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Cumaraswamy, Dato' Param --- "Mandatory Sentencing: The Individual and Social Costs" [2001] AUJlHRights 14; (2001) 7(2) Australian Journal of Human Rights 7

Mandatory sentencing: the individual and social costs

Dato’ Param Cumaraswamy [∗]


The current controversy with respect to mandatory minimum sentencing laws takes place within a wider context of a general discussion on sentencing reform. This discussion has generally focused on how to improve the effectiveness of sentencing practices, what the principal objectives of sentencing are and a determination of what the appropriate balance between those objectives should be. It has also addressed the need to promote greater conformity in judicial sentencing. As a result, many governments have introduced legislation that restricts judicial discretion in sentencing or regulates the exercise of the sentencing function. Reforms that have been introduced include "truth in sentencing", the introduction of sentencing guidelines, the creation of a sentencing commission and, more recently, the prescription of mandatory minimum sentences.

Laws that require the imposition of mandatory sentences have existed, in various forms, in a wide variety of jurisdictions for some time. In many jurisdictions traditionally there was a mandatory punishment of death or life imprisonment for certain capital offences. Other mandatory sentences have been adopted through the years in a piecemeal fashion to apply to a greater range of offences. These sentences may require the loss of a licence, the imposition of a specified fine, strict liability for certain offences (commonly driving offences) or imprisonment. Alternatively the law may prescribe the range of sentencing options available to a judge, for example a prohibition on the suspension or remission of a sentence or the placing of a limitation on the availability of parole. Finally the imposition of mandatory sentences may be directed at certain exacerbating elements of the crime, for example if the crime was committed in close proximity to a school, or the offender was in possession of a gun or a particular type of gun, or the offender had prior convictions. In recent years mandatory sentences have been introduced in a number of jurisdictions in a more systematic manner and are directed at certain categories of offences, commonly drug offences or violent crime. These laws often require the imposition of a statutorily defined minimum sentence.

These laws vary in form and content to a great extent from jurisdiction to jurisdiction. They are directed at a variety of offences and restrict judicial discretion in sentencing issues to different degrees. The imposition of these mandatory minimum sentences has generated a great deal of controversy regarding whether they are successful in achieving their aims, their effects on the justice system and particular groups within society and have sparked a wider debate regarding the appropriate goals of sentencing policy.

Sentencing objectives

It is generally agreed that sentencing practices primarily serve four objectives: deterrence, retribution, rehabilitation and incapacitation. In Veen (No 2), a majority of the High Court held:

The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen (No. 1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender.

The Court went on to say that the protection of society was a material factor in the determination of an appropriate sentence, such that a distinction needs to be made between "an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible". The making of this distinction "calls for a judgement of experience and discernment".

The Supreme Court of Canada found in R v Smith (Edward Dewey) that the imposition of a mandatory minimum sentence in certain circumstances constitutes cruel and unusual treatment or punishment, which is prohibited by Article 12 of the Canadian Charter on Rights and Freedoms. Lamer J, as he was then, stated that whilst maintaining a deference for the wishes of Parliament and recognising that the state may impose punishment, "the effect of that punishment must not be grossly disproportionate to what would have been appropriate". Lamer J went on to say that a mandatory minimum penalty in and of itself was not cruel and unusual punishment, but when considering that the law ignored the characteristics of the offence and the offender, it will inevitably lead to the imposition of a term of imprisonment that is grossly disproportionate. The Crown in that case also argued that an appropriate use of prosecutorial discretion could alleviate the negative effects of the provision. However the Court considered that would be to abdicate a court's responsibility for deciding on the constitutional validity of a law.

The proportionality examination in the USA requires the asking of three questions. Firstly, the gravity of the offence and the harshness of the penalty must be considered. Secondly, the court should compare the sentences imposed upon other individuals within the same jurisdiction to determine whether more serious crimes are subject to the same or lesser penalties. Finally, the court should compare the sentence imposed to other sentences imposed in different jurisdictions for the same crimes (see Solem v Helm).

