Do you welcome the Law Commission's Report on mandatory sentencing?

censuspro

I notice that the report seems to recommend that judges should be able to determine minimum sentences but is the point of mandatory sentencing to take this discretion away from judges?

Also, there's an interesting piece in the indo by Marian Nolan of Advic who suggests the abolition of the charge on manslaughter and replace it with charges of murder by degree. http://www.independent.ie/irish-news/courts/only-system-change-can-send-out-right-message-29334572.html

valleyoftheunos

censuspro wrote: »

I notice that the report seems to recommend that judges should be able to determine minimum sentences but is the point of mandatory sentencing to take this discretion away from judges?

Also, there's an interesting piece in the indo by Marian Nolan of Advic who suggests the abolition of the charge on manslaughter and replace it with charges of murder by degree. http://www.independent.ie/irish-news/courts/only-system-change-can-send-out-right-message-29334572.html

This 2008 Law Reform Commission recomended significant changes to the Murder/Manslaughter distinction, none of which were ever adopted.

Cody Pomeray

I haven't read the report yet, but I did re-read the 2011 consultation paper again this morning.

My opinion would be that there should be mandatory sentencing, but that mandatory sentences ought to be reduced.

The reason for this is straightforward.

Take the Law Reform Commission's consultation paper. Here, the Law Reform Commission identifies the aims of criminal sanctions as :

1. Punishment
(a) Retribution
(b) Denunciation - societal statement?
2. Deterrence
3. Reform & Rehabilitation
4. Reparation
5. Incapacitation

It seems to me that that given the widely accepted principle of an independent judiciary in this country, there is only one role in the above mentioned list which ought to ordinarily be open to the legislature acting on behalf of the public, and that is 1(a): denunciation.

Once they raise a law, the legislature should have only one very final word to make on the matter until its repeal: the legislature should only express the minimum extent which the public despise an offence in respect of that law, regardless of context, its very commission being repugnant to society to some extent.

This denunciation value is equal to the mandatory penalty.

I would suggest the Government have no place in legislating for all of those other aims of criminal sanctions as set out in the list above, despite what seems to be the current thinking. Therefore mandatory sentences must be reduced.

censuspro

Cody Pomeray wrote: »

I haven't read the report yet, but I did re-read the 2011 consultation paper again this morning.

My opinion would be that there should be mandatory sentencing, but that mandatory sentences ought to be reduced.

The reason for this is straightforward.

Take the Law Reform Commission's consultation paper. Here, the Law Reform Commission identifies the aims of criminal sanctions as :

1. Punishment
(a) Retribution
(b) Denunciation - societal statement?
2. Deterrence
3. Reform & Rehabilitation
4. Reparation
5. Incapacitation

It seems to me that that given the widely accepted principle of an independent judiciary in this country, there is only one role in the above mentioned list which ought to ordinarily be open to the legislature acting on behalf of the public, and that is 1(a): denunciation.

Once they raise a law, the legislature should have only one very final word to make on the matter until its repeal: the legislature should only express the minimum extent which the public despise an offence in respect of that law, regardless of context, its very commission being repugnant to society to some extent.

This denunciation value is equal to the mandatory penalty.

I would suggest the Government have no place in legislating for all of those other aims of criminal sanctions as set out in the list above, despite what seems to be the current thinking. Therefore mandatory sentences must be reduced.

Is the denunciation not referring to informers in the context of handing down reduced punishment i.e. reduced sentence?

Also, whats the advantage of reduced minimum sentencing?

Cody Pomeray

censuspro wrote: »

Is the denunciation not referring to informers in the context of handing down reduced punishment i.e. reduced sentence?

No, in explaining denunciation, the consultation paper quotes the Canadian Supreme Court

“The objective of denunciation mandates that a sentence should communicate society‟s condemnation of that particular offender‟s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender‟s conduct should be punished for encroaching on our society‟s basic code of values as enshrined in our substantive criminal law.”

Also, whats the advantage of reduced minimum sentencing?

I'm not proposing there is a consequential benefit, per se (although I think is it is logical that a society should be able to say "we denounce X in all its forms"). The idea is simply that we adhere to the 5 aims of criminal sentencing identified by the Law Reform Commission, one of which seems to imply a role for the public in certain circumstances, which can be added to by the judiciary.

Here is an example.

Say an individual is found guilty of murder, but there are some exceptionally mitigating circumstances.

In determining a sentence, the trial judge might, for argument's sake, dismiss all of the reform, rehabilitation, incapacitation and related aims of any subsequent criminal sanction as being unjustified, in light of exceptional circumstances... maybe she killed Hitler? Every such case is unique, and is the responsibility of an independent court.

However, using the principle I think we should apply, the public can sometimes get one say in the matter - minimum denouncement of the very commission of an act in any context. The question the public has to ask themselves is "Yes we know you killed that awful Mr. Hitler, but to what extent do we universally condemn this act?". The trial judge might impose nothing but the public denunciation of the act, which for argument's sake we might put at 3 years, gives the guilty party 3 years in prison.

In answering this question, we may find there should be no minimum sentence whatever, of course. I can only think of a handful of offences which I think are worthy of universal condemnation, and these relate to sexual violence.

hullaballoo

censuspro wrote: »

Is the denunciation not referring to informers in the context of handing down reduced punishment i.e. reduced sentence?

