Mandatory sentencing

A mandatory sentence is a court decision setting where judicial discretion is limited by law. Typically, people convicted of certain crimes must be punished with at least a minimum number of years in prison. Mandatory sentencing laws vary from country to country; it is mainly an area of interest only in common law jurisdictions since civil law jurisdictions usually prescribe minimum and maximum sentences for every type of crime in explicit laws.

A mandatory sentencing law, which often targets "moral vices" (such as alcohol, sex, drugs, and to friendships and family via prohibition) and life and death decisions, is viewed as part of the mass incarceration by criminal justice advocates of the "bottom income half to quartile" of the American population. As part of police targeting and surveillaince and often harsh sentencing, mandatory sentencing often is proposed as "fairness" by those unfamiliar with the penal systems in the US. Mandatory sentencing still has not been linked to other areas such as racial profiling, a 700% increase in US prison incarceration rates, zero tolerance and prison growth at the expense of employment, housing, education, family support and quality of life.

United States federal juries are generally not allowed to be informed of the mandatory minimum penalties that may apply if the accused is convicted because the jury's role is limited to a determination of guilt or innocence.[1] However, sometimes defense attorneys have found ways to impart this information to juries; for instance, it is sometimes possible, on cross-examination of an informant who faced similar charges, to ask how much time he was facing. It is sometimes deemed permissible because it is a means of impeaching the witness. However, in at least one state court case in Idaho, it was deemed impermissible.[2]

In 2013, United States Attorney General Eric H. Holder, Jr. announced that the Justice Department would follow a new policy restricting mandatory minimum sentences in certain drug cases.[3]

Notably, capital punishment has been mandatory for murder in a certain number of jurisdictions, including the United Kingdom until 1957 and Canada until 1961.

History

United States

Mandatory sentencing and increased punishment were enacted when the United States Congress passed the Boggs Act of 1951.[4] The acts made a first time cannabis possession offense a minimum of two to ten years with a fine up to $20,000; however, in 1970, the United States Congress repealed mandatory penalties for cannabis offenses.[5] With the passage of the Anti-Drug Abuse Act of 1986 Congress enacted different mandatory minimum sentences for drugs, including marijuana.[6][7]

In 1973, New York State introduced mandatory minimum sentences of 15 years to life imprisonment for possession of more than 4 oz (112 g) of a hard drug.

Separate from each state's own courts, federal courts in the United States are guided by the Federal Sentencing Guidelines. (See War on Drugs for more information about US drug laws.) When a guideline sentencing range is less than the statutory mandatory minimum, the latter prevails. Under the Controlled Substances Act, prosecutors have great power to influence a defendant's sentence and thereby create incentives to accept a plea agreement. In particular, defendants with prior drug felonies are often subject to harsh mandatory minimums, but the prosecutor can exercise his discretion to not file a prior felony information. Then the mandatory minimum will not be applied.[8]

Safety Valve[9] was created in 1994 to reduce mandatory sentencing for drug offenders under the following provisions:

  1. the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
  2. the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
  3. the offense did not result in death or serious bodily injury to any person;
  4. the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
  5. not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.[9]

In October 2011 a report was issued to assess Booker v. United States impact of mandatory minimum penalties on federal sentencing by the United States Sentencing Commission.[10]

Australia

In 1996, 12 month mandatory sentencing laws around third offence home burglary were introduced by Western Australia through amendments to the 1913 Criminal Code.[11] In 1997 mandatory sentencing was introduced to the Northern Territory in Australia. The three strikes and out policy raised incarceration rates of indigenous women by 223% in the first year.[12] The incarceration rate for men rose by 57% and 67% for indigenous men. The mandatory sentencing laws sparked debate of the laws being discriminative (indirectly) as indigenous people are overrepresented in the crime statistics in the Northern Territory.

New South Wales has two mandatory sentences currently. The Crimes Amendment (Murder of Police Officers) Bill 2011 introduced mandatory life sentence without parole for a person committed of murdering a police officer.[13] Also, the Crimes and Other Legislation (Assault and Intoxication) Amendment 2014 introduced mandatory minimum sentencing of 8 years for alcohol fuelled acts of violence,[14] as a response to the cases of king hit assaults in Sydney. These laws were championed by NSW Premier Barry O'Farrell largely due to the wide media coverage of similar cases,[15] in particular the case of Kieren Loveridge who killed Thomas Kelly.[16]

Life imprisonment is mandatory for murder in Queensland, South Australia, and the Northern Territory. Life imprisonment is only mandatory in the other states for aircraft hijacking or with a minimum non-parole period of 20 years (25 years in South Australia and the Northern Territory) if a criminal is convicted of the murder of a police officer or public official.

