Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures

1. Introduction

It has been said that mandatory punishments are as old as civilization itself. The biblical lex talionis – an eye for an eye, a tooth for a tooth – was mandatory, leaving little room for clemency or mitigation of punishment. Mandatory penalties were also enshrined in early Anglo-Saxon law, prescribing set fines for every conceivable form of harm (Wallace, 1993). In the United States, mandatory minimum sentences (MMS) date back to 1790 and, since the 1950s, have evoked considerable ambivalence. In American federal law today, over 60 statutes contain MMS, although only four, covering drug and weapons offences, are used with any frequy (Wallace, 1993).

By 1999, The Criminal Code of Canada contained 29 offences carrying MMS (Appendix A). Nineteen of these offences were created in 1995 with the enaencctment of Bill C-68, a package of firearms legislation. MMS appear to be increasing in popularity with Members of Parliament, as shown by the number of private members' bills introduced in the 1999 session (Appendix B). This review was prompted by the increasing interest in MMS, as well as by the controversy surrounding them. The principal aim was to assess the effects of MMS through a review of relevant social science and legal literature.

Several arguments have been advanced in favour of MMS. Proponents believe that these penalties act as a general or specific deterrent; that is, they dissuade potential offenders from offending or actual offenders from re-offending. They also claim that MMS prevent crime by incapacitating or removing the offender from society. Furthermore, MMS may serve a denunciatory or educational purpose, by communicating society's condemnation of given acts. Moreover, MMS are thought to reduce sentencing disparity.

Opponents assert that MMS have little or no deterrent or denunciatory effect. They also maintain that the rigid penalty structure limits judicial discretion, thereby preventing the imposition of just sentences. Furthermore, there is the concern that the rigidity of MMS may result in some grossly disproportionate sentences. In addition, opponents assert that MMS can make it difficult to convict defendants in cases where the penalty is perceived as unduly harsh. Moreover, there is a concern about the fiscal consequences of these penalties, as they may increase the burden on prosecutorial resources and produce substantial increases in prison populations. Finally, MMS may exacerbate racial/ethnic biases in the justice system if they are applied disproportionately to minority groups.

The primary aim of this review was to assess the utilitarian aspects of MMS; that is, the crime preventive, fiscal, and social consequences of MMS, as well as impediments to their implementation. This review did not consider constitutional/Charter issues raised by these penalties.

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