Mandatory minimum sentences and populist criminal justice policy do not work—here's why

April 19, 2017 by Kate Fitz-Gibbon And James Roffee, The Conversation
Successive reviews and inquiries have revealed that mandatory sentences fail to achieve their stated aims. Credit: Shutterstock

The Victorian Liberal Party recently announced that, if elected in November 2018, it would introduce mandatory minimum sentences for repeat violent offenders as part of its crackdown on crime.

Heralded as a "two-strike" approach, the proposal applies specifically to repeat offenders and 11 violent crimes, including murder, rape and armed robbery. Shadow Attorney-General John Pesutto claimed the proposed new sentencing laws were "unprecedented" in Victoria and "will be certainly among the toughest measures that anyone has sought to introduce in our criminal justice system".

Although obviously intended to improve community safety, mandatory minimum sentencing policies run counter to the significant body of evidence indicating that this approach to sentencing is costly, unlikely to improve nor effective in deterring future offending.

Despite this, such political promises are neither new nor unique to Victoria.

Mandatory minimum sentencing across Australia

Mandatory maximum and minimum sentencing policies have been introduced to varying degrees across other Australian states and territories. Western Australia, the Northern Territory, Queensland, New South Wales and Victoria have each introduced minimum terms of imprisonment for a variety of different offences.

At the Commonwealth level, the Migration Act imposes mandatory minimum terms of imprisonment for aggravated people-smuggling offences.

The widespread uptake of such policies should not, however, be considered an indicator of their success in practice. Successive reviews and inquiries have revealed that mandatory sentences fail to achieve their stated aims and have unintended consequences in practice, particularly for marginalised and diverse communities.

Failure to enhance public safety

The limits and dangers of mandatory sentencing schemes are well-established in Australian and international research.

Importantly, we know the threat of a mandatory minimum term of imprisonment does little to deter future offending. Therefore, the approach fails to achieve its aim of reducing offending and increasing public safety.

While policies that promise definite and lengthy terms of imprisonment for repeat violent offences may appear attractive within populist politics, they undermine long-established principles of proportionality and individualised justice.

In sentencing offenders for serious violent crime, senior members of the judiciary are in an expert position to determine the appropriate sentence to be imposed. Politicians lack the qualifications and experience to determine sentences, though they can pass legislation that reflects public concern and gives the judiciary the power to determine sentences for punishment, deterrence and rehabilitation.

By weighing up the individual facts of a case, a person's offending and their individual circumstances, a judge works to apply a just sentence. Such a complex act of sentencing should not be used by politicians as a response to populist concerns.

The cost of mandatory sentencing

The failure of mandatory sentencing to achieve its stated aims also comes at a significant cost to public money. By their very nature, such policies divert more people into the prison system and for lengthier periods of time. The result is greater cost.

Take the recent Victorian announcement for example. In 2015, the Productivity Commission found that it cost A$103,000 annually to imprison one person in a secure Victorian prison facility. Victorian Opposition Leader Matthew Guy estimated the proposed sentencing laws would impact 3-4,000 people "over a period of time".

On this basis, over the government's four-year term, if 3,000 additional people were imprisoned for one year, the opposition's proposed policy would cost – at minimum – an estimated $309 million. If this cost were repeated each year for the four-year term of government, the cost of the policy would be a minimum of $1.236 billion.

From a purely economic perspective, the cost of this approach is staggering. That $309 million will not be spent on tackling the underlying causes of crime or implementing evidence-based criminal justice policies.

And, at a time when Victoria – and many Australian jurisdictions – is imprisoning more people than ever, any policies that increase prisoner numbers must be seriously reconsidered.

'Political' responses to crime

Policies such as that announced by the Victorian Liberals are commonplace in the lead-up to state elections, when parties often mount "law and order" campaigns.

Politicians will often promise tougher criminal justice policies, usually in the form of longer terms of imprisonment, or zero-tolerance policing. This is all sold as taking action to "keep the community safe".

The political nature of such reforms was evident in 2014. Following a series of high-profile "one-punch" homicide deaths, NSW introduced a minimum term of eight years' imprisonment for offenders who were intoxicated while committing such a crime. Championed by then-premier Barry O'Farrell and later introduced by Mike Baird, the harsh approach to sentencing was touted as a response to public outrage over increasing levels of alcohol-fuelled violence.

