Debate: Mandatory sentencing

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Is mandatory sentencing a good idea?

Background and context

A mandatory sentence is one where judicial discretion is limited by law; those convicted of certain crimes must be punished with at least a minimum number of years in prison. The most famous example of mandatory sentencing is the ‘three strikes and you’re out’ policy adopted first in California in 1994, and now more widespread in the USA (see separate debate on this particular issue). "Three strikes" laws require life imprisonment for a third criminal conviction, but other forms of mandatory sentencing are now being discussed and implemented in various countries. The British Home Secretary Michael Howard implemented a three strike policy in Britain in the mid 1990s, implementing a mandatory minimum three year sentence for a third conviction of burglary. Australia’s Northern Territory in 1997 introduced mandatory sentences of one month to one year for the third offence regarding property and theft. In the USA possession of more than a small amount of a drug is punished by a mandatory harsh sentence. Mandatory life imprisonment has also been proposed in the US Congress for a second sexual offence against children. And at the time of writing (January 2003), the British government is proposing a mandatory five year minimum prison sentence for anyone convicted of carrying a firearm illegally. In addition to these mandatory prison terms, some countries employ a system of ‘mandatory restorative justice’, whereby the criminal has to apologise to the victim, rather than one of imprisonment.[1]

• Wikipedia: Mandatory Sentencing

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Deterrence: Would mandatory sentencing help deter criminal offenses?

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Yes

• Mandatory sentencing acts as a useful deterrent against future crimes. Potential criminals know with certainty what kind of sentence they will face if they are caught, and so are likely to think twice before they act illegally. For the same reason, it is also the most effective way of preventing repeat offences.[2]

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No

• Various studies show that mandatory sentencing does not have a significant deterrent effect on crime: These studies generally conclude that the length or severity of sentence is insignificant to criminals who believe they can act with impunity. The most important consideration for criminals is the risk of their being caught for committing a crime. For this reason, mandatory sentencing does not have a significant chance of deterring crime. We should focus instead upon increasing the size and effectiveness of the police force, as well as other deterrent measures such as closed-circuit television cameras, better street lighting, alarm systems, etc.[3]

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Popular demands: Is there popular pressure for mandatory sentencing?

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Yes

• Popular pressure for a harsher legal system is increasingly strong: Increasing the sentence for recidivism would restore an element of democratic faith in the justice system, and encourage reporting of relatively minor offences.[4]

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No

• Democratic justice is not necessarily a good thing: Studies have shown that, when asked to calculate sentences, the public’s response tends to match that of the judges. Fears that reporting a minor offence would lead to harsh punishment might actually discourage victims coming forward. In the same way, jurors concern that mandatory sentencing might result in disproportionately harsh punishment of convicted defendants could encourage them to acquit against the evidence -- this sometimes occurred in the nineteenth century when crimes such as theft carried the death penalty.[5]

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Judicial discretion: Does mandatory sentencing counter judicial discretion, and is this a good thing?

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Yes

• Mandatory sentencing avoids the problem of judicial discretion, which undermines consistency across an entire country: This leads to uncertainty and a lack of confidence in the judicial system. Mandatory sentences achieve consistency and thus increase confidence in the justice system. At present juries do not know about a defendant’s previous offences, so this will not affect their judgements.[6]

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No

• Mandatory sentencing removes the possibility of judicial discretion, which threatens the principle that the punishment fits the crime: Each case differs enormously in the details of the crime and the circumstances of the convicted defendant, which include the risk of their reoffending and the possibilities of rehabilitation. Judges must have the power to weigh all these complicated factors carefully in determining a just sentence. Mandatory sentencing is a blunt instrument that would be particularly dangerous if juries were to be informed of previous convictions (as has been proposed in the UK).[7]

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Recidivism: Is the problem of recidivism eliminated by mandatory sentencing?

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Yes

• Recidivism is not properly dealt with in many criminal law systems: Mandatory sentencing policies can take into account repeat offences that indicate serious criminal risk -- e.g. three convictions of GBH suggest a highly violent offender. This is the logic behind "three strikes and you’re out" policy pioneered in California, but the principle can be applied in other ways too.[8]

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No

• The chances of recidivism are hugely increased when an individual comes into contact with other members of the prison population: Life imprisonment under "three strikes" when the third felony is relatively minor, and perhaps thirty years after the earlier crimes, is a disproportionate punishment. Previous offences have already been punished, and can be taken into account by the judge during sentencing.[9]

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Mandatory restorative justice: Does mandatory restorative justice a positive step forward?

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Yes

• Mandatory restorative justice is effective: In countries where mandatory restorative justice has been implemented, levels of car theft and low-level burglary were reduced by up to a third. Qualitatively too, victims felt more appeased and criminals showed more remorse.[10]

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No

• Restorative justice does not work in every case: It is only forced on criminals under thirty, and was shown to be ineffective in dealing with drugs crime. Thus it only works in cases where victim and criminal would not normally meet.[11]

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Judicial system: Can the judicial system handle the implementation of mandatory sentencing?

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Yes

• Mandatory sentencing will increase the efficiency of the judicial system: It will free up a bottleneck in the judicial system by removing the need for lengthy and costly pre-sentencing reports, thus increasing efficiency.[12]

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No

• There are not enough prison spaces left to account for the offenders that would fall under mandatory sentencing: As the British and American examples show -- and the latter proves that harsher mandatory sentences do not reduce crime rates, but simply impact disproportionately on minority groups.[13]

• Mandatory sentencing undermines "determinate sentencing" reform.

See also

External links

• Lectic Law Library
• UK Government Proposals
• Liberty (civil rights pressure group)
• Article by ACLU [1]
• Article by ACLU [2]
• Drug Reform Coordination Network
• National Association of Criminal Defence Lawyers
• Police Law
• Australian Parliament

Books:

• A Rage to Punish – the Unintended Consequences of Mandatory Sentencing ^{L. Forer}
• Reform and Punishment: The Future of Sentencing ^{Sue Rex}
• Three Strikes and you’re out: estimated benefits and costs of California’s new mandatory-sentencing law ^{Peter W. Greenwood}