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A mandatory sentence is a controversial 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.

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History

In 1973, New York State introduced mandatory minimum sentences of 15 years to life imprisonment for possession of more than four ounces (112g) 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.[2] (See War on Drugs for more information about U.S. drug laws.)

In March of November 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 the indigenous community statistically commit more crimes overall within the Northern Territory.

Mandatory death sentence

  • Both Singapore and Malaysia have mandatory death penalty for certain offences, most notably murder and possession of a certain amount of illegal drugs. (See Capital punishment in Singapore).
  • 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.
  • 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 Furman v. Georgia.
  • In the former British Empire, crimes punishable by a mandatory death sentence included murder, treason, sedition and espionage.

Other

Denmark 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.

Other mandatory minimums

Drug law is not the only area where there are mandatory minimums, for example trademark violations have mandatory minimums.[1] Like drug law mandatory minimums these can be criticized from taking away power from the both judges and jury and disrupting the balance of power.

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 United States jurisdictions. The law requires imprisonment for a minimum term of 25 years after a defendant is convicted of a third serious felony.

A similar 'three strikes' policy was introduced to the United Kingdom by the Labour government in 1997.[2] 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.[3] 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.

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 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.[4]

Furthermore, opponents of mandatory sentencing argue that judges lose control over sentencing and cannot apply discretion given the particular facts of a case (i.e. whether a drug defendant was a kingpin or low-level participant). In addition to fairness arguments, they 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.[5]

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

  • 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
  • Genarlow Wilson - ten years for aggravated child molestation; released in 2007 after serving two years
  • 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; released in 2007 after serving three and a half years

Footnotes

  1. ^ GovTrack.us. H.R. 4279—110th Congress (2007): Prioritizing Resources and Organization for Intellectual Property Act of 2008, GovTrack.us (database of federal legislation) <http://www.govtrack.us/congress/bill.xpd?bill=h110-4279&tab=summary> (accessed October 16, 2008)
  2. ^ Text of the Crime (Sentences) Act 1997 and Text of the Crime and Punishment (Scotland) Act 1997 from The Stationery Office
  3. ^ Text of the Criminal Justice Act 2003 and Text of the Criminal Justice (Scotland) Act 2003 from The Stationery Office
  4. ^ [1]
  5. ^ Arguments advanced by Families Against Mandatory Minimums

References

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