You can smell the air of an election in Victoria. On Sunday the Napthine Government announced it wants 10-year mandatory minimum sentences for “one-punch” killers.
The Labor Opposition retorted that it would prefer a new offense of death by assault that would offer up to 20 years in prison.
Obviously the November election is going to be a standard law-and-order auction.
At least when New South Wales introduced its mandatory minimum sentences for one-punch laws in January it did so in response to a massive media-driven moral panic about alcohol-fuelled violence.
Let’s be clear. One-punch killers deserve the maximum possible penalty that is proportionate to the crime that has been committed.
But mandatory minimum sentences have a special place in the tough-on-crime pantheon – there is almost uniform intellectual agreement that they are a bad idea.
The title of one 2009 survey on the evidence about mandatory minimums led with its conclusions: The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings. It argued “the decent thing to do would be to repeal all existing mandatory penalties and to enact no new ones.”
Opposition to mandatory minimum sentences isn’t a left-right thing. In 2000 the conservative Samuel Griffiths Society published a paper describing mandatory sentences as a “tragedy”, “unjust”, and violating the “fundamental principle of law that a sentencing court should not impose a punishment which does not fit the crime”.
So why? The purpose of mandatory minimums is to reduce the discretion judges have in determining sentences, replacing that discretion with a bright-line rule determined by the legislature.
The idea is that judges tend to be soft on criminals, apparently giving lower sentences than the public would like. So the legislature has to step in. Furthermore, imposing a mandatory minimum sends a message: this is an especially serious crime.
But removing judicial discretion in the sentencing process can lead to serious miscarriages of justice – forcing judges to give disproportionately tough sentences when the circumstances may demand more leniency.
Nor, as the 2009 survey cited above makes clear, is there any consensus that mandatory minimums have particularly powerful deterrence effects – at least no more so than discretionary sentencing.
And rather than imposing parliamentary control over sentencing decisions, mandatory minimums shift discretion from judges to prosecutors.
This latter point is the most important. Mandatory sentences aren’t mandatory, in any real way. Every criminal system, by its nature, has to involve a great deal of discretion.
Under a system with mandatory minimums, the key issue becomes what the prosecutor intends to charge – the charge with the mandatory sentence, or some other collection of charges? That decision encourages prosecutors and accused criminals to bargain about what charges will be bought and what facts will be admitted before any trial takes place. This is particularly prominent in the United States where mandatory minimums are extremely common. Suspects and prosecutors engage in a game of arbitrage, negotiating around the suite of potential charges.
As one Australian paper argued, mandatory sentences “make pre-trial decisions the key to the outcome of a case”. They don’t eliminate discretion. They just shift it to prosecutors. Hardly any more democratic, but much more opaque.
Of course, most voters would prefer harsher penalties for crime, particularly thuggish crimes like king hits. If they didn’t, then tough-on-crime policies wouldn’t be politically effective. One global study concluded that mandatory minimum sentences are popular … as long as they are discussed in general terms. But when presented with specific cases that popularity ebbed away.
That finding accords with a more general observation that different expectations about sentencing between courts and community disappear when specifics are examined. (See this Tasmanian study, for instance, or this Victorian one. The NSW parliament has a recent overview of research here.) The reason is simple, if a bit uncomfortable: courts follow public opinion more than they care to admit.
The original mandatory sentence was the death penalty. Capital punishment is as final a punishment as you can get. It was loved by the tough-on-crime politicians of the 17th and 18th century, when long-term incarceration was too expensive to be an option.
It is said that Edmund Burke once commented he could “obtain the consent of the House of Commons to any Bill imposing the punishment of death”.
But even in that era the judiciary tried to vary the punishment to fit the circumstances of the crime.
Stuart Banner points out in his 2002 book the Death Penalty: an American History there were a surprising number of ways executions could be varied to make them more lenient or more punitive. Sometimes a hanging was staged up to the very last moment, when the condemned was released to their surprise. Sometimes the execution was merely theatrical. For the worst crimes, hanging was combining with, for instance, dismemberment.
In other words, even in a world with just one possible punishment in theory – execution – the judiciary and executive government saw the need for substantial variation in sentencing.
Legislation is a blunt instrument. To impose a general rule on human society it is necessary to abstract away from specifics; to slide over details and particulars in order to come to a broader principle that can be applied to an unpredictable and diverse mixture of conduct in the future.
Discretionary sentencing is a fail-safe mechanism to prevent laws conceived in the abstract from becoming absurdities in practice.
It is one of the foundations of our common law system. Judges must have the flexibility to impose sentencing in proportion to the crime, taking into account all the circumstances and specifics and the necessity to punish those who have done wrong.
This principle is too important to abandon just because an election is coming up.