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Mandatory sentencing requires that offenders serve a predefined term for certain crimes, commonly serious and violent offenses. Judges are bound by law; these sentences are produced through the legislature, not the judicial system. They are instituted to expedite the sentencing process and limit the possibility of irregularity of outcomes due to judicial discretion.[1] Mandatory sentences are typically given to people who are convicted of certain serious and/or violent crimes, and require a prison sentence. Mandatory sentencing laws vary across nations; they are more prevalent in common law jurisdictions because civil law jurisdictions usually prescribe minimum and maximum sentences for every type of crime in explicit laws.

Mandatory sentencing laws often target "moral vices" (such as alcohol, sex, drugs) and crimes that threaten a person's livelihood.

United States federal juries are generally not allowed to be informed of the mandatory minimum penalties that may apply if the accused is convicted because the jury's role is limited to a determination of guilt or innocence.[5] However, defense attorneys sometimes have found ways to impart this information to juries; for instance, it is occasionally possible, on cross-examination of an informant who faced similar charges, to ask how much time he was facing. It is sometimes deemed permissible because it is a means of impeaching the witness. However, in at least one state court case in Idaho, it was deemed impermissible.[6]

Notably, capital punishment has been mandatory for murder in a certain number of jurisdictions, including the United Kingdom until 1957 and Canada until 1961.

History


Throughout US history prison sentences were primarily founded upon what is known as Discretionary Sentencing.

Now that historical practices of sentencing have been introduced, it is just as important to outline examples in reference to (1) policy decisions, (2) factual decisions, and (3) decisions applying policy vs. decisions to particular facts.

  • Policy Decisions – Policy guidelines that determine what should be acknowledged in an individuals sentencing criteria.
  • Factual Decisions – A review of details that would enable particular policies to be applied at the discretion of the assigned judge.

Their actions would result in punishment as a part of the sentencing process, regardless of the type of weapon in question.

  • Decisions Applying Policy vs. Decisions to Particular Facts - This form of application is the core of discretionary sentencing.

Overtime the United States has under gone developmental growth in implementation of laws, sentencing guidelines and monumental transition points in time.

  • 1st Offense: 2–5 years.
  • 2nd Offense: 5–10 years.

The Anti-Drug Abuse Act of 1986 is the one act known for shaping America.

  • 5g. of Crack vs. 500 g. of Powder Cocaine resulted in a minim sentencing of 5 years.
  • 50 g. of Crack vs. 5,000 g. of Powder Cocaine resulted in a minim sentencing of 10 years.
  • 50 g. of Powder Cocaine imported resulted in No Mandatory Sentence

Separate from each state's own courts, federal courts in the United States are guided by the Federal Sentencing Guidelines. [13][14](See War on Drugs for more information about US drug laws.) When a guideline sentencing range is less than the statutory mandatory minimum, the latter prevails. Under the Controlled Substances Act, prosecutors have great power to influence a defendant's sentence and thereby create incentives to accept a plea agreement. In particular, defendants with prior drug felonies are often subject to harsh mandatory minimums, but the prosecutor can exercise his discretion to not file a prior felony information. Then the mandatory minimum will not be applied.[[CITE|undefined|https://web.archive.org/web/20120401073014/http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals%2Fvllalr47§ion=39]]

Safety Valve[16] was created in 1994 to reduce mandatory sentencing for drug offenders under the following provisions:

In October 2011 a report was issued to assess the impact of United States v. Booker mandatory minimum penalties on federal sentencing by the United States Sentencing Commission.[17]

In 2013, United States Attorney General Eric H. Holder, Jr. announced that the Justice Department would follow a new policy restricting mandatory minimum sentences in certain drug cases. Prosecutions dropped, drug enforcement agent morale dropped, and fentanyl and heroin overdoses soared, reported The Washington Post in 2019.[18] In Alleyne v. United States (2013) the Supreme Court held that increasing a sentence past the mandatory minimum requirement must be submitted by a jury and found factual beyond a reasonable doubt. It increases the burden on the prosecutor to prove that the sentence is necessary for the individual crime by requiring that a mandatory minimum sentence be denied for defendant unless they fulfill certain criteria. Attorney General Holder held that the charges placed on an individual should reflect the uniqueness of the case and consideration in assessing and fairly representing his/her given conduct. This is supposed to prevent recidivism.[19]

Criminal justice advocates in the United States argue that mandatory minimum sentences are a major cause of the removal of the "bottom income half to quartile" of its population from the general public.