The requirement of proportionality can also be found in other jurisdictions jurisprudence, such as in Namibia (see S v Vries; S v Likwa), South Africa (see S v Jansen; S v Schwartz) and in the jurisprudence of the European Court of Human Rights (see T v The United Kingdom; V v The United Kingdom). This confirms the centrality of that principle, the gross absence of which could lead the punishment imposed being regarded as cruel and unusual punishment.

Mandatory Minimum Sentencing approaches in various countries

Mandatory minimum sentences appear in many different forms, and impose different requirements upon sentencing judges. It is therefore useful to give a brief summary of some of the more common types of this type of sentence.

In the United States, mandatory minimum sentences take a wide variety of forms and are directed at a multitude of offences. A common approach in recent years has been the enactment of ‘three strikes and you're out’ laws. These laws usually apply to offenders who have prior convictions for previous felony offences. A frequently cited example is California's three strikes laws, although this law tends to be the broadest in scope in the country.[1]

In South Africa, mandatory minimum sentences were introduced in the Criminal Law Amendment Act 1997. Section 51 of this Act prescribes various mandatory minimum sentences depending on the seriousness of the offence and the presence of aggravating factors. However, s 51(3) allows a judge to impose a lesser penalty if he or she considers that "substantial and compelling" circumstances exist which justify the imposition of a lesser penalty. The Act also requires a judge to give written reasons if they are sentencing a juvenile between the ages of 16 and 18 to one of the above sentences.

England and Wales first introduced mandatory minimum sentences for serious offences in 1997. These provisions were amended by the Powers of Criminal Courts (Sentencing) Act 2000. The new Act requires a life sentence to be imposed upon anyone over the age of 18 years convicted for a second serious offence which includes, inter alia, murder or attempted murder, rape or attempted rape, or robbery in possession of a firearm. However, on each occasion the sentencing court has the discretion to impose a lesser sentence "where the court is of the opinion that there are particular circumstances which (a) relate to any of the offences or to the offender; and (b) would make it unjust to do so in all the circumstances". If the court does not impose such a sentence, it is required to state in open court that it is of that opinion and what the particular circumstances are.

In Malaysia, mere possession of a firearm without a license carries a mandatory death sentence as does drug trafficking. Many will recall the case of the two Australians, Barlow and Chambers, in the mid-1980s who were found guilty for trafficking and executed despite the outrage in Australia.

Legislation providing for mandatory minimum sentences was enacted in Western Australia and Northern Territory in 1996 and 1997 respectively with regard to certain property related offences.

Why do governments decide to impose mandatory minimum sentences?

Although the decision by Governments to legislate mandatory minimum penalties takes place for a variety of reasons and in response to particular concerns of the public within their constituencies, several reasons common to all jurisdictions can be identified. The main reason for the imposition of mandatory minimum sentences by governments has been an asserted reaction to widespread community concerns regarding the levels of crime and the inadequate sentences for these crimes. It is stated that stronger penalties will provide a greater deterrence to the commission of these crimes. Also this form of sentencing regime may be imposed to generate more consistency in judicial sentencing.

The desire for mandatory minimum sentences often results from a media generated climate of outrage over perceived lenient sentencing by a judge in a particular case. A good example is a decision of a South African judge in a case where an accused had raped his own daughter. The judge in that case imposed a lighter sentence on the accused on the grounds that he did not represent a danger to wider society. In the ensuing outrage, there were many reports in the media about ‘soft judges’ and the need to be tough in response to crime. There was also significant publicity surrounding a request that the judge concerned explain his decision to Parliament. Similarly, in the UK there was substantial media outrage over the sentence received by the juvenile murderers of James Bulger. These isolated cases are taken as proof that the wider judiciary is failing to sentence offenders in an appropriate manner. The media then often plays an active role in promoting the public perception that crime, especially violent crime, is on the increase and, if it is left to the judges, they will impose lenient sentences. Governments usually respond to such hype in the form of promises to ‘get tough on crime’ by reducing judicial discretion and legislating mandatory penalties. However, it cannot be denied that the conduct of some judges may have contributed to calls for restrictions on judicial discretion. Judges should not only be independent from extraneous forces but must be independent from their own personal prejudices when exercising their judicial power.

