McCoy, Candace; Krone, Tony --- "Mandatory Sentencing: Lessons from the United States" [2002] IndigLawB 35; (2002) 5(17) Indigenous Law Bulletin 19
[1] S Shane-Dubow, ‘Introduction to models of sentencing reform in the United States’ (1998) 20(3) Law and Policy 3.
[2] California Penal Code s 667(c),(d),(1),(3)(e),(2)(A).
[3] The Violent Crime Control and Law Enforcement Act ss 1033-4, 18 USC (1994).
[4] Ibid s 924(c)(1)(A); Anti-Drug Abuse Act s 841(b), 21 USC (1986).
[5] M Mauer, The Sentencing Project, Americans behind bars: US and international use of incarceration (1997).
[6] Ibid.
[7] Ibid.
[8] J Irwin, V Schiraldi and J Ziedenberg, ‘America’s one million non-violent prisoners’ (2000) 27(2) Social Justice;
K Stith and Jose Cabranes, Fear of Judging (2000).
[9] An example of prosecutorial discretion and power is found in the enforcement of California’s ‘Three Strikes Laws’. These laws are aberrational but they provide a more concrete example of the problem. When the laws were enacted it was generally envisaged that defendants who were looking at life sentences for ‘third strike offences’, would demand trials. This has been avoided on a large scale, by prosecutors declining to charge the crimes as ‘strikable’ felonies. However, for every crime not prosecuted under the mandatory sentencing provision, prosecutors were able to obtain convictions for crimes of lesser seriousness, thus exercising complete power over who went to prison and for how long.
[10] DJ Levin, Patrick A Langan and Jodi M Brown, United States Department of Justice, ‘State court sentencing of convicted felons, 1996’ (1999) Bureau of Justice Statistics Bulletin, <http://www.ojp.usdoj.gov/bjs/abstract/scscf96.htm> .
[11] Cassia Spohn, John Gruh and Susan Welch, ‘The impact of the ethnicity and gender of defendants on the decision to reject or dismiss felony charges’ (1987) 25 Criminology.
[12] Barry C Feld, Bad Kids: Race and the transformation of the Juvenile Court (1999).
[13] Criminal Code (WA) s 401.
[14] Young Offenders Act 1994 (WA) s 101. See N Morgan, ‘Mandatory sentences in Australia: Where have we been and where are we going?’ (2000) 24 Criminal Law Journal 164, 174.
[15] Sentencing Act 1995 (NT) s 78A. See Morgan, above n 14, 167.
[16] Senate Legal and Constitutional References Committee, The Parliament of the Commonwealth of Australia, Inquiry into the Human Rights (Mandatory Sentencing for Property Offences) Bill 2000 14; G Brennan, ‘Mandatory sentencing: rights and wrongs’ [2001] AUJlHRights 13; (2001) 7(2) Australian Journal of Human Rights 3; C Cunneen, ‘Mandatory sentencing and human rights’ (2002) 13(3) Current Issues in Criminal Justice 322.
[17] H Burrows, 'Discretionary sentencing returns to the Northern Territory' (2002) March Rights Now 9.
[18] P Totaro, 'Mandatory jail terms key to Libs' campaign' The Sydney Morning Herald (Sydney), 24 June 2002, 4.
[19] In summary court matters in each state police prosecutors act on behalf of other police and indictable offences in the higher courts are prosecuted by the DPP for each jurisdiction. See Morgan, above n 14, 164.
[20] I Temby, 'Prosecution discretion and the use of appropriate charges' (Paper presented at Criminal Trial Reform Conference, Melbourne, 2000).
[21] See for example, J Hardy, 'Mandatory sentencing in the Northern Territory: A breach of human rights' (2000) 11 (3) Public Law Review 172.
[22] Most diversionary schemes are currently administered by police although there are a number of court-based diversionary schemes being developed. See C Cunneen, ‘The impact of crime prevention on Aboriginal communities’ (2001) Aboriginal Justice Advisory Council, <www.agd.NSW.gov.au/cpd.nsf/pages/alr_index>.
[23] D Weatherburn, 'Does Australia have a law and order problem?' Public Lecture (University of New South Wales, 2002), <www.arts.unsw.edu.au/ssp/donweatherburnlecture.pdf>.