Minimum Sentencing Unconstitutional

usernamegoes

Hi,

I recently wrote to the Minister for Justice expressing my view that Ireland should look at a minimum sentencing for serious violent offenders and for habitual minor (for want of a better term) violent offenders.

He wrote back saying that it was unconstitutional for the legislature to interfere in setting minimum sentencing. Now, as far as I knew this has never been adjudicated. Are there new cases on this?

I have been doing some searches and didn't find any.

DanInRealTime

If you don't mind me asking, what did the letter say exactly? I'm curious as to the legal logic.

MagicSean

I don't know if you've ever received a letter from the government on a legal matter before but I can assure you they are usually bull****. I once wrote to three different ministers questioning why cohabiting partners could not be taxed jointly and all 3 of them sent back the exact same letter quoting Murphy v AG which completely missed the point I made.

usernamegoes

DanInRealTime wrote: »

If you don't mind me asking, what did the letter say exactly? I'm curious as to the legal logic.

I advocated for a minimum sentence for serious violent offenders, I didn't specify what I felt was a serious offence per se, but I did give example of that guy who robbed and sexually assaulted that elderly lady recently and got six years. I made my view known that a minimum sentence should be set by the legislature.

Much like the mandatory sentence for murder i.e. life.

I also suggested that for people who are given second and third chances for violent crimes of a lesser order, then there should be a three-strikes-and-your're-out-type rule. Not a US-style life w/o parole necessarily but at least a serious custodial sentence.

I also, argued that the court should not be allowed take drugs and drink as being a mitigating factor for sentencing.

source

But minimum sentencing already exists in legislation......10 year minimum for section 15(a) misuse of drugs act springs to mind.

It's not applied by the judges who seem to be more swayed by mitigating circumstances than by the wishes of the people to have serious offences dealt with in a robust manner. But it's legislated for.

Procrastastudy

I'm sorry but mandatory sentences are just stupid.

Judges don't just arrive at the CCJ one day or do a FAS course - they live the law for years. This is popularist non-sense and thankfully in many cases unconstitutional. If the DPP feel the sentence was too light they can appeal it. Longer sentences do exactly the oppisite of what people want, which is to reduce crime. It has been looked at in regards to drugs legislation. There has also been cases borught to the ECHR regarding life sentences - but I may be confusing this with England & Wales.

28064212

usernamegoes wrote: »

Hi,

I recently wrote to the Minister for Justice expressing my view that Ireland should look at a minimum sentencing for serious violent offenders and for habitual minor (for want of a better term) violent offenders.

He wrote back saying that it was unconstitutional for the legislature to interfere in setting minimum sentencing. Now, as far as I knew this has never been adjudicated. Are there new cases on this?

I have been doing some searches and didn't find any.

Can you post the exact content of the two letters? As already pointed out, minimum sentencing already exists for some offences, so they're clearly not unconstitutional

ResearchWill

28064212 wrote: »

Can you post the exact content of the two letters? As already pointed out, minimum sentencing already exists for some offences, so they're clearly not unconstitutional

While a 10 year minimum sentence does exist for a 15a drugs, the judge can go away from such if he is satisfied of certain facts, so while it is called a minimum sentence in reality it is not.

Now I may be wrong and open to correction the only mandatory sentence is life for murder, I believe there was a challenge to this which did not succeed.

In relation to mandatory minimums the argument against is that the dail is doing the job of the judiciary, my own view is the judge is best placed to decide on sentence as all the relevant facts are there and min sentences do not really work. Should there be an open debate on this well yes but a proper debate not s populist rant. Can I ask the OP have you ever sat in on a sentencing circuit criminal court or central criminal court and heard all the evidence and disagreed with the judge also how many court of criminal appeal cases have you sat in at and disagreed with the views of the judges.

coylemj

Before mandatory disqualification folllowed a conviction for drunk driving, judges were suckers for the sob story about the defendant losing his job/unable to visit his bedridden mother 20 miles away etc. etc. so people convicted usually got off with a fine and an endorsement on the licence.

The Oireachtas then introduced mandatory disqualification which if I'm not mistaken represents a minimum punishment so clearly it is not unconstitutional.

ResearchWill

coylemj wrote: »

Before mandatory disqualification folllowed a conviction for drunk driving, judges were suckers for the sob story about the defendant losing his job/unable to visit his bedridden mother 20 miles away etc. etc. so people convicted usually got off with a fine and an endorsement on the licence.

The Oireachtas then introduced mandatory disqualification which if I'm not mistaken represents a minimum punishment so clearly it is not unconstitutional.

