Similarly, all of the available evidence from the United States suggests that the harshest impact of mandatory minimum sentencing is felt by African-Americans, and particularly African-American women. For example, the data indicates that African-American women have eight times the chance of European American women of being charged, convicted, and sentenced under mandatory sentencing laws. There is also an enormous disparate impact upon Hispanic-American women, although its magnitude is about half that experienced by African-American women (National Law Journal, 1998). Statistics from 1985-95 indicate that the incarceration rates for drug offences leapt by 707 % for African-Americans, while for European Americans it rose by 306 % (National Law Journal, 1998).

Much like the Australian experience, racially discriminatory patterns in mandatory minimum sentencing in the U.S. are created by practices of charging and negotiating plea bargains. Those actors who are accidentally or peripherally involved in offences have little or nothing to bargain with in terms of aiding the prosecution, and therefore not infrequently, these persons end up with lengthier sentences than the major players who can bargain their way out of a charge that carries a mandatory sentence. The U.S. experience indicates that “[w]hites tend to plead guilty and receive motions for reductions of sentence for cooperation more frequently than blacks do” although it is unclear whether this difference is due to the behaviour of prosecutors, the availability of legal counsel, or the different circumstances of accused persons who belong to different racial groups (Vincent and Hofer, 1994 at 23). For example, in the Canadian context, Yvonne Johnson refused to give evidence against her co-accused. She may have thereby lost the opportunity for a “deal” that might have taken her out of the mandatory sentence of life imprisonment (Johnson and Wiebe, 1998 at 303-314). The imposition of mandatory minimum sentences is also influenced by the barriers to access to justice experienced by racialized women, who require access to legal services in order to make legal arguments on their behalf.

2. Systemic Discrimination: Unequal Impact

Second, abolition of mandatory minimum sentences is needed because they do not have an equal impact on all, even if it were true that everyone received “equal treatment” in the enforcement of criminal law. Mandatory minimum sentences have a predictably harsher impact upon those who already experience systemic disadvantage or disempowerment. According to both CAEFS and Judge Ratushny in her Self-Defence Review (Ratushny, 1997), due to systemic reasons, most women charged with homicide of allegedly violent mates are prepared to forego the defence of self-defence and plead guilty to manslaughter in order to avert the threat of a lifetime of incarceration should their defence fail for any reason and they be convicted of first or second degree murder.