Australia also has legislation allowing mandatory prison sentences of between five to 25 years for people smuggling, in addition to a fine of up to $500,000, and forfeiture and destruction of the vessel or aircraft used in the offence.[17]

Mandatory death sentence

Other

Denmark has mandatory minimum sentences for murder (five years to life) and regicide (life in prison § 115), deadly arson is punished with imprisonment from 4 years to life, and for an illegal loaded gun one year in state prison.[18]

The State of Florida in the United States has a very strict minimum sentencing policy known as 10-20-Life, which includes 10 years mandatory prison time for using a gun during a crime, 20 years mandatory prison time for firing a gun during a crime, and 25 to life mandatory prison time in addition to any other sentence for shooting somebody, regardless of whether they survive or not.

In Canada and Ireland, life imprisonment is mandatory for murder if committed, at the time of the offence, as an adult. Parole ineligibility periods vary, but under Irish and Canadian law, are not less than 7 and 10 years, respectively.

In New Zealand, life imprisonment is mandatory for murder. Murders with certain aggravating factors have a mandatory 17-year non-parole period, instead of the default 10 years for life imprisonment. Since 2002, judges have the ability to overrule mandatory sentences where they would be deemed "manifestly unjust", such as in cases involving mercy killings and failed suicide pacts.[19]

In the United Kingdom, upon conviction for murder, the court must sentence the defendant to life imprisonment. The law requires that courts must set a minimum term before they become eligible for parole, although in England and Wales, the most serious cases can lead to a whole life order, meaning the person will never become eligible for parole.

Three strikes law

Main article: Three strikes law

In 1994, California introduced a "three strikes law", which was the first mandatory sentencing law to gain widespread publicity. Similar laws were subsequently adopted in most American jurisdictions. The law requires imprisonment for a minimum term of 25 years after a defendant is convicted of a third felony.

A similar 'three strikes' policy was introduced to the United Kingdom by the Conservative government in 1997.[20] This legislation enacted a mandatory life sentence on a conviction for a second "serious" violent or sexual offence (i.e. a 'two strikes' law), a minimum sentence of seven years for those convicted for a third time of a drug trafficking offence involving a class A drug, and a mandatory minimum sentence of three years for those convicted for the third time of burglary. An amendment by the Labour opposition established that mandatory sentences should not be imposed if the judge considered it unjust.

According to figures released by the British government in 2005, just three drug dealers and eight burglars received mandatory sentences in the next seven years, because judges thought a longer sentence was unjust in all other drug and burglary cases where the defendant was found guilty. However, in 2003 a new 'two strikes' law was enacted (effective April 4, 2005), requiring courts to presume that a criminal who commits his second violent or dangerous offence deserves a life sentence unless the judge is satisfied that the defendant is not a danger to the public.[21] This resulted in far more life sentences than the 1997 legislation. In response to prison overcrowding, the law was changed in 2008 to reduce the number of such sentences being passed, by restoring judicial discretion and abolishing the presumption that a repeat offender is dangerous.

Australia's Northern Territory in March 1997 introduced mandatory sentences of one month to one year for the third offence regarding property and theft. They were later adopted by Western Australia.

Race and mandatory sentencing

See also: Race and crime

Concerning federal prisons, Barbara S. Meierhoefer, in her report for the Federal Judicial Center stated: "The proportion of black offenders grew from under 10% in 1984 to 28% of the mandatory minimum drug offenders by 1990; whites now constitute less than a majority of this group. This is a much more dramatic shift than found in the federal offender population in general."[22]

Harsh penalties lead to racial disparity. According to the Statistical Overview of Mandatory Minimum Penalties presented in October 2011, "[o]f all offenders convicted of an offense carrying a mandatory minimum punishment and who remained subject to that penalty at sentencing, 38.5 percent were Black (n=4,076), 31.8 percent were Hispanic (n=3,364), and 27.5 percent (n=2,913) were White."[10]

Although exceptions such as the safety valve are authorized, demographics associated with race relevant to mandatory sentencing continue to show. "Hispanic offenders received relief from applicable mandatory minimum penalties at the highest rates, with rates of 65.9 percent in fiscal year 2000, 57.7 percent in fiscal year 2005, and 55.7 percent in fiscal year 2010. Other Race offenders had the next highest rates (52.8% in fiscal year 2000, 53.1% in fiscal year 2005 and 58.9% in fiscal year 2010). Black offenders consistently had the lowest rates (45.7% in fiscal year 2000, 32.8 percent in fiscal year 2005, and 34.9% in fiscal year 2010). White offenders received relief at 60.3 percent in fiscal year 2000, 42.5 percent in fiscal year 2005, and 46.5 percent in fiscal year 2010." [10]

Arguments for and against mandatory sentencing

Adherents of mandatory sentencing believe that it reduces crime, is fair for any criminals and ensures uniformity in sentencing. The purpose of mandatory sentencing is to act as a general deterrence for potential criminals and repeat offenders, who are expected to avoid crime because they can be certain of their sentence if they are caught.