Disqualification from driving for upto and including life is not under Irish law a penalty. See Conroy v AG 1965 IR 411, "Though it may have punitive consequences disqualification cannot be regarded as a punishment in the sense in which that term is used in considering the gravity of an offence by reference to the punishment it may attract upon conviction such as imprisonment or a fine, but rather is a finding of unfitness." There is a question under ECHR if it is penalty. See Escoubet v Belgium ECHR 1999-VII and Malige v France Reports 1998-VII p 2922.

ldxo15wus6fpgm

ResearchWill wrote: »

While a 10 year minimum sentence does exist for a 15a drugs, the judge can go away from such if he is satisfied of certain facts, so while it is called a minimum sentence in reality it is not.

Is there legislation for this?
Can you give an example where this has happened?

In my opinion if the Supreme Court has validated the constitutionality of any bill or act containing a minimum sentence for an offence/misdemeanour then it stands to reason that minimum sentencing is most certainly not unconstitutional.

That said, I would not approve of anything similar to the 3 strikes rule, it is punishing someone a second time for something they would already have been punished for.
Minimum sentences are maybe acceptable for some crimes, but I wouldn't be up for multiple punishments for the same crime.

My big beef with our courts at the moment is multiple sentences running concurrently. Absolutely ridiculous in my view.

ResearchWill

Madison Embarrassed Metropolis wrote: »

Is there legislation for this?
Can you give an example where this has happened?

In my opinion if the Supreme Court has validated the constitutionality of any bill or act containing a minimum sentence for an offence/misdemeanour then it stands to reason that minimum sentencing is most certainly not unconstitutional.

That said, I would not approve of anything similar to the 3 strikes rule, it is punishing someone a second time for something they would already have been punished for.
Minimum sentences are maybe acceptable for some crimes, but I wouldn't be up for multiple punishments for the same crime.

My big beef with our courts at the moment is multiple sentences running concurrently. Absolutely ridiculous in my view.

Section 15a

5.— Section 27 of the Act of 1977 is hereby amended by the insertion after subsection (3) of the following subsections:

“(3A) Every person guilty of an offence under section 15A shall be liable, on conviction on indictment—

(a) to imprisonment for life or such shorter period as the court may, subject to subsections (3B) and (3C) of this section, determine, and

(b) at the court's discretion, to a fine of such amount as the court considers appropriate.

(3B) Where a person (other than a child or young person) is convicted of an offence under section 15A, the court shall, in imposing sentence, specify as the minimum period of imprisonment to be served by that person a period of not less than 10 years imprisonment.

(3C) Subsection (3B) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than 10 years imprisonment unjust in all the circumstances and for this purpose the court may have regard to any matters it considers appropriate, including—

(a)   whether that person pleaded guilty to the offence and, if so,

(i) the stage at which he indicated the intention to plead guilty, and

(ii) the circumstances in which the indication was given,

and

(b)   whether that person materially assisted in the investigation of the offence.

(3D) The power conferred by section 23 of the Criminal Justice Act, 1951 , to commute or remit a punishment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised before the expiry of the minimum period specified by the court under subsection (3B) of this section less any reduction of that period under subsection (3E) of this section.

(3E) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence imposed under subsection (3A) of this section and the minimum period specified by the court under subsection (3B) of this section shall be reduced by the amount of any remission so earned by that person.

(3F) Any powers conferred by rules made under section 2 of the Criminal Justice Act, 1960 , to release temporarily a person serving a sentence of imprisonment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised during the period for which the commutation or remission of his punishment is prohibited by subsection (3D) of this section unless for grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by that reason.

(3G) In imposing a sentence on a person convicted of an offence under section 15A of this Act, a court—

(a) may inquire whether at the time of commission of the offence the person was addicted to one or more controlled drugs, and

(b) if satisfied that the person was so addicted at that time and that the addiction was a substantial factor leading to the commission of the offence, may list the sentence for review after the expiry of not less than one-half of the period specified by the court under subsection (3B) of this section.

(3H) On reviewing a sentence listed under subsection (3G) (b) of this section, the court—

(a) may suspend the remainder of the sentence on any conditions it considers fit, and

(b) in deciding whether to exercise its powers under this subsection, may have regard to any matters it considers appropriate.

(3I) Paragraph (a) of section 13(2) of the Criminal Procedure Act, 1967 , shall not apply in relation to an offence under section 15A of this Act, but that offence shall be deemed for the purposes of paragraph (b) of section 13(2) of that Act to be an offence to which section 13 of that Act applies.

