Exemptions from Mandatory Minimum Penalties - Recent Developments in Selected Countries

Introduction

The question of mandatory minimum penalties and their impact on recidivism, the criminal justice process and prisons continues to be quite controversial. In some instances, the statutory minimum penalties are completely mandatory and do not allow any exception. However, in the majority of countries where they are part of sentencing law, some exceptions to their imposition have been provided by law. These exceptions or exemptions allow courts to impose sentences below a mandatory minimum penalty in some circumstances or whenever their strict application may result in unjust outcomes. At present, with only one small exception, such a “safety valve” or “exceptional relief” provision does not exist in Canadian sentencing law.

In 2012, a report was prepared for the Uniform Law Conference of Canada Working Group studying the question on Exemptions from Mandatory Minimum Penalties (Dandurand, 2012). The report examined the application of mandatory minimum penalties and reviewed the experience of several jurisdictions where exceptions to, or other forms of relief from, the application of such mandatory minimum penalties had been provided by law.  Most specifically, the report presented a brief comparative analysis of legal provisions permitting a court in appropriate circumstances to provide relief from the imposition of certain mandatory minimum penalties where the imposition of such custodial sentences would result in an unjust sentence.  The following year, the Uniform Law Conference of Canada (Criminal Section) published its own report on the issue (Uniform Law Conference of Canada, 2013).

The present report updates the 2012 study, highlights the application of mandatory minimum penalties and reviews the experience of selected jurisdictions where exemptions or other forms of relief have been instituted. The first section revisits the mandatory minimum penalties schemes that were included in the 2012 study to examine whether they have evolved since then. The following section examines the various types of exemptions from these schemes, again with a view to understand if and how they have changed since 2012. This is concluded by a short discussion of these various forms of exemptions and how they have been applied, interpreted or amended in the last four years or so.

Mandatory Minimum Penalties

Mandatory minimum penalties schemes take many forms. Some require that a minimum prison sentence be imposed for designated offences. An automatic life sentence for certain crimes is also a form of mandatory minimum sentence. Mandatory sentences generally prescribe both the type of sanction and the minimum level of the sanction. The mandatory minimum penalty sometimes apply only to recidivists, as they provide for more severe sanctions for repeat offenders or for someone previously convicted of a felony, such as the ‘three strikes and you’re out’ law in many American jurisdictions. Mandatory sentencing may also require that an incremental penalty be imposed on convicted offenders meeting certain criteria (e.g., anyone committing an offence involving a firearm). In some instances, the mandatory minimum sentences scheme is presumptive, when it specifically stipulates grounds upon which the court may find the presumption to be rebutted and proceed to exercise its sentencing discretion. Finally, there are mandatory sentencing provisions that function indirectly by specifying a minimum non-parole period to apply in the case of certain serious offences. Some of these schemes allow for exceptions or exceptional relief, others do not, or do so only in very limited situations.  There is a considerable amount of research and a very heated debate on the advantages and disadvantages of mandatory minimum sentences and the problems associated with them. However, our focus here is not on the impact of these mandatory penalties schemes, but on the different ways in which exceptions or possible relief from their application exist in relation to such schemes and how they are applied.

United States

In the USA, at the federal level, mandatory minimum penalties have been prescribed over the years for a core set of serious offences, such as murder and treason, and also have been enacted to address immediate problems and exigencies. Since the mid-1950s, Congress enacted more mandatory minimum penalties and expanded their application to offences not traditionally covered by such penalties. Mandatory minimum penalties generally relate to controlled substances, firearms, identity theft, and child sex offences (United States Sentencing Commission, 2011).  Over the years, most American States have also adopted mandatory minimum penalty laws. It was noted that mandatory minimums were America’s most frequently enacted sentencing law changes between 1975 and 1996 (Tonry, 2009; 2014; Spohn, 2014), but a slow movement away from that approach can now be observed.

