Making the Crime fit the Penalty: The Role of Prosecutorial Discretion
Under Mandatory Minimum Sentencing [Edited]
David Bjerk
McMaster University
Journal of Law and Economics, vol. XLVIII (October 2005)
Fulltext available at: http://socserv.socsci.mcmaster.ca/bjerk/SentencingJLE.pdf
…As discussed above, if prosecutors have discretion over prosecution charges, they
may respond to a law increasing the mandatory minimum sentence for certain crimes by
prosecuting a greater fraction of those arrested for the targeted crimes for lesser crimes
not covered by the law. I examine whether there is an increase in the
proportion of three-strikes arrestees who were prosecuted for misdemeanors following
the imposition of the three-strikes laws.
Table 3 shows the proportions of felony defendants prosecuted for misdemeanors
before and after the imposition of the three-strikes laws for different groups. The first
row reports that the proportion of defendants arrested for three-strikes crimes who were
prosecuted for misdemeanors rose from 5.5 percent before the passage of the three-strike
laws, to 9.3 percent after the passage of the three-strike laws. This change represents an
increase of over 70 percent.16 By comparison, of the defendants residing in states that
passed three-strikes laws but who were arrested for other felonies besides three-strike
crimes, the proportion prosecuted for misdemeanors stayed roughly constant, moving
from 12.9 percent before the passage of the three-strike laws, to 12.2 percent after the
passage of the three-strike laws. As shown in the last row in Table 3, this means that,
