Report on Mandatory Sentences - Law Reform Commission

2.220 The Commission notes that an alternative view is that these sentencing regimes are, when
considered in a broader historical context, the product of a long-standing policy approach. As outlined
above, presumptive minimum sentences are typically directed at high-risk forms of criminality that have a
particularly grave societal impact. In modern times, drugs offences, firearms offences and gangland
crime fit this mould. Historically, however, a similar threat was perceived to derive from ‘habitual
offenders’ - career criminals who specialised in particular forms of crime. In the 19 th century, such
offenders attracted mandatory sentences under the Habitual Offender Acts. These regimes were
essentially the precursors to contemporary ‘three strike laws’ and other sentencing practices directed at
those considered to be a particular threat to public safety. In this light, presumptive and mandatory
minimum sentences for first-time and repeat offenders may be viewed as the continuation of a longstanding
penal policy.
2.221 The Commission observes that although the policy underlying these sentencing regimes is not
new, the popularity of this penal approach tends to fluctuate. As discussed in Chapter 1, mandatory
sentencing regimes appear to correspond most closely to the aims of deterrence, punishment and
incapacitation. Accordingly, these measures generally find favour in a more punitive penal climate in
which these objectives receive particular legislative emphasis. It is clear therefore that the various aims
of sentencing may be differently prioritised at different times and that the challenge for the Oireachtas is
to determine which goal merits immediate emphasis. The Commission observes that prioritising one aim
over another will, in general, lead to specific consequences. For example, greater emphasis on
deterrence, punishment and incapacitation, rather than rehabilitation, may facilitate problems such as
prison over-crowding and may also impair the ability of the justice system to enhance public safety.
2.222 The Commission notes that this issue was highlighted, in 2013, by the Sub-Committee on
Penal Reform, established by the Joint Oireachtas Committee on Justice, Defence and Equality. In its
<strong>Report</strong> on Penal Reform, 515 the Sub-Committee observed that effective rehabilitative programmes cannot
work in over-crowded prison environments. 516 It therefore endorsed the view “that a more effective and
genuinely rehabilitative penal policy could be developed if the prison population were reduced by onethird
over a reasonable period of perhaps ten years… .” 517 The Sub-Committee observed that this “would
mean a return to levels of imprisonment in the mid-1990s, before the change in policy which has been
identified as increasingly punitive during the 1990s, when mandatory minimum sentences were
introduced for a range of offences, and a prison-building regime was embarked upon”. 518
2.223 The Commission also observes that where an emphasis on deterrence, punishment and
incapacitation leads to problems such as prison overcrowding, this may produce a reaction against the
cost entailed by a higher rate of incarceration. A return to a rehabilitative model may in turn coincide with
an economic cycle that is focused on ensuring the most effective and efficient allocation of resources
within the general criminal justice system. This may include a consideration of the manner in which
limited resources are allocated between, on the one hand, the prison service (which has a more punitive
purpose) and, on the other hand, the probation service (which has a more rehabilitative purpose). 519
515
Houses of the Oireachtas, Joint Oireachtas on Justice, Defence and Equality <strong>Report</strong> on Penal Reform (March
2013).
516
517
518
519
Ibid at 23.
Ibid at 13.
Ibid.
The Commission notes, for example, that in its 2013 <strong>Report</strong> on Penal Reform, the Oireachtas Justice
Committee’s Sub-Committee on Penal Reform called for a reduction in the prison population and observed
that “[i]f the numbers of prisoners are reduced in the prisons, with a subsequent saving of money, such saving
should be transferred to the Probation Service.” (Ibid at 19).
102