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“Three Strikes” legislation and mandatory sentencing for minor offences Essay Example

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“12The Three Strikes” Legislation and Mandatory Sentencing for Minor Offences

The Three Strikes Legislation and Mandatory Sentencing for Minor Offences

Executive Summary

The three strikes legislation and mandatory sentencing for minor offences were introduced in Western Australia with an aim of preventing home burglary. According to the legislation, an offender is sentenced to 12 months in prison if they are convicted for the third time of home burglary. The legislation has advantages in terms of incapacitating the offenders. This is usually achieved by incarcerating them and hence preventing them from committing crimes. It also deters the offenders and other members of the society from committing the crime as they are fully aware of the consequences. Discretion is also prevented by the legislation and it leads to equal treatment by the offenders. It is important to note that the decision making process of the courts is simplified by the legislation. The legislation has a negative impact on the poor as they are the ones prone to committing the offences. The lives of the offenders are also impacted negatively once they are jailed due to the negative image of offenders. The legislation also leads to the increase on the time taken for the cases to be completed. This has a negative impact on the costs. On the other hand, the imprisonment leads to the increase in the number of prisoners and hence contributing to overcrowding in the prisons.

Introduction

The increase in property crime in Australia led to the introduction of “The Three Strikes” legislation and mandatory sentencing for minor offenses. The concept of the strikes legislation and mandatory sentencing was copied from the United States of America which had earlier put the legislation in practice. The legislation prescribes the minimum period of sentencing for certain offenses. The legislation in Western Australia targets home burglary (Warner, 2012). This was after concerns were raised by the members of the community regarding the increase in home burglary. Regardless of the gravity of the offence, the minimum imprisonment period is twelve months. The legislation is applicable to the adults and juvenile repeat offenders. The introduction of the legislation has drawn different reactions from the members of public. Some advocates feel that the legislation should also be extended to include the police assault which is also on the increase. Other members of the public are against the legislation as they feel it undermines the human rights. The advocates argue that the use of the legislation promotes equal operations of the laws and hence reason as to why it should be extended to other areas like assault on the police officers and public officers. The controversy regarding the legislation therefore continues to generate a lot of debate regarding it efficiency and effectiveness in fighting crime. The paper thus discusses the concepts of “Three Strikes” legislation and mandatory sentencing with focus on its advantages and disadvantages.

Current legislation

The 1996 Amendments to the Criminal Code (WA) paved the way for the three strikes and mandatory sentencing (Criminal code (WA), 1996). According to the legislation, an adult or juvenile who is sentenced for a third time or more for home burglary must receive a minimum of 12 months imprisonment or imprisonment (Cunneen, 2011). This legislation came into force after the high number of home burglary in Western Australia. The main purpose of the legislation was therefore to prevent the home burglary which was on the increase. The mandatory sentencing is also for the purposes of deterring the would-be-offenders from engaging in home burglary. The legislation does not give any option of a fine for the third time offenders. This means that they will have to serve jail terms for a period of one year. This legislation is referred to as the three strikes as the offenders receive the mandatory sentencing after they commit the home burglary offence for the third time or more. This also means that the offenders who commit the offence more than three times will have to face the mandatory sentencing. Advocates are also pushing for the legislation to be extended to the people who assault the police officers and public offers when they are carrying out their duties. This is because of the increase on the assault crimes on the public officers and policemen (Pathinayake, 2013). This legislation has produced varying results since it was put in place in Western Australia. To some extent, it has been able to achieve its main objective although it has also led to different opinions.

Advantages of the legislation

Preventing crime

The legislation plays an essential role in preventing the home burglary crimes. This is because the offenders are aware of the consequences which deter them from committing the crimes. According to the government sources in Western Australia, a downward trend in car theft has been experienced. This is because the legislation has impacted positively on the prevention of the crime in Western Australia. The state government sources have also reported a reduction in the juvenile detention in relation to car theft and home burglary. The sources also indicate that the home burglary has reduced by about 50% since the reduction introduction of the legislation (Indermaur, 2011). This is an indication that the legislation has played an important role in terms of keeping the community in Western Australia safe. On the other hand, it is also important to note that reduction in crime rate related to home burglary is an indication that the legislation is effective. The legislation is thus advantageous to the people in Western Australia as they encounter few incidences of home burglary. However it is important to note that the statistics linked with the mandatory sentencing is minimal but the community is much safer as few incidences of home burglary are reported as compared to the past (Stubbs, 2011).

