Published in May 2018

Regional Perspective: Pacific Islands Region - added in November 2019

Regional Perspective: Eastern and Southern Africa - added in April 2020

 

 
  This module is a resource for lecturers  

 

Sentencing options relating to organized crime

 

Organized crime cases often involve special sentencing options due to the ongoing and serious nature of the crimes, and the fact that many offenders are repeat or career criminals. These options are usually sentencing enhancements.

Minimum sentences

For example, many jurisdictions have established minimum sentences in drug trafficking cases. The minimum sentences are often gauged according to the weight or value of the drugs trafficked. The purpose is to ensure that higher volume traffickers do not escape serious penalties for their more dangerous levels of drug trafficking. In a similar way, offences committed with guns are considered potentially dangerous and minimum or higher maximum sentences have been enacted in some jurisdictions which are tied to the commission of crimes when weapons are present (see for example, section 3 of South Africa's Dangerous Weapons Act 15 of 2013, which makes it a separate offence to be in possession of a "dangerous weapon" for an "unlawful purpose," attracting a three-year maximum sentence).

Enhanced punishments

Enhanced punishments are a second way in which sentencing attempts to account for the more serious, systematic nature of organized crime. Many jurisdictions provide for increased sentences for those who are repeat offenders. So-called "three strikes" laws punish habitual and career criminals much more severely upon their third conviction on the assumption that they cannot be trusted to remain law-abiding. Three strikes laws in some jurisdictions permit enhanced sentences up to life in prison.

Sentencing enhancement: The United States "Three Strikes" law

Under the Violent Crime Control and Law Enforcement Act of 1994, the "Three Strikes" statute provides for mandatory life imprisonment if a convicted felon:

  1. Has been convicted in federal court of a "serious violent felony"; and
  2. Has two or more previous convictions in federal or state courts, at least one of which is a "serious violent felony" (the other offence may be a serious drug offence).

Under the statute, a "serious violent felony" includes murder, manslaughter, sex offences, kidnapping, robbery, and any offence punishable by 10 years or more which includes as an element the use of force or that, by its nature, involves a significant risk of force. An unarmed robbery offence may serve as a basis for "Three Strikes" sentencing if the offence involved the threat of use of a firearm or other dangerous weapon or the offence resulted in death or serious bodily injury to any person. A "serious drug offence" includes continuing criminal enterprise, violations of Title 21 involving distribution, manufacture, or possession with intent to distribute significant quantities of controlled substances, or equivalent state offences and can also fall under the "Three Strikes" statute.

The sentencing enhancements in this law can have a significant impact on a criminal defendant. Some States have therefore removed the mandatory life sentence for a nonviolent, non-serious offence under the "Three Strikes" law (California).  Georgia, for instance, authorizes the court to depart from the mandatory minimum sentence for certain drug trafficking offences if the judge concludes that the defendant was not a leader of criminal conduct, did not possess or use a weapon and has no prior felony convictions, the offence did not result in death or serious injury.
 

Participation in an organized criminal group

Some jurisdictions have special punishment provisions reserved for organized crime cases including for participating in an organized criminal group, or special orders, such as civil injunctions for serious offenders, or those who facilitate a crime, who can be given longer sentences, larger fines, and whose assets are subject to confiscation or forfeiture (see, for example, Part 9D of the Queensland Penalties and Sentences Act 1992 (Australia); article 21 of Bulgaria's Penal Code; article 44-49 of the UK Serious Crime Act 2007). Therefore, offenders in organized crime cases are subject to both minimum sentences and sentence enhancements in many jurisdictions due to the seriousness of organized crime activity.

 

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