Like most lawyers, I am implacably opposed to “mandatory sentencing”. The Law Institute of Victoria, Victorian Bar, and Law Council of Australia all stand against it.

Mandatory sentencing is regarded by these organisations as bad policy leading to individual unfairness and negative social outcomes.

Why do most lawyers hold this view?

There are at least seven reasons that mandatory sentencing is bad policy and bad law.

First, it fails to make the community safer.

Sentencing of offenders, by definition, presupposes the commission of a crime.

No matter what sentence is handed down, the fact of the crime can never be erased.

The retort to this might be that graver punishments deter crime.

This is the silliest of arguments in favour of mandatory sentencing. Offenders do not consider sentencing law before committing a crime.

Likelihood of detection and prosecution operates as a deterrent to criminal behaviour.

There is little convincing research evidence that heavy or mandatory sentences do.

Second, mandatory sentencing predictably brings about unjust, anomalous and disproportionate sentences.

Parliament cannot possibly envisage every circumstance in which an offence might be committed and nor the specific circumstances of each individual offender.

Precisely because a judge can consider the particular circumstances of the offender and offending behaviour, they are in the best position to sentence fairly.

Next, mandatory sentencing results in higher imprisonment levels. Prisons are, as the criminologists put it, “criminogenic”, meaning they create crime.

Rehabilitation of offenders is far more likely to occur without imprisonment.

Jails all too often operate to hone a criminal’s “skills”.

They expose prisoners to the very worst of influences.

Imprisonment has, for much of our history, been a sentence of last resort for precisely this reason.

In Victoria, nearly 45 per cent of prisoners released from jail return within two years.

Close to 25 per cent of people with community corrections punishments are in the community corrections system again within two years.

More and longer prison sentences will result in greater rates of reoffending.

Fourth, imprisonment is extraordinarily expensive.

It costs about $125,000 to keep a prisoner locked up for 12 months.

We are imprisoning people at quickly growing rates.

In the 10 years to June 2017, Victoria’s prison population increased by more than 70 per cent.

This is a truth does not sit at all well with the tabloid and some federal government MPs notion that Victoria’s magistrates and judges are “soft on crime”. Indeed, it suggests the opposite.

Fifth, mandatory sentencing does not eliminate discretion in criminal justice processes.

It merely transfers discretion from judges to police and prosecutors.

If the nature of the charge laid determines the sentencing outcome, enormous power and responsibility is given to enforcement and prosecutorial authorities, at the expense of judges.

Sixth, mandatory sentencing undermines public confidence in the justice system generally and judges in particular.

It is predicated on an idea that judges are ill-equipped to apply sentencing law and need the executive’s firm hand to impose adequately tough sentences.

Again, research evidence shows that community members informed of all relevant facts consider specific instances of sentencing decisions of judges to be fair.

Indeed, a common finding of such research is that community members would have sentenced more leniently than courts.

Lastly, mandatory sentencing disadvantages the most vulnerable members of society: the young, indigenous people, people with a mental illness, disabled people, and those “more sinned against than sinners”.

Mandatory sentencing appeals to our basest social instincts – to our outrage and visceral responses to awful crimes.

It is appealing to politicians obliged to place higher value on electoral politics than good
government.

If law and policy should be evidence-based and strive for the general social good, mandatory sentencing is demonstrably bad policy and bad law.

– John McPherson is principal and a founding partner of Arnold Dallas McPherson, a Law Institute of Victoria Director, and State Committee Member of the Australian Lawyers Alliance.
He has been a lawyer for 26 years.
The views expressed here are his own.