Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models

1. Introduction

1. Introduction

Mandatory sentences of imprisonment exist in most western nations as well as many non-western countries. [1] During the 1990s, the number of mandatory penalties in these countries increased significantly. Since then, initiatives have been launched in a number of jurisdictions to repeal or amend the more punitive mandatory sentencing laws. The purpose of this report is to describe the principal mandatory sentence laws [2] in a number of representative western jurisdictions. The report is divided into sections, with each section devoted to a specific jurisdiction.

The report reviews the principal mandatory sentences of imprisonment applicable to adult offenders. A number of jurisdictions such as the Northern Territories in Australia have created mandatory sentences for juveniles. In light of the different sentencing purposes and principles applicable to juvenile offenders, these laws are not covered in this report. In addition, since a mandatory sentence for murder exists in all jurisdictions, this offence will not be examined in depth in the review. The review also excludes mandatory sentences in which imprisonment is one of two possible sentencing options. Provisions pertaining to breaches of orders are also omitted from this survey. (For example, a number of jurisdictions create a mandatory obligation on courts to imprison offenders found to have breached the conditions of a home confinement order.)

The following information is provided for each jurisdiction:

  • an overview of the statutory sentencing framework;
  • a description of the principal mandatory sentences of imprisonment;
  • a commentary on recent developments regarding mandatory sentencing (wherever possible). This material reflects discussions with key informants in a number of jurisdictions; and
  • a bibliography for further reading.

The following jurisdictions are included in the review: Canada; England and Wales; Scotland; Ireland; Australia (Victoria; Northern Territories; Queensland; New South Wales; Northern Territories); New Zealand and South Africa. Particular attention is paid to Australia in light of the diversity of approaches to sentencing that has been adopted in that jurisdiction.

The focus of the report is on the number and nature of mandatory sentences; however, wherever possible, information is included on the effect of the mandatory sentence legislation. Regrettably, few jurisdictions have undertaken empirical research on the impact of mandatory sentencing on crime rates or prison populations. This absence of empirical research is unfortunate. The principal justification for the creation of mandatory sentences of imprisonment is that by increasing the likelihood of custody, they will provide a greater deterrent to criminal behaviour. For example, mandatory sentences have been introduced in a number of countries for offences committed with a firearm. The justification for this sentencing policy is that it will result in fewer gun-related crimes.

Generally speaking, mandatory sentences of imprisonment in western nations can be classified into three [3] categories:

  1. mandatory sentences of imprisonment that do not allow discretion below or above a specific sentence. This form of mandatory sentence is usually reserved for murder. For example, in Canada , first degree murder carries a mandatory sentence of life imprisonment with no possibility of parole until the offender has served at least 25 years in prison. Courts have no discretion to impose a lesser sentence, or a no-parole period in excess of 25 years.
  2. mandatory minimum sentences of imprisonment that require courts to impose a sentence of at least "x"; years. Courts may impose a harsher sentence (up to the statutory maximum) but are not allowed to impose a sentence below the minimum prescribed. The Canadian firearm mandatory minima represent an example of this form of mandatory sentence. When an offender is convicted of an enumerated offence using a firearm, courts must impose a term of at least four years in custody.
  3. mandatory sentences of custody that permit the court to impose a lesser, or even a non-custodial sentence in the event that exceptional circumstances exist (the mandatory sentences for repeat serious offenders in England, Wales and South Africa are examples of this kind of mandatory sentence).

Clearly, these categories of sentences represent different degrees limiting judicial discretion at sentencing. Although the current research encompasses only a limited number of jurisdictions, it is apparent that most mandatory sentences fall into the third category that permits some discretion for the courts to impose a lesser sentence. This form of mandatory sentence characterizes legislation found in countries such as South Africa .

1.1 Mandatory Sentencing and Public Opinion

Although this report deals only with the statutory regimes with respect to mandatory sentences of imprisonment, it is worth noting that there is evidence from a number of jurisdictions that public support for mandatory sentencing has declined over the past decade. Mandatory sentences of imprisonment represent the most punitive sentencing reforms of recent years and are found in many western nations. Often justified by reference to public opinion, they have proved highly controversial in practice. Where do members of the public stand with respect to the issue?

Few studies have addressed public knowledge of statutory minimum penalties; fortunately, the surveys that exist on this issue have generated the same findings: the general public has little knowledge of the offences that carry a mandatory minimum penalty, or of the magnitude of the statutory minima . For example, in 1998, members of the public responding to the British Crime Survey (BCS) were asked if they were aware of the mandatory minimum prison term of three years for offenders convicted of burglary (see Roberts, 2003). Even though this mandatory sentence had been the object of considerable media attention, less than one quarter of the sample responded affirmatively. This finding is consistent with earlier research in Canada that found that very few members of the public had any idea which offences carried a mandatory sentence (Roberts, 1988). [4]

