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Minimum penalties for crimes

Mandatory sentencing requires that offenders serve a predefined term of imprisonment for certain crimes, commonly serious or 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. 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. The idea is that there are some crimes that are so heinous, there is no way to accept the offender back into the general population without first punishing them sufficiently. Some crimes are viewed as serious enough to require an indefinite removal from society by a life sentence, or sometimes capital punishment. It is viewed as a public service to separate these people from the general population, as it is assumed that the nature of the crime or the frequency of violation supersedes the subjective opinion of a judge. Remedying the irregularities in sentencing that arise from judicial discretion is supposed to make sentencing more fair and balanced. In Australia and the United Kingdom, sentencing has been heavily influenced by judicial idiosyncrasies. Individual judges have a significant effect on the outcome of the case, sometimes leading the public to believe that a sentence reflects more about the judge than the offender. Subsequently, creating stricter sentencing guidelines would purportedly promote consistency and fairness in the judicial system. Mandatory sentences are also supposed to serve as a general deterrence for potential criminals and repeat offenders, who are expected to avoid crime because they can be certain of their sentence if they are caught. This is the reasoning behind the "tough on crime" policy. 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. 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. Notably, capital punishment has been mandatory for murder in a certain number of jurisdictions, including the United Kingdom until 1957 and Canada until 1961.

In 1996, 12 month mandatory sentencing laws around third offence home burglary were introduced by Western Australia through amendments to the 1913 Criminal Code. In 1997 mandatory sentencing was introduced to the Northern Territory in Australia. The three strikes and out policy raised incarceration rates of indigenous women by 223% in the first year. The incarceration rate for men rose by 57% and 67% for indigenous men. The mandatory sentencing laws sparked debate of the laws being discriminative (indirectly) as indigenous people are overrepresented in the crime statistics in the Northern Territory. New South Wales has two mandatory sentences currently. The Crimes Amendment (Murder of Police Officers) Bill 2011 introduced mandatory life sentence without parole for a person convicted of murdering a police officer. Also, the Crimes and Other Legislation (Assault and Intoxication) Amendment 2014 introduced mandatory minimum sentencing of 8 years for alcohol fuelled acts of violence, as a response to the cases of king hit assaults in Sydney. These laws were championed by NSW Premier Barry O'Farrell largely due to the wide media coverage of similar cases, in particular the case of Kieren Loveridge who killed Thomas Kelly. Life imprisonment is mandatory for murder in Queensland, South Australia, and the Northern Territory. Life imprisonment is only mandatory in the other states for aircraft hijacking or with a minimum non parole period of 20 years (25 years in South Australia and the Northern Territory) if a criminal is convicted of the murder of a police officer or public official. 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. In 2017, the government of Victoria introduced a "two strike" policy, with a minimum six year jail sentence for repeat violent offenders. Victoria also has a mandatory 10 year minimum sentence for people convicted of killing someone in a so called "one punch" attack.

In Canada until 1961, murder was punishable only by death, provided that the offender was a sane adult, and until September 1, 1999, the National Defence Act specified a mandatory death sentence for certain acts (cowardice, desertion, unlawful surrender) if done traitorously. In 1930, the city of Canton (now Guangzhou), in China, enacted a mandatory death penalty for three time offenders. In Czechoslovakia, under Beneš decree No. 16/1945 Coll., informing to German authorities during World War II's occupation was subject to a mandatory death sentence if it led to death of the person concerned by the act. In pre 1833 France, before juries were allowed to find mitigating circumstances to felonies, death penalty was the only available sentence for capital offenses. Given this, the question of mitigating circumstances became crucial when juries considered verdict against a person prosecuted for assassinat (roughly first degree murder) until the abolition of the guillotine in 1981. In Hong Kong, murder carried a mandatory death sentence until 1993, when capital punishment was legally abolished. However, the last execution was in 1966, and all death sentences afterward were automatically commuted to life imprisonment. Since then, murder carries a mandatory life sentence. 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 large quantities of specified categories of narcotic drugs. As of August 2005, aircraft hijacking also mandates use of the death penalty. In Japan, the only crime punishable by a mandatory death sentence is instigation of foreign aggression. In Singapore, there is a mandatory death penalty for certain offences, most notably murder and possession of a certain amount of controlled drugs, although recently these rules have been relaxed. Under the Arms Offences Act of Singapore, the death penalty is also mandatory for discharge of illegal firearms, and should an offender be found in possession of a firearm when arrested for any offence, the offender faces a mandatory life sentence with caning. Mandatory caning is also applied to cases like robbery under Singapore law. In Sweden, under the previous penal code (abolished in 1966), capital punishment was mandatory for prisoners serving a life sentence found guilty for murder or, unless under mitigating circumstances, manslaughter. The death penalty for murder was abolished in 1921. 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, and from 1957 to 1965 if certain aggravating criteria were met, such as murder by firearm or murders on separate occasions), treason (until 1998), sedition and espionage. In the United States, mandatory death sentences were determined to be unconstitutional in 1976, following the U. S. Supreme Court's decision in Woodson v. North Carolina. They were mainly used for murder and assault by convicts serving life sentences. In Israel, the Nazis and Nazi Collaborators (Punishment) Law mandates a death penalty for those found guilty of war crimes, crimes against humanity, or crimes against the Jewish people.