The U.S. state of Florida has a 10-20-Life mandatory sentence law regarding sentences for the use of a firearm during the commission of another crime, and many PSA posters were created after the law was passed, which coined the slogan “Use a gun, and you’re done.” It gave a minimum mandatory sentence of 10 years if the offender pulls a gun, but does not fire a shot, 20 years if at least one shot is fired, and 25 years to life if the offender shoots someone. It has significantly reduced the amount of repeat offenders in the state since.

In 1996, 12 month mandatory sentencing laws around third offence home burglary were introduced by Western Australia through amendments to the 1913 Criminal Code.[20] In 1997 mandatory sentencing was introduced to the Northern Territory in Australia.

New South Wales has two mandatory sentences currently.

Life imprisonment is mandatory for murder in Queensland, South Australia, and the Northern Territory.

Australia also has legislation allowing mandatory prison sentences of between five and 25 years for people smuggling, in addition to a fine of up to $500,000, and forfeiture and destruction of the vessel or aircraft used in the offence.[26]

In 2017, the government of Victoria introduced a "two-strike" policy, with a minimum six-year jail sentence for repeat violent offenders.[27]

Victoria also has a mandatory 10 year minimum sentence for people convicted of killing someone in a so-called "one punch" attack.

Mandatory death sentence


  • In Canada until 1961, murder was punishable only by death, provided that the offender was a sane adult.
  • In 1930, the city of Canton (now Guangzhou), in China, enacted a mandatory death penalty for three-time offenders.[28]
  • In Czechoslovakia, under Beneš decree No. 16/1945 Coll., informing to German authorities during World War II's occupation was subject to mandatory death sentence if it led to death of the person concerned by the act.
  • In pre-1833 France, before jury were allowed to find mitigating circumstances to felonies, death penalty was the only available sentence for capital offenses.
  • In Hong Kong, murder carried a mandatory death sentence until 1993 when capital punishment was legally abolished. However, the last execution was in 1966; since then all death sentences were automatically commuted into life imprisonment.
  • In India, murder committed by a convict serving a life sentence carries a mandatory death sentence. The mandatory death penalty provided in Section 31A of India Law is in the nature of minimum sentence in respect of repeat offenders of specified activities and for offences involving huge quantities of specified categories of narcotic drugs. As of August 2005, aircraft hijacking also mandates use of the death penalty.[29]
  • In Japan, the only crime punishable by a mandatory death sentence is instigation of foreign aggression.
  • In Malaysia and Singapore, there is a mandatory death penalty for certain offences, most notably murder and possession of a certain amount of controlled drugs (see Capital punishment in Singapore and Capital punishment for drug trafficking).
  • In Taiwan, there used to be a large number of offenses that carried a mandatory death penalty; by 2006 all these laws have been relaxed to permit judicial discretion.
  • In the United Kingdom, crimes punishable by a mandatory death sentence included murder (until 1957; from 1957 to 1965, only if certain aggravating criteria were met), treason (until 1998), sedition and espionage.
  • In the United States, mandatory death sentences have been unconstitutional since Woodson v. North Carolina; they were mainly used for murder and assault by life convicts.[30]

Other


Denmark has mandatory minimum sentences for murder (five years to life) and regicide (life in prison § 115), deadly arson is punished with imprisonment from 4 years to life, and for an illegal loaded gun one year in state prison.[31]

The state of Florida in the United States has a very strict minimum sentencing policy known as 10-20-Life, which includes the following minimums: 10 years' imprisonment for using a gun during a crime, 20 years' imprisonment for firing a gun during a crime, and 25 years' imprisonment in addition to any other sentence for shooting somebody, regardless of whether they survive or not.[32]

In Canada and Ireland, life imprisonment is mandatory for murder if committed, at the time of the offence, as an adult. Parole ineligibility periods vary, but under Irish and Canadian law, are not less than 7 and 10 years, respectively.