Relevent subsections 3(b) and 3 (c).
I have personally seen sentences ranging from fully suspended to 25 years for 15a the act would remain constitutional because the judge still has discretion.

Ashashi

I think minimum sentences are needed for two reasons. Firstly that it acts as a deterrent to criminals(very utopian-esque, I know). Secondly it prevents very lenient decisions for serious crimes. The most obvious minimum sentence is for controlled drugs (section 15(A) in conjunction with the Criminal Justice Act 1999 S.5) and I am of the opinion that this is to stop the huge drug problem. If people are aware that they will be imprisoned for a minimum of 10 years for 13000 euro (which if you think about it is not all that much) it will clearly put them off it, or that is the aim.

The second is that the judges can be a little lenient, especially when it comes to youths who are convicted of offences. I am understanding that people can be coerced but people should have more knowledge to come to the authorities than to to try and sell 13000 euro worth of illegal substances. The legislature is attempting to tackle a very big societal problem, in the form of the drug problems.

ResearchWill

Ashashi wrote: »

I think minimum sentences are needed for two reasons. Firstly that it acts as a deterrent to criminals(very utopian-esque, I know). Secondly it prevents very lenient decisions for serious crimes. The most obvious minimum sentence is for controlled drugs (section 15(A) in conjunction with the Criminal Justice Act 1999 S.5) and I am of the opinion that this is to stop the huge drug problem. If people are aware that they will be imprisoned for a minimum of 10 years for 13000 euro (which if you think about it is not all that much) it will clearly put them off it, or that is the aim.

The second is that the judges can be a little lenient, especially when it comes to youths who are convicted of offences. I am understanding that people can be coerced but people should have more knowledge to come to the authorities than to to try and sell 13000 euro worth of illegal substances. The legislature is attempting to tackle a very big societal problem, in the form of the drug problems.

Again if you read 15a you will see that the court has discretion, also I again ask can you point at any low sentence where you sat in court and listened to all the evidence and still believed the judge was wrong.

ldxo15wus6fpgm

ResearchWill wrote: »

S.15

Fair play. Interesting to read.
I don't think there are many others like that though. If my memory serves me there are a few arrestable offences which have minimum sentences without a discretion clause - open to correction though.

pirelli

I like quick legal spars like this.

usernamegoes wrote: »

Hi,

I recently wrote to the Minister for Justice expressing my view that Ireland should look at a minimum sentencing for serious violent offenders and for habitual minor (for want of a better term) violent offenders.

He wrote back saying that it was unconstitutional for the legislature to interfere in setting minimum sentencing. Now, as far as I knew this has never been adjudicated. Are there new cases on this?

I have been doing some searches and didn't find any.

ResearchWill wrote: »

While a 10 year minimum sentence does exist for a 15a drugs, the judge can go away from such if he is satisfied of certain facts, so while it is called a minimum sentence in reality it is not.

Now I may be wrong and open to correction the only mandatory sentence is life for murder, I believe there was a challenge to this which did not succeed.

In relation to mandatory minimums the argument against is that the dail is doing the job of the judiciary, my own view is the judge is best placed to decide on sentence as all the relevant facts are there and min sentences do not really work. Should there be an open debate on this well yes but a proper debate not s populist rant. Can I ask the OP have you ever sat in on a sentencing circuit criminal court or central criminal court and heard all the evidence and disagreed with the judge also how many court of criminal appeal cases have you sat in at and disagreed with the views of the judges.

I love quick legal spars like that.

coylemj wrote: »

Before mandatory disqualification folllowed a conviction for drunk driving, judges were suckers for the sob story about the defendant losing his job/unable to visit his bedridden mother 20 miles away etc. etc. so people convicted usually got off with a fine and an endorsement on the licence.

The Oireachtas then introduced mandatory disqualification which if I'm not mistaken represents a minimum punishment so clearly it is not unconstitutional.

Looking good surprises with a swift right jab but leaves his the right undefended.

ResearchWill wrote: »

Disqualification from driving for upto and including life is not under Irish law a penalty. See Conroy v AG 1965 IR 411, "Though it may have punitive consequences disqualification cannot be regarded as a punishment in the sense in which that term is used in considering the gravity of an offence by reference to the punishment it may attract upon conviction such as imprisonment or a fine, but rather is a finding of unfitness." There is a question under ECHR if it is penalty. See Escoubet v Belgium ECHR 1999-VII and Malige v France Reports 1998-VII p 2922.

Then out of know where comes a left hook and it's a knock out.