The Supreme Court's decision in Alleyne v. United StatesFootnote 1 heightened the role of prosecutors in determining whether a defendant is subject to a mandatory minimum sentence and held that any fact that increases the statutory mandatory minimum sentence is an element of the crime that must be submitted to the jury and found beyond a reasonable doubt.Footnote 2 It was argued at the time that:

“Alleyne represents a significant development in the tug-of-war between the judiciary and the legislature over control of the sentencing process: it is thus the next major chapter in the rollback of structured sentencing reforms and legislative authority over sentencing factors that began in ApprendiFootnote 3. Indeed, given the Court’s near-total elimination of binding sentencing factors, Alleyne may even be the last such chapter.”Footnote 4

In 2013, the U.S. Department of Justice launched the “Attorney General’s Smart on Crime Initiative” with the aim of reducing the use of mandatory minimum sentences for low-level, non-violent drug crimes, and encouraging the use of diversion measures (US Department of Justice, 2013). The US Attorney General, Eric Holder, announced that it was “time for meaningful sentencing reform” and that, as a start, he was announcing a change in Department of Justice charging policies so that certain people who have committed low-level, nonviolent drug offenses, who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offences that impose draconian mandatory minimum sentences (U.S. Department of Justice, 2013:3).

In August 2013, the Attorney General issued two memoranda bringing changes to the federal charging policy regarding mandatory minimums for certain nonviolent, low-level drug offenders (US Attorney General, 2013; 2013a). The first memorandum directed prosecutors who are charging an offender with an offence subject to a mandatory minimum sentence to ensure that the charging document includes those elements of the crime that triggers the statutory mandatory minimum penalty. The Attorney General quoted four reasons for the change in prosecutorial policy: (1) “mandatory minimum and recidivist enhancement statutes have resulted in unduly harsh sentences”; (2) these statutes have also resulted in “perceived or actual disparities that do not reflect our Principles of Federal Prosecution.”; (3) long sentences have failed to “promote public safety, deterrence, and rehabilitation"; and, (4) “rising prison costs” must be lowered in order to divert spending to other criminal justice initiatives (the so-called “justice reinvestment” policy) (US Attorney General, 2013). Observers have argued that the “continued reliance on prosecutorial discretion will perpetuate disparity in sentencing and will also undermine Congress’ goal in creating the U.S. Sentencing Commission" (Dahl, 2014: 272).

In addition, several legislative initiatives are being considered in the Senate and the House of Representatives to broaden existing “safety valves”Footnote 5, including: the Justice Safety Valve Act, 2015Footnote 6 which would give sentencing judges the authority to depart from mandatory minimum sentences for non-violent offenders who meet specific criteria ; the Smarter Sentencing Act, 2015Footnote 7 which would expand the existing “judicial safety valve” for drug related crimes; and the Safe, Accountable, Fair and Effective Justice Act, 2015Footnote 8, which would reform federal sentencing statutes to modify mandatory minimum sentences so as to exclude from their reach people whose role in a drug trafficking offense is low-level or minimal. The latter initiative, if successful, would also reinstate judicial discretion through “safety valves” that would allow judges to impose sentences in some drug offence cases that are shorter than those required by mandatory minimums.

Several authors have noted that, when reducing these penalties or repealing them altogether is not possible, a politically viable strategy for reducing the detrimental impact of mandatory minimum penalties and prevent injustices is to permit judges to sentence an offender below a statutory minimum when certain criteria are met (Cassel and Luna, 2011; Tonry, 2014). The issue then becomes one of identifying what these criteria (or thresholds) should be.

Additionally, a recent decision of the United States Supreme Court, in Miller v Alabama (2012), declared mandatory sentences of life without parole for juveniles unconstitutional.Footnote 9 It decided that a mandatory sentence of life imprisonment without the possibility of parole is cruel and unusual punishment when the offender is under the age of 18 at the time of the offence (Kennedy, 2014; Fiorillo, 2013; Price, 2013). The decision is ostensibly based on new scientific evidence on the difference between children and adults. At this point, the implications of that decision for those already serving a mandatory sentence are unclear. 

