Mandatory sentencing: a criminological perspective


This paper will give a ‘criminological perspective’ on mandatory sentencing. It will however largely avoid the issues of the effect of mandatory sentencing provisions on the judicial process and judicial independence, as this has already been covered by Sir Anthony Mason. It will also avoid the legal issues concerning the constitutional, human rights and international law aspects of mandatory sentencing which will be covered by later speakers. The aim will be to give a brief overview of research which evaluates the effects of mandatory sentencing provisions in terms of the available evidence of whether they meet their stated aims of deterrence, selective incapacitation and the reduction of crime rates. This will be done in two parts, first in relation to the more extensive experiment in mandatory sentencing in the USA which has provided some of the impetus and metaphors (“three strikes”) for recent Australian developments; and second the recent mandatory sentencing provisions in Western Australia (WA) and the Northern Territory (NT). Evidence from both the US and WA (NT is hard to assess because of the lack of proper monitoring and criminal statistics) indicates that mandatory sentencing does not produce the effects of deterrence, selective incapacitation and crime reduction which are its stated justifications and does produce a range of damaging side effects in terms of distortion of the judicial process, wildly disproportionate sentencing, additional financial and social cost and deepening social exclusion of individuals and particular communities. So what is left are the less acknowledged underpinnings of mandatory sentencing in the form of the symbolic politics of law and order, the politics of social exclusion and a displacement of racial anxieties and hostilities onto the terrain of the legal. In fashioning this necessarily brief overview a number of sources have been heavily drawn upon, in particular the excellent work by Neil Morgan from UWA (Morgan, 1995;1999; 2000); Dianne Johnson and George Zdenkowski in their detailed report to the Senate Inquiry (2000); and a number of articles appearing in 1999 in an excellent special issue of the UNSW Law Journal, all of which are highly recommended for further reading. (Introduction, edited).

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