Mandatory Sentencing - Arguments For and Against Mandatory Sentencing

Arguments For and Against Mandatory Sentencing

Adherents of mandatory sentencing believe that it reduces crime, is fair for any criminals and ensures uniformity in sentencing. Potential criminals and repeat offenders are expected to avoid crime because they can be certain of their sentence if they are caught.

Opponents of mandatory sentencing point to studies that show criminals are deterred more effectively by increasing the chances of their conviction, rather than increasing the sentence if they are convicted.

Research indicates that mandatory minimum sentencing effectively shifts discretion from judges to the prosecutors. Prosecutors decide what charges to bring against a defendant, and they can "stack the deck," which involves over-charging a defendant in order to get them to plead guilty. Since prosecutors are part of the executive branch, and the judicial branch has almost no role in the sentencing, the checks and balances of the democratic system are removed. Opponents of mandatory sentencing argue that it is the proper role of a judge, not a prosecutor, to apply discretion given the particular facts of a case (e.g. whether a drug defendant was a kingpin or low-level participant). In addition to fairness arguments, some opponents believe that treatment is more cost-effective than long sentences. They also cite a survey indicating that the public now prefers judicial discretion to mandatory minimums.

Australia, Mexico, New Zealand and some other countries employ a system of mandatory restorative justice, in which the criminal must apologize to the victim or provide some form of reparation instead of being imprisoned for minor crimes. In serious crimes, some other form of punishment is still used.