England and Wales

In England and Wales, murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. Minimum terms are now set by the courts using sentencing principles set out in the Criminal Justice Act 2003 (Lipscombe and Beard, 2015). A mandatory life sentence for a second serious violent or sexual offence was once required – it was repealed in 2003. The Powers of the Criminal Court (Sentencing) Act 2000 includes mandatory minimum sentences for second serious offences (s. 109), as well for a third drug trafficking offence (s.110), or a third domestic burglary (s.111). The Criminal Justice Act 2003 introduced some mandatory sentences for violent and sexual offenders. It also established a mandatory minimum sentence for unauthorized possession or distribution of a prohibited firearm.Footnote 10 Section 29 of the Violent Crime Reduction Act 2006 introduced a minimum penalty for new firearms related offences.Footnote 11

The Criminal Justice Act 2003 also created a second statutory body, the Sentencing Guidelines Council. The Council’s guideline list a number of factors as personal mitigation, including remorse, the fact that the offender was a sole or primary carer for dependent relatives and, “good character and/or exemplary conduct.” The list is non-exhaustive and leaves room for “discretion for a court as well as room for counsels’ submissions on personal mitigation to reflect the highly variable circumstances of individual offenders” (Roberts, 2013: 8; see also: Roberts, 2012).

South Africa

In South Africa, prior to 1980, mandatory minimum sentences were in place for corrective training and the prevention of crime. These mandatory minimum penalties were removed from South African law after the Viljoen CommissionFootnote 12 found that their mandatory nature did not permit individual circumstances to be taken into account and resulted in unfair sentences (O’Donovan and Redpath, 2006). Very strict mandatory minimum penalties were enacted in 1997 for serious offences and minimum 10, 20, and 30 year sentences were required for first, second and third rapes.Footnote 13 These sentencing dispositions which were initially enacted for a period of two years were successively renewed and remained in effect until 2009. The legislation permits courts to depart from the mandatory minimum sentences if they are satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence, but does not provide any guidance regarding the meaning and application of the phrase “substantial and compelling.”

Australia

In Australia, the six states, two mainland territories and the federal government establish their own sentencing framework in criminal legislation. Generally, criminal laws in Australia set a maximum penalty for an offence, but do not set a minimum penalty.

People smuggling is the only crime that attracts a mandatory minimum penalty under federal laws. In 2010, the law was amended to extend the mandatory minimum penalty provisions in the Migration Act 1958 (Cth) to apply the higher minimum sentence and non-parole period for a new aggravated offence of people smuggling involving exploitation or danger of death or serious harm and where a person is convicted of multiple people smuggling offences.Footnote 14 Section 233A(1) of the Migration Act 1958 creates the offence of people smuggling with no mandatory minimum sentence while section 233C(1) carries a mandatory minimum term of imprisonment of five years with a minimum non-parole period of three years; a person who smuggles a group of five or more unlawful non-citizens could be charged with either offence (See: Roth, 2014; Trotter and Garozzo, 2012; Bagaric and Pathinayake, 2012).  

In 2012, there was an unsuccessful legislative initiative to remove the existing mandatory minimum penalties for people smuggling.Footnote 15 The Senate Committee that studied the Bill recommended against its adoption, but also recommended that the Australian Government “review the operation of the mandatory minimum penalties applied to aggravated people smuggling offences, with particular reference to: (1) alternative approaches to mandatory minimum sentencing provisions, including where judicial officers are given discretion to impose lesser sentences where they are satisfied that the circumstances would make it unjust to impose the prescribed sentence for an offence; (2) options for differentiating between the organisers of people smuggling operations and boat crew of these operations in sentencing; and, (3) specific concerns raised during this inquiry regarding Australia's human rights obligations under international law” (Commonwealth of Australia, 2012: 22). The same year, following the Report of the Expert Panel on Asylum Seekers (Australian Government, 2012), the Attorney-General, acting under s.8(1) of the Director of Public Prosecutions Act 1983 (CTH), gave specific direction to the Director "not institute, carry on or continue to carry on a prosecution for an offence" under s.233C of the Act unless satisfied that the accused had committed a repeat offence, the accused's role in the people smuggling venture extended beyond that of a crew member, or a death had occurred in relation to the venture” (quoted in Roth, 2014:12).