1.2 Attitudes to mandatory sentencing in the U.S. , Australia and Britain

The limitations of opinion polls as a tool to understanding public opinion are apparent in the area of mandatory sentencing. A clear split can be seen with respect to the portrait of public opinion that emerges from standard polls, and other research approaches in which the public is provided with more than a simple question to answer. When simple questions are put to the public, they tend to tap into a vein of punitiveness as the respondents tend to think of the worst case scenarios. For example, when a poll asked people in Britain whether they supported or opposed a "three-strikes"; mandatory sentencing scheme whereby offenders automatically receive a prison sentence if they have been convicted of any three crimes, exactly four out of five respondents expressed their support (Observer, 2003). Similarly, when Americans were asked their reaction to a "three-strikes"; law for offenders convicted of a third violent felony, almost 90% were in favour (Roberts and Stalans, 1997). When questions are phrased in such a way, respondents are not given a chance to think through the consequences (or costs) of such a sentencing policy; nor are they encouraged to think of the kinds of cases for whom a three-strike sentence of custody may be appropriate. [5]

Applegate, Cullen, Turner and Sundt (1996) explored attitudes towards "three- Strikes"; mandatory sentencing laws using a random sample of Ohio residents. Respondents were first asked whether they supported or opposed implementing a "three-strikes"; law in their state. Most (88%) expressed their support for the proposal. These same respondents were then given a series of cases to consider that met the three strikes criteria, and were asked to select an appropriate sentence. Support for the Three Strikes law declined significantly once respondents had to consider individual cases. In fact, on average, only 17% of the sample elected to impose the mandatory sentence. Additional analyses demonstrated that the public supported making a number of exceptions to the "three-strikes"; law. In other words, they were clearly uncomfortable with the mandatory nature of the legislation. Applegate et al. (1996) concluded that: "these findings suggest that citizens would endorse three-strikes policies that focus on only the most serious offenders and that allow for flexible application "; (p. 517 (emphasis added)). The true level support for mandatory sentencing (or any other complex issue in the area of criminal justice) can only be determined by providing more information and specific examples, in a manner such as the one employed by Applegate et al. (1997).

There is clear evidence that even in the United States , where support is stronger for mandatory sentences, public support for the concept is declining. For example, in 1995 over half of the sampled public in the US held the view that mandatory sentences were a good idea (Roberts, 2003). In 2001, this percentage had declined to slightly more than one-third of respondents (Peter D. Hart Research Associates, 2002; Roberts, 2003). In fact, over half the polled public in the US now favour the elimination of "three-strikes"; mandatory sentences (Peter D. Hart Research Associates, 2002). The most recent polling on the issue of mandatory sentencing comes from the state of New Jersey . When asked whether mandatory jail or mandatory drug treatment was the more effective approach to non-violent offenders, respondents chose treatment over imprisonment by a three to one ratio (Eagleton Institute of Politics Center for Public Interest Polling, 2004). Three-quarters of the sample favoured allowing judges to set aside mandatory sentences "if another sentence would be more appropriate"; (Eagleton Institute of Politics Center for Public Interest Polling, 2004). Taken together, these results suggest that the impact and realities of mandatory minimum sentences are starting to be understood by the general public.

1.3 Trends in Mandatory Sentencing Legislation

After a decade in which a number of common law countries enacted mandatory sentencing legislation, there is clear evidence that several jurisdictions are now either repealing or amending these punitive laws. For example, in 2002 the Michigan mandatory sentencing laws were significantly amended. The effects of these amendments include the following:

  • elimination of mandatory minimum sentencing for certain controlled substance violations;
  • creation of provisions that permit courts to consider important mitigating factors; and
  • revision of the quantities of drug that trigger certain sentences.

This movement towards a more flexible, judge-determined sentencing scheme is a result of several factors with international repercussions including:

  • a shift in public opinion away from supporting strict mandatory minimum sentencing (see above);
  • the impact of Advocacy groups such as Families Against Mandatory Minimums Foundation (FAMM) [6];
  • growing public disenchantment with the "War on Drugs"; that initially triggered many of the most punitive mandatory sentencing laws (see Eagleton Institute of Politics Center for Public Interest Polling, 2004);
  • news media coverage of "three-strikes"; cases in which offenders whose "third strike"; consisted of a less serious felony and stories of offenders receiving lengthy prison terms for offences such as stealing a bicycle from a garage have undermined public support for this kind of sentencing; and
  • growing concern among criminal justice professionals that mandatory sentences have played an important role in keeping prison populations from declining, even in an era of falling crime rates.

1.4 The Future of Mandatory Sentencing

It would be overstating the case to say that the pendulum has swung away from mandatory sentencing to a model of sentencing that privileges judicial discretion. However, it is clear that public and legislative interest in mandatory sentencing laws has declined, and is likely to continue to decline in the near future. Although the public supports tough sentencing measures for violent offenders, the experience with mandatory sentencing legislation in a number of countries has shown that these laws do little to promote public confidence in the sentencing process.

1.5 References and Further Reading



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