Sentencing Burglary, Drug Importation and Murder: Evidence From Ten Countries

11th January 2021

The Institute for Crime and Justice Policy Research (ICPR) has published a report revealing disparities between countries in their approaches to criminal sentencing. The overarching aims of the ten-country project – of which the findings presented here form part – are to understand the drivers of prison population trends, and to devise measures for reducing levels of incarceration.

On the basis of legal and policy analysis and interviews with 70 legal practitioners across the ten jurisdictions, the report outlines the sentencing frameworks and probable sentencing outcomes for three hypothetical offences: a domestic burglary by a man with previous convictions for similar offences, drug importation of 400g of heroin/cocaine by a women from a less developed country, and intentional homicide that involves a knife of a young man by another.
 

Findings and Recommendations

1. Previous Convictions and Short Sentences

Prior offending – especially if recent – is likely to rule out a non-custodial sentence or lengthen the prison term in all ten jurisdictions in this study.

In a study of the phenomenon, Frase and Roberts (2019) observed that ‘almost all countries impose harsher sentences upon repeat offenders’. It was found that almost all countries impose harsher sentences on repeat offenders. Two main rationales were identified for this; firstly, that repeat offenders deserve harsher punishment on the grounds of the greater culpability manifest in their failure to respond to earlier sanctions and secondly, that harsher sentences are intended to tackle the high risk of further reoffending posed by repeat offenders.

Even if, as noted above, harsh punishment of repeat offenders is often predicated on the aim of reducing re-offending, the overwhelming evidence is that imprisonment achieves little in this regard, beyond a temporary incapacitative effect. The scope within prison to address problems – like drug dependency – underlying entrenched offending tends to be limited at best.

Recommendations

• Incorporate within the sentencing framework an explicit, principled commitment to proportionality and minimising the use of custody
• Prevent disproportionate sentencing of repeat offenders by narrowing the recency and relevance criteria for treating previous convictions as pertinent to sentence, reducing the weight accorded to previous convictions and by ruling out mandatory sentences for repeat offenders.
• Review and enhance the availability, scope, and intensity of non-custodial penalties for low level and repeat offenders, and associated treatment and other measures for tackling underlying causes of entrenched offending behaviour.
   

2. Drug Offences

Over two million of the worlds 11 million prisoners are detained in relation to drugs offences.

Among the ten jurisdictions in this study, approaches to importation offences varied widely.

Severe sentences to punish drug offences are a principal weapon in the war on drugs still being waged in many countries and are justified by policy-makers largely on the grounds of deterrence. However, these policies have failed to contain the growth in either the demand for, or the supply of, drugs or to prevent the harms caused by drug dependency. Therefore, excessive use of imprisonment for drug-related offences is not an effective deterrent, but places a substantial burden on criminal justice systems.

Harsh sentencing laws are far from the universal response to drug offences and there is growing support for treatment-based interventions, whether within or outside the criminal justice system.

Recommendations

• The sentencing framework applicable to drug offences should embody the principle of proportionality, distinguishing between conduct causing greater and lesser harm, and offenders with greater and lesser culpability, by reference to the role of the offender and the seriousness of the offence.
• Mitigating factors and personal circumstances should be reflected in the final sentence.
• Use of mandatory minimum sentences and life or other forms of indeterminate sentence should be minimised for drug offences.
• To ensure that prison is not used unless the seriousness of the offence justifies it, alternatives to custody – including treatment-based disposals – must be available and properly resourced.
• Countries should review existing sentencing guidance, or consider the introduction of guidance, to reduce reliance on custody and to meet the goals of consistency, transparency and proportionality in the sentencing of drug offences.
   

3. Life Imprisonment and Sentencing for Murder

In most of the ten jurisdictions someone who commits premeditated murder would be sentenced to life imprisonment. In some countries, life imprisonment would be the mandatory sentence.

Internationally, murder is the offence for which a life sentence is most commonly provided or mandated by law. However, the life sentence is by no means a universal response to murder: there is great disparity across jurisdictions.

Criticism of life sentences centres on proportionality. Life sentences are widely seen an inhumane because they prolong to excess the pains of incarceration. Their mental health impact is severe, due to the uncertainty or impossibility of release, and the sense of hopelessness experienced by life-sentenced prisoners and their families. However, criticism has largely focused on mandatory life sentences and mandatory minimum tariffs. These are seen as a potential cause of injustice, notably in cases involving self-defence, mercy killings, and accessory liability, and cases where background factors relating to the individual’s age, maturity or mental health call for a more lenient sentence.

Recommendations

• Mandatory life sentences for murder and other offences should be avoided. Judges should instead have discretion to impose a fixed term sentence of proportionate length, or an indeterminate sentence where necessary on the grounds of the seriousness of the offence that are always subject to supervision and review.
• Consideration should be given to removal of whole life terms and sentences of life without parole.
• Life sentences should be reserved for cases where the harm caused and the offender’s culpability combine to make it a proportionate response. The sentencing framework must allow for aggravating, mitigating and background factors to be weighed and applied by the sentence in a transparent manner.
• Parole or licence conditions for life sentenced prisoners must be proportionate in length and nature, tailored to the individual and focused on rehabilitation and maintaining public safety rather than a prolongation of punishment and loss of liberty. Recall processes must be fair and proportionate.
• Enhancing public understanding of, and trust in, life sentences and the sentencing of murder should be an integral part of sentencing reform.

Read the full report on the Institute for Crime & Justice Policy Research website here.