Over two years on, the Law Council of Australia has appealed for the abolition of the law, noting that mandatory minimums "create greater law and order problems" than they solve.

Why we must learn from our mistakes

Since the Victorian Liberals' announcement, the proposal for mandatory minimum has been met with significant criticism from the legal and academic community. Their concerns are well founded.

Australian states and territories must move away from populist, ineffective "law and order" policies in favour of evidence-based and individualised responses to serious concerns.

Explore further: Sentencing overhaul needed to reduce crime and save taxpayer money

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25 comments

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rderkis
1.8 / 5 (5) Apr 19, 2017
Just out of curiosity what is the recidivism rate for these 2 time/or more times offenders? If we let them out are they likely to commit a violent crime again and be resentenced and in what time frame? Perhaps this is the only way to protect society, except of course termination..
MR166
1 / 5 (4) Apr 19, 2017
If the judges were doing their jobs properly you would not need mandatory minimum sentencing. Though, you might need mandatory maximum sentencing for repeat offenders. If it costs too much to keep a criminal in jail perhaps we need to outsource our jails. North Keora could jail chronic offenders at a much reduced cost. I will guarantee that THIS will reduce the rate of recidivism.
MR166
Apr 19, 2017
This comment has been removed by a moderator.
gkam
3.3 / 5 (7) Apr 19, 2017
Simpletons and angry malcontents usually inflict this kind of abuse on other parts of society.

They try to cloak their brutality in words, but it shows.
MR166
1 / 5 (4) Apr 19, 2017
The cost of incarcerating a repeat felon is a useless metric. A better metric is the cost to a neighborhood of NOT incarcerating him/her. How many other felons will this person create during a lifetime of crime? How many lives will he ruin. One of the reasons for gangs is that they protect members from other felons.
manfredparticleboard
4.2 / 5 (5) Apr 19, 2017
Another bullshit government building huge prisons and before they are finished suddenly there are new 'tougher laws ...needed to keep the community safe'. This is building a crime industry around courts, lawyers, prisons and police. The same money could be much better spent on community mental health, youth mentoring and life skills education. They know that jailing someone leads to recidivism, which just keeps the sector employed. If you jail someone you jail their family too. A ponzi scheme of winning votes and ruining lives.
MR166
2 / 5 (4) Apr 19, 2017
Here in the US some gangs require that when a member is released from jail he commits a random murder in front of a gang witness just to prove that he have not gone "Soft". How many times do you want to parole this guy eh Gkam?
MR166
1 / 5 (2) Apr 19, 2017
Yea Manfred why waste money on police at all when it could be better spent on social workers.
manfredparticleboard
5 / 5 (4) Apr 19, 2017
Keep on raising sentences and lower the minimum wage. The only walls you'll need are to keep the 5% safe.
MR166
1 / 5 (2) Apr 19, 2017
Look not every crime needs to be punished by jail. For instance drug users should be able to opt for drug rehab with the understanding that they need to get clean or else.

The other option is to make all drugs legal but then the state will wind up feeding and housing them and their children. That just might make the productive part of society very mad.
MR166
3 / 5 (4) Apr 19, 2017
"Keep on raising sentences and lower the minimum wage."

Sorry to burst your bubble but minimum wage jobs should not be anything more than a portal into employment. People are required to obtain valuable skills in order to lead a middle class life. Note, I did not say the they need to be educated by our phony system. They need to acquire real marketable skills. Most people can earn a good living by cutting lawns but not so good by majoring in tap dancing.
manfredparticleboard
5 / 5 (4) Apr 19, 2017
So you assume drug use strongly equates to low functionality? Use a drug and you instantly become an unwashed malcontent no-hoper, is that what you think happens?
There is a huge difference between use and abuse, only abuse makes news and admitting to use gets stigmatised by people like you. So you set up an echo chamber reinforcing your views and get bad policy by politicians who will sell you unworkable solutions to the problem of addiction and poor psychology.
manfredparticleboard
4 / 5 (4) Apr 19, 2017
Giuliani's zero tolerance policy sure worked....by making a crimewave elsewhere. Roe V Wade did more for crime prevention than 'Tough' policy. Low socio economic opportunity is a strong predictor of criminality, minimum wage earners who are permanent working poor become desperate and desperate people do desperate things. This is one of those topics where solutions are not simple and the answers are more often than not counter-intuitive.
MR166
2.3 / 5 (3) Apr 19, 2017
"Giuliani's zero tolerance policy sure worked.."