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. 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. 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. 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 to facilitate or cover up another offense is mandatorily punished by life imprisonment. In Ireland, Acts of the Oireachtas specify a mandatory sentence of life imprisonment for murder and treason, and mandatory minimum sentences for various lesser offences. A mandatory minimum sentence may be truly mandatory or may be presumptive, giving a judge discretion to impose a lesser sentence in exceptional circumstances. 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 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. 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.

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." According to the Statistical Overview of Mandatory Minimum Penalties presented in October 2011, "[o]f all offenders convicted of an offense carrying a mandatory minimum punishment and who remained subject to that penalty at sentencing, 38.5 percent were Black (n=4,076), 31.8 percent were Hispanic (n=3,364), and 27.5 percent (n=2,913) were White." Although exceptions such as the safety valve are authorized, demographics associated with race relevant to mandatory sentencing continue to show. "Hispanic offenders received relief from applicable mandatory minimum penalties at the highest rates, with rates of 65.9 percent in fiscal year 2000, 57.7 percent in fiscal year 2005, and 55.7 percent in fiscal year 2010. Other Race offenders had the next highest rates (52.8% in fiscal year 2000, 53.1% in fiscal year 2005 and 58.9% in fiscal year 2010). Black offenders consistently had the lowest rates (45.7% in fiscal year 2000, 32.8 percent in fiscal year 2005, and 34.9% in fiscal year 2010). White offenders received relief at 60.3 percent in fiscal year 2000, 42.5 percent in fiscal year 2005, and 46.5 percent in fiscal year 2010." 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". 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". 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." 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. Some judges have expressed the opinion that mandatory minimum sentencing, especially in relation to alcohol fueled violence, is not effective. In R v O’Connor, the High Court of Australia gave the opinion that when an offender is intoxicated, there will likely be a change in their personality and behaviour, which will then affect their self control; that, while an offender may commit an act which is voluntary and intentional, it is not something that they would have done in a sober state. Intoxication is not a justification for criminal behaviour, nor (in most jurisdictions in the U. S. and Commonwealth) a legal defence; but since an intoxicated person's decisions are less likely to be shaped by rational assessment of consequences than those of a sober person, deterrence is likely to be less effective for intoxicated people. Research indicates that mandatory minimum sentencing effectively shifts discretion from judges to the prosecutors. Prosecutors decide what charges to bring against a defendant, and they can "stack the deck", which involves over charging a defendant to get them to plead guilty. Since prosecutors are part of the executive branch, and the judicial branch has almost no role in the sentencing, the checks and balances of the democratic system are removed, thus diluting the notion of separation of powers. Opponents of mandatory sentencing argue that it is the proper role of a judge, not a prosecutor, to apply discretion given the particular facts of a case (e. g., whether a drug defendant was a kingpin or low level participant, or whether sex offender registration is an appropriate measure for a given crime and offender). When prosecutors apply discretion, they tend to invoke sentencing disparities when choosing among a variety of statutes with different sentencing consequences. In addition to fairness arguments, some opponents believe that treatment is more cost effective than long sentences. They also cite a survey indicating that the public now prefers judicial discretion to mandatory minimums. 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. In 2019, then presidential candidate Joe Biden unveiled his criminal justice reform plan which would eliminate mandatory minimum sentences.