Mandatory sentencing

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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.

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. This 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 will 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[edit]

United States[edit]

Mandatory sentencing and increased punishment were enacted when the United States Congress passed the Boggs Act of 1952. 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offense a minimum of two to ten years with a fine up to $20,000; however, in 1970, the United States Congress repealed mandatory penalties for cannabis offenses.[4] With the passage of the Anti-Drug Abuse Act of 1986 Congress enacted different mandatory minimum sentences for drugs, including marijuana.[5][6]

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.

Across the United States, and at the Federal level, the United States federal courts are guided by the Federal Sentencing Guidelines.[1] (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. If he does not file it, then the mandatory minimum will not be applied.[7]

Australia[edit]

In 1997, mandatory sentencing laws were introduced by the Northern Territory in Australia. The three strikes and out policy raised incarceration rates of women and indigenous by 216% in the first year.[citation needed] The incarceration rate for men rose by 57% and 67% for indigenous men.[citation needed] 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.[citation needed]

Mandatory death sentence[edit]

  • Both Singapore and Malaysia have mandatory death penalty for certain offences, most notably murder and possession of a certain amount of controlled drugs (See Capital punishment in Singapore and Capital punishment for drug trafficking).
  • In the past, Taiwan has had a large number of offenses that carried a mandatory death penalty, but these laws have been relaxed to a large extent recently.[when?]
  • In India, the only crime punishable by a mandatory death sentence is murder by a convict serving a life sentence. The mandatory death penalty provided in Section 31A of India Law is in the nature of minimum sentence in respect of repeat offenders of specified activities and for offences involving huge quantities of specified categories of narcotic drugs.
  • In Japan, the only crime punishable by a mandatory death sentence is instigation to a foreign aggression.
  • In the United States, mandatory death sentences are unconstitutional since Woodson v. North Carolina.
  • In the United Kingdom, crimes punishable by a mandatory death sentence included murder (until 1957; from 1957 to 1965, only if certain aggravating criteria were met), treason (until 1998), sedition and espionage.
  • In Canada, murder was only punishable by death if the offender was a sane adult until 1961.
  • Under Beneš decree No. 16/1945 Coll., ratting to Nazi authorities during World War Two's German occupation of Czechoslovakia was subject to mandatory death sentence if it led to death of the person concerned by the ratting.

Other[edit]

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.[8]

In Australia, 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.[citation needed]

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.[citation needed]

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.[citation needed]

Three strikes law[edit]

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.[9] 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.[10] 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[edit]

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."[11]

Arguments for and against mandatory sentencing[edit]

Adherents of mandatory sentencing believe that it reduces crime, is fair for any criminals and ensures uniformity in sentencing. Potential criminals and repeat offenders 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.[12] 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".[13] 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"[14] 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."[15]

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.[16] 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. 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). 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.[17]

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[edit]

  • Weldon Angelos – 55 years for possessing a handgun while he sold $350 worth of marijuana to a police informant on three separate occasions
  • Morton Berger – 200 years without probation, parole or pardon for twenty counts of sexual exploitation of a minor; each count represented a separate child pornography image he had possessed
  • Genarlow Wilson – 10 years for aggravated child molestation; released in 2007 after serving four years because the courts decided his sentence was disproportionate to the actual facts of the crime
  • Chantal McCorkle – 24 years for fraud and conspiracy to commit fraud; sentence subsequently reduced to 18 years on appeal
  • Richard Paey – 25 years for 15 counts of drug trafficking and other charges including fraud; granted a pardon in 2007 after serving three and a half years due to the circumstances of his drug use
  • Timothy L. Tyler - Life in prison for possessing 13 sheets of LSD.

Footnotes[edit]

  1. ^ Kristen K. Sauer (Jun 1995). Informed Conviction: Instructing the Jury about Mandatory Sentencing Consequences 95 (5). 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 (Aug. 12, 2013) available at: http://big.assets.huffingtonpost.com/HolderMandatoryMinimumsMemo.pdf (access date: 28 October 2013)
  4. ^ Busted - America's War on Marijuana: Marijuana Timeline. Frontline (U.S. TV series). Public Broadcasting Service.
  5. ^ 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.
  6. ^ Thirty Years of America's Drug War. Frontline (U.S. TV series).
  7. ^ Simons, Michael A. (2002), Departing Ways: Uniformity, Disparity and Cooperation in Federal Drug Sentences 47, Vill. L. Rev., p. 921 
  8. ^ "Kapitel 2 – Lovgivningsmagtens angivelse af strafniveau". 
  9. ^ Text of the Crime (Sentences) Act 1997 and Text of the Crime and Punishment (Scotland) Act 1997 from The Stationery Office
  10. ^ Text of the Criminal Justice Act 2003 and Text of the Criminal Justice (Scotland) Act 2003 from The Stationery Office
  11. ^ 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.
  12. ^ Does Crime Pay?, By Steven E. Landsburg
  13. ^ "Mandatory Minimum Terms Result In Harsh Sentencing". Administrative Office of the U.S. Courts. June 26, 2007. 
  14. ^ "Sentencing Commission Takes New Look at Mandatory Minimums". Third Branch News. Administrative Office of the U.S. Courts. June 1, 2010. 
  15. ^ "Sentencing Commission Takes New Look at Mandatory Minimums". Third Branch News. Administrative Office of the U.S. Courts. July 2004. 
  16. ^ "Longitudinal Study of the Application of Measure 11 and Mandatory Minimums in Oregon". Oregon Criminal Justice Commission. 
  17. ^ Arguments advanced by Families Against Mandatory Minimums

See also[edit]

References[edit]

External links[edit]