Opponents of mandatory sentencing point to studies that show criminals are deterred more effectively by increasing the chances of their conviction, rather than increasing the sentence if they are convicted.[23] In a United States Judicial committee hearing, a Utah Judge described mandatory sentencing as resulting in harsh sentencing and cruel and unusual punishment, stating that the sentencing requirements punish defendants "more harshly for crimes that threaten potential violence than for crimes that conclude in actual violence to victims".[24] A hearing in 2009 heard testimony from the American Bar Association which stated that "Sentencing by mandatory minimums is the antithesis of rational sentencing policy"[25] In 2004 the association called for the repeal of mandatory minimum sentences, stating that "there is no need for mandatory minimum sentences in a guided sentencing system."[26] A 1997 study by the RAND Corporation found that mandatory minimums for cocaine offenses were not cost-effective in regards to either cocaine consumption or drug crime.[27]

Mandatory minimum sentencing, especially in relation to alcohol-fueled violence is not effective. When an offender is intoxicated, there will likely be a change in their personality and behaviour, which will then effect their self-control. While an offender may commit an act which is voluntary and intentional, it is not something that they would have done in a sober state.[28] Intoxication is not a justification for criminal behaviour, nor (in most jurisdictions in the U.S. and Commonwealth) a legal defence; but since an intoxicated person's decisions are less likely to be shaped by rational assessment of consequences than those of a sober person, deterrence is likely to be less effective for intoxicated people.

Research indicates that mandatory minimum sentencing effectively shifts discretion from judges to the prosecutors. Prosecutors decide what charges to bring against a defendant, and they can "stack the deck," which involves over-charging a defendant in order to get them to plead guilty.[29] Since prosecutors are part of the executive branch, and the judicial branch has almost no role in the sentencing, the checks and balances of the democratic system are removed; thus diluting the notion of a Separation of Powers.[30] Opponents of mandatory sentencing argue that it is the proper role of a judge, not a prosecutor, to apply discretion given the particular facts of a case (e.g., whether a drug defendant was a kingpin or low-level participant, or whether sex offender registration is an appropriate measure for a given crime and offender). In addition to fairness arguments, some opponents believe that treatment is more cost-effective than long sentences. They also cite a survey indicating that the public now prefers judicial discretion to mandatory minimums.[31]

In 2015 a number of United States reformers, including the ACLU, the Center for American Progress, Families Against Mandatory Minimums, Koch family foundations, the Coalition for Public Safety, and the MacArthur Foundation, announced a bipartisan resolution to reform the criminal justice system and reduce mandatory sentencing laws. Their efforts were lauded by President Obama who noted these reforms will improve rehabilitation and workforce opportunities for those who have served their sentences. In their arguments they noted that mandatory sentencing is often too harsh of a punishment and cripples someone's livelihood for minor crimes.[32][33][34][35][36]

Australia, Mexico, New Zealand and some other countries employ a system of mandatory restorative justice, in which the criminal must apologize to the victim or provide some form of reparation instead of being imprisoned for minor crimes. In serious crimes, some other form of punishment is still used.

