Indigenous Law Bulletin
by Candace McCoy and Tony Krone
There are several different types of mandatory sentencing laws. However, they all have in common at least one feature: they eliminate judicial discretion in sentencing. The most common mandatory sentencing law, called mandatory determinate sentencing, forbids judges to sentence certain offenders to anything other than a prison term, usually a set number of years of incarceration, from which parole is either not permitted or is severely limited.
This paper aims to describe the effects of mandatory sentencing laws in the United States (‘US’). Mandatory sentencing laws have existed in the US for decades, and valuable lessons can be learnt in Australia from the American experience.
Since the early 1980s, most states in the US have passed mandatory sentencing laws. The laws generally cover felony crimes. They rarely apply to juveniles, as juvenile courts are the only segment of the criminal justice system in the US that serves primary rehabilitative sentencing goals. An example of mandatory sentencing laws enacted in the US is California’s ‘Three Strikes Law’, which mandates a life sentence to all third-time felony recidivists. The federal ‘truth in sentencing’ laws also require felons to serve 85 percent of their prison terms before becoming eligible for parole. The federal criminal justice system has also embraced mandatory sentencing and has adopted mandatory prison term enhancements for gun and drug crimes.
In the US, mandatory sentencing laws are associated with a tremendous, almost stupefying increase in the incarceration rate. From 1995 to 2001, when the entire number of mandatory sentencing laws had taken full effect across the nation, the rate of incarceration in prison and jail increased from 1 in 166 US residents to 1 in 145. By 2002, the nation incarcerated almost two million people. Two-thirds were in federal and state prisons and one third were in local jails. The American incarceration rate is now 6 to 10 times that of the various Western European nations, and has now surpassed Russia and South Africa in the number of its citizens incarcerated per capita.
Mandatory sentencing laws cannot be held to account for all of this increase, but certainly they contributed significantly to it. There is a popular perception that this increase is because a larger percentage of felons, who are very dangerous and likely to commit violent crimes in the future, are being locked up. Indeed, violent felons are now held for longer periods of time, but that population of serious violent offenders would have been sentenced to lengthy prison terms under any sort of sentencing scheme.
The bulk of the increase is due to greater use of imprisonment for non-violent offenders, which includes thieves, drug users and small-time drug sellers. Non-violent offenders accounted for 77 percent of the growth to America’s state and federal prisons between 1978 and 1996, including inmates held in local jails.
Mandatory sentencing laws are based on dissatisfaction with the perceived leniency of judicial decisions. A broader distrust of the judiciary seems to underlie calls in favour of mandatory sentencing. In the US observers have called attention to what can be called a ‘fear of judging’. However, to say that the goal is to remove sentencing discretion from the judiciary does not fully answer the question of why new laws are implemented. Equally important is the corollary that the power to set punishments will then be placed in the hands of a different decision-maker.
In the US, that other decision-maker has been the prosecutor. This means that decision-making shifts not only from the judiciary to the prosecutor, but also from a centralised system of circuit courts and their appellate supervisors to the more decentralised, numerous local prosecutorial and police offices.
Consider this hypothetical but typical example: one type of mandatory sentencing law requires a judge to sentence an offender to five years imprisonment for use of a gun in committing a felony. For instance, if a defendant is convicted of armed robbery, the judge must add five years to this sentence because a gun was used in committing the crime. However, the prosecutor has full discretion to charge and to decide whether to accept a guilty plea. In the armed robbery example, a prosecutor knows what the mandatory sentence will be if the defendant is convicted, and can charge the defendant either with robbery or armed robbery. In making that discretionary decision, the prosecutor can weigh the characteristics of the crime, the supposed culpability of the offender, and even the personal characteristics of the offender. Often the prosecutor will charge armed robbery but be willing to dismiss the charges concerning the gun if the defendant pleads guilty to robbery.
This example raises several concerns. First, the threat of mandatory sentences that can double or even triple prison terms can convince defendants to plead guilty even though they may have credible defences. Second, this situation is one explanation for the fact that, in the US, the difference in sentencing severity in cases that go through trial and end in convictions is on average 300 percent more than in cases that conclude with guilty pleas. Severe mandatory provisions are applied mostly on defendants convicted after trial. The result is huge sentencing disparity between offenders who committed the same type of crime but were convicted through different procedures.
