The Good, The Bad, It’s Purpose on Mandatory Minimum Sentencing
Aaron MacKinnon 1060928
Since it's existence, has taken place a controversial disagreement about the effectiveness of mandatory minimum sentencing (MMS) in its ability to reduce recidivism and regulate deterrence of criminal acts that carry mandatory minimum sentences (MMSs). To understand the effectiveness of MMS in the system of rehabilitation one must understand its purpose in the justice system and weigh the pros against the cons.
“In 1995, an amendment to the Criminal Code regarding sentencing was enacted. The new legislation codified the purpose and principles of sentencing. Section 718, of the Criminal Code of Canada states:
718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community. (1995, c. 22, s.6),”” as stated in Roberts, Morek & Cole, 2005, pg. 9).
MMSs play an element to each of these factors and attempt to better the system of sentencing by limiting sentencing disparity and deterring future criminal acts to a greater extent than normal sentencing provisions. According to various sources, "the principle rationale for mandatory minimums is the belief that length of time in prison acts as a deterrent to future recidivism," (Collin, Gendreau & Goggin, 1999, p.3). Now that a purpose for MMS has been established, the pros and cons of this element of sentencing can be determined.
"Supporters of mandatory minimum sentences emphasize the need to ensure that ‘crime does not pay’ and view lengthy prison terms as an effective way of increasing cost of offending. They argue that these sentences
• act as a deterrent;
• prevent future crimes by incapacitating the offender by removing them from society;
• reduce sentence disparity by giving clear guidelines to judges so that all offenders across Canada will receive similar, minimum amounts of time when convicted of the same offence; respond to the public concern that offenders are held accountable for their criminal convictions through imprisonment,” (Goff, 2017, pg. 323-324).
According to Newman, Sather & Woolgar’s argument is that MMS promotes equal and fair judgement against similar crimes with no regard to sociological factors such as race, gender. “It is a concern that crackdowns on crime often seem to have harsher consequences on black, Hispanic and Asian individuals than on white members of the community. But mandatory sentencing is not the cause of this discrepancy – it is an endemic problem for the judicial system and for society as a whole, and has complex socio-economic causes. Black communities are often poorer than white – a hangover of discrimination and inequalities – and poverty causes crime,” (Newman & Woolgar, 2013), just like in the ‘broken windows theory' where visible presentations of crime such as poverty-stricken areas that have crime acted upon it. Poverty feeds into crime and crime causes more poverty and the cycle continues as they induce each other.
Opposers argue that MMS is an economic waste of money. Carlson & Nidey’s (1995) research on “the impact of a two-day minimum jail sentence (along with mandatory participation in an education program) on the processing of domestic assault cases in an Iowa county” (The Canadian Department of Justice, 2015), shows that cases became more complicated and time-consuming. “The investigators also conducted formal interviews with four defence attorneys and one district court judge. The interviews indicated that the MMSs reduced the incentive for defendants to plead guilty, resulting in increased workloads. Public defenders and prosecutors had to prepare for more trials and subpoena more witnesses, court staff had to manage the increase in trial time, and judges had to hear more cases. This relatively mild minimum penalty therefore added substantially to the cost of processing cases.” (The Canadian Department of Justice, 2015). This mandatory minimum sentence scares way accused offenders from pleading guilty because they always believe they can be proven not guilty or, gamble for a lesser sentence if they go through the trial process and reveal all information pertaining to the case.
“Criminal sanctions have been found to carry some deterrent and incapacitative effects (Canadian Sentencing Commission, 1987; Nagin, 1998); however, these effects vary according to a number of factors,” (The Canadian Department of Justice, 2015). One of many factors said by (Zedlewski, 1983) “the nature of the crime. Deterrent effects may be crime-specific. One study, for example, found that the increased certainty of arrest helped lower the burglary rate, while larceny rates were unaffected by police efforts,” as stated in (The Canadian Department of Justice, 2015). Another aspect of (Newman & Woolgar, 2013) agrees with Zedlewski’s statement; they say, “Mandatory prison sentences of, for instance a third burglary conviction, and a 10-year (or life) prison sentences for a third conviction for serious violent or sexual crimes are powerful deterrents in the fight against crime.”
Another factor is “perceptions of the risk of incurring the sanction (Klepper and Nagin, 1989). Generally, those who believe they are likely to be caught and punished will be less likely to commit a criminal act," (The Canadian Department of Justice, 2015). Part of the ‘perceptions of risk factor' is that the deterrence could backfire and cause repeat offenders to become violent in fear of going back for a mandatory minimum time. This is a larger problem of US where their 3-strike provision makes the mandatory minimum a harsher penalty on a third conviction.
In some US states, they have a three-strike provision where an offender’s 3rd convicted offence will present them with a minimum sentence of 25 years to life in prison. This harsher American version of MMS provisions uses an approach that does not always seem just; as 3rd strike offenders are criminals who have two prior convictions and a third would mean a minimum sentence of 25 years in prison no matter the severity of any prior or current crimes.
