Mandatory sentencing: does it reduce crime?

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King-hit assaults that kill in New South Wales will now carry a mandatory eight-year minimum sentence if alcohol or drugs are involved.

Announcing the new laws, NSW Premier Barry O'Farrell said they would curb alcohol-related violence on Sydney's streets. But some in the legal community complain that mandatory sentencing won't work.

NSW Bar Association president Phillip Boulten SC says: "There's no evidence at all that mandatory sentencing ever decreases the amount of crime that's committed and it has the ability to act unfairly on vulnerable and disadvantaged groups."

"It isn't effective, it's not a deterrent, it just leads to more people being locked up for no good purpose," he said

The claim: Phillip Boulten says there is no evidence that mandatory sentencing ever decreases crime levels.

Phillip Boulten says there is no evidence that mandatory sentencing ever decreases crime levels. The verdict: The evidence for mandatory sentencing is contradictory, but there is some evidence to suggest that mandatory sentencing reduces the level of crime being committed.

ABC Fact Check examines whether Mr Boulten is correct to say there's no evidence to support crime decreasing under mandatory sentencing.

How does mandatory sentencing work?

Mandatory sentencing targets crime in two ways. It removes opportunity from criminals by locking them up, and it deters them through threats of jail time and higher penalties.

Mandatory sentencing in practice

Mandatory sentencing legislation was introduced in the 1990s in the Northern Territory and Western Australia.

In the Northern Territory mandatory minimum sentences for property crime were introduced in 1997 and repealed in 2001. Under the regime, offenders were imprisoned for 14 days for a "first-strike" property offence, 90 days for a second and 12 months for a third.

The Western Australian government introduced a "three-strikes and you're in" law for home burglaries in 1996. A person with at least two previous home burglary convictions was required to serve at least 12 months in custody if convicted again.

In 2009 WA also introduced a mandatory minimum sentence for any assault on a police officer.

Looking overseas, several states in the United States have implemented mandatory sentencing policies. California introduced a three-strikes policy in 1994, which imposed a life sentence for a list of serious and minor crimes if the offender had two previous convictions for crimes defined as serious or violent.

In 1992, mandatory sentences were introduced for firearm offences in Michigan, Florida and Pennsylvania.

The effects

In terms of crime rates, the Northern Territory results support Mr Boulten's comment. Property crime went up under the Territory legislation and went down after it was repealed, according to figures from the Office of Crime Prevention, a part of the Territory's Department of Attorney-General and Justice.

In a paper published in 2003, the Office of Crime Prevention concluded that this data wasn't enough to make assertions about the effectiveness of mandatory sentencing but it did indicate that policy wasn't as effective as originally intended.

In Western Australia, the results indicate crime decreased under the 2009 legislation which introduced mandatory minimum sentences for police assaults.

The then police minister Rob Johnson and attorney-general Christian Porter announced a 28 per cent decrease in assaults on police officers one year after the laws were introduced.

In California the 1994 introduction of a three-strikes policy resulted in a measurable decrease in crime.

A study published by researchers at George Mason University in Virginia said that arrest rates were 17 to 20 per cent lower for the group of offenders convicted of two-strike eligible offences, compared to those convicted of one-strike eligible offences. The authors concluded this indicated that the three-strikes policy was deterring recidivists from committing crimes.

A study by criminologists from the Northwestern School of Law in Chicago concluded that mandatory sentencing in Michigan, Florida and Pennsylvania slowed down gun crime in the three states.

A 2007 study from the Vera Institute of Justice in New York examined the effectiveness of incapacitation - depriving criminals of the opportunity to offend - under all forms of sentencing, mandatory or otherwise. The study estimated that if US incarceration rates were increased by 10 per cent the crime rate would decrease by 2 to 4 per cent.

What do the experts think?

There has been long debate among policy makers and academics about the impact of mandatory sentencing.

A 2008 report by criminologists Adrian Hoel and Karen Gelb from the Victorian Sentencing Advisory Council discusses how deterrence and incapacitation affect crime rates.

The authors say that when it comes to deterrence, a large number of studies have found no clear correlation between sanction severity and levels of offending. "There is little evidence to suggest that a more severe penalty is a better deterrent than a less severe penalty," they say. "... it would appear from research to date that making a penalty mandatory rather than discretionary will be unlikely to increase its deterrent value."

On the issue of removing opportunity from criminals by locking them up, the paper says: "While there is some proof that incapacitation can prevent further offending by persistent offenders, this does not necessarily establish either that mandatory sentencing increases the effectiveness of incapacitation."

The chair of the advisory council, Arie Freiberg, told Fact Check there is some evidence that incapacitation decreases the amount of crime being committed.

He also said evidence suggests while crime rates dropped to some extent under three-strikes policies, it's difficult to disentangle the effects of these policies from other changes in criminal justice policy that also reduced crime rates.

Don Weatherburn, director of the NSW Bureau of Crime Statistics, told Fact Check there was evidence that mandatory sentencing reduced the amount of crime being committed but the topic of the effectiveness of mandatory sentencing is controversial.

"There is a substantial body of evidence that higher imprisonment rates produce lower crime rates but the size of the effect and the cost-effectiveness of prison is much debated," he said.

Geraldine Mackenzie, Dean of the Faculty of Law at Bond University, say there's only slim proof mandatory sentencing is an effective deterrent. "There is little evidence mandatory sentencing has direct results in terms of deterrence to offenders, although it is true some penalties influence behaviour in various ways, so you can't really say there's no evidence," she said. "Three-strikes and you're out policies may have some effect for property offenders, for example in the US, where everyone knows the consequences, but this won't always be the case."

Professor Mackenzie has a stronger view when it comes to violent crime.

"There is certainly little evidence to support that mandatory sentencing deters potential offenders for many violent crimes, particularly those involving drug and alcohol-fuelled violence, and almost invariably not for crimes of passion and the like which are spur of the moment," she said. "In relation to deterrence, it makes no sense to introduce mandatory sentences for crimes that have no element of pre-meditation on the basis of deterrence."

The verdict

Establishing the impact of mandatory sentencing policies is complex. States and countries have different sentencing regimes, methods of policing and incidence of crime.

Case studies in Western Australia, California, Michigan, Florida and Pennsylvania indicate that crime decreased or plateaued under mandatory sentencing schemes. However in the Northern Territory crime went up under mandatory sentencing.

Experts contacted by Fact Check say there is not much evidence that mandatory sentencing reduces the level of crime being committed, but there is some.

Mr Boulten's claim is overreach.

Sources

Topics: prisons-and-punishment, law-crime-and-justice, states-and-territories, federal---state-issues, federal-government, australia, nsw