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

9. Conclusions (continued)

9. Conclusions (continued)

9.8 Some adverse effects of mandatory sentences

MMS calling for lengthy prison terms are likely to carry massive costs. Jury trials increase dramatically, as defendants usually have little incentive to plead guilty. More defence counsel, prosecutorial, and judicial resources, as well as court staff, are required. The pre-trial jail population is likely to increase. Massive increases in prison construction and operating costs have been observed and projected. In some jurisdictions, these increases have led to the early releases of those not subject to MMS, thereby weakening the justice system's response to other crimes. Lengthy MMS will also create a progressively older prison population, with its accompanying costs.

MMS, such as the Three Strikes and federal drug laws in the US, have producedsome grossly disproportionate sentences. When laws are judged by a broad array of justice system actors and by the public to be excessively harsh, compensating behaviours inevitably arise. The experience in California with the Three Strikes law suggests that instances in which the law is circumvented by prosecutors and even judges are numerous. Such laws may also lead to more desperate actions among fugitives seeking to avoid these harsh sentences. Shootouts with the police and attacks/threats against witnesses may increase with such laws. Correctional facilities, too, may be more difficult to manage where MMS remove incentives for cooperative behaviour by removing credits for good behaviour.

9.9 Concluding remarks

There is a conspicuous absence of Canadian research on MMS, given the number of infractions carrying such penalties and the number of private members' bills, in the last two years, seeking to introduce MMS. Especially noteworthy is the lack of any systematic evaluation of the ten, four-year MMS for certain offences involving a firearm introduced with the enactment of Bill C-68 in 1995. Also noteworthy is the absence of evaluations of mandatory sentencing provisions relating to impaired driving.

The evaluation of these and other mandatory sentencing provisions ought to examine their implementation, effects on sentencing patterns, and crime rates, as well as their fiscal costs. The level of public awareness of these penalties also must be ascertained, as such awareness is a precondition of deterrent and denunciatory effects.

Long-term projections of the fiscal costs and crime preventive benefits of MMS are complex undertakings involving many assumptions. It is critical to distinguish between the lengthy minimum prison terms required by laws such as “Three Strikes” and the more modest penalties for offences such as impaired driving, as the challenges posed by the former are considerably more daunting. Mandatory life sentences triggered by a third offence, with little regard for the nature of that offence, clearly have many pitfalls (see previous section). The use of MMS as instruments in the “War on Drugs” also has many limitations, especially when they are triggered by drug quantity alone. Offender motivation and substance abuse, as well as their position in criminal enterprises, ought to be considered if proportional and effective sentences are to be imposed.

MMS show somewhat more promise with regard to impaired driving and firearms offences. Mandatory fines and licence restrictions may create more predictable consequences to which the casual impaired driver may respond. These offenders seem to respond to measures increasing the certainty of punishment, as well as accompanying publicity campaigns that may increase the level of shame associated with this behaviour. On the other hand, repeat offenders with substance abuse problems appear to be less responsive to these measures.

Firearms infractions, too, have responded to MMS in some contexts. In Canada, most of the MMS for firearms offences apply to their unlawful use during the commission of a criminal offence. These provisions are thus meant as an add-on or enhanced sentence to that imposed on the primary offence. One major concern is that the courts do not treat these mandatory minima as add-ons but, rather, tend to impose an overall sentence that may not exceed that imposed for the same offence prior to the introduction of the mandatory penalty. Another concern is whether these MMS will serve as a marginal deterrent in relation to those prepared to commit the primary offence. Thus, if an individual is prepared to commit a robbery – a crime carrying a maximum sentence of imprisonment for life – will he now be deterred by a four-year minimum penalty, assuming that it is usually imposed? Even if he is deterred from using a gun (a questionable assumption given some Australian research), he may substitute another weapon in the commission of the same offence.

A critical issue with regard to the potential deterrent and incapacitative effects of MMS is the pool of offenders to whom these penalties apply. More persistent and active offenders are generally more difficult to deter with the threat of sanctions or to influence through moral appeals. Deterrence will therefore be more in evidence in relation to those offences usually committed by more casual or opportunistic offenders. Incapacitative effects, on the other hand, will be more pronounced in relation to those crimes most often committed by highly active offenders. From a utilitarian point of view, incarcerating occasional, non-violent offenders, for substantial periods, constitutes a colossal waste of justice system resources.

The marginal benefits of incapacitation are also dependent on the number of highly active offenders still at liberty when MMS are introduced; that is, the extent to which the existing sentencing regime was successful in neutralizing these offenders. Incapacitative effects also diminish with age, while the costs of custodial sentences increase as offenders get older. The use of incarceration as a preventive measure, therefore, must be finely tuned or its counterproductive effects may well outweigh its benefits. Therefore, MMS should not be introduced merely to placate a political constituency or without regard to a thorough understanding of the infractions or offenders for whom they are intended.