|Author||Cumaraswamy, Dato' Param|
|Source/Publisher||Australian Journal of Human Rights, 7(2) Dec 2001| 7-20|
|Subjects||Courts and sentencing, Criminal justice system|
This paper The current controversy with respect to mandatory minimum sentencing laws takes place within a wider context of a general discussion on sentencing reform. This discussion has generally focused on how to improve the effectiveness of sentencing practices, what the principal objectives of sentencing are and a determination of what the appropriate balance between those objectives should be. It has also addressed the need to promote greater conformity in judicial sentencing. As a result, many governments have introduced legislation that restricts judicial discretion in sentencing or regulates the exercise of the sentencing function. Reforms that have been introduced include “truth in sentencing”, the introduction of sentencing guidelines, the creation of a sentencing commission and, more recently, the prescription of mandatory minimum sentences. Laws that require the imposition of mandatory sentences have existed, in various forms, in a wide variety of jurisdictions for some time. In many jurisdictions traditionally there was a mandatory punishment of death or life imprisonment for certain capital offences. Other mandatory sentences have been adopted through the years in a piecemeal fashion to apply to a greater range of offences. These sentences may require the loss of a licence, the imposition of a specified fine, strict liability for certain offences (commonly driving offences) or imprisonment. Alternatively the law may prescribe the range of sentencing options available to a judge, for example a prohibition on the suspension or remission of a sentence or the placing of a limitation on the availability of parole. Finally the imposition of mandatory sentences may be directed at certain exacerbating elements of the crime, for example if the crime was committed in close proximity to a school, or the offender was in possession of a gun or a particular type of gun, or the offender had prior convictions. In recent years mandatory sentences have been introduced in a number of jurisdictions in a more systematic manner and are directed at certain categories of offences, commonly drug offences or violent crime. These laws often require the imposition of a statutorily defined minimum sentence. These laws vary in form and content to a great extent from jurisdiction to jurisdiction. They are directed at a variety of offences and restrict judicial discretion in sentencing issues to different degrees. The imposition of these mandatory minimum sentences has generated a great deal of controversy regarding whether they are successful in achieving their aims, their effects on the justice system and particular groups within society and have sparked a wider debate regarding the appropriate goals of sentencing policy.
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