ResearchWill

Madison Embarrassed Metropolis wrote: »

Fair play. Interesting to read.
I don't think there are many others like that though. If my memory serves me there are a few arrestable offences which have minimum sentences without a discretion clause - open to correction though.

As far as I know the only others are murder and firearms but in firearms I think the saver is there. An example

(3) Thecourt,inimposingsentenceonaperson for an offence under this section, may, in part- icular, have regard to whether the person has a previous conviction for an offence under the Fire- arms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005.
(4) Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sen- tence, specify a term of imprisonment of not less than 5 years as the minimum term of imprison- ment to be served by the person.
(5) Subsection(4)ofthissectiondoesnotapply where the court is satisfied that there are excep- tional and specific circumstances relating to the offence, or to the person convicted of it, which would make the minimum term unjust in all the circumstances, and for this purpose the court may have regard to any matters it considers appro- priate, including—
(a) whetherthepersonpleadedguiltytothe offence and, if so—
(i) the stage at which the intention to plead guilty was indicated, and
(ii) thecircumstancesinwhichtheindi- cation was given,

Section 57 Criminal Justice Act 2006

Victor

coylemj wrote: »

Before mandatory disqualification folllowed a conviction for drunk driving, judges were suckers for the sob story about the defendant losing his job/unable to visit his bedridden mother 20 miles away etc. etc. so people convicted usually got off with a fine and an endorsement on the licence.

The Oireachtas then introduced mandatory disqualification which if I'm not mistaken represents a minimum punishment so clearly it is not unconstitutional.

There is no right to drive, only a licence.

ResearchWill

Victor wrote: »

There is no right to drive, only a licence.

So right Conroy said as much.

benway

I was actually going to post a thread along these lines, been giving it a bit of thought recently.

I don't believe in minimum sentencing, or three strikes - I think there's a lot to be said for judicial discretion. I read a lot of Section 15A decisions for college, came to the conclusion that the Court generally got the balance about right, and were fully justified in ignoring the minimum, to all intents and purposes. This meant that there were some suspended sentences, when the facts lent themselves to this conclusion, and some sentences far in excess of ten years.

One of the biggest problems I see with criminal justice in this country is the media:

It's crime obsessed, the extent of the coverage gives a misleading impression as to the prevalence of offending.

There's this tendency to make these cases into a morality play with a clear, absolutely evil villain, and a pure, absolutely innocent victim. Most cases just aren't like that.

When this bias is combined with the fact that maybe a couple of weeks' worth of complex evidence is condensed into a few lines, the obvious tendency to just look at the offence for which the accused has been convicted, look at the sentence and jump to conclusion, and the tendency to measure different offences against each other, as if the sentence is a measure of the value of the victim's life or their suffering. Add all of that together, and we you get a distorted view of the criminal justice system.

But, having said all of that, there is a serious problem in dealing with violent repeat offenders. The Courts can't impose sentences on the basis of public protection, this recent CCA decision is an example, where an extremely dangerous, mentally unstable offender, who had, however, been found fit to plead, and plead guilty so that he couldn't be sentenced as not guilty by reason of insanity, was sentenced according to the normal criteria, and the DPP's appeal seeking a preventative detention type life sentence was refused.

16 There is no doubt that protection of the public is an objective of the criminal law and therefore a component of sentencing. The unlikelihood that the offender will ever re-offend is often a mitigating factor. Conversely the fact that an offender is a danger to the public can justify a sentence towards the highest end of the appropriate scale. Here however, what is contended for is something which is conceptually quite distinct. It is said that a court can, and perhaps must, go beyond any sentence however severe which might be considered normally appropriate to the crime (and the criminal) and impose a life sentence, if it is available, to ensure that an offender who on cogent evidence poses a threat to the public, is prevented by the simple fact of detention in prison from carrying out that threat.

17 The very fact that this issue has been addressed by legislation in other jurisdictions suggests that there is a real issue which needs to be addressed. However, other than asserting the manifest attraction of protecting the public and referring to the troubling behaviour of the Respondent choosing to plead guilty for the express purpose of seeking a lower sentence and perhaps the implied purpose of avoiding detention and treatment in the Central Mental Hospital pursuant to a verdict of not guilty by reason of insanity, very little was offered as a principled guide to an area which bristles with difficulties. In particular, the Appellant was not able to point to any Irish case in which the power now contended for was exercised. Nor indeed was the Appellant able to point to any jurisdiction in which, in the absence of statutory provision, any such orders were made, whether as part of, or in addition to, the sentencing process.

