July 21 2022

US style mandatory sentencing

US style mandatory sentencing

The government, after a reportedly fierce cabinet battle, plans to extend the use of US-style minimum mandatory sentences into the British legal system.

The proposals are part of the Legal Aid, Sentencing and Punishment Bill and include:

  • The introduction of a four month detention and training order for any 16 or 17 year old caught using a knife in a threatening manner. Adults face an automatic six-month sentence for the same offence.
  • Mandatory life sentences for the first time will be extended to crimes other than murder such as child sex offences, terrorism and ‘causing or allowing the death of a child’.
  • Anyone convicted of a second serious sexual or violent crime would get an automatic life term under a‘two strikes policy’. Ken Clarke told the BBC it would apply to somebody who had committed two ‘probably near-murderous attacks’.
  • The much-criticised indeterminate sentence for public protection (IPP) – which has left 6,500 prisoners without a set release date and described by Clarke as ‘a gross injustice – a bit of a stain on our system’ – will be replaced by fixed-term sentences. In the future people convicted of a serious and violent sexual crime will be subject to an extended determinate sentence, serving at least two-thirds of that sentence before being considered for release by a parole board. On release they will be subject to extended licence.

Children under the age of 16 years will not be affected in respect of the proposed changes to knife crime sentences – to the apparent chagrin of Theresa May – who would it seems prefer most of the UK population to be imprisoned from birth to the grave.

At a recent Commons’ home affairs committee Clarke had appeared to make clear his opposition to the use of mandatory sentences, saying his preference was to give judges’ discretion to set sentences based on the facts of cases for nearly all crimes but murder. He also suggested that minimum mandatory sentence for juveniles under 18 was not part of the traditions of the British criminal justice system.

Therefore these proposals seem to be a significant volte-face by Clarke, following reported further spats with May and the intervention of David Cameron. He vigorously denies it is an about turn. In any event, Clarke now says that a mandatory term for certain offences will ‘restore clarity, coherence and common sense to sentencing and give victims a clearer understanding of how long offenders will actually serve in prison’.

Clarke reckons the changes in mandatory life sentences will affect only some 20 or so cases a year. On the Ministry of Justice’s own figures the new mandatory minimum sentence for juvenile knife crime could affect up to 400 cases a year.

Labour’s Sadiq Khan has welcomed the proposed knife measure but said other changes could see dangerous offenders freed. Juliet Lyon, director of the Prison Reform Trust, said: ‘Subject to good sentencing guidelines, what’s wrong with allowing the courts to make sure that the sentence fits the crime?’. I always assumed that was the court’s aim anyway.

Both were unusual bedfellows with Nick De Bios, Tory MP for Enfield, who in a Total Politics blog said how very pleased – with himself mainly – he was about the amendment to include 16 and 17 year olds. De Bois argued it was a ‘victory for his constituents’ who had made their views clear in a petition organised by the local newspaper. No young person, he declared, could now be unaware of the consequences of carrying a knife as the issue had been fully thrashed out on Radio 1  – no doubt its young and feral audience were already angrily sharpening their knives and pencils  listening to Olly Murs. De Bois despaired of the usual sceptics who keep banging on about jail sentences not working (inconveniently backed by empirical and validated research evidence).

Putting to one side the simple point (which even unabashed prison expanders like Jack Straw and Ian Duncan Smith must surely get one day) that if prison actually worked we would be shutting prisons not opening more: what are mandatory sentences likely to mean?

Certainly it will take away sentencing discretion. A point acknowledged by John Bache, chairman of the Magistrates Association youth courts committee, who said they opposed mandatory sentences for youth knife crime as there will always be ‘rare or exceptional circumstances’ where they were not appropriate (given that young people lacked ‘the maturity of thought of adults and must be treated accordingly’).

‘Justice’ of course means ‘justice’ to both community and individual. Sentencing should take into account the particular circumstances of the crime and the individual who committed it. Judges (as Clarke seemed to initially agree) and those involved in sentencing, like probation officers, are surely best placed to make those judgments and within the separation of powers inherent in the British legal system.

Another problem lies in any international comparative study of mandatory sentencing. In both the US (the US sentencing Commissions report to congress of October 2011 reviewed 73,000 such sentences) and Australia (here) a mandatory sentencing regime has led to a rise in prison population. Surprisngly perhaps, it has led to inconsistent sentencing because judges when faced with severe mandatory sentences try and side step them.

Justice is a hard won commodity. We should think carefully before allowing the government of the day to shackle it.