Report on Mandatory Sentences - Law Reform Commission

not been for the murder of Polly Klass in 1993 by an offender who had an extensive prior record of
violence. 423 The public outcry that followed the event galvanized the Reynolds campaign.
2.179 In November 1994, voters in Georgia passed a ballot measure amending the state’s sentencing
laws to prescribe a mandatory life sentence without parole for a second conviction of an offence specified
in the measure. 424 The law supplemented an existing law which permitted the courts to impose the
maximum sentence for a second felony conviction and required the courts to impose the maximum
sentence for a fourth felony conviction.
2.180 By 1997, 24 states and the Federal government had enacted three-strikes legislation. 425
(2) England and Wales
2.181 It was not until transportation was abolished in 1857 that recidivism arose as a significant issue
for legislative consideration in the United Kingdom. 426 In 1863 the Royal Commission on Penal Servitude
concluded that imprisonment was not a sufficient deterrent. 427 The reason for this, it asserted, was that
the minimum term of three years’ penal servitude, which had replaced the minimum term of 7 years for
transportation, 428 was too short. This led to the enactment of the Penal Servitude Act 1864 which made
five years the new minimum for penal servitude and, under pressure, the Government made 7 years’
penal servitude the minimum term for anyone with a previous felony conviction. 429 The 1864 Act was
criticised as the mandatory minimum terms only applied to those sentenced to penal servitude. 430 If the
courts considered it to be too severe a punishment, they were free to impose a sentence of ordinary
imprisonment, the maximum term of which was two years. Given the enormous gap between the two
alternatives, the result was widespread disparity in sentencing by different courts. In 1879 the minimum
sentence of 7 years’ penal servitude for a second felony conviction was repealed. 431
2.182 In an effort to respond to this loophole, the Habitual Criminals Act 1869 was enacted. 432 The Bill
initially included a clause making 7 years’ penal servitude mandatory on a third felony conviction. 433 This
was withdrawn when it was conceded that designating the number of convictions as the factor which
triggered the mandatory sentence could lead to great hardship. Instead, the 1869 Act provided that all
those convicted for a second time of a felony or certain misdemeanours be subject to police supervision
for 7 years after they had served their sentences. It further provided that those subject to such
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Vitiello “Three Strikes: Can We Return to Rationality” (1996-1997) 87 J Crim L & Criminology 395 at 411;
Zimring et al Punishment and Democracy - Three Strikes and You’re Out in California (Oxford University
Press, 2001) at 5; and Austin et al “Three Strikes and You’re Out: The Implementation and Impart of Strike
Laws” (US Department of Justice, 2000) at 1.
The offences included murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated
sodomy and aggravated sexual battery.
Austin et al “Three Strikes and You’re Out: The Implementation and Impart of Strike Laws” (US Department of
Justice, 2000) at 1.
Section 2 of the Penal Servitude Act 1857. Radzinowicz and Hood “Incapacitating the Habitual Offender: The
English Experience” (1979-1980) 78 Mich L Rev 1305 at 1308.
Radzinowicz and Hood “Incapacitating the Habitual Offender: The English Experience” (1979-1980) 78 Mich L
Rev 1305 at 1333.
Section 2 of the Penal Servitude Act 1857.
Radzinowicz and Hood “Incapacitating the Habitual Offender: The English Experience” (1979-1980) 78 Mich L
Rev 1305 at 1334.
Ibid.
Prevention of Crimes Act 1879.
Radzinowicz and Hood “Incapacitating the Habitual Offender: The English Experience” (1979-1980) 78 Mich L
Rev 1305 at 1334.
Ibid at 1335.
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