On another thread, someone pointed out >this case< as well - the guy is clearly dangerous, and represents a threat to the general public. I wouldn't say that he'll necessarily be like that for his whole life, but he's likely to kill someone if he doesn't learn to control himself, and it's dangerous to the public, imho, for him not to be in detention or supervision until that point.

Very, very difficult area, thankfully these aren't particularly common cases. I think the Courts are right not to try to make a call on who is or isn't dangerous, there are very serious political implications in labelling individuals or populations in this way. The problem I see with legislation is that measures tend to end up as populist window dressing, playing into public hatred of "scumbags" rather than doing anything useful to deal with the problem.

The CCA decision also pointed to an Australian Institute of Criminology symposium that deals with the issues involved, some good reading if you're that way inclined.

http://www.aic.gov.au/publications/previous%20series/proceedings/1-27/19.aspx

Apologies for the ramble, been mulling this one over for the past week ....

Victor

I agree with the decision of the judges in DPP v McMahon. The Mental Heath Act would be the appropriate way to deal with things.

It might be open to the Oireachtas to look at legislation to enable the courts to be more holistic in their sentencing - a punishment for the crime and a separate order for psychiatric treatment (which, if necessary, means indefinite detention in a less than prison environment).

Choosing to plead guilty for the express purpose of seeking a lower sentence - surely this is not a mitigating factor if it is without remorse?

benway wrote: »

... the tendency to measure different offences against each other, as if the sentence is a measure of the value of the victim's life or their suffering.

Should there not be, and isn't there already, some proportionality?

benway

Victor wrote: »

Choosing to plead guilty for the express purpose of seeking a lower sentence - surely this is not a mitigating factor if it is without remorse?

Should there not be, and isn't there already, some proportionality?

Not one but two forms of proportionality, proportionality to the offence, and to the offender. People seem to have a massive problem with the latter, though, which I think is something that media bias has played in to.

What I'm really thinking of is "how much did he get" syndrome. People look at the headline and at the sentence, and go no further.

Victor wrote: »

Choosing to plead guilty for the express purpose of seeking a lower sentence - surely this is not a mitigating factor if it is without remorse?

Mitigation didn't come in to it in this case - he plead guilty, so a jury couldn't find him not guilty by reason of insanity, so that he could be committed to the Central Mental Hospital for however long it takes.

Carawaystick

Victor wrote: »

There is no right to drive, only a licence.

You need a license to have a telly even though you have a right to watch it i.e. under EU law it's a fundamental right.

The way the country has been run for the last few decades and the increasing need for car use will surely rebalance the necessity to be allowed drive, at some stage in the future.

i.e. it will definitely be adjudged at some future stage to be punishment not to be allowed to drive. The state pays for public transport for blind people and a companion, in part because they cannot drive themselves.

Victor

There is a difference between a right to movement and the consequent right to transport and a right to drive.

ResearchWill

Carawaystick wrote: »

You need a license to have a telly even though you have a right to watch it i.e. under EU law it's a fundamental right.

The way the country has been run for the last few decades and the increasing need for car use will surely rebalance the necessity to be allowed drive, at some stage in the future.

i.e. it will definitely be adjudged at some future stage to be punishment not to be allowed to drive. The state pays for public transport for blind people and a companion, in part because they cannot drive themselves.

I agree with you the Conroy decision was the mid 1960's in Ireland while the ECHR decisions where the late 1990's so it could very well be the decision of the SC that a disquilification now would be a severe punishment so much so that with minimum mandatory sentences it should be a case that is heard before judge and jury.

Victor

What about presumptive sentences instead of minimum sentences? If the scale of the offence is X, then the punishment, other factors aside, should be Y.

I'm not sure how different that is to sentencing guidelines.

Maximilian

pirelli wrote: »

blah blah

Pirelli, I've been reviewing some of the posts you've been making of late. Any more of them and you get a permanent forum ban.

Unless you have something useful or sensible to say, don't post.

InReality

I'm wondering how this "Nor indeed was the Appellant able to point to any jurisdiction in which, in the absence of statutory provision, any such orders were made, whether as part of, or in addition to, the sentencing process."

ties in with "indeterminate sentence".thats in the UK.
?

AFAIU our legal systems are very similar so I don't understand why the Dail could not bring in a law regarding indeterminate sentencing here...

http://www.bbc.co.uk/news/magazine-18739151

Victor

usernamegoes wrote: »

I also, argued that the court should not be allowed take drugs and drink as being a mitigating factor for sentencing.

Generally they aren't.