Report on Mandatory Sentences - Law Reform Commission

who rarely had large quantities of drugs in their possession) was more routinely used against low-level
drug dealers, look-outs and peripheral conspirators. 257
2.119 In 2010, Congress passed the Fair Sentencing Act 2010. 258 This altered the mandatory minimum
sentencing regime applicable to offences involving crack cocaine. It repealed the mandatory minimum
sentence for possession of crack cocaine and increased the quantities required to trigger the five-year
and 10-year mandatory minimum sentences, from five to 28 grammes and 50 to 280 grammes
respectively. The Act also directs the United States Sentencing Commission to provide for higher
guideline sentences where certain aggravating factors, such as bribing a law enforcement official, are
present. In addition, the Act directs the Sentencing Commission to provide for lower guideline sentences
for certain offenders who receive a guideline adjustment for a minimum role.
2.120 It would appear, however, that mandatory sentences for drugs offences are now falling out of
favour with many state legislators in the United States. Since 1998, a number of states have either
relaxed or repealed their mandatory sentencing provisions. 259 In 1998, Michigan abolished the mandatory
life sentence for those sentenced after 1998 under the “650 lifer” law and restored parole eligibility for
offenders sentenced before 1998. 260 Since then, Michigan has repealed almost all of its mandatory
minimum sentences for drugs offences. 261 In 2009, New York amended the Rockefeller Drug Laws by
repealing most of its mandatory minimum sentences for drug offences and expanding the treatment
options for drug offenders. 262 Some other states have also expressed support for alternatives to
mandatory sentences for drug offences. 263
(b)
United Kingdom
2.121 The modern history of mandatory sentences for drug offences, as it relates to the United
Kingdom, probably starts with the Criminal Justice Act 1991. The Criminal Justice Act 1991 sought to
implement proposals contained in the Government’s 1990 White Paper on Crime. 264 A broad aim of the
1991 Act had been to promote the principle of proportionality and, through this, achieve greater
consistency in sentencing. 265 Ashworth notes that while this objective was set out clearly in the 1990
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260
261
262
263
264
265
Mascharka “Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences” [2001] 28
Florida State University Law Review 935 at 941-942.
<strong>Report</strong> to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011) at 29-31.
These include: Delaware, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi,
Nevada, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, and South
Carolina. See: “State Responses to Mandatory Minimum Laws” (2011) Available at www.famm.org. [Last
accessed: 22 May 2013]; and Austin “Criminal Justice Trends - Key Legislative Changes in Sentencing
Policy, 2001-2010” (2010). Available at: www.vera.org [Last accessed: 22 May 2013].
“State Responses to Mandatory Minimum Laws” (2011). Available at: www.famm.org. [Last accessed: 22
May 2013].
Austin “Criminal Justice Trends - Key Legislative Changes in Sentencing Policy, 2001-2010” (2010) Available
at: www.vera.org. [Last accessed: 22 May 2013]; and “State Responses to Mandatory Minimum Laws”
(2011). Available at: www.famm.org. [Last accessed: 22 May 2013].
Austin “Criminal Justice Trends - Key Legislative Changes in Sentencing Policy, 2001-2010” (2010). Available
at: www.vera.org. [Last accessed: 22 May 2013]; and “State Responses to Mandatory Minimum Laws”.
Available at: www.famm.org. [Last accessed: 22 May 2013].
“Drug Sentencing Reform: A Bipartisan Priority” (2011). Available at: www.famm.org. [Last accessed: 22 May
2013].
White Paper on Crime, Justice and Protecting the Public Cm 965 (HMSO, 1990).
Ashworth and Player “Criminal Justice Act 2003: The Sentencing Provisions” (2005) 68 Mod L Rev 822 at
822; Fitzgerald “Californication of Irish Sentencing Law” (2008) 18 ICLJ 42 at 42; and Bacik “Crime and
Punishment - Retribution or Rehabilitation” (2001). Available at:
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