In the criminal justice system, punishment should serve more than to merely rectify harm. In addition to its rectifying quality, punishment also serves as a discouragement, both for the individual convicted and the general community, not to commit a similar act in the future. [1] This principle is also known as deterrence.

While deterrence may appear to be a reasonable goal in theory, it can be difficult to balance its different components in practice. Individual deterrence, in which the individual accused is discouraged from recommitting the crime, can carry vastly different implications for punishment than general deterrence, or punishment that discourages others from committing the same crime. As a result, policy-makers must often choose between which type of deterrence, and which respective severity of punishment that is associated with each type, to prioritize. [2]

Perhaps the most prominent example of this conflict is the practice of mandatory minimum sentencing. Mandatory minimum sentencing is a type of policy that assigns a fixed minimum duration of time that an individual convicted must serve in prison for committing certain crimes, regardless of the particularities of his or her case. By attaching strict, unflinching penalties to the crime in question, mandatory minimum sentencing is intended to enforce the principle of general deterrence: the principle that punishment should also serve as a warning for other potential criminals. [3] 

Despite its potential validity, many argue that this outlook on punishment unjustly uses individuals as instruments to achieve social goals. Consider some of the examples of mandatory minimum sentencing in the United States, namely, punishments of drug possession: According to a 2017 report from the United States Sentencing Commission, individuals with no prior criminal record are automatically subject to 5 years in prison, and, though U.S. federal sentencing varies based on the substance in possession, individuals have faced sentencing for as little as five grams of an illicit drug. Moreover, those who have been convicted of two or more prior drug felonies are subject to life in prison. 

On the one hand, supporters of mandatory minimum sentencing argue that such punishment is warranted. One of the most prominent defenders of this perspective is Daniel Farrell. In his work, “The Justification of General Deterrence,” Farrell argues that general deterrence is justified by virtue of the individual choosing to commit the crime. [4] Prior to the commitment of the crime, laws serve as warnings to the individual that a failure to comply with requirements carries serious consequences.

The choice of this individual to defect from these requirements is a breach of that community’s right to respect. [5] Therefore, this breach of respect authorizes that community to invoke a right of “self-defence” in order to preserve the community’s well-being. [6] This “self-defence” is actualized through general deterrence. Since the individual harmed the community, the state is authorized to invoke punishment on this individual that discourages others from committing similar acts of harm. [7] Farrell argues that serving an automatic minimum time in jail is not only an effective, but also a justified means of protecting the community.

On the other hand, requiring an individual to spend his or her life in prison partly to send a message to the public may seem unethical. Opponents of mandatory minimum sentencing argue that the severity of the punishment required to deter the community often vastly outweighs the punishment to deter the individual. Thus, in order to achieve the goal of general deterrence, criminals may often be subject to much harsher sentences than they would have if they had been sentenced with the intent of individual deterrence alone. [8]

As such, subjecting individuals to this treatment ignores that they are not responsible for the conformity of the public to the law, and should not be used as an instrument to secure those social ends. Arguably, this reasoning against mandatory minimum sentencing is an implicit nod to John Rawls’ “Theory of Justice”. To Rawls, social institutions have a “duty of justice”: a duty of enforcing justice before all other goals. [9] Based on the duty of justice, courts, as part of these social institutions, are only authorized to rectify the damage from the case at hand. Thus, it follows that these institutions are not authorized to enforce general deterrence: punishment aiming to advance particular normative goals with which society must comply. Rather, its responsibility lies only with individual cases.

Examining the perspectives of both theorists, it appears as though each individual adopts an extreme view. Farrell is correct to identify that crimes affect the community as a whole. Even if we were to accept that courts should only be concerned with the case at hand, such cases do not simply involve the individuals affected directly. While the effect of an individual crime is small in isolation, disrespecting the law erodes the law’s authority over the general population, thereby compromising community security for the sake of individual gain. As a result of this harm, states are justified to protect their integrity by warning others not to act similarly.

However, Farrell seems to ignore the fact that these criminals are human beings worthy of respect. Due to mandatory minimum sentencing, many individuals have spent their lives in prison for crimes that would have required minimum jail time for their own rehabilitation, thereby disproportionately punishing them for their minute effect on the deterioration of the system. Given this distortion, the practice seems rather archaic. Nevertheless, Rawls may be equally contested. By focusing exclusively on the individual, Rawls seems to ignore the notion that crimes affect the well-being of the community. As such, courts must protect that community sufficiently by deterring others from committing similar crimes.

Given the severity of punishment attached to current policy, it appears clear that mandatory minimum sentencing, as it stands, is an unjustified abuse of power. By attaching penalties to crimes that are significantly larger than those required to deter the criminal from recommitting, these policies depersonalize convicted criminals and inhibit humanity within the justice system. 

However, the shortcomings of its implementation do not negate the practice altogether. Instead, these sentences simply need to be sufficiently moderated.  In doing so, legal officials will be able to reasonably support community security without compromising the intrinsic rights of individuals convicted.

Edited by Samantha Dagres.


[1] Farrell, Daniel M. “The Justification of General Deterrence,” 1985.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6]  Ibid.

[7] Ibid.

[8] Gardner, John. “Crime: In Proportion and In Perspective,” 1992.

[9] Ibid.

The opinions expressed in this article are solely those of the author and they do not reflect the position of the McGill Journal of Political Studies or the Political Science Students’ Association. 

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