Matthew Hyatt | Why mandatory minimum sentences won’t work

Our legislators are under constant pressure to fulfil their constitutional mandate, which is to make laws for the peace, order and good governance of the land; that includes making laws to signal that as a country we are “tough on crime”. Mandatory minimum sentences are seen by legislators and some members of the public as a powerful detriment to would-be criminals.

As it currently stands, the recent Firearms (Prohibition, Restriction and Regulation) Act allows for a mandatory 15-year sentence if found guilty of possessing an illegal firearm. Another ‘strong signal’ suggestion from Minister of Justice, Hon Delroy Chuck, is a proposal to amend Section 3(1)(b) of the Offences Against the Persons Act to increase the mandatory minimum sentence from 15 to 45 years for murder. Further, the minister has given his support to another proposal for a mandatory minimum sentence of 20 years for children convicted of capital murder between the ages of 15 and 17. It appears, therefore, that there is a trend of utilising mandatory minimum sentences to show that Jamaica is “tough on crime” at the detriment of breaching our separation of powers.

The idea that locking up an offender for “at least” some minimum time may sound like good crime control, especially for repeat offenders; however, I do not believe the approach of mandatory minimum sentences is the solution some believe it is. Our Chief Justice, Mr Bryan Sykes, has made significant inroads within our judicial system reducing the backlog of cases within the various courts of Jamaica.

This reduction in backlog is partly due to persons being incentivised to plead guilty rather than wasting the court’s judicial time going to a trial. Where one is charged for an offence which attracts a mandatory minimum sentence, a guilty plea will not add to the reduction of such a sentence imposed by parliament. An accused person, however, may receive a lesser sentence where a mandatory minimum sentence is prescribed under The Plea Negotiation Agreement Act (2017). For example, a man charged for illegal possession of a firearm will now face a minimum sentence of 15 years imprisonment. For the accused to benefit under the Plea Negotiation Agreement Act he will have to go further by assisting the prosecution by giving up the location of other illegal guns. It is not unnatural, therefore, that an accused may be unwilling to utilise this method of plea bargaining due to being labelled an “informer” or worse, his family’s lives could be in danger. The natural consequence is certainly that there will be an increase in trials within our courts.

Backlog aside, have our politicians considered the financial impact of imprisonment on the citizens tax dollars? In March 2022 in an article by the Jamaica Observer titled ‘Expensive Prisoners!’ it was revealed that it was costing the Government half a billion dollars annually to feed inmates in correctional facilities, and that in 2020 it cost the Government $13,000 to feed one inmate per month. Are we prepared to pay for housing inmates for at least fifteen years with our hard-earned tax dollars? Instead of spending money keeping inmates in prisons, we could direct those funds on programmes in vulnerable communities that will help to reduce crime.

NATURAL EFFECT

The natural effect and consequence of our legislators imposing mandatory minimum sentences is to have our parliamentarians take on the role of sentencing and usurp the function of our judges. It is an affront not only to our judiciary but also to the sacred doctrine of separation of powers. It cannot be overemphasised that the effect of mandatory minimum sentences seeks to tie the hands of our judges in determining the appropriate sentence for an accused on a case-by-case basis. The curtailing of this fundamental judicial function significantly undermines the role and function of our judges.

No doubt, Parliament envisaged that there may be certain cases which rest upon their peculiar facts which may result in persons receiving manifestly excessive and unjust sentences where judges are bound to impose mandatory minimum sentences. To ameliorate any unintended consequences of the mandatory minimum sentence being imposed, it is for that very reason, it is suspected, that Parliament in good conscience sought to amend the statutory legislations which prescribed mandatory minimum sentences by sections 42K and 42L of the Criminal Justice (Administration) (Amendment) Act, 2015.

Section 42K allows the judge in sentencing a defendant to the mandatory minimum sentence to refer that sentence to the appellate court if he believes that in the circumstances of the case, the mandatory minimum sentence may be manifestly excessive and unjust. This also means, that even our Court of Appeal is being flooded with appeals on the grounds of these “mandatory minimum sentences” being manifestly unjust and excessive.

Let us not use mandatory minimum sentences as a Band-Aid for the crime wound but rather address the root cause of crime so we won’t have to send our youths to prison for at least 15 years.

Matthew Hyatt is an attorney-at-law. Send feedback to mhyatt@kjslaw.com.jm