Mandatory sentencing
Encyclopedia
A mandatory sentence is a court decision setting where judicial discretion
is limited by law
. Typically, people convicted of certain crime
s 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 defendant is convicted, because the jury's role is limited to a determination of guilt or innocence. 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.
passed the Boggs Act of 1952 and the Narcotics Control Act of 1956. 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offense a minimum of two to ten years with a fine up to $20,000; however, in 1970, the United States Congress repealed mandatory penalties for cannabis offenses. With the passage of the Anti-Drug Abuse Act of 1986 Congress enacted different mandatory minimum sentences for drugs, including marijuana.
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
. (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.
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. The incarceration rate for men rose by 57% and 67% for indigenous men. The mandatory sentencing laws sparked debate of the laws being discriminative (in-directly) as indigenous people are overrepresented in the crime statistics in the Northern Territory.
has mandatory minimum sentences for murder (five years to life) and regicide
(six years to life), and for carrying an illegal knife (one week).
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.
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.
The State of Florida
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.
Like drug law mandatory minimums these have been criticized for limiting the discretion of judges and the jury and disrupting the balance of power.
introduced a "three strikes law", which was the first mandatory sentencing law to gain widespread publicity. Similar laws were subsequently adopted in most United States
jurisdiction
s. 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. 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. 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
.
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."
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.
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. 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.
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.
Judicial discretion
Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence...
is limited by law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
. Typically, people convicted of certain crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
s must be punished with at least a minimum number of years in prison
Prison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
. Mandatory sentencing laws vary from country to country; it is mainly an area of interest only in Common Law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions, since Civil Law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
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 defendant is convicted, because the jury's role is limited to a determination of guilt or innocence. However, sometimes defense attorneys have found ways to impart this information to juries; for instance, it is sometimes possible, on cross-examination
Cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...
of an informant
Informant
An informant is a person who provides privileged information about a person or organization to an agency. The term is usually used within the law enforcement world, where they are officially known as confidential or criminal informants , and can often refer pejoratively to the supply of information...
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
Idaho
Idaho is a state in the Rocky Mountain area of the United States. The state's largest city and capital is Boise. Residents are called "Idahoans". Idaho was admitted to the Union on July 3, 1890, as the 43rd state....
, it was deemed impermissible.
History
Mandatory sentencing and increased punishment were enacted when the United States CongressUnited States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
passed the Boggs Act of 1952 and the Narcotics Control Act of 1956. The acts made a first time cannabis
Cannabis (drug)
Cannabis, also known as marijuana among many other names, refers to any number of preparations of the Cannabis plant intended for use as a psychoactive drug or for medicinal purposes. The English term marijuana comes from the Mexican Spanish word marihuana...
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. With the passage of the Anti-Drug Abuse Act of 1986 Congress enacted different mandatory minimum sentences for drugs, including marijuana.
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
Hard and soft drugs
Hard and Soft drugs are terms to distinguish between psychoactive drugs that are addictive and perceived as especially damaging and drugs that are believed to be non-addictive and with fewer dangers associated with their use...
.
Across the United States, and at the Federal level, the United States federal courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
are guided by the Federal Sentencing Guidelines
Federal Sentencing Guidelines
The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors in the United States federal courts system...
. (See War on Drugs
War on Drugs
The War on Drugs is a campaign of prohibition and foreign military aid and military intervention being undertaken by the United States government, with the assistance of participating countries, intended to both define and reduce the illegal drug trade...
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
Controlled Substances Act
The Controlled Substances Act was enacted into law by the Congress of the United States as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The CSA is the federal U.S. drug policy under which the manufacture, importation, possession, use and distribution of certain...
, 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.
In 1997, mandatory sentencing laws were introduced by the Northern Territory in Australia. The three strikes and out policy
Three strikes law
Three strikes laws)"are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. These statutes became...
raised incarceration rates of women and indigenous by 216% in the first year. The incarceration rate for men rose by 57% and 67% for indigenous men. The mandatory sentencing laws sparked debate of the laws being discriminative (in-directly) as indigenous people are overrepresented in the crime statistics in the Northern Territory.
Mandatory death sentence
- Both SingaporeSingaporeSingapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
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 SingaporeCapital punishment in SingaporeCapital punishment is a legal form of punishment in Singapore. The city-state had the highest per-capita execution rate in the world between 1994 and 1999, estimated by the United Nations to be 1.357 executions per hundred thousand of population during that period. The next highest was Turkmenistan...
). - In the past TaiwanTaiwanTaiwan , also known, especially in the past, as Formosa , is the largest island of the same-named island group of East Asia in the western Pacific Ocean and located off the southeastern coast of mainland China. The island forms over 99% of the current territory of the Republic of China following...
has had a large number of offenses that carried a mandatory death penalty, but these laws have been relaxed to a large extent recently. - In India, the only crime punishable by a mandatory death sentence is murder by a convict serving a life sentence.
- 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 former British Empire, crimes punishable by a mandatory death sentence included murder, treason, sedition and espionage.
Other
DenmarkDenmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark...
has mandatory minimum sentences for murder (five years to life) and regicide
Regicide
The broad definition of regicide is the deliberate killing of a monarch, or the person responsible for the killing of a monarch. In a narrower sense, in the British tradition, it refers to the judicial execution of a king after a trial...
(six years to life), and for carrying an illegal knife (one week).
In Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, 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.