Further, mandatory sentencing may foster sentence disparity between defendants who differ only on personal characteristics that prosecutors consider relevant. When discretion shifts to the prosecutor, charging and plea-bargaining processes largely determine the sentence so that, effectively, the prosecutor is doing the sentencing. It is almost impossible for the public to know whether the discretionary decisions regarding charges and plea-bargaining are made based on objectively determined facts about the crime, or the prosecutor’s subjective assessment of the personal ‘dangerousness’ of the defendant, or even facts related to the defendant’s personal status in the community.
If prosecutors are the de facto sentencing decision-makers under mandatory sentencing, the question becomes, are they better at it than judges were? This is of course a matter of opinion. What can be said conclusively, however, is that the reasons for the prosecutor’s discretionary decisions are less transparent than a judge’s reasons. Paradoxically, a legal reform that was often touted as a way to eliminate sentencing disparity has removed sentencing from the public arena of the courtroom and reintroduced it behind the closed doors of prosecutors’ and police offices.
Criticisms of prosecutorial discretion in the US have started to focus on whether factors such as the race and income of defendants influence the exercise of this discretion. Perhaps prosecutorial power can provide one explanation for why jails and prison populations in the US consist of black and Hispanic offenders in numbers widely disproportionate to their representation in the general population.
Black offenders are less likely to have conventional community ties that are regarded as likely to control bad behaviour in the future, for example, jobs, school activities and expectations of success in future schooling and career. The same can be said for poor juveniles. Prosecutors in the US tend to regard black juveniles as more dangerous than white juveniles, and poor juveniles as less controlled than middle class ones. They are therefore more likely to advocate more severe sentencing for juveniles who are both black and poor. Given the power that mandatory sentencing gives prosecutors it is likely it will be used to disproportionately incarcerate black juveniles.
In Australia in recent times the spotlight has been on Western Australia and the Northern Territory in relation to mandatory sentencing. Currently in Western Australia, when an adult is convicted of burglary and has been convicted twice before for a relevant offence, they must be sentenced to 12 months imprisonment. In the case of juveniles, judges have some scope to depart from the ‘mandatory’ penalty of 12 months imprisonment.
Prior to amendment in October 2001, the ‘mandatory’ sentencing provisions applicable to adults in the Northern Territory provided for obligatory sentences of 14 days imprisonment for certain property offences for a first offence, at least 90 days for a ‘second strike’ offence and 12 months for a ‘third strike’ offence. Juveniles over the age of 15 years could have either a detention or diversionary option imposed for a second strike offence, with the diversionary option being removed for a third strike.
Since the amendments in 2001, the adult scheme has allowed judges to depart from the designated sentence if aggravating or mitigating factors are proven. There are now no mandatory sentencing provisions for juveniles in the Northern Territory. Despite the changes in the Northern Territory it would be incorrect to assume that mandatory sentencing has lost its political attraction. In New South Wales the Liberal Party has recently committed itself to a scheme of mandatory sentencing if elected in March 2003.
The American experience can provide some valuable lessons for Australia. Where implemented in Australia, mandatory sentencing provisions have similarly transferred discretionary power from the judiciary. Discretion is generally transferred in the first instance to the police informant who decides on the charge to be laid. It is then up to the Director of Public Prosecutions (‘DPP’) in indictable cases, to decide what charge to proceed on and how to conduct the case. This is particularly so in relation to those DPP prosecutors who have the freedom to engage in charge bargaining. For example, the New South Wales DPP Prosecution Policy and Guidelines requires the prosecutor to proceed on a charge that reflects the overall criminality of the offence. This provides more power than other DPP guidelines, which require the prosecutor to proceed on the most serious charge available.
While it is not the case that such extreme ‘trial penalties’ as exist in the US have developed in Australia, the American experience should serve as a cautionary tale. Such penalties are a possible effect of shifting discretion to decide punishments from judges to another system actor. However sentencing disparities, which can also occur as a result of the level of power in the hands of police and prosecutors are a real concern in Australia. The dynamic described above in prosecutors’ interaction with poor, black juveniles is observable also in Australia in police interaction with Aboriginal juveniles. The net effect of mandatory sentencing provisions in Australia has been to disproportionately impact on Indigenous communities. This effect can be explained in part by police targeting of marginalised community members. Defendants may also not be offered diversionary options at the discretion of the police informant because of a defendant’s previous negative interactions with police. Other explanations include a lack of diversionary options in isolated communities, or the social circumstances of the defendant do not support existing diversionary approaches.
It is important to note that despite the perceived leniency of judges in Australia, an overview of recent experiments in mandatory sentencing concludes that the pattern of sentencing had been increasingly punitive even without mandatory sentencing. Thus there seems to be little need to seize sentencing power away from ‘lenient’ judges.
