Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures
6. Mandatory penalties and sentencing disparities (continued)
The Crime Sentences Act of 1997 in the United Kingdom established MMS for a second serious violent or sexual offence, for a third drug trafficking or residential burglary offence, and for repeat offenders (Laing, 1997). The Act contains a safety valve, allowing the court to override the MMS in exceptional circumstances. In the case of an offender with a mental disorder, the Act authorizes the court, in its discretion, to direct an offender who has received a prison sentence to be admitted instead to a hospital for treatment. Objections to imposing MMS on these offenders include the notion that long custodial sentences for such offenders are inappropriate and the fear that these penalties will create an increase in insanity and related defences. A further concern is that therapeutic interventions for mentally disordered offenders will be thwarted.
The concern has been expressed that women may be affected disproportionately by MMS (Canadian Association of Elizabeth Fry Societies, 2001; Casey and Wiatrowski, 1996). It is argued that imprisonment places additional burdens on women, due to their familial responsibilities, the inadequate programs available in prisons for women, and the greater distances of women's institutions from their homes. These concerns are especially germane to the situation of Canadian women who are serving federal terms in predominantly male institutions. The equalizing tendency of MMS is said to create gender disparities as sentences of equal length for men and women are thought to weigh more heavily on the latter. Also, Raeder (1993) points out that women in abusive relationships may be coerced into participating in crimes and, therefore, such mitigating circumstances ought to be taken into account.
MMS do not necessarily stand to reduce disparities in sentencing. Judicial discretion is, to some extent, replaced by prosecutorial discretion, producing a loss of transparency in decision-making. In California, under the Three Strikes law, prosecutors and even judges ignore previous convictions where they feel the defendant deserves leniency. MMS do not appear to promote equity in sentencing as they seem to be applied disproportionately to low-level offenders and those from minority groups. One reason is that high-level offenders (e.g., drug kingpins) have more information to trade in return for more lenient treatment. Women and aboriginal peoples may suffer disproportionately from the privations associated with MMS.
Furthermore, it has been argued that the imposition of uniformity in sentencing may create other disparities as different offenders are treated similarly. The offender's degree of culpability and role in the offence are ignored when sentencing is based exclusively on the nature of the infraction.
- Date modified: