Mandatory sentencing

Criminal procedure
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Sentencing
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Post-sentencing
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1 US courts. 2 Not in English/Welsh courts. 3 Scottish courts. 4 English/Welsh courts. 5 Canadian courts. 6 UK courts.
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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 defendant 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]

History

Mandatory sentencing and increased punishment were enacted when the United States Congress 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offense a minimum of two to ten years with a fine up to $20,000; however, in 1970, the United States Congress repealed mandatory penalties for cannabis offenses.^[3] With the passage of the Anti-Drug Abuse Act of 1986 Congress enacted different mandatory minimum sentences for drugs, including marijuana.^[4][5]

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.^[6]

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 (in-directly) as indigenous people are overrepresented in the crime statistics in the Northern Territory.^{[citation needed]}

Mandatory death sentence

• 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).
• 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 Woodson v. North Carolina.
• 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).^{[citation needed]}

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.^[7] 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

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 United States 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.^[8] 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.^[9] 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

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."^[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. 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.^[11]

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.^[12] 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.^[13]

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; each count represented a separate child pornography image he had possessed
• 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. ^ 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. ^ Busted - America's War on Marijuana: Marijuana Timeline. Frontline (U.S. TV series). Public Broadcasting Service.
4. ^ 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.
5. ^ Thirty Years of America's Drug War. Frontline (U.S. TV series).
6. ^ Simons, Michael A. (2002), Departing Ways: Uniformity, Disparity and Cooperation in Federal Drug Sentences, 47, Vill. L. Rev., pp. 921, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/vllalr47&section=39 
7. ^ GovTrack.us. Senator Conroy 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)
8. ^ Text of the Crime (Sentences) Act 1997 and Text of the Crime and Punishment (Scotland) Act 1997 from The Stationery Office
9. ^ Text of the Criminal Justice Act 2003 and Text of the Criminal Justice (Scotland) Act 2003 from The Stationery Office
10. ^ 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.
11. ^ Does Crime Pay?, By Steven E. Landsburg
12. ^ "Longitudinal Study of the Application of Measure 11 and Mandatory Minimums in Oregon". Oregon Criminal Justice Commission. http://www.oregon.gov/CJC/docs/Measure_11_Analysis_Final.pdf?ga=t. 
13. ^ Arguments advanced by Families Against Mandatory Minimums

• ^ 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)

References

• Boatwright v. State – Supreme Court of Florida
• Paey v. State – Supreme Court of Florida
• State of Pennsylvania v. Shiffler
• Tronsoco v. State of Florida
• Tango v. State Parole Board of New Jersey(broken link)
• State of Florida v. Christian
• Mandatory sentencing briefing NT
• http://www.law4u.com.au/lil/ls_mandatory.html

See also

• Fact bargaining
• Fair Sentencing Act

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.