Pros and Cons - Debbie Newman, Ben Woolgar 2014

Mandatory prison sentences
Section G. Crime and punishment

In many countries, certain crimes carry mandatory prison sentences; that is, there is a level beyond which a judge cannot go, whatever the circumstances of the case. In some cases, such sentences are for a specific crime; for instance, many jurisdictions demand that murder carries a life sentence, and the USA has ’mandatory minimums’ for particular drugs offences. In other cases, sentences are mandatory only if the offender has committed previous crimes; for instance, a ’three strikes and you’re out’ policy which demands prison time for a third-time offender, whatever the crime.

Pros

[1] Governments need to be tough on crime to counteract the alarming increases in crime that characterise some modern societies. Mandatory prison sentences of, for instance, five years for a third burglary conviction, and 10-year (or life) prison sentences for a third conviction for serious violent or sexual crimes are powerful and effective deterrents in the fight against crime.

[2] Political gestures are important for public confidence. The government must be seen to be tough on crime. Mandatory sentencing will increase public confidence in the judicial process and make people feel safer in the face of the threat of serious crime.

[3] It is particularly important for more serious crimes that there is consistency of sentencing. For prison sentences to be effective deterrents and for them to be seen to be justly and uniformly imposed, they must be imposed at the same level for the same crime by all judges. If repeat offences against property (theft and burglary) are given substantial custodial sentences by some judges and not by others, then the sentence will not serve as a deterrent, but instead the criminal will be tempted to take the risk. Allowing judicial discretion will result in too many freak verdicts of over-lenient sentences, and hence an erosion of the deterrent effect. The sentence received should be determined by the crime, not by the biases of the judge.

[4] It is already the case that a criminal’s previous convictions are taken into account when a judge passes sentence. A first-time offender is always sentenced more leniently, and a repeat offender will be treated more harshly. Mandatory sentencing for third-time burglars, sexual and violent offenders is simply a formalisation and standardisation of this existing judicial procedure.

[5] 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 centuries of discrimination and inequalities — and poverty causes crime.

Cons

[1] The fact that mandatory sentences may have a deterrent effect does not begin to compensate for the injustices that such a system produces. A third offence in exceptional extenuating circumstances can technically qualify for a mandatory 10-year or life sentence despite clearly not deserving it. In an infamous case in California, the third felony that carried the mandatory life sentence for one unfortunate young man was the theft of a slice of pizza from a child on a beach. In another case, a man was sentenced to 51 years for owning a forged driving licence, because it was his third felony. Judicial discretion must be allowed to decide each case on its merits. Also, prison sentences are an expensive way to make bad people worse and we should not be seeking to increase them. Probation and rehabilitation through community work and social reintegration (through measures such as help to return to employment) are the really effective ways to tackle crime.

[2] Mandatory sentencing is an unnecessary political gesture, and an inappropriate meddling by politicians with a judiciary that should be kept apolitical and independent. There are already sentencing guidelines which are laid down by appellate courts and statute, and prosecutors have the power to appeal (often successfully) against sentences they consider to be too lenient. There are already mechanisms in place to ensure that appropriately severe punishments are meted out.

[3] The whole problem with mandatory sentencing is that it makes sentencing artificially ’consistent’, whereas every crime and every criminal is in fact unique. The punishment should fit the crime. That is why we should rely on judges to use their experience, expertise and discretion to apply sentencing guidelines in a fair and appropriate way. Governments legislating for mandatory sentences send out the message that the judiciary cannot be trusted to pass the correct sentence. Far from bolstering public confidence, this will undermine confidence in the fairness and reliability of the judiciary.

[4] There are already mechanisms and guidelines that ensure that a criminal’s previous convictions are taken into account in the appropriate way. Mandatory sentencing is an unnecessary and unwelcome political gesture.

[5] Mandatory sentencing has been seen to hit ethnic minorities disproportionately hard. It is a worrying fact that law-and- order crackdowns are often used by law enforcement officers and the judicial system as an occasion for racist oppression of non-white communities. The best example of this is in the USA, where the ’mandatory minimums’ for crack cocaine are substantially higher than those for powdered cocaine; crack is cheaper, and therefore mainly a drug used by black youth, while powder is often used by white people.

Possible motions

This House would give mandatory sentences to repeat offenders.

This House believes in ’Three strikes and you’re out’.

Related topics

Zero tolerance

Prison v. rehabilitation

Capital punishment