Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures

5. The impact of mandatory minimum sentences (continued)

5. The impact of mandatory minimum sentences (continued)

5.2 Mandatory Sentences for Firearm Offences

Over half of the mandatory sentencing provisions in Canada deal with firearms offences. These provisions were first introduced in 1977 and have been amended with the enactment of Bill C-68 in December, 1995. Section 85 of the Criminal Code calls for a one-year minimum penalty for using a firearm during the commission of an offence and a three-year MMS for subsequent convictions. These penalties are to be served consecutively to any other sanction imposed for the primary offence. Bill C-68 introduced ten four-year minimum sentences for serious crimes, such as manslaughter, sexual assault, robbery, and kidnapping (Appendix A).

Surveys of armed robbers conducted in Western Australia suggest that gun robbers consider the threat of punishment in general and MMS in particular (Harding, 1990). Harding found that 73% of his small sample of 15 gun robbers had actively considered the possibility of being caught. Two-thirds of the gun robbers interviewed stated that they thought about the consequences of carrying a weapon and all but one said that they knew weapon use carried a longer maximum penalty in Western Australia. Gun robbers were more likely to be aware of the penalties and to consider the consequences of their crimes than were robbers not using firearms, suggesting that such individuals might be most responsive to MMS. Notwithstanding this rationality, Harding found that virtually all the gun robbers said that they would carry a gun next time they committed a robbery. This study revealed an interesting divergence, seen in many contexts, between perceptions of risk and behaviour. Just as smokers may persist in their habit despite their awareness of the risks, offenders reflecting on the risks of using a gun may nevertheless continue to use firearms due to habit, the sense of security they afford, or other reasons. Thus, awareness of penal sanctions (including MMS) is no guarantee that offender behaviour will be modified by them.

The 1977 legislation imposing a one-year MMS for use of a firearm during an offence was accompanied by a decrease in the proportion of homicides and robberies in which firearms were used (Scarff, 1983). However, the Scarff evaluation study was fraught with a number of methodological shortcomings and acknowledged that there may have been a compensating increase or displacement to homicides and robberies not involving firearms (Gabor,1994b).

A study by Meredith, Steinke, and Palmer (1994) assessed the application of the one-year MMS provided for under Section 85. The study relied on data from the Canadian Police Information Centre (CPIC) regarding charges laid under Section 85 and the sentences imposed for those convicted. The authors called for caution in the interpretation of their findings due to a number of limitations of the database (e.g., missing records, under-representation of dual/hybrid and summary offences, differing reporting practices among police departments). The study revealed that approximately two-thirds of the charges laid under Section 85 were stayed, withdrawn, or dismissed. The primary offence in half the cases was robbery and the sentence imposed most frequently for convictions under Section 85 was a one-year period of incarceration. The average prison sentence imposed was 16.4 months where the Section 85 offence was imposed consecutively to the primary offence. In some cases, the firearms offence was imposed concurrently to the substantive offence. No quantitative analysis was undertaken to determine the effect of the MMS on sentence length; however, police, Crown prosecutors, and judges interviewed in the study believed the effect was minimal or none at all. The interviews also showed that there were no written policies to guide police in laying charges under Section 85.

In the 1970s, a number of American states enacted MMS for firearms offences. Several studies examined the 1975 Massachusetts Bartley-Fox Amendment that provided for a one-year MMS for illegally carrying a firearm (Beha, 1977a; Beha, 1977b; Deutsch and Alt, 1977; Pierce and Bowers, 1990; and Rossman et al., 1980). The assessments of the Amendment were mixed. While Beha found little evidence of a preventive effect, Pierce and Bowers found that homicides, gun assaults, and armed robberies declined, but other assaults and robberies increased--a possible substitution effect. Deutsch and Alt's evaluation revealed a decline in robberies and assaults committed with firearms, while failing to show an effect for homicide. They did not explore the possibility of a displacement to similar crimes committed without guns. Many of these studies were characterized by short follow-up periods (e.g., six months). Tonry (1992) has suggested that some of Bartley-Fox's shortcomings may have been due to the greater selectivity of the police in their searches following the Amendment. In addition, the Amendment was accompanied by a major increase in the number of firearm confiscations (without arrest), as well as in case dismissals and acquittals. By undermining the certainty of punishment, these factors may have jointly lessened the effect of the law.