Judges act as part of the justice system to dispense a just and fair punishment to criminal acts; MMSs prohibit that in favour or against personal and situational bias. Research from a survey of judges (The Canadian Sentencing Commission, 1987) showed that “slightly over half felt that minimum sentences impinged on their ability to impose a just sentence and that inappropriate agreement between defence and Crown counsel may result,” as stated in Roberts, et al, 2005, pg. 10). MMS “aims to provide for greater consistency in sentencing and to reflect community expectations of punishment more closely,” (Hoel & Gelb, 2008, pg 12).
To conclude, MMS is a system that attempts to promote justice in a higher consistent, efficient, and just manner. Some good comes from MMS at times such as its ability to deter more effectively such as the 3rd strike provision in the US, over normal prison sentencing practices. The bad being when the deterrent doesn't work and criminals receive mandatory minimums longer than the judge may have sentenced if had a larger say in sentencing. Which may lead to more convicted criminals to be in prison longer than they need and costing more than they should. MMS has its own fair share of good and bad and will constantly needed to be modified just as everything else changes according to the rule of law.
10 Reasons to Oppose "3 Strikes, You're Out". (n.d.). Retrieved November 24, 2018, from https://www.aclu.org/other/10-reasons-oppose-3-strikes-youre-out
Canadian Department of Justice. (2015). Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures. Retrieved November 19, 2018, from https://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr02_1/p1.html.
Canadian Department of Justice. (2018, July 16). Research at a Glance. Retrieved from https://www.justice.gc.ca/eng/rp-pr/jr/rg-rco/2018/jul/jul01.html
Canadian Department of Justice. (2018, July 05). Research at a Glance. Retrieved from https://www.justice.gc.ca/eng/rp-pr/jr/rg-rco/2018/mar02.html
Cassell, P., & Luna, E. (2011). Sense and Sensibility in Mandatory Minimum Sentencing. Federal Sentencing Reporter, 23(3), 219-227. doi:10.1525/fsr.2011.23.3.219
Fine, S. (2018, March 6). Mandatory-minimum sentencing rules unravelling into patchwork. The Globe and Mail. Retrieved November 22, 2018, from https://www.theglobeandmail.com/news/national/mandatory-minimum-sentencing-rules-unravelling-into-patchwork/article38205652/
Gallant, J. (2018, July 10). Federal government urged to rein in mandatory minimum sentences. The Star. Retrieved November 25, 2018, from https://www.thestar.com/news/canada/2018/07/10/federal-government-urged-to-rethink-reliance-on-mandatory-minimum-sentences.html
Gendreau, P., Cullen, F. T., & Goggin, C. (1999). The Effects of Prison Sentences on Recidivism, 3-4. Retrieved November 23, 2018, from http://madgic.library.carleton.ca/deposit/govt/ca_fed/publicsafety_prisonsentences_1999.pdf
Golash-Banza, T. (2017, June 1). Column: 5 charts show why mandatory minimum sentences don’t work. PBS News Hour. Retrieved November 24, 2018, from https://www.pbs.org/newshour/politics/5-charts-show-mandatory-minimum-sentences-dont-work
Hoel, A. & Gelb, K. (2008). Sentencing Matters: Mandatory Sentencing, 1-21. Retrieved from https://www.sentencingcouncil.vic.gov.au/sites/default/files/publication-documents/Mandatory Sentencing Sentencing Matters Research Paper.pdf.
Lufkan, B. (2018, May 15). The myth behind long prison sentences. BBC. Retrieved November 23, 2018, from http://www.bbc.com/future/story/20180514-do-long-prison-sentences-deter-crime
Malcolm, J. (2014). The Case For the Smarter Sentencing Act. Federal Sentencing Reporter, 26(5), 298-301. doi:10.1525/fsr.2014.26.5.298
McMILLION, R. (1993). Hard Time: Mandatory minimum sentencing comes under congressional scrutiny. ABA Journal, 79(3), 100-100. Retrieved from http://www.jstor.org.subzero.lib.uoguelph.ca/stable/27832890
Mueller, R. (1992). Mandatory Minimum Sentencing. Federal Sentencing Reporter, 4(4), 230-233. doi:10.2307/20639453
Nachmanoff, M. S., Baronevans, A., Nachmanoff, M. S., & Baronevans, A. (2009). BookerFive years out: Mandatory minimum sentences and department of justice charging policies continue to distort the federal sentencing process. Federal Sentencing Reporter, 22(2), 96-99. doi:10.1525/fsr.2009.22.2.96
Newman, D., Sather, T., & Woolgar, B. (Eds.). (2013). Pros and Cons: A Debaters Handbook. Abingdon-on-Thames: Routledge.
Roberts, J. V., Morek, R., & Cole, M. (2005). Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models. Canadian Department of Justice Research And Statistics Divison. Retrieved November 21, 2018, from https://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr05_10/index.html.