With an election looming next month, Tony Abbott, Australia’s opposition leader, has become the latest in a line of politicians playing the familiar law and order card. An incoming Coalition government, he claimed, would “crack down” on gun crime and firearm trafficking, illegal immigration and gangs.
Central to his package of proposals was a new law proposing mandatory five-year jail sentences for illegal firearm importation and the establishment of new police “gang squads”. While both measures have certainly proven popular in other societies, evidence about their effectiveness is far from clear.
Extensive research in the USA, with its long history of gang problems, has found gang suppression methods often quite counterproductive . “Tough” crime control and “smart” crime control are seldom the same thing.
The same is true of mandatory sentencing. England, Wales, Canada and the USA have all adopted mandatory minimum sentences going significantly further than Abbott’s proposal covering illegal importation of guns. The UK law applies to anyone older than 18 in possession of (or buying, selling, acquiring, manufacturing or transferring) a prohibited firearm.
A three-year minimum applies to offenders younger than 18. These mandatory sentences were first introduced in the wake of a terrible “drive-by" shooting at a New Year’s party in Birmingham in 2003 when two young women were killed. The incident prompted a major governmental review, involving the violence-affected communities themselves, of Britain’s gang problem.
However, long before the review reported, and largely in the face of what it eventually concluded, the government committed itself to a mandatory five-year sentence as part of the Criminal Justice Act 2003. The argument that anyone so scared for their life as to carry a gun might reckon a five-year sentence, in the circumstances, a reasonable risk to bear, cut little ice with politicians keen to be seen to be acting tough on violent crime.
Tough legislation misfired
The results were fairly mixed, and although recorded gun crime in England and Wales has fallen by more than 40% since 2004, mandatory sentences have had very little to do with it. With gun possession attracting a tough new penalty, older gang members simply off-loaded weapon-carrying to younger “wannabe” gang-members or girlfriends.
One immediate result was a spate of shootings involving even younger teenagers: both as perpetrators and victims. Subsequent legislation extended the mandatory penalties to a number of other weapon offences, including using someone to “mind a weapon”.
The complaints made about mandatory sentencing often concern the rigid sentencing framework they impose which often ties the hands of the police when filing charges or the courts when passing sentences. The case of a Manchester woman whose abusive partner coerced her to look after his .38 revolver, illustrates the problem. With young children at home she buried the gun in her garden. Unfortunately it was discovered by her son who, when playing with it, shot and killed his sister. The woman was subsequently sentenced to three years imprisonment.
Three years, it should be noted, not five, as English case law has begun to evolve some restrictively defined “exceptional circumstances” in which the five-year minimum can be set aside.
English experiences with mandatory sentencing are closely parallelled by those of the USA and Canada. In February 2013, the Ontario Court of Appeals heard a challenge to the Canada’s three-year mandatory gun possession sentence. The argument that the sentence had no impact upon violent, weapon-involved, offending, though largely true, could not be part of the legal argument.
Instead the case rested upon the arbitrariness of the police charging practice (offences brought under “summary justice” did not attract the mandatory penalty) and the alleged racial disproportion in gun possessing offenders subjected to the mandatory law.
‘Three strikes’ flawed
However the most compelling evidence against mandatory sentences comes from the USA where, ever since the infamous “three strikes” law, mandatory sentencing (in its many forms) has been attracting legal criticism.
Leading US criminologist Michael Tonry has made an extensive study of mandatory sentences and concluded:
The greatest gap between knowledge and policy in American sentencing concerns mandatory penalties. Experienced practitioners, policy analysts, and researchers have long agreed that mandatory penalties, in all their forms, are a bad idea.
They are part of the reason why the US is the most incarcerated society on earth and are typically neither just nor effective.
Among the problems with these sentences are the following: they can be counter-productive for policing and crime investigation by deterring offender co-operation or guilty pleas; they result in charge patterns and sentencing disparities that correlate with race; they restrict judicial discretion in relation to offender mitigation and personal culpability; they produce sharp “cliffs” at certain sentencing thresholds where punishments increase dramatically; and they can add substantially to over-incarceration.
It should be acknowledged that the Abbott proposals, as they stand, only refer to mandatory sentences for illegal firearm importation. This might mean that any such law could avoid some of the worst consequences of existing mandatory sentencing practice - although most criminologists and legal researchers would undoubtedly see them as a step in the wrong direction, notwithstanding the “tough on crime” message they deliver.
Politicians wanting to get smarter on gun crime would do better to learn the lessons from David Kennedy’s Operation Ceasefire initiative in Boston. “Targeted deterrence” rather than “blanket punishments” appears a much more promising violent crime prevention strategy to adopt.