The Michigan Felony Firearms Statute of 1977 provided for a two-year minimum sentence for possession of a firearm during the commission of a felony to be served consecutively to the primary offence. Evaluations of this legislation revealed little evidence of a deterrent effect (Heumann and Loftin, 1979; Loftin, Heumann and McDowall, 1983). There was evidence that the statute was circumvented both by increases in case dismissals and by the tendency of the courts to undermine its intent by imposing the same overall sentence as was the case prior to its introduction.

McDowall, Loftin and Wiersema (1992) analyzed the effects of MMS for firearms offences in six American municipalities--Detroit, Jacksonville, Tampa, Miami, Philadelphia, and Pittsburgh. Aside from undertaking separate analyses in these cities, the authors pooled the results from these cities to obtain an estimate of the impact of these laws across the six jurisdictions. According to the authors, the laws had sufficient common elements to justify combining the data from the six cities. Each law required judges to impose a specific sentence for an offence involving a gun and prohibited mitigating devices, such as suspended sentences and parole. In addition, each of these laws was accompanied by a major publicity campaign. The authors compared gun and non-gun homicides, assaults, and robberies to ascertain the impact of these laws, using sophisticated time-series designs that monitored the rates of these crimes from 54 to 150 months prior to each law.

The separate analyses yielded mixed results. Gun homicides decreased in all six cities, significantly in four and insignificantly in two. Gun assaults declined in two cities and some effect was observed for armed robbery in two other cities. In the pooled analysis, a very strong effect was observed for gun homicide across the six cities, while little change was observed for non-gun homicide. There was no evidence that gun assaults were prevented by the statutes and there was some evidence that these laws may have prevented armed robberies from increasing as non-gun robberies increased following their enactment while gun robbery rates remained unchanged. Thus, the MMS seemed to have a preventive effect with regard to gun homicide and, possibly, armed robbery. The authors acknowledge that caution must be exercised in drawing conclusions from this study as the cities included were not necessarily representative of those adopting MMS for gun-related crimes. Also, no comparisons were made with cities without such laws to determine whether gun-related violence declined nationally, rather than as a result of the MMS.

An Arizona firearm sentence enhancement law enacted in 1974 was followed by highly significant reductions in gun robberies in two large counties, with no evidence of displacement to other robberies or property crimes (McPheters, Mann, and Schlagenhauf, 1984). The authors also found no significant gun robbery reduction in five other southwestern cities used as controls. They nevertheless noted that the reduction might have been due to a return of robbery rates to historical trends after they peaked in the two years prior to the law.

Marvell and Moody (1995) conducted regression analyses to assess the effects of firearm sentence enhancements on prison populations and crime across the 49 US states that have passed such laws. The study found no consistent effect on prison populations and no significant impact on gun homicide. There was also no evidence of a shift to other homicides. There was little evidence overall that other crimes were affected by these laws. In just three of the states did these laws appear to produce more imprisonment the year following implementation, along with less crime and gun use. Such analyses are confounded by many other social and policy-related factors influencing both incarceration rates and gun use in crime. Furthermore, the firearm laws in the various states took many forms, making generalizations difficult.

To summarize, MMS for firearms offences show promise, although the findings are inconsistent or unclear. In Canada, a major evaluation of the one-year mandatory prison sentence for the commission of a crime with a firearm, introduced in 1977, indicated that a modest decrease in the proportion of homicides and robberies involving a firearm had occurred. There was some evidence, however, that there was a displacement or shift to offences committed by other weapons. This evaluation was plagued by a number of serious methodological shortcomings that preclude more definitive statements about the law's impact. Another study found that the one-year MMS has been applied inconsistently and has not increased sentence length as judges appear to provide a “going rate” for crimes. Thus, judges do not appear to regard the one-year MMS as an enhancement or add-on to the sentence imposed for the primary offence.

In several American jurisdictions, similar laws have been accompanied by reductions in gun homicides and/or robberies. The most extensively researched law was Massachusetts' Bartley-Fox Amendment, which called for a one-year mandatory prison term for carrying a gun illegally. The evidence was mixed on the impact of this Amendment on crime. It has been suggested that adaptive behaviour by the police may have undermined the law, as searches of suspects became more selective and informal remedies (e.g., the confiscation of guns without charges) became more commonplace.

An Australian study was particularly discouraging for proponents of MMS and deterrence in general, for this category of offender at least. Gun robbers in that study indicated that they would continue to use firearms in their offences despite their knowledge of mandatory terms for criminal gun use and despite their consideration of the consequences of their crimes.