The Review of Law and Economics: Double Jeopardy and Mandatory Sentencing - Assignment Example

Lesser included are crimes that share some but not all the elements of a greater crime. While committing a major crime, some elements of a lesser crime would have been violated which a person will be charged. Examples of lesser-included crimes could be unlawful entry in case of burglary. Manslaughter is a lesser included crime in case one commits murder and in case of a rape, assault is treated as a lesser included crime (Orzach & Spurr, 2008). Lesser-included crimes do not violate double jeopardy as it concerns different criminal violations that are tied to one another.

Additionally, lesser-included crime and the greater crime carry different weights in case of double jeopardy, the weight of the crimes are relatively the same.Fairness is among the focus pillars of justice. In case one is subjected to answer to crimes committed in one act and presented in multiple forms, it would be unfair to the defendant. Moreover, it would not be fair either for the state to prosecute in multiple jurisdictions even if there are sufficient resources to carry out the process; this is because the defendant’s right to double jeopardy will be violated.

Discussion 2.Mandatory sentencing is a setting where court decision to make some judicial judgment is limited by the law. In the application of mandatory sentencing, some crimes must be punished at least for a minimum number of years. The rule of mandatory sentencing was majorly designed to curb hard drug trafficking, but has been expanded to include other crimes. Mandatory sentencing is important as it ensures uniformity in the punishment of offenders who commit crimes that are deemed more threatening to the state and its people, and eliminates any dishonesty that may characterize a judgment (Ulmer, 2007).

        Mandatory sentencing shifts sentencing discretion from a judge to the prosecutor, leaving a judge with no option but to impose a judgment based on what the law requires. However, the prosecutor being part of the executive is under no obligation to charge a defendant, thus, the sentencing interferes with the independence of the judiciary. The application of mandatory sentencing wastes the criminal justice resources by overpopulating prisons as its application does not provide an effective deterrent from committing a crime.

Criminals are deterred from committing an offence to a greater degree by the prospect of arrest, prosecution, conviction and punishment more than a fixed minimum sentencing duration (Schlesinger, 2011).Courts should view different cases based on their basic facts, as different crimes are committed under different circumstances. The “one size fit all” rule that is used in cases of mandatory sentencing should be reversed to ensure each crime is dealt with individually as the basis of ensuring fairness in the judicial process.