Should penalties be equal for the same crime without judicial discretion?

Angola prison in Louisiana, a state that imposes harsh penalties

Carol Forsloff - While some people rage over criminals set free too early or released to commit particularly savage crimes, there are those who question the "three strikes" law requiring mandatory sentencing and imposing penalties beyond what is fair and equitable. As experts point out, there are flaws in the legal system of many countries that create a stream of injustice.

Some individuals in the criminal justice system question whether mandatory sentencing is just given some of extenuating circumstances involved in a crime and whether judges should be restricted in their discretion in court to impose maximum penalties.

Clyde M. Taylor, a Florida attorney, has looked at the issue of mandatory sentencing and declares, "There is more than one way to look at how sentences are meted out in criminal cases." He maintains there are two sides to the argument and writes, "Mandatory sentencing regimes impose very strict restrictions on judges and allow for little to no discretion in the system. These sentencing regimes are in effect in states across the nation and there are arguments on both sides as to whether mandatory sentencing is appropriate."

Taylor tells us the benefits of mandatory sentencing is to remove the lack of consistency in the criminal justice system. This means all individuals, regardless of race, gender, position or financial status have the same exposure to conviction or declaration of innocence for a specific crime.

But not everyone believes mandatory sentencing is fair and equitable. Those who advocate against it maintain that mandatory minimum sentencing provokes plea bargains that can put people in jail or allow a sentence that may be beyond what is reasonable and fair in light of the crime committed. It puts in jail folks who might have won at trial. Many judges also don't like mandatory sentencing because it doesn't allow for mitigating circumstances. It becomes especially difficult for a judge who has to hand down a death sentence regardless of the circumstances under which a crime is committed that might have meant only a life sentence or lesser one.

In Florida mandatory sentences are given those who either commit or attempt to commit sexual battery, manslaughter, robbery and certain other crimes under those circumstances when a crime has been committed within three years of prison release. These are the three strikes laws implemented to prevent habitual criminals from being released to commit the same crime. Mandatory sentencing laws require judges to impose the greater penalty despite the circumstances under which a crime is committed.

Changes to the law have been reviewed in Florida that would allow prosecutors not to have to report those cases where they did not pursue mandatory sentencing which those proposing the legislation consider would allow more discretion in prosecution and sentencing.

The New York Times has had in its opinion pages articles on the problems related to the three strikes law.  One of these is entitled, "Three Strikes of Injustice." The publication observes the strictness of the California law and the fact that judges feel bound not to use their own discretion but to interpret the law in its strictest terms.  This has meant a stream of injustices since the creation of the California law in the 1990's.  The article also pointed to a documentary with a request that people watch it before voting on Proposition 6 that would overturn the more "draconian" aspects of the three strikes law.

The California law allowed those convicted of a felon three times to be sentenced to a life term in prison.  California citizens voted for a reform of the law subsequent to Proposition 6, but they did not overturn the death penalty.  

The term "three strikes law" comes from baseball language and means "you're out" of society when you commit a serious crime after two other serious offenses. The argument during this recession against the law at the present time comes not only because of the concerns about injustice but also the economics involved, which some defense attorneys and advocates say has led to prison overcrowding.

A similar concept, and referred to as the "three strikes law" was introduced in France by President Nicolas Sarkozy to apply to the Internet specifically. It would have imposed maximum penalties, exiling offenders of copyright laws from the Internet if they had repeated copyright infringements and ISPs would have had stiff financial penalties if they allowed offenders access after exile. The law was declared unconstitutional in 2009.