Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models

9. Sentencing in other Nations

This report on mandatory sentencing concludes by noting mandatory sentencing laws in other western nations. A comprehensive survey of even a number of representative countries is beyond a single report.[25] However, two observations can be made. First, there is no evidence that other western nations have adopted mandatory sentences of imprisonment as a response to rising crime rates. The mandatory sentences of custody that exist have been part of the sentencing framework for many years, and generally focus on exceptional crimes such as murder.

Second, when minimum sentences of imprisonment exist, courts are provided with discretion to sentence below the minimum when mitigating circumstances exist. For example, Swedish criminal law allows courts to sentence below the statutory minimum and to impose less severe punishment than imprisonment when mitigating circumstances are present. The current sentencing principles were introduced into the Swedish Penal Code in 1989 with the aim of increasing the predictability and consistency of penal decision-making. The law sets forth "penalty scales"; with maximum and minimum sentences specified individually in relation to each crime. A number of aggravating and mitigating circumstances are provided. These arrangements are comparable to the "judicial discretion"; clauses that have been identified in several common law countries such as South Africa.

10. Conclusion

This report has demonstrated that while mandatory sentences of imprisonment proved popular in the 1990s across a number of common law jurisdictions, closer examination of the laws reveals that many countries allow courts the discretion to sentence below the minimum when exceptional circumstances exist. This usually means that courts are permitted to consider mitigating factors relating to the offence or the offender, in some cases, as long as the judge provides written reasons for doing so. In addition, while the general public appears to favour the use of mandatory sentences for offenders convicted of the most serious offences and repeat offenders, there are important limits on public support for strict mandatory sentencing laws. When the public is provided with more information regarding the law and the circumstances surrounding the offence and the offender, the tendency is not to favour punitive sanctions such as mandatory minimum sentences.

[25] Additional information about sentencing in several countries (including Poland, France, Romania, and Sweden) is available from the author.