Are you equating denunciation with reduction? To denounce something is to declare it to be wrong. As such, denunciation will increase the penalty where it is particularly abhorrent to society. It is a principle of sentencing whereby a statement is being made to the offender in relation to society's view of the crime.

Also, whats the advantage of reduced minimum sentencing?

There doesn't seem to be anything to do with reducing the minimum sentence. I have not seen a suggestion that mandatory minimum sentences will be affected. As far as I can tell, the proposals would increase judges' powers to mandate that a person sentenced to a minimum of 8 years must be in prison for that amount of time before s/he can be considered for release, either for good behaviour or overcrowding etc.

On that point, the proposals would make the management of prisons impossible without heavy investment in the prison system. What do we think of a new tax to fund the expansion of prisons? The Protection Tax? It keeps the criminals away, but if you don't pay, your windows get smashed in.

censuspro

hullaballoo wrote: »

Are you equating denunciation with reduction? To denounce something is to declare it to be wrong. As such, denunciation will increase the penalty where it is particularly abhorrent to society. It is a principle of sentencing whereby a statement is being made to the offender in relation to society's view of the crime.


There doesn't seem to be anything to do with reducing the minimum sentence. I have not seen a suggestion that mandatory minimum sentences will be affected. As far as I can tell, the proposals would increase judges' powers to mandate that a person sentenced to a minimum of 8 years must be in prison for that amount of time before s/he can be considered for release, either for good behaviour or overcrowding etc.

On that point, the proposals would make the management of prisons impossible without heavy investment in the prison system. What do we think of a new tax to fund the expansion of prisons? The Protection Tax? It keeps the criminals away, but if you don't pay, your windows get smashed in.

Maybe I'm misinterpreting the issue, but my understanding that the argument in favour of mandatory sentencing was to take discretion away from judges because the sentences being handed down were too lenient?

hullaballoo

censuspro wrote: »

Maybe I'm misinterpreting the issue, but my understanding that the argument in favour of mandatory sentencing was to take discretion away from judges because the sentences being handed down were too lenient?

There are two distinct issues and I suppose it's easy to confuse them, especially because they have mostly been reported in tandem.

1. Mandatory minimum sentences - these are contained in criminal legislation and bind judges to impose minimum sentences of X years for a particular crime. These are already in existence and the LRC are proposing extending the number of offences covered.

2. Minimum terms to be served - this would be a new power whereby a judge has discretion, when handing down a sentence, to state the minimum amount of time the offender must be imprisoned for. E.g., where someone is sentenced to 3 years, the judge can "recommend" (whatever impact that has) that the offender serves a minimum of 2.5 years.

The above is just my reading of the media reports, I have not had the benefit of looking at the LRC Report so I am fully open to be corrected on this.

johnnyskeleton

censuspro wrote: »

Maybe I'm misinterpreting the issue, but my understanding that the argument in favour of mandatory sentencing was to take discretion away from judges because the sentences being handed down were too lenient?

How do you set the mandatory sentence for theft, when it can be for a mars bar or a priceless painting?

censuspro

johnnyskeleton wrote: »

How do you set the mandatory sentence for theft, when it can be for a mars bar or a priceless painting?

The report/discussion was in relation to homicide.

hullaballoo

It looks like this is being reported differently across different media outlets, so my previous comments are not necessarily correct. I'll have to find time over the weekend to read this. It would be an interesting shift.

johnnyskeleton

censuspro wrote: »

The report/discussion was in relation to homicide.

Yes but your comment:

censuspro wrote:

Maybe I'm misinterpreting the issue, but my understanding that the argument in favour of mandatory sentencing was to take discretion away from judges because the sentences being handed down were too lenient?

was not.

Weighing in on the thread a little late here but this article was indo today. Highlight the differences in sentencing between Ireland US.

http://www.independent.ie/irish-news/courts/woman-gets-22-years-for-attack-on-irish-student-29411936.html

LowKeyReturn

brenbrady wrote: »

Weighing in on the thread a little late here but this article was indo today. Highlight the differences in sentencing between Ireland US.

http://www.independent.ie/irish-news/courts/woman-gets-22-years-for-attack-on-irish-student-29411936.html

I've had a chance to skim the report and I do welcome it. It broadly tallies with many of my own (much less informed) opinions and gave me some food for thought.

Addressing the the quoted post above, what is your point? The US CJS is a total and utter disaster lead mainly by the pandering to the hang 'um high brigade owing to the fact that many of their public office holders are voted on regularly.

If you want to see a working CJS look at the Scandinavian and Japanese systems - short sentences, and an emphasis on rehabilitation. That said these cultures are very different to Ireland, the Japanese in their approach to community and the Scandinavians in that tax rates are much higher and they promote a much more egalitarian society.

LowKeyReturn

LowKeyReturn wrote: »

If you want to see a working CJS look at the Scandinavian and Japanese systems - short sentences, and an emphasis on rehabilitation. That said these cultures are very different to Ireland, the Japanese in their approach to community and the Scandinavians in that tax rates are much higher and they promote a much more egalitarian society.

In our case we have short sentences and no rehabilitation.

LowKeyReturn

brenbrady wrote: »

In our case we have short sentences and no rehabilitation.

Pretty much. We can spend more money and extend sentences and at best keep the crime rate the same, but it will probably be higher, or we can spend more money on rehabilitation. Problem is either spending more money or doing more rehab loses votes.