In New Zealand, life imprisonment is mandatory for murder. Murders with certain aggravating factors have a mandatory 17-year non-parole period, instead of the default 10 years for life imprisonment. Since 2002, judges have the ability to overrule mandatory sentences where they would be deemed "manifestly unjust", such as in cases involving mercy killings and failed suicide pacts.[33]

In Germany, murder for pleasure, sexual gratification, greed or other base motives, by stealth or cruelly or by means that pose a danger to the public or in order to facilitate or cover up another offense is mandatorily punished by life imprisonment.[34]

In the United Kingdom, upon conviction for murder, the court must sentence the defendant to life imprisonment. The law requires that courts must set a minimum term before they become eligible for parole. For this purpose a number of "starting points" are in place that give guidance to a judge in order to impose a sentence in each different case of murder. There are currently five "starting points" for murder in England and Wales, namely: 12 years' imprisonment for cases of murder committed by a person under 18; 15 years' imprisonment for all "other" cases of murder committed by a person over 18; 25 years' imprisonment for cases of murder where a person over 18 uses a knife or other weapon at the scene; 30 years' imprisonment for cases of murder with "particularly" high aggravating factors, such as those that involve the use of a firearm or explosive, or a murder in the course of committing another offence such as robbery or burglary; and a whole life order, in cases that involve such "exceptionally" high aggravating factors, such as the murder of two or more persons, or the murder of a child following abduction or with sexual/sadistic motivation, meaning the person will never become eligible for parole.[35]

The United Kingdom currently also has three more mandatory minimum sentences for certain offences, namely: a minimum of 7 years' imprisonment for a person over 18 convicted of trafficking, supplying or producing Class A drugs for the third or subsequent time; a minimum of 5 years' imprisonment (for a person over 18) or 3 years' imprisonment (for a person aged 16–17) for possession, purchase, acquisition, manufacture, transfer or sale of a prohibited firearm or weapon for the first or subsequent time; and a minimum of 3 years' imprisonment for a person over 18 convicted of a domestic burglary for the third or subsequent time.[36]

Three strikes law


In 1994, California introduced a "Three Strikes Law", which was the first mandatory sentencing law to gain widespread publicity. This state is known for fully enforcing laws and is considered most severe in comparison to other states. The Three strikes law was intended to reduce crime by implementing extended sentencing to deter repeated offenders. This consideration further restricts one’s ability to commit new crimes.[37] Similar laws were subsequently adopted in most American jurisdictions.

However, California's "Three Strikes Law" is clearly outlined for all, especially those who are subjected to such sentencing.

strike (1)

  • Directly affects individuals who exhibit a history regarded as violent or serious pertaining to their initial felony conviction.

strike (2)

  • An individual who has committed a crime resulting in their 2nd felony conviction, would be affected by the second strike as well.

strike (3)

  • Is intended individuals who appear to be repeated offenders.

A similar "three strikes" policy was introduced to the United Kingdom by the Conservative government in 1997.[38] This legislation enacted a mandatory life sentence on a conviction for a second "serious" violent or sexual offence (i.e. "two strikes" law), a minimum sentence of seven years for those convicted for a third time of a drug trafficking offence involving a class A drug, and a mandatory minimum sentence of three years for those convicted for the third time of burglary. An amendment by the Labour opposition established that mandatory sentences should not be imposed if the judge considered it unjust.