Mandatory sentences have several primary aims. First, to deter the offender from committing further crime and to deter others from committing crimes. Secondly, to ensure that those who commit certain crimes are punished to an extent that reflects society’s concerns over the level of crime. Thirdly, to reduce judicial discretion in the sentencing process. This has two aspects. First, it is asserted that the public believes that sentences imposed by judges are not harsh enough and that judges do not properly reflect societal objectives when sentencing certain offenders. A wide range of reasons, such as the unelected nature of judges or their perceived separation from general society are given in explanation for this disparity. It is reasoned that any increase in the maximum penalty will have minimal effect as judges will still sentence offenders below what the public perceives to be the appropriate level. A mandatory minimum sentence ensures that sentencing discretion will be exercised in an appropriate manner. The second aspect, which is often commonly given in the United States, is to promote greater consistency between sentences for similar offences. The existence of disparity between sentences results in inequitable treatment of participants in the judicial system, diminishes the appearance of justice and lessens the overall confidence public has in the judicial system. However, mandatory minimum sentences are often enacted without wider consideration of their societal effects, particularly with respect to certain minority groups and their overall effect on the administration of justice.

The effects of mandatory minimum sentences on the administration of justice.

Restriction on judicial discretion

Members of the judiciary and other commentators from around the world have expressed their concerns over the restrictions that mandatory minimum sentences place on the exercise of judicial discretion and the effects that it has on judicial independence.

The Judicial Conference of the United States of America issued a resolution in 1990 urging Congress to reconsider the wisdom of mandatory minimum sentences. This occurred in response to resolutions passed by the 3rd, 8th, 9th and 10th Circuit Courts, opposing mandatory sentences (see Judicial Conference of the United States, 1990).

In a speech to the Sub-committee on Crime and Criminal Justice of the Committee on the Judiciary of the House of Representatives in July 1993 Justice Broderick, of the US District Court and also chair of the Committee on Criminal Law of the Judicial Conference of the United States, said, inter alia,

Mandatory minima are inherently unfair because their application depends, in most cases, upon the presence of only one factor. The inherent vice of mandatory minimum sentences is that they are disguised for the most culpable criminal, but they capture many who are considerably less culpable and who, on any test of fairness, justice and proportionality, would not be ensnared.

Sir Gerard Brennan, a former Chief Justice of Australia, also expressed his disapproval in no uncertain terms:

A law which compels a magistrate or judge to send a person to jail when he doesn't deserve to be sent to jail is immoral. Sentencing is the most exacting of judicial duties because the interest of the community, of the victim of the offence and of the offender have all to be taken into account in imposing a just penalty. (quoted in Hughes, 2000)

In a survey commissioned by the South African Law Commission among judicial officers, defence attorneys, prosecutors and also lay assessors on whether they believed the imposition of mandatory minima adversely affected judicial independence, 68 per cent believed that it did (Mistry et al, 2000).

Implications for judicial independence

An essential aspect of judicial independence is that not only should the formal mechanisms of independence be in place, but that the public should perceive that the judiciary is independent. Any laws that may not be seen, in the strict sense, as contravening judicial independence, nevertheless violate the principle of independence if it causes the public to perceive that the judiciary is beholden to one of the arms of government or any other quarter.

The requirement of an independent and impartial judiciary is an explicit attribute of the right to a fair trial as contained in many international and regional treaties.[2] This right is an absolute from which there can be no derogation. The UN Human Rights Committee, in its General Comment 13, reiterated the fact that the fairness requirements in Art 14 of the International Covenant on Civil and Political Rights (the ICCPR) extend to all stages of proceedings. This requirement was also emphasised in a judgement of the European Court of Human Rights very recently (see V v The United Kingdom).