Incapacitation

Incapacitation of the offenders is also one of the advantages of the legislation and it plays an essential role in preventing the crimes. Incapacitation ensures that the offenders are incarcerated and hence ensuring that they are unable to commit the crimes. The legislation plays an important role in preventing the offenders from continuing to offend. This is because the offenders know that they only have three chances before being sentenced to 12 months imprisonment. On the other hand, the offenders who continue to commit the crimes risk going to jail and hence forcing them to stop committing the offences (Bagaric, 2011). Incapacitating the offenders is also important in ensuring that the future offenders are not able to commit the offences. Once the offenders are incarcerated, it is impossible for them to continue committing the crimes and hence resulting to the reduction in the number of burglary cases in the community. Most of the neighborhoods in Western Australia are safe since due to the incarceration of the repeat offenders. Past behaviors are also important in determining the future behaviors. The chances of the offenders repeating the same offence in future is high. Incarceration is thus plays an essential role in incapacitating offenders and hence preventing them from committing same crimes in future.

Deterrence

Deterrence is also a benefit of the legislation in Western Australia. The 12 months imprisonment plays an essential role in deterring the offenders from being involved in the home burglary. The offenders upon being released may be forced to stop committing the crimes since they know that they will be incarcerated again once they are caught (Weinberg, 2012). Deterring the offenders from continuing committing the crimes is thus beneficial to the society as it also plays an essential role in ensuring that the offenders reform. Although there are no official statistics in Western Australia of the offenders who have been deterred by the law from being involved in home burglary, the number of repeat offenders has been dropping. This is an indication that the legislation deters the offenders from continuing with their criminal behaviors of house burglary. General deterrence is also a benefit of the legislation. A part from the known offenders, it deters the other members of the community from committing the crimes. Deterring the would be offenders plays an important role in ensuring that crime rates in terms of house burglary is reduced (Gelb, 2014). This therefore has a positive impact in terms of lowering the levels of crime in the community.

Consistency

Mandatory sentencing is beneficial to the judicial system as it prevents the incidences of discretion. This is because different judges may give different judgments or sentences in the same situation. However, the mandatory sentencing plays an essential role in ensuring that the offenders receive equal treatment for the offence of burglary for the third time and more. This ensures that consistency is achieved in the courts during the process of making judgments. Discretion in the courts led to unfair judgments before the introduction of the legislation. This is because it some of the offenders could be given light sentences while other could receive has sentenced for a similar offence related to home burglary (Bouhours, 2012). The legislation is thus beneficial for both the offenders and the courts as it simplifies the decision making process in relation to burglary. The fear of crime in the community is also reduced through the mandatory sentencing. This is because the offenders are incapacitated and hence reducing the fear of crime. In Western Australia, mandatory sentencing has created a public confidence on the judicial system as the third time offenders are automatically sentenced to a jail term of 12 months. It is also important to note that the mandatory sentencing was in response to the public concern on the rising cases of home burglary.

Disadvantages of the Legislation

Unfair treatment of the offenders

The mandatory sentencing has a negative impact on the concepts of fairness. This is because it limits the ability of the court to consider the situation as well the circumstances in which the offence took place (Cunneen, 2011). It also denies the offenders the opportunity to defend themselves and hence leading to unfairness. Petty offenders may end up being over-penalized by the legislation and hence impacting negatively on the justice system. In the Northern Territory, an Aboriginal man was sentenced to 12 months in prison for stealing a towel. This is an indication that the legislation is not fair as leads to over-penalization of the petty offenders and hence impacting negatively on the human rights. In the United States of America where the mandatory sentencing is also practiced, a Californian man was sentenced to 25 years in prison for stealing a slice of pepperoni pizza (Gray, 2012). This is an indication that the legislation is quite unfair and the petty offenders’ ends up being penalized more that the hardcore criminal who have committed serious crimes. It is also important to note that the mandatory sentencing interferes with the discretion of the courts in the bid to establish consistency. The mitigation factors are also limited in the court by the mandatory sentencing and hence leading to the imprisonments of offenders for minor offenses.

Increased costs and delayed sentencing

The physical and mental health issues are usually not considered under the mandatory sentencing (Mackenzie, 2012). This is due to the strict nature of the legislation and it leads to the incarceration of the people with physical and mental health. The mandatory sentencing also leads to increased costs and delayed administration of justice. This is because most of the offenders will always take the not guilty plea for the purpose of avoiding the jail term. This has a negative impact on the process of administering justice as the case may end up dragging for a long period of time. On the other hand, the incapacitation of the offenders is a wrong approach as some of the arguments are based on deterring the offenders from repeating the same offence. This is because it is not accurate to conclude that the offenders will repeat the same offense in future (Morgan, 2014). Although the legislation ensures that the offenders are incarcerated, it provides no incentive for them to stop offending once they are released from jail. This means that the offenders may still continue committing the crimes continuously. In Western Australia, several offenders have been imprisoned more than once for burglary. This is an indication that the legislation is not effective in deterring the offenders.

