Making the Crime fit the Penalty: The Role of Prosecutorial Discretion Under Mandatory Minimum Sentencing

This paper empirically documents one way in which prosecutorial discretion can be used to dampen the effects of mandatory minimum sentencing laws. Specifically, I show prosecutors use their discretion over prosecution charges to circumvent a mandatory minimum sentencing law for some defendants, by prosecuting these defendants who were initially arrested for the crime targeted by the sentencing law for lesser crimes not covered by the law. I document the use of such discretion with respect to several state “three-strikes” type repeat offender laws imposed throughout the 1990s, where I find that prosecutors become significantly more likely to lower a defendant’s prosecution charge to a misdemeanor when conviction for the initial felony arrest charge would likely lead to sentencing under a three-strikes law. Moreover, accounting for such behavior is important, as I show that failure to do ∗I would like to thank Professors James Andreoni, Glen Cain, John Karl Scholz, Michael Smith, and James R. Walker, as well as David Jones, Menesh Patel, Kara Levine, the participants of the Wisconsin Public and Labor Economics Seminars and the American Law and Economics Association meetings, as well as the editors and referees at the Journal of Law and Economics for their helpful comments and suggestions on this project. Thanks to the Wisconsin Department of Economics for travel funding for