In 2013, a High Court decision upheld the right of the federal government to set minimum sentences.Footnote 16 The High Court was asked to determine “whether the provisions creating the offences, or the provision fixing a mandatory minimum term of imprisonment for the aggravated offence, were beyond legislative power?”  In a majority of six to one decision, the High Court dismissed the appeal and held that although prosecuting authorities had a choice as to which offence to charge, that choice did not involve an exercise of judicial power or confer on prosecuting authorities an ability to determine the punishment to be imposed for the same conduct, even where one available offence prescribed a mandatory minimum sentence. The High Court also held that the imposition of a mandatory minimum sentence was not inconsistent with the institutional integrity of the courts and did not involve the imposition of an arbitrary sentence.

According to a guide for officers in Australian Government departments working on framing criminal offences that are intended to become part of Commonwealth law states, there are several reasons why mandatory minimum penalties should be avoided. It states that “(o)ther than in rare cases, Commonwealth offences should carry a maximum penalty rather than a fixed penalty and should not carry a minimum penalty” (Australian Government, 2011: 37).

A few Australian states have also enacted mandatory minimum penalties. In the Northern Territory a mandatory minimum penalties scheme came into force in 1997, through amendments to the Juvenile Justice Act 1983 (NT) and the Sentencing Act 1995 (NT).Footnote 17 The scheme introduced mandatory minimum penalties for a broad range of property offences, including theft (but not shoplifting), criminal damage, unlawful entry into buildings, unlawful use of a vehicle, possession of goods suspected of being stolen, and receiving stolen property. For juveniles, 15 and 16 year-olds found guilty of a second or subsequent property offence, a 28-day period of detention was made mandatory. For offenders aged 17 and over a minimum term of 14 days applied to a first offence and escalating minimum terms for repeat offenders: 90 days for second time offenders and 12 months for third time offenders.

Two years later, following some controversial cases, the Sentencing Amendment Act 1999 introduced some ‘exceptional circumstances’ provisions which provided that defendants before the court for a single property offence that was trivial in nature could have a non-custodial penalty imposed on them if they could prove that they cooperated in the investigation of the offence; that there were mitigating circumstances (other than intoxication); that the offence was an aberration from their usual behaviour and that they were otherwise of good character and had made efforts towards restitution.Footnote 18

The mandatory penalties for property offences remained in effect until 2001.Footnote 19 In 2001, a newly elected government repealed the mandatory sentencing regime for juvenile property offences and replaced it in with a more flexible scheme for adult offenders convicted of robbery.  In June 1999, the Sentencing Act was amended to impose a mandatory minimum sentence for second offences of assault and first offences of sexual assault. This applies to adults. A jail term is mandatory, but no minimum sentence is prescribed. The mandatory penalties for violent and sexual offences were repealed in 2007. In 2008, a new lawFootnote 20 extended minimum sentencing provisions to first time violent offenders with respect to: unlawfully causing harm or serious harm to another; aggravated assault causing harm; and, aggravated assault on a police officer.  In 2013, legislation was adopted to replace the existing scheme with a new minimum sentencing scheme for violence offencesFootnote 21 (Roth, 2014; Whyte et al., 2015).

Between 1992 and 1994, Western Australia’s criminal law mandated the imposition of a minimum sentence for automobile theft.Footnote 22 In 1996, amendments to the Criminal Code introduced “three-strikes” penalties for people convicted of a third and consecutive household burglary offences.Footnote 23 Section 401(4) states, in effect, that a person convicted for a third time of entering a home without permission and who commits an offence in “circumstances of aggravation”, or who intends to commit such an offence, must be sentenced to imprisonment for at least 12 months. Section 400(1) defines “circumstances of aggravation” as including: being armed with a dangerous weapon; being in company with other armed persons; causing bodily harm; and, threatening to kill or injure. The section is specifically extended to juveniles. If the offender is a young person (as defined in the Young Offenders Act 1994), the offender may be sentenced either to imprisonment for at least 12 months or to a term of detention of at least 12 months(as defined in the Young Offenders Act).  In 2009, minimum sentences of imprisonment were added to the law for persons who commit assaults against a police officer, a prison officer, or a transport security office.Footnote 24 In 2012, minimum terms of imprisonment for adult offenders committing certain offences at the direction of, in association with or for the benefit of criminal organizations.Footnote 25 Finally, in 2015, a new legislation increased mandatory minimum penalties for violent offences related to a home invasion.Footnote 26