Negative social and psychological effects

The legislation does not consider the social issues and the impacts that the imprisonment has on the offenders. Incarcerating the home burglars may end up affecting the offenders psychologically due to the negative image of the people who have been imprisoned. On the other hand, it is also important to note that the legislation has a negative impact on the reformation of the offenders. This is because they always experience difficulties in finding employment once they have been released (Bartels, 2012). The legislation also leads to the increase in the number of people in the prisons. This has a negative impact as it results to crowding in prisons. Although the incarceration is for the purposes of reducing the home burglary, it is unfair to the poor people, youth and petty thieves as they are ones who are incarcerated while the offenders who commit violent crimes are handed lighter sentences. This is an indication that the legislation is not fair to the poor and vulnerable people who end up committing the offences due to poverty. In Western Australia, the judges have avoided handing over the mandatory sentencing to the offenders since they felt that the offenders do not deserve the jail terms due to the nature of their crimes (Vincent, 2012). This is also an indication that the mandatory sentencing puts the judges in a dilemma.

Recommendations

  • It is recommended that the mandatory sentencing should be extended to cover violent crimes.

  • The judges should be still allowed to maintain discretion despites the three strike in order to consider people with health and psychological problems.

  • The mandatory sentencing should be carried out without violating the human rights.

  • The nature of the third offense should be considered before the jail term is handed to the offender.

Conclusion

In conclusion, it is apparent that the mandatory sentencing has its own advantages as well as disadvantages. The main reason for the legislation in Western Australia is to prevent home burglary. It is evident that the legislation was put in place after the concerned raised by the public reading the rising cases of home burglary. It is evident that the legislation plays an important role in deterring the offenders from committing crimes. It is evident that since the introduction of the legislation, the incidences of home burglary have been reduced. The legislation has led to the incarceration of many offenders and hence reducing the home burglary in Western Australia. The legislation has also been useful in terms of ensuring that equal treatment of offenders who commit home burglary is achieved. However, it is also evident that legislation has also raised concern. This is mainly on the social viewpoint. The incarceration of the offenders does not reform them and hence leading to the offenders repeating the same crimes once they are released. On the other hand, it is evident that the legislations unfair as it leads to the petty offenders being over-penalized for petty crimes that do not deserve jail terms.

References

Bagaric, M. (2011). Punishment & Sentencing: A Rational Approach. London: Routledge.

Bartels, L. (2012). Sentencing scammers: Law and practice. Trends and Issues in Crime and Criminal Justice, (443), 1.

Bouhours, T. (2012). Sentencing and public confidence: Results from a national Australian survey on public opinions towards sentencing. Australian & New Zealand Journal of Criminology, 45(1), 45-65.

Criminal code Act, Compilation Act 1913 (WA).

Cunneen, C. (2011). Juvenile justice: Youth and crime in Australia. Oxford: Oxford University Press.

Gelb, K. (2014). Measuring the Effects of Small Group Deliberation on Public Attitudes towards Sentencing: Benefits and Challenges. Current Issues in Criminal Justice, 25(3).

Gray, A. (2012). The constitutionality of minimum mandatory sentencing provisions. Journal of Judicial Administration, 22(1), 37-47.

Indermaur, D. (2011). A country not divided: A comparison of public punitiveness and confidence in sentencing across Australia. Australian & New Zealand Journal of Criminology, 44(3), 370-386.

Mackenzie, G. (2012). Public preferences for sentencing purposes: What difference does offender age, criminal history and offence type make? Criminology and Criminal Justice, 12(3), 289-306.

Morgan, V. A. (2014). Pre‐sentence mental health service use by adult offenders in Western Australia: Baseline results from a longitudinal whole‐population cohort study. Criminal Behaviour and Mental Health.

Pathinayake, A. (2013). The paradox of parity in sentencing in Australia: the pursuit of equal justice that highlights the futility of consistency in sentencing. The journal of criminal law, 77(5), 399-416.

Stubbs, J. (2011). Indigenous women in Australian criminal justice: Over-represented but rarely acknowledged. Australian Indigenous Law Review, 15(1), 47.

Vincent, A. (2012). Argumentation and intuitive decision making: criminal sentencing and sentence indication. In AI Approaches to the Complexity of Legal Systems. Models and Ethical Challenges for Legal Systems, Legal Language and Legal Ontologies, Argumentation and Software Agents (pp. 217-234). Springer Berlin Heidelberg.

Warner, K. (2012). Sentencing Review 2011-2012. Criminal Law Journal, 36, 384-394.

Weinberg, J. M. (2012). The labyrinthine nature of federal sentencing. In keynote address at the NJCA/ANU College of Law Conference, Federal Crime and Sentencing (pp. 11-12).