Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures
- 9.1 Deterrence and Incapacitation
- 9.2 General Mandatory Sentencing Laws
- 9.3 Mandatory Sentences for Firearms Offences
From an international perspective, MMS range from fines and license restrictions for impaired driving to life terms and even the death penalty for murder and drug trafficking. Such a wide range of sanctions and triggering offences precludes sweeping generalizations about the impact of MMS. Hence, conclusions about the utility of MMS ought to be qualified, tailored to specific crime categories and sanctions. The severity and inflexibility of some mandatory sentencing policies is such as to place a special onus on proponents to demonstrate that their economic and human costs, as well as their incursion upon the judicial role in sentencing, is warranted by their preventive and other benefits.
This review focused on the utilitarian, as opposed to the retributive or denunciatory aims of MMS. To that end, the manner in which MMS have been implemented was examined to determine whether, in fact, these penalties do increase the certainty and/or severity of penal sanctions. A hydraulic view of the justice system suggests that the removal of discretion at one level (e.g., the judicial) may merely shift it to the prosecutorial level. Crime reduction can be expected only if MMS are applied consistently. Even then, there is no guarantee that they will increase the severity of sanctions, as previous sanctions may have exceeded the statutory minimum introduced. Similarly, MMS may fail to increase the certainty of punishment if prosecutors circumvent them by reducing or dismissing charges and juries are more reluctant to convict defendants they feel would face excessive punishment.
Where MMS are properly applied, their marginal or added benefits over alternative sanctions must be demonstrated. Thus, will a MMS that increases the average prison term for an offence from seven to nine years deter more people from committing that offence or prevent additional crimes through incapacitation? Incapacitation does not always prevent crime (where offenders commit crimes in groups or are replaced in the illicit marketplace) and is thought to provide diminishing returns as offenders age.
Practically speaking, more lengthy MMS must be shown to have deterrent as well as incapacitative effects in order to justify substantial increases in prison populations. The potential crime preventive effects of legal sanctions vary in relation to the target population. The evidence on deterrence suggests that the potential offender population comprises at least two broad groups. Society at large, including more casual offenders, is seen as showing some rationality in the decision to commit crimes and the form such crimes will take. This rationality extends to an awareness of and consideration of risk, including penal sanctions. The second and smaller group is more enmeshed in criminality as a career or lifestyle. Such individuals are more antisocial, less concerned about the consequences of their actions, and less fearful of legal sanctions, including prison.
Deterrent and incapacitation effects may need to be viewed from the perspective of this broad typology. Also important are factors such as age, nature of the offence, and the certainty, severity and celerity of sanctions. For the broader segment of society that is likely to respond to the threat of punishment and moral suasion, it may be that milder, but more certain penalties would constitute the most optimal application of sanctions. From a utilitarian point of view, incapacitating casual or low-rate offenders for long periods is a waste of justice system resources, especially when these individuals may respond to moral appeals and the mere threat of sanctions. Conversely, incapacitation for longer periods may be the only recourse for highly active career criminals who tend not to respond to the threat of sanctions or to moral appeals.
Such variation among offenders has led, over the past 25 years, to occasional calls by influential scholars for the implementation of selective incapacitation strategies; i.e., the neutralization of high-risk offenders based on individual risk factors. However, such preventive confinement is problematic, due to the many prediction errors and undermining of the principles of proportionality and the presumption of innocence. Some predictors (e.g., race or employment history) would be seriously objectionable. Chronic, serious offenders are believed to have an elevated likelihood of detection due to their higher levels of criminal activity and criminal history is believed to be one of the best predictors of recidivism. Consequently, these people might be adequately dealt with under more traditional (retributive) sentencing practices. Courts take the criminal record into account in sentencing and some mandatory sentencing provisions are triggered by a previous conviction.
The present review examined the implementation and impact of MMS, focusing on the last two decades (1980-2000). It relied almost exclusively on American research, due to the dearth of such evaluations in Canada. Initiatives in the United Kingdom, Australia, and Malaysia were also included. This review first examined mandatory sentencing policies that encompassed a broader category of offences. The highly publicized “Three Strikes” law in California is an illustration, as it applies to any felony conviction following two prior convictions for serious crimes. MMS for impaired driving, firearms and drug offences were then examined. Finally, this review examined estimates of the impact of hypothetical MMS arrived at by various statistical models. Following the assessment of the impact of MMS on crime, their economic impact, effects on sentencing disparity, and related issues were discussed.
The evidence was mixed with regard to the impact of more generalized MMS of the “Three Strikes” variety. At best, studies showed modest crime preventive effects. While California showed a sharper decline in crime than other states following implementation of its “Three Strikes” law, communities in that state showed inconsistent effects and studies comparing states with and without such a law show no difference with regard to crime trends. Explanations for the lack of a more dramatic effect include the inconsistent application of such sweeping laws, the small proportion of individuals to whom these laws apply, and the possibility that they provide limited marginal returns as many high-rate offenders may already be incarcerated under existing legislation.
Enhanced sentences for firearms infractions show some promise, although findings here, too, are inconsistent or unclear. Although a major Canadian evaluation suggested that the introduction in 1977 of the one-year mandatory prison term for the use of a firearm in crime (Section 85 of the Criminal Code) was accompanied by a modest decrease in the proportion of homicides and robberies committed by firearms, there was some evidence of a displacement to offences committed by other weapons. A number of serious methodological flaws preclude more definitive assertions about the law's impact. There is evidence that Section 85 has been applied inconsistently and has failed to increase sentence length as judges appear to provide a “going rate” for different crimes, adjusting the sentence for the primary offence downward to compensate for the sentence enhancement. In several American jurisdictions, gun homicides and/or robberies have declined following the introduction of firearm sentence enhancements. The evidence was mixed on the impact of Massachusetts' Bartley-Fox Amendment, a law prescribing a one-year MMS for carrying a gun illegally. Subject to a series of evaluations, this Amendment may have failed to meet expectations due to adaptive behaviour by the police (e.g., searches of suspects became more selective and guns were often confiscated without charges). Perhaps most disconcerting for proponents of firearm sentence enhancements was a study interviewing robbers in Western Australia. That study revealed that the majority of robbers who had used guns indicated they would continue to do so despite their awareness of sentence enhancements and concern about the consequences of repeating their offences.
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