Lock them up and throw away the key?

Last week a prostitute was murdered on the streets of St Kilda in Melbourne, where I am currently living part of the time. Journalist Wendy Squires yesterday drew parallels between that crime and the horrific rape and murder of ABC employee Jill Meagher by serial rapist Adryan Bayley.

Squires sought to make a somewhat strained connection with a current controversy over the actions of the Parole Board of Victoria which, at least according to the tabloid media, is consistently guilty of irresponsibly letting dangerous violent offenders loose on the community:

I believe that Jill and Tracy are one and the same – women in the wrong place at the wrong time, victims of a system gone wrong. Statistics show it is likely Tracy’s killer is a repeat offender, just like Jill’s – that he has hurt before and will do so again, and that if the parole board doesn’t stop making catastrophic decisions such as releasing Bayley, more Jills and Tracys will lose their lives, leaving those who love them shattered.

Of course, whether the unknown killer of the St Kilda prostitute (who may or may not be Squires’ acquaintance Tracy) is a repeat sex offender is by definition no more than baseless speculation. Nevertheless, the broader proposition that the Parole Board is consistently acting irresponsibly will soon be the subject of an official report to the Victorian government by former High Court Justice Ian Callinan. I am awaiting its findings with interest. The tabloid debate on this issue has been truly abysmal and ignorant.

At least for the majority of criminal offenders, including those who have committed sexual crimes, parole is an important and positive aspect of the criminal justice system. The prospect of parole provides an incentive for offenders in prison to make genuine efforts at training and rehabilitation,  while the probation period itself allows offenders to be released into the community under supervision for a period of time so that a better assessment can be made of whether they are safe to let loose on the community permanently. If the “truth in sentencing” brigade prevailed and all offenders serve their full sentences in prison, all of them including the Adryan Bayleys of this world would be let loose with no supervision at all. Hopefully Callinan’s report will be rather more thoughtful about these issues than the current tabloid debate.

Squires makes another point worth exploring:

I share Tom Meagher’s fury because the salient and sad fact is that serious sex offenders are almost impossible to rehabilitate. They must be kept locked up. And it shouldn’t just take a pretty brunette on her way home after a fun night out with colleagues to bring home this point. All women deserve safety and justice. Tracy is no exception.

However, the proposition that serious sex offenders are almost impossible to  rehabilitate is at best very simplistic, as this Australian Institute of Criminology report analyses.  This article from the American Psychological Association discusses the issues quite neatly:

Controversial questions swirl around the correctional system’s management of sex offenders: How long should they be incarcerated for their crimes of forcing sex acts on adults or children? How should they be monitored following release? Does psychological treatment in prison actually affect the risk of committing further offenses? And how can courts balance offenders’ potential for rehabilitation with a community’s need to protect its citizens?

Responses to these questions have varied over the years, and, accordingly, so has policy-making by the states and the federal government. Recent policies have been trending toward longer prison sentences and more restrictive after-release monitoring, stemming in part from a dismal view of treatment programs, treatment advocates say.

But many psychologists and policy advocates, including law professor John Q. LaFond, JD, of the University of Missouri-Kansas City, say that approach disregards key information on the nature of sex offenders–statistics show most are not likely to repeat their crimes–and on the increasing efficacy of offender treatment, largely due to a modern behavior modification model stressing relapse prevention through recognition and avoidance of criminal impulses…

Some of that optimism comes from a meta-analysis on the effectiveness of