the 50 states had adopted such laws for offenses other than murder or drunk driving (Shane-DuBow et al., 1985, Table 30). By 1994, every state had adopted mandatory minimum sentences; most had several (Austin et al., 1994). Mandatory minimum sentences apply primarily to drug offenses, murder, aggravated rape, felonies involving firearms, and felonies committed by people who have previous felony convictions.

Knowledge about mandatory minimum sentences has changed remarkably little in the past 30 years. Their ostensible primary rationale is deterrence. The overwhelming weight of the evidence, however, shows that they have few if any deterrent effects. Analyses finding deterrent effects typically observe, as we do in Chapter 5, that existing knowledge is too fragmentary or that estimated effects are so small or contingent on particular circumstances as to have no practical relevance for policy making.

Modern findings on case processing under mandatory minimum sentence laws are consistent with the findings of the American Bar Foundation Survey and the historical studies cited above. The evidence is overwhelming that practitioners frequently evade or circumvent mandatory sentences, that there are stark disparities between cases in which the laws are circumvented and cases in which they are not, and that the laws often result in the imposition of sentences in individual cases that everyone directly involved believes to be unjust. The evidence concerning case processing comes primarily from six major studies (Beha, 1977; Joint Committee on New York Drug Law Evaluation, 1978; Rossman et al., 1979; Loftin et al., 1983; McCoy and McManimon, 2004; Merritt et al., 2006). All found that prosecutors and judges (and sometimes police) in many cases changed their practices to Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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avoid the imposition of newly enacted mandatory minimum sentences, that prescribed harsher punishments were imposed in the remaining cases, and that overall the laws had few effects on conviction rates.10 To illustrate, New York State’s Rockefeller Drug Laws required lengthy mandatory minimum sentences for a wide range of drug offenses. With great publicity, the legislature authorized and funded 31 new courts to handle drug cases and expressly forbade some forms of plea bargaining.

Practitioners made vigorous efforts to evade the mandatory sentences and often succeeded; the remaining cases were dealt with as the law dictated (National Research Council, 1983, pp. 188-189). Drug felony arrests, indictment rates, and conviction rates all declined after the law took effect.

For those convicted, the likelihood of being imprisoned and the average length of prison term increased. But the likelihood that a person arrested for a drug felony would be sent to prison remained the same after the law took effect—11 percent—as before (Joint Committee on New York Drug Law Evaluation, 1978).

Massachusetts’ Bartley-Fox Amendment required imposition of a 1-year mandatory minimum prison sentence, without suspension, furlough, or parole, for anyone convicted of unlawful carrying of an unlicensed firearm. Two major evaluations of the law’s effects were conducted (Beha, 1977; Rossman et al., 1979), as well as an ambitious secondary analysis of the data produced by those two studies (Carlson, 1982). The primary findings were that police altered their behavior, becoming more selective about whom to frisk, making fewer drug offense arrests, and seizing many more weapons without making an arrest; charge dismissals and acquittals increased significantly; and the percentage of defendants who entirely avoided a conviction rose from 53.5 to 80 percent.

The Michigan Felony Firearms Statute created a new offense of possessing a firearm while engaging in a felony, and specified a 2-year mandatory prison sentence that could not be suspended or shortened by release on parole and had to be served consecutively with a sentence imposed for the underlying felony. The Wayne County prosecutor established and enforced a ban on plea bargaining and launched a major “One with a Gun Gets You Two” publicity campaign. Findings on the statute’s effects paralleled those of the above studies. Sizable increases in dismissals occurred; the probability of conviction declined; and the probability of imprisonment did not increase, but lengths of sentences increased for those sent to prison. Cases often were resolved by means of an adaptive response, the “waiver trial,” 10 Seealso Crawford et al. (1998), Crawford (2000), Ulmer et al. (2007), and U.S. Sentencing Commission (1991) for a discussion of habitual offender laws in Florida and mandatory minimum sentences in Pennsylvania and in the federal courts, and of how prosecutors often do not file charges that trigger these sentences.

Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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