Despite being generally implemented to remove discretion from the sentencing process, mandatory sentencing provisions provide only the appearance of certainty. But the cost of these laws is enormous, with defendants from marginalised social groups being incarcerated by a process that is effectively invisible and unaccountable.
Candace McCoy is an Associate Professor at the School of Criminal Justice, Center for Law and Justice, Rutgers University.
Tony Krone is a Lecturer in Law at the University of Technology, Sydney. He has recently completed his doctoral thesis on the prosecution of police summary cases.
 S Shane-Dubow, ‘Introduction to models of sentencing reform in the United States’ (1998) 20(3) Law and Policy 3.
 California Penal Code s 667(c),(d),(1),(3)(e),(2)(A).
 The Violent Crime Control and Law Enforcement Act ss 1033-4, 18 USC (1994).
 Ibid s 924(c)(1)(A); Anti-Drug Abuse Act s 841(b), 21 USC (1986).
 M Mauer, The Sentencing Project, Americans behind bars: US and international use of incarceration (1997).
 J Irwin, V Schiraldi and J Ziedenberg, ‘America’s one million non-violent prisoners’ (2000) 27(2) Social Justice;
K Stith and Jose Cabranes, Fear of Judging (2000).
 An example of prosecutorial discretion and power is found in the enforcement of California’s ‘Three Strikes Laws’. These laws are aberrational but they provide a more concrete example of the problem. When the laws were enacted it was generally envisaged that defendants who were looking at life sentences for ‘third strike offences’, would demand trials. This has been avoided on a large scale, by prosecutors declining to charge the crimes as ‘strikable’ felonies. However, for every crime not prosecuted under the mandatory sentencing provision, prosecutors were able to obtain convictions for crimes of lesser seriousness, thus exercising complete power over who went to prison and for how long.
 DJ Levin, Patrick A Langan and Jodi M Brown, United States Department of Justice, ‘State court sentencing of convicted felons, 1996’ (1999) Bureau of Justice Statistics Bulletin, <http://www.ojp.usdoj.gov/bjs/abstract/scscf96.htm> .
 Cassia Spohn, John Gruh and Susan Welch, ‘The impact of the ethnicity and gender of defendants on the decision to reject or dismiss felony charges’ (1987) 25 Criminology.
 Barry C Feld, Bad Kids: Race and the transformation of the Juvenile Court (1999).
 Criminal Code (WA) s 401.
 Young Offenders Act 1994 (WA) s 101. See N Morgan, ‘Mandatory sentences in Australia: Where have we been and where are we going?’ (2000) 24 Criminal Law Journal 164, 174.
 Sentencing Act 1995 (NT) s 78A. See Morgan, above n 14, 167.
 Senate Legal and Constitutional References Committee, The Parliament of the Commonwealth of Australia, Inquiry into the Human Rights (Mandatory Sentencing for Property Offences) Bill 2000 14; G Brennan, ‘Mandatory sentencing: rights and wrongs’  AUJlHRights 13; (2001) 7(2) Australian Journal of Human Rights 3; C Cunneen, ‘Mandatory sentencing and human rights’ (2002) 13(3) Current Issues in Criminal Justice 322.
 H Burrows, 'Discretionary sentencing returns to the Northern Territory' (2002) March Rights Now 9.
 P Totaro, 'Mandatory jail terms key to Libs' campaign' The Sydney Morning Herald (Sydney), 24 June 2002, 4.
 In summary court matters in each state police prosecutors act on behalf of other police and indictable offences in the higher courts are prosecuted by the DPP for each jurisdiction. See Morgan, above n 14, 164.
 I Temby, 'Prosecution discretion and the use of appropriate charges' (Paper presented at Criminal Trial Reform Conference, Melbourne, 2000).
 See for example, J Hardy, 'Mandatory sentencing in the Northern Territory: A breach of human rights' (2000) 11 (3) Public Law Review 172.
 Most diversionary schemes are currently administered by police although there are a number of court-based diversionary schemes being developed. See C Cunneen, ‘The impact of crime prevention on Aboriginal communities’ (2001) Aboriginal Justice Advisory Council, <www.agd.NSW.gov.au/cpd.nsf/pages/alr_index>.
 D Weatherburn, 'Does Australia have a law and order problem?' Public Lecture (University of New South Wales, 2002), <www.arts.unsw.edu.au/ssp/donweatherburnlecture.pdf>.