Arguments Against Mandatory Sentencing

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Mandatory minimum sentencing has been a long contentious, and heavily debated topic in Australia since its introduction in 1997 . Mandatory minimum sentences are legislated minimum sentences below which a judge cannot descend in considering sentencing options for a given offence , hence limiting judicial discretion. Mandatory sentencing is a blunt instrument with the primary goals of increasing consistency in sentencing, acting as a deterrent and improving public confidence in the courts by ensuring that sentences properly reflect community views . The purpose of this paper is to consider the arguments for and against mandatory minimum sentences, ultimately arguing against mandatory minimum sentences because it does not achieve its intended goals to an extent that justifies its high economic and social costs. Further, in the specific context of alcohol-fuelled violence, it will argue that mandatory minimum sentencing is unjustified due to its ineffectiveness. This paper will proceed by analysing each of the stated goals of mandatory sentencing, and hence providing arguments for and against its introduction. II Deterrence and Incapacitation…show more content…
Deterrence theory relies on an underlying assumption that offenders rationally weigh up the costs and benefits of their actions before committing a crime . Therefore, deterrence works to add a substantial cost to any action, preventing the rational person from taking a negative action through fear of the punishment. A major flaw in deterrence theory, specifically in the context of the intoxicated person is that it fails to take into account the irrational offender. Irrational offenders, such as intoxicated persons, tend to act impulsively and generally without forethought, eliminating conscious decision making and therefore rendering the deterrence effect

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