Principle 3 of the UN Basic Principles on the Independence of the Judiciary provides:

The judiciary should have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

Principle 3(b) of the Beijing Statement of Principles on the Independence the Judiciary echoes this same principle.

It is beyond dispute that sentencing in a criminal trial is part of the judicial process in the same trial. Sentencing therefore is an "issue of a judicial nature”. Hence any law that restricts the discretion of a judge during sentencing must necessarily violate Principle 4 of the UN Basic Principles. A court that appears to rubber stamp the wishes of the legislature in that process cannot possibly be perceived as independent.

Article 14 (4) of the ICCPR provides:

In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

This is yet another essential element of a fair trial under international standards. Where the trial Judge has no alternative other than to impose the prescribed minimum sentence without regard to an offender’s age is a breach of the right to a fair trial and raises questions about the independence of the court.

Further, Art 14(5) of the ICCPR provides:

Everyone convicted of a crime should have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

This right of appeal, which is again part of the requirement of a fair trial under international standards, is negated when the trial judge imposes the prescribed minimum sentence, since there is nothing in the sentencing process for an appellate court to review. Hence, legislation prescribing mandatory minimum sentences may be perceived as restricting the requirements of the fair trial principle and may not be supported under international standards.

Shifting of Discretion to Lower Levels of the judicial system

A frequently cited side effect of mandatory minimum sentences is the shifting of discretion from the judiciary to the lower levels of the administration of justice.

It is a recognised fact that police and prosecutors have a certain amount of discretion in relation to the offence with which an individual is charged and whether an offender is charged at all. Depending on the availability of evidence, the prosecution also has a discretion to proceed with a persecution or to allow charge reductions on the basis of assistance by the accused or a guilty plea. Under a mandatory minimum sentencing regime, the offence with which an accused is charged becomes a substantial determining factor as to the final sentence which gives the prosecutor a large amount of influence over an accused. For example, in order to avoid the harsh outcomes of a mandatory minimum sentence prosecutors can choose to charge an accused with an offence that does not carry such a penalty, although the exercise of this discretion will vary from case to case. The prosecutor can use the threat of imprisonment as leverage to induce co-operation by an accused in the investigation of the case. The prosecutor can opt for a lesser charge if the accused co-operates, or can induce guilty pleas on the same basis.

The exercise of prosecutorial discretion is unregulated, is more able to be exercised in an arbitrary manner, and is less transparent than judicial decision making. A mandatory minimum sentence in particular cases eliminates the balance that usually exists between the prosecution and the judiciary.

Increasing the costs and promoting delays in the administration of justice

Another alleged effect of mandatory minimum sentencing has been to increase the costs of administration of justice. Critics argue that mandatory sentencing will increase pre-trial charge and sentence bargaining, increase trial delays, and contribute to growing prison populations and costs.

As noted above, under this sentencing regime there is often an increase in pre-trial bargaining in order to avoid the imposition of jail sentence. However, where defendants are charged with an offence that carries a mandatory minimum sentence they are more likely to plead not guilty and have a full trial, as there is no advantage in pleading guilty. A mandatory minimum sentence does not consider the beneficial aspects of an offender's co-operation with the police. If there is a large percentage of offenders sentenced under these provisions, this will promote delays in the hearing of cases, and lead to longer trial hearings.

A natural consequence of a compulsory requirement of imprisonment for longer periods is an increase in the prison population and the associated costs of incarceration. In particular, where mandatory minimum sentences are significant, the administration of justice will have to cope with the costs of an ageing prison population. A study conducted by the RAND organisation in 1994 on the potential effects of California's three strikes laws as compared to the pre-existing laws estimated that as a result of the new laws, crimes would decrease by between 22 per cent and 34 per cent, although would cost an estimated extra $4.5 to $6.5 billion per year (RAND, 1994).