According to figures released by the British government in 2005, just three drug dealers and eight burglars received mandatory sentences in the next seven years, because judges thought a longer sentence was unjust in all other drug and burglary cases where the defendant was found guilty.

Australia's Northern Territory in March 1997 introduced mandatory sentences of one month to one year for the third offence regarding property and theft. They were later adopted by Western Australia.

Race


Concerning US federal prisons, Barbara S. Meierhoefer, in her report for the Federal Judicial Center stated: "The proportion of black offenders grew from under 10% in 1984 to 28% of the mandatory minimum drug offenders by 1990; whites now constitute less than a majority of this group. This is a much more dramatic shift than found in the federal offender population in general."[40]

Harsh penalties lead to racial disparity.

Although exceptions such as the safety valve are authorized, demographics associated with race relevant to mandatory sentencing continue to show.

Arguments for and against


Opponents of mandatory sentencing point to studies that show criminals are deterred more effectively by increasing the chances of their conviction, rather than increasing the sentence if they are convicted.[41] In a hearing of the House Judiciary Committee, Judge Paul G. Cassell, from the United States District Court for the District of Utah, described mandatory sentencing as resulting in harsh sentencing and cruel and unusual punishment, stating that the sentencing requirements punish defendants "more harshly for crimes that threaten potential violence than for crimes that conclude in actual violence to victims".[42] A hearing in 2009 heard testimony from the American Bar Association which stated that "Sentencing by mandatory minimums is the antithesis of rational sentencing policy".[43] In 2004 the association called for the repeal of mandatory minimum sentences, stating that "there is no need for mandatory minimum sentences in a guided sentencing system."[43] A 1997 study by the RAND Corporation found that mandatory minimums for cocaine offenses were not cost-effective in regards to either cocaine consumption or drug crime.[45]

Some judges have expressed the opinion that mandatory minimum sentencing, especially in relation to alcohol-fueled violence, is not effective.

Research indicates that mandatory minimum sentencing effectively shifts discretion from judges to the prosecutors.

In 2015, a number of United States reformers, including the ACLU, the Center for American Progress, Families Against Mandatory Minimums, Koch family foundations, the Coalition for Public Safety, and the MacArthur Foundation, announced a bipartisan resolution to reform the criminal justice system and reduce mandatory sentencing laws. Their efforts were lauded by President Obama who noted these reforms will improve rehabilitation and workforce opportunities for those who have served their sentences. In their arguments they noted that mandatory sentencing is often too harsh of a punishment and cripples someone's livelihood for minor crimes.[51][52][53][54][55]

Australia, Mexico, New Zealand and some other countries employ a system of mandatory restorative justice, in which the criminal must apologize to the victim or provide some form of reparation instead of being imprisoned for minor crimes. In serious crimes, some other form of punishment is still used.

People sentenced to mandatory sentences


  • Weldon Angelos – 55 years for possessing a handgun while he sold $350 worth of marijuana to a police informant on three separate occasions
  • Leandro Andrade – 50 years without parole for theft of nine video tapes
  • Morton Berger – 200 years without probation, parole or pardon for twenty counts of sexual exploitation of a minor; each count represented a separate child pornography image he had possessed
  • Genarlow Wilson – 10 years for aggravated child molestation; released in 2007 after serving four years because the courts decided his sentence was disproportionate to the actual facts of the crime
  • Chantal McCorkle – 24 years for fraud and conspiracy to commit fraud; sentence subsequently reduced to 18 years on appeal
  • Richard Paey – 25 years for 15 counts of drug trafficking and other charges including fraud; granted a pardon in 2007 after serving three and a half years due to the circumstances of his drug use
  • Timothy L. Tyler – Life in prison for possessing 13 sheets of LSD.
  • John the Painter – Sentenced to death for arson in royal dockyards.
  • Van Tuong Nguyen - Sentenced to death for trafficking 396.2g of heroin through Singapore

See also


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