I live very close to NYC and can say from first hand experience that Giuliani turned the city around in terms of the safety of individual citizens. It was a real mess when he took office.
manfredparticleboard
4 / 5 (4) Apr 19, 2017
That doesn't address the problem of what happened afterwards, the problems just went elsewhere. But if the problem isn't in front of me...problem solved!
MR166
2.3 / 5 (3) Apr 19, 2017
"So you assume drug use strongly equates to low functionality? "

Well if you are talking abut Heroin and Crack yes. Some people are functional on Coke until they die of a heart attack. Pot is like alcohol in that most people can function and use it. The problem with most drugs is that one needs ever increasing amounts in order to obtain the same effect as when one started using. Note this applies to prescription drugs as well.
manfredparticleboard
4 / 5 (4) Apr 19, 2017
I took issue with the simple phrase 'drug users' and equating that with 'get clean' as though the two are synonymous. Every time someone says drug use and they mean full blown addiction, it gets my goat because of the lazy reasoning. The same with the reporting of the substances themselves, the amount of times the reporting says methamphetamines as though the entire class of substances were present or have the same pharmaceutical effect is lazy reasoning.
TheGhostofOtto1923
1 / 5 (2) Apr 19, 2017
The whole legal/corrections industry generates a great deal of money which is good for economies. This is why the death penalty has fallen out of favor.

The main benefit of long-term incarceration however is to keep criminals from reproducing for as long as possible.
MR166
5 / 5 (1) Apr 19, 2017
"Every time someone says drug use and they mean full blown addiction, it gets my goat because of the lazy reasoning."

OK, I agree with that. But by the same token we were talking about jail time which pretty much implies multiple arrests which pretty much implies addiction. Lets take DWI as an example. The first time it costs you a lot of money but no jail time. After that there could be jail time. If it happens a 3rd time you are most likely alcoholic.
manfredparticleboard
3 / 5 (2) Apr 19, 2017
And on another side of the dice, there could be Greg. Greg works in IT as a system integration specialist. Greg also likes a bit of weed. Greg gets pulled over in a random police stop and they notice a bit of green stuck in his beard and now search him and find a larger amount that under the new 'tougher' trafficking laws makes him a dealer. Greg says it was for personal use, but the courts now convict him as a trafficker. Greg now mows lawns for cash and washes pots in a friends restaurant at night and now struggles to get his car fixed in order to work another job that might get him ahead a bit.

This is also the reality of being 'Tough on crime'.
MR166
5 / 5 (1) Apr 19, 2017
It is a lot easier to make a case for legalizing or decriminalizing pot than other drugs. I am all for prescription Marijuana since it is a lot less harmful and more effective than the prescription drugs that it replaces.
MR166
5 / 5 (1) Apr 20, 2017
Actually illegal immigration and drug regulations have a lot in common. Both are violations of federal law. As far as drugs go I think that the states should make the decision on their legality. If people want to allow unchecked immigration then CHANGE THE LAW don't just disregard it. Disregarding and failing to enforce the existing laws sets an extremely bad example. If the governments chose selective enforcement of the laws of this nation then what kind of system is left?
manfredparticleboard
not rated yet Apr 20, 2017
My take on changing the law needs disobedience, as otherwise there would be no case for change. Laws that don't reflect the will of society or do more harm than they prevent MUST be changed. Laws are in simple terms there to prevent the making of a victim, but when the law makes people victims by convicting them for choices they make about there own lives, something is wrong.
MR166
5 / 5 (1) Apr 20, 2017
" Laws that don't reflect the will of society or do more harm than they prevent MUST be changed. "

Well that is the crux of the problem isn't it. What is the will of society? If the lawmakers really thought that they could pass new laws relaxing immigration and get re-elected they would. The same applies to drugs.
manfredparticleboard
1 / 5 (1) Apr 20, 2017
And the crux boils down to the will of a smaller group vs the will of a larger one, it's the essence of culture wars. Diversity vs homogeneity, disobedience vs conformity, and some see it as good vs evil, civility vs anarchy and other highly emotional diametrics. Squashing peoples' wills into a tight bell curve is going to be fraught with battles.

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