Distorting the sentencing process

A stated aim of mandatory minimum sentencing is to reduce disparity in sentencing between similar offenders who have committed similar crimes. However, due to the arbitrary nature of the offences that attract mandatory minimum sentences these sentencing regimes often result in the imposition of significantly different prison sentences being imposed on similar offenders. This phenomenon has been referred to as the "cliff effect” of mandatory minimum sentencing (see United States Sentencing Commission, 1991).

The imposition of a mandatory minimum sentence is often based upon a single factor, for example, a prior conviction, possession of a certain amount of drugs, or the carrying of a weapon. This can result in substantially different sentences being imposed on similar offenders who have committed crimes of relatively equal seriousness. For example, the requirement of a mandatory minimum sentence may only be activated if a person is in possession of 100 grams of a drug. Those persons who are arrested with an amount of drugs slightly below that amount are subject to a different sentencing regime, which frequently results in a drastically different sentence. This sentencing disparity is unwarranted, as the culpability of the offender, and the seriousness of the offence in the two cases is not significantly different.

The effects of mandatory minimum sentencing on various classes or groups within society

Apparent disproportionate effect on Indigenous or minority groups

Mandatory minimum penalties, prima facie, usually apply to all persons without distinction. The laws are directed to a particular form of criminal conduct, and only refer to the offender if the sentence is imposed by reference to prior criminal conduct. However, it has long been a concern that this form of penalty has a disproportionate effect on minority or indigenous groups within society. The experience of other countries with these types of laws show this to be largely true.

A 1991 United States Sentencing Commission study of the effects of mandatory minimum penalties examined who were more likely to be sentenced under these provisions. In comparison with the general defendant population, the survey found that blacks were more likely to be subject to these laws, that is 38.5 per cent as compared to 28.2 per cent of the total population, and were likely to be slightly younger (United States Sentencing Commission, 1991). A Federal Judicial Center survey, conducted in 1994 also concluded that mandatory minima have a disproportionate effect on minorities (Hofer and Vincent, 1994). This survey concluded that where an offence had been committed that attracted a mandatory minimum sentence, black or Hispanic defendants were more likely than white defendants to be sentenced under such a regime.

With respect to the mandatory minimum sentencing laws in Australia, three United Nations human rights treaty bodies have been critical of the disproportionate effects that they have on the indigenous population and on juveniles. These bodies: the Committees on the Rights of the Child, the Elimination of Racial Discrimination and the Human Rights Committee, seriously questioned the compatibility of these laws with Australia's obligations under the respective treaties and recommended a review of the laws (CERD, 2000; CRC, 1997; HRC, 2000).

The Northern Territory and Western Australian laws have a harsher effect on juveniles than many other jurisdictions as they apply to offenders below the age of 18 and make imprisonment the primary form of punishment, as opposed to a non-custodial sentence. The Northern Territory laws are also directed at offences that are proportionately more likely to be committed by Aboriginal people. A study commissioned by the North Australian Aboriginal Legal Aid Service and the Northern Territory's Office for Aboriginal Development prior to the enactment of mandatory sentencing legislation assessed the involvement of Aborigines in certain crimes in the Northern Territory (Cunneen and Luke, 1998). The study found that:

It would appear that the Northern Territory legislation was enacted without careful consideration of how such laws could result in discriminatory treatment of Aboriginal people. There also may not have been much thought given by either the Northern Territory or Western Australia Governments on the legislation's impact on Australia's international treaty obligations, particularly the Convention on the Rights of the Child.