New South Wales also imposes some mandatory minimum penalties from which a court may deviate for “good reasons.”  The law sets standard non-parole periods for a number of serious offences.  Standard non-parole periods, are arguably mandatory sentences, but in this case courts may set longer or shorter sentences if there are particular reasons for doing so.  In 2013, the State adopted new legislationFootnote 27 to clarify the process by which a standard non–parole period should be applied in an individual case. In 2014, the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014Footnote 28: (1) created a separate offence (with a maximum penalty of imprisonment for 20 years) where an assault by intentionally hitting a person causes death (without the necessity to prove that the death was reasonably foreseeable and whether the person was killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault); (2) created an aggravated form of that separate offence and increased the maximum penalty to imprisonment for 25 years when the offence is committed by an adult when intoxicated; and, (3) required the court to impose a minimum sentence of imprisonment for 8 years on a person guilty of that aggravated intoxication offence: and, (4) prevents self-induced intoxication being taken into account as a mitigating factor in determining the appropriate sentence for any offence. In 2015, two new laws were adopted which amended the Crimes (Sentencing Procedure) Act 1999.  The first one established standard non-parole periods for a number of firearms offencesFootnote 29. The second established standard non-parole periods for various child sex offences and made the offence of having sexual intercourse with a child who is under the age of 10 years punishable by a minimum of 8 years of imprisonment and maximum penalty of life imprisonment, while stipulating that a person thus sentenced is "to serve that sentence for the term of the person's natural life".Footnote 30

In Queensland, in 2012, mandatory terms of life imprisonment (without parole for at least 20 years) were introduced in the law for repeat serious child sex offenders.Footnote 31 The same year, Queensland introduced minimum sentencing provisions in relation to serious firearms offences.Footnote 32 The two sets of provisions do not contain any exception from the mandatory penalties.

In Victoria, in 2013, the law was amended to include mandatory terms of imprisonment (with a minimum period of non-eligibility for parole of four years) for adults who commit the offence of intentionally or recklessly causing serious harm to a person in circumstances of gross violence.Footnote 33 The circumstances of gross violence include planning the offence, acting in company with two or more other persons, participating in a joint criminal enterprise, planning and using a weapon in the offence, and continuing to cause injury to the person after they were incapacitated. These provisions only apply to adults. In addition, the provisions do not apply if a court is satisfied that a “special reason” exists.

New Zealand

In New Zealand, life imprisonment was the mandatory minimum penalty for murderFootnote 34, until amendments were adopted in 2010.Footnote 35 The Sentencing and Parole Act 2010 introduced a “three strike” sentencing regime (or a sentence escalation regime) for certain qualifying offences. In that regime, courts are required to warn qualifying offenders and then increase penalties for subsequent offences.  Most importantly, on a “third strike”, the courts are to impose the maximum term of imprisonment prescribed for that offence unless that would be “manifestly unjust.” The courts are also to order that the offender be ineligible to apply for parole unless that order would be “manifestly unjust.”Footnote 36 These dispositions have not been changed since then.

Israel

In Israel, a mandatory life imprisonment for murder can be avoided only under a few exceptional circumstances prescribed by law. Over the last fifteen years, minimum penalties were introduced for several offenses.Footnote 37 In such instances, judges are permitted to consider mitigating circumstances and to depart from the minimum sentence as long as they state the reasons for their decision (Gazal-Ayal et al., 2013). In 2015, Israel amended its civil law to establish a minimum prison sentence of three years for people who “firebomb” or throw rocks at Israeli troops, civilians or vehicles. Judges can use their discretion in cases involving “special circumstances”. The law has a sunset clause that will require its review in three years.

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