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Daring the Courts - Trial and Bargaining Consequences of Minimum Penalties

NCJ Number
Date Published
January 1981
35 pages
This article investigates the consequences of restrictions on judicial discretion effected by the introduction of minimum penalties and all-or-nothing sanctions; a model is constructed depicting decisionmaking by a prosecutor or enforcement agency under the new legislation.
Legislation establishing minimum penalties for violations of the law has been adopted in pursuance of a commitment to more stringent enforcement of the law. The success of such legislation is endangered by the prospect of judge or jury nullification at trial (i.e., refusal or diminished readiness to reach the legally correct determination of liability or guilt). Thus, the major problem with such penalties is that they may never be applied. Negotiated settlements account for up to 95 percent of the convictions obtained in criminal cases handled in urban courts and for the majority of civil cases brought in State and Federal courts. Changes in the anticipated trial outcome, such as the increased possibility of nullification, will result in corresponding changes in negotiated settlements. To determine its bargaining position, an agency or prosecutor must first determine its anticipated outcome under the minimum penalty restriction. Effects on the outcome of differences in relative strengths of the parties' agency resources, and minimum penalty levels must then be considered. When judicial discretion is unrestricted, small increases in the initial strength level are associated with small changes in anticipated trial outcome and in the reservation settlement level. However, when discretion is restricted by the imposition of a minimum penalty, the effects of differences in initial strength may change. It is when the minimum penalty is high or when the enforcement agency's initial strength or allocable resources are relatively low that the policy consequences of imposing minimum penalties are greatest. Thus, those policies will be most successful that take into account the anticipated responses of judicial decisionmakers and the institutional tradeoffs that their decisions precipitate. Graphs and 97 footnotes are included.

Date Published: January 1, 1981