The Australian Government's reaction to these treaty bodies' observations and concerns this year came as a surprise to many in the international community. Since Australia is a State party to several international treaties on human rights, it was always seen and looked upon as a human rights friendly nation. The Government is now seen as being unable to accept criticism of violations within its own jurisdiction by bodies mandated under international treaties to monitor violations of treaty obligations by member States. Its scathing remarks of these treaty bodies were seen not only as an attack on the treaty bodies but an attempt to undermine UN monitoring mechanisms. Such conduct from a government of a developed State would certainly send the wrong signals to some developing and lesser developed regimes where human rights are violated on a daily basis. These days, however, nations big or small, powerful or weak, cannot escape scrutiny by the international community over human rights violations. It is only a matter of time before national sovereignty will be seen as a defence of the past.

Inconsistencies in sentencing: guideline judgments.

In the Jurisic case Chief Justice Spigelman observed that “inconsistency in sentencing offends the principle of equality before the law. It is itself a manifestation of injustice." However, such inconsistencies may be overcome by judicial innovation and creativity in the form of guideline judgments such as those of the NSW Court of Criminal Appeal in Jurisic & R v Henry. Guideline judgments have been handed down from time to time in the United Kingdom since the early 1970s. It is interesting to note that the New South Wales Parliament responded favourably to the Jurisic case and amended Pt 8 of the Criminal Procedure Act 1986 (NSW) to enable the Attorney General to apply to the court to give a guideline judgment (see Spigelman, 1999).

The virtue in guideline judgments is that sentencing policy is retained within the domain of the judiciary. The guidelines do not unduly restrict judicial discretion in the sentencing process, such that reasonable consistency in sentences can be achieved.


Whilst societal concerns about crime need to be addressed, they must be addressed in a manner that actually provides a solution to the problem. To date, there in insufficient evidence to show that mandatory minimum sentences have actually reduced the incidence of targeted crimes. Where such evidence is alleged to exist (like California) it is at a considerable expense to the treasury and has adverse an impact on the administration of justice, in particular the principles of a fair trial and the independence of the judicial process. If it is in the public interest for the legislature to resort to mandatory minimum sentences to combat increases in the incidence of certain crimes is there not an equally important or even greater public interest in ensuring that such laws do not discriminate against a class or section of society, particularly vulnerable groups such as juveniles and Indigenous populations so as to promote equality and social justice and avoid inequalities and social unrest?

The irresistible conclusion is that the wrongs far outweigh the rights. Legislation providing for mandatory sentences should be repealed. Sentencing guideline judgments should be encouraged so that a judge’s discretionary powers remain intact and justice is done in any given situation.


Cunneen C and Luke G Sentencing Aboriginal People in the Northern Territory: A Statistical Analysis Northern Australia Aboriginal Legal Aid Service, Darwin 1998

Hofer P and Vincent B The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Findings Federal Judicial Center, Washington DC 1994

Hughes G The Mandatory Sentencing Debate The Law Council of Australia, Canberra 2000

Judicial Conference of the United States Reports of the Proceedings of the Judicial Conference of the United States Washington DC 1990

Mistry D, Schonteich M and Struwig J Report on Sentencing: An empirical qualitative study on the sentencing practices of the South African criminal courts, with particular emphasis on the Criminal Law Amendment Act no 105 of 1997 Institute for Human Rights and Criminal Justice Studies and Institute for Security Studies, Florida (South Africa) 2000

RAND Corporation California’s New Three Strikes Law: Benefits, Costs and Alternatives, Doc No RB-4009, Santa Monica 1994

Spigelman The Hon J “Sentencing Guideline Judgments” (1999) 73 Australian Law Journal 876

United States Sentencing Commission Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System US Sentencing Commission, Washington DC 1991

[∗] UN Special Rapporteur on the Independence of Judges and Lawyers

[1] See California Penal Code s 1170.12

[2] Article 10, Universal Declaration of Human Rights; Art 14 International Covenant on Civil and Political Rights ; Para 27, Vienna Declaration and Programme for Action; Art 8(1) American Convention on Human Rights; Art 6(1) European Convention for the Protection of Human Rights and Fundamental Freedoms; Art 7(1) African Charter on Human and Peoples’ Rights,

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