People sentenced to mandatory sentences

Footnotes

  1. ↑ Kristen K. Sauer (Jun 1995). Informed Conviction: Instructing the Jury about Mandatory Sentencing Consequences 95. Columbia Law Review. pp. 1232–1272.
  2. ↑ State of Idaho v. Mario A. Ruiz (Court of Appeals of Idaho; February 19, 2009). Text
  3. ↑ Memorandum from Eric H. Holder, Jr., Attorney General of the United States, to U.S. Attorneys and Assistant U.S. Attorneys for the Criminal Division regarding Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (August 12, 2013) available at: http://big.assets.huffingtonpost.com/HolderMandatoryMinimumsMemo.pdf (access date: 28 October 2013)
  4. ↑ Rothwell, V. (2011). Boggs Act. In M. Kleiman, & J. Hawdon (Eds.), Encyclopedia of drug policy. (pp. 96-98). Thousand Oaks, CA: SAGE Publications, Inc. doi: http://dx.doi.org/10.4135/9781412976961.n42
  5. ↑ Busted - America's War on Marijuana: Marijuana Timeline. Frontline (U.S. TV series). Public Broadcasting Service.
  6. ↑ Snitch: Drug Laws and Snitching - a Primer. Frontline (U.S. TV series). The article also has a chart of mandatory minimum sentences for first time drug offenders.
  7. ↑ Thirty Years of America's Drug War. Frontline (U.S. TV series).
  8. ↑ Simons, Michael A. (2002), Departing Ways: Uniformity, Disparity and Cooperation in Federal Drug Sentences 47, Vill. L. Rev., p. 921
  9. 1 2 "EXCEPTION #1 TO MANDATORY MINIMUM SENTENCES: THE FEDERAL SAFETY VALVE FOR DRUG OFFENSES: 18 U.S.C. § 3553(f)" (PDF). FAMM. Retrieved May 6, 2014.
  10. 1 2 3 "Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System". United States Sentencing Commission. Retrieved May 6, 2014.
  11. ↑ https://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/submissions_un_hr_committee/5_mandatory_sentencing.pdf
  12. ↑ Australian Women Lawyer’s Association (1999), Submission to Senate Legal and Constitutional Legislation Committee inquiry into mandatory detention laws, pp. 26–36 https://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/submissions_un_hr_committee/5_mandatory_sentencing.pdf
  13. ↑ http://www.parliament.nsw.gov.au/prod/parlment/nswbills.nsf/0/8E6D73EF3AD93FEDCA25789A002345E2
  14. ↑ http://www.parliament.nsw.gov.au/prod/parlment/nswbills.nsf/0/ACEF6914DAC30C0ECA257C6F0080407D
  15. ↑ [The Honorable Barry O’Farrell MP ‘Lockouts & Mandatory Minimums to be Introduced to Tackle Drug and Alcohol Violence’ (Media Release) 21 January 2014.]
  16. ↑ R v Loveridge [2014] NSWCCA 120 (4 July 2014) (on appeal); R v Loveridge [2013] NSWSC 1638 (8 November 2013) (at first instance); Julia Quilter, “One-Punch Laws, Mandatory Minimums and ‘Alcohol-Fuelled’ as an Aggravating Factor: Implications for NSW Criminal Law” (2014) 3(1) International Journal for Crime Justice and Social Democracy 84.
  17. ↑ "NSW Parliamentary Research Service" (PDF).
  18. ↑ "Kapitel 2 – Lovgivningsmagtens angivelse af strafniveau".
  19. ↑ Chhana, Rajesh; Spier, Philip; Roberts, Susan; Hurd, Chris (March 2004). The Sentencing Act 2002: Monitoring the First Year. pp. 13–14. Retrieved 13 March 2016.
  20. ↑ Text of the Crime (Sentences) Act 1997 and Text of the Crime and Punishment (Scotland) Act 1997 from The Stationery Office
  21. ↑ Text of the Criminal Justice Act 2003 and Text of the Criminal Justice (Scotland) Act 2003 from The Stationery Office
  22. ↑ Barbara S. Meierhoefer, The General Effect of Mandatory Minimum Prison Terms: A Longitudinal Study of Federal Sentences Imposed (Washington DC: Federal Judicial Center, 1992), p. 20. PDF file.
  23. ↑ Does Crime Pay?, By Steven E. Landsburg
  24. ↑ "Mandatory Minimum Terms Result In Harsh Sentencing". Administrative Office of the U.S. Courts. June 26, 2007.
  25. ↑ "Sentencing Commission Takes New Look at Mandatory Minimums". Third Branch News. Administrative Office of the U.S. Courts. June 1, 2010.
  26. ↑ "Sentencing Commission Takes New Look at Mandatory Minimums". Third Branch News. Administrative Office of the U.S. Courts. July 2004.
  27. ↑ Caulkins, Jonathan (1997). "Are Mandatory Minimum Drug Sentences Cost-Effective?". RAND Corporation. Retrieved 29 March 2016.
  28. ↑ R v O’Connor [1980] HCA 17; (1980) 146 CLR 64 (20 June 1980) at 17
  29. ↑ "Longitudinal Study of the Application of Measure 11 and Mandatory Minimums in Oregon" (PDF). Oregon Criminal Justice Commission.
  30. ↑ Magaming v The Queen [2013] HCA 40 AustLII
  31. ↑ Arguments advanced by Families Against Mandatory Minimums
  32. ↑ Mak, Tim (Jan 13, 2015). "Koch Bros to Bankroll Prison Reform". The Daily Beast.
  33. ↑ "Koch brothers join Obama in advocating US prison reform". Russian Today. Jul 17, 2015.
  34. ↑ Horwitz, Sari (Aug 15, 2015). "Unlikely Allies". Washington Post.
  35. ↑ Gass Henry (Oct 20, 2015). "Congress's big, bipartisan success that might be just beginning". Christian Science Monitor.
  36. ↑ Nelson, Colleen Mccain; Fields, Gary (Jul 16, 2015). "Obama, Koch Brothers in Unlikely Alliance to Overhaul Criminal Justice". Wall Street Journal.

See also

References

External links

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