Mandatory Minimum Sentences: A Utilitarian Perspective

Article excerpt

Introduction

The case of Robert Latimer, the Saskatchewan farmer who killed his disabled daughter Tracy, has once again brought into focus the issue of mandatory minimum sentences (MMS). Latimer was twice convicted of second degree murder for what he claimed was a compassionate killing. His case culminated in an appeal to the Supreme Court of Canada on the grounds that the circumstances of the killing merited a constitutional exemption, under s.12 of the Charter of Rights and Freedoms, from the mandatory sentence of life imprisonment with ten years of parole ineligibility (Grant 2001). The Supreme Court dismissed his appeal that a life sentence, in his case, constituted cruel and unusual punishment on the basis that the planning and premeditation of the act, as well as his attempts at concealment and lack of remorse, overrode his dedication to Tracy and other mitigating factors.

Unlike previous cases, the Latimer appeal did not challenge the constitutionality of the mandatory sentence for murder; only the applicability of this sentence to his case. Nevertheless, the case brought into full view the fundamental dilemma associated with MMS; namely, that their predictable quality, which is said to afford their retributive and deterrent effects, also renders them inflexible and unduly harsh in cases where the offender's motives are not entirely dishonourable. Grant (2001) notes that our law currently has no defence available to those who can no longer cope with the suffering of a loved one.

The inflexibility of mandatory penalties for murder is of particular concern in another context; those instances in which an abused spouse kills her tormentor in a premeditated fashion. Such killings are usually prompted by credible threats against the life of the victim and/or her offspring. Presently, planned killings of this nature carry the same sentence as contract killings.

In Canada, over two dozen offences in the Criminal Code carry MMS, including first and second degree murder, a series of firearm-related offences, impaired driving and related offences, high treason, and gambling offences (Gabor and Crutcher 2001). In addition, over the last two years, Members of Parliament have introduced a number of private members' bills relating to such offences as residential break and enter, sexual assault and interference, as well as several additional firearms offences. In the United States, approximately 60 infractions carry mandatory penalties in the federal system alone (Gabor and Crutcher 2001).

Some criticisms leveled at mandatory sentences

A recent review of the scholarly literature conducted by this author revealed widespread skepticism in relation to these penalties. Most of this literature pertains to rather severe American legislation, such as some federal drug laws and the "Three Strikes" laws adopted first by California and, subsequently, by about one-half of all US states. As discussed below, these laws have been subject to fierce attacks on the basis of their questionable crime preventive benefits, fiscal and human costs, violation of proportionality in sentencing, disproportionate effects on minorities, and their encroachment upon judicial powers.

Scholars and advocates at a colloquium held earlier this year at York University were virtually unanimous in their condemnation of these sentences. The scope and intensity of the arguments levelled against MMS in this country are illustrated by the position taken by the National Association of Women and the Law (NAWL) (Cote, Majury, and Sheehy 2001).

   NAWL supports abolition of mandatory minimum prison sentences because they
   are ineffective; they do not achieve deterrence nor do they highlight the
   seriousness of the offence; they are contrary to principles of fundamental
   justice and equality; they constitute cruel and unusual punishment, and
   lead to arbitrary imprisonment; they conflict with purposes and fundamental
   principles of sentencing set out in the Criminal Code; they undermine
   public accountability and increase the power of the Crown; they reduce the
   number of plea bargains and thereby increase the demands on court time;
   they intensify systemic racism; and they create pressure for an upward
   increase in the length of sentences of imprisonment. …