The State of Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
has a very strict minimum sentencing policy known as 10-20-Life
10-20-Life
The 10-20-Life law is a mandatory minimum sentencing law in the U.S. state of Florida. It primarily regards the use of a firearm in committing a violent felony. The law's name comes from a set of three basic minimum sentences it provides for...
:, 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.
Other mandatory minimums
Drug law is not the only area where there are mandatory minimums, for example trademark violations have mandatory minimums.Like drug law mandatory minimums these have been criticized for limiting the discretion of judges and the jury and disrupting the balance of power.
Three strikes law
In 1994, CaliforniaCalifornia
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
introduced a "three strikes law", which was the first mandatory sentencing law to gain widespread publicity. Similar laws were subsequently adopted in most United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s. 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
Conservative Party (UK)
The Conservative Party, formally the Conservative and Unionist Party, is a centre-right political party in the United Kingdom that adheres to the philosophies of conservatism and British unionism. It is the largest political party in the UK, and is currently the largest single party in the House...
government in 1997. 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
Burglary
Burglary is a crime, the essence of which is illicit entry into a building for the purposes of committing an offense. Usually that offense will be theft, but most jurisdictions specify others which fall within the ambit of burglary...
. An amendment by the Labour
Labour Party (UK)
The Labour Party is a centre-left democratic socialist party in the United Kingdom. It surpassed the Liberal Party in general elections during the early 1920s, forming minority governments under Ramsay MacDonald in 1924 and 1929-1931. The party was in a wartime coalition from 1940 to 1945, after...
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. This resulted in far more life sentences than the 1997 legislation. In response to prison overcrowding, the law was changed in 2008
Criminal Justice and Immigration Act 2008
The Criminal Justice and Immigration Act 2008 is an Act of the Parliament of the United Kingdom which makes significant changes in many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland...
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
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
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
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
.
Race and mandatory sentencing
Concerning federal prisons, Barbara S. Meierhoefer, in her report for the Federal Judicial CenterFederal Judicial Center
The Federal Judicial Center is the education and research agency of the United States federal courts. It was established by an Act of Congress in 1967, at the recommendation of the Judicial Conference of the United States....
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."
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. Potential criminals and repeat offendersRecidivism
Recidivism is the act of a person repeating an undesirable behavior after they have either experienced negative consequences of that behavior, or have been treated or trained to extinguish that behavior...
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.
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. 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.
Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, Mexico
Mexico
The United Mexican States , commonly known as Mexico , is a federal constitutional republic in North America. It is bordered on the north by the United States; on the south and west by the Pacific Ocean; on the southeast by Guatemala, Belize, and the Caribbean Sea; and on the east by the Gulf of...
, New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
and some other countries employ a system of mandatory restorative justice
Restorative justice
Restorative justice is an approach to justice that focuses on the needs of victims, offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender...
, in which the criminal must apologize to the victim or provide some form of reparation
Reparation (legal)
In jurisprudence, reparation is replenishment of a previously inflicted loss by the criminal to the victim. Monetary restitution is a common 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
- Weldon AngelosWeldon Angelos caseThe Weldon Angelos case was a case involving mandatory minimum sentences presented to the United States Supreme Court. The United States Supreme Court declined to hear the case.-Background:...
– 55 years for possessing a handgun while he sold $350 worth of marijuana to a police informant on three separate occasions - Morton BergerMorton BergerMorton Robert Berger is an Arizona high school teacher who was sentenced to 200 years in prison for the possession of 20 images of child pornography. This sentence, which was the minimum available in Arizona law, was upheld by the Arizona Supreme Court in 2006...
– 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 WilsonWilson v. State of GeorgiaWilson v. State, 652 S.E. 2d 501, 282 Ga. 520 was a Georgia court case brought about to appeal the aggravated child molestation conviction of Genarlow Wilson ....
– ten years for aggravated child molestation; released in 2007 after serving two years - Chantal McCorkleChantal McCorkleChantal Watts McCorkle is a British citizen. Along with William J. McCorkle , her American husband, she was tried and convicted in 1998 in Florida for her part in a financial fraud. The McCorkles sold kits purporting to show buyers how to get rich by buying property in foreclosures and...
– 24 years for fraud and conspiracy to commit fraud; sentence subsequently reduced to 18 years on appeal - Richard PaeyRichard PaeyRichard Paey is a Florida man who was incarcerated in 2004 for drug trafficking. There was no evidence he ever distributed or intended to sell any pills, but drug laws in many states, including Florida, allow officials to prosecute for trafficking based solely on the quantity an individual possesses...
– 25 years for 15 counts of drug trafficking and other charges including fraud; released in 2007 after serving three and a half years
Footnotes
Chart of current U.S. federal mandatory minimum drug sentences. U.S. Drug Enforcement Administration. Interfaith Drug Policy Initiative page on Hamedah Hasan Mandatory sentencing for adult property offenders: The Northern Territory Experience (2003)External links
- U.S. Attorneys – Discussion of Selected Section 844 Offenses
- Trends in State Parole, 1990-2000. NCJ 184735. U.S. Bureau of Justice Statistics. October 3, 2001. (BJS). By Allen J. Beck, Ph.D., Timothy A. Hughes, Doris J. James Wilson. "The report compares discretionary and mandatory releases to parole with the type of discharge from parole supervision."
- Mandatory Minimum Sentencing | Drug War Facts. Common Sense for Drug Policy. MM info with sources.