Mandatory Sentencing: Implications for Judicial Independence

• NCJ Number: 189495
• Journal: Judicial Officers' Bulletin Volume: 13 Issue: 1 Dated: February 2001 Pages: 1,4,8
• Author(s): Anthony Mason
• Date Published: February 2001
• Length: 5 pages
• Publication Format: Article
• Publication Type: Report (Annual/Periodic)
• Language: English
• Country: Australia

Annotation

This article discusses the implications of mandatory sentencing.

Abstract

The term “mandatory” includes cases where a court is required to impose a minimum sentence of imprisonment as well as cases where the court is required to impose a specific term of imprisonment. Section 78A of the Sentencing Act (1995) prescribes periods of imprisonment to be imposed upon conviction for property offenses (other than very serious offenses and shoplifting). In the case of adults, the legislation provides for 14 days imprisonment for the first offense, 90 days imprisonment for the second offense, and 12 months imprisonment for the third offense. The court has no discretion not to impose the prescribed period of imprisonment, except in relation to the first offense if the defendant can establish “exceptional circumstances.” Legislatures, in generally leaving the courts with that discretion, have recognized that like offenses, by reason of the differing circumstances in which they are or may be committed, may merit differential treatment by the courts simply because the different circumstances may reveal varying degrees of moral responsibility or blameworthiness. Judicial independence has been expressed as “freedom from direction, control, or interference in the operation or exercise of judicial powers by either the legislative or executive arms of government.” However, the law with respect to the sentence or penalty to be imposed upon conviction for a criminal offense is invariably statute-based. Harsh mandatory sentencing provisions create problems for judicial independence. Because judges have no alternative but to impose the sentence, this creates an unnecessary tension between the judicial and legislative branches of government. It is unusual and undesirable to deprive the court of its discretion, as circumstances alter cases and it has been the traditional function of the courts to make the punishment appropriate to the circumstances, as well as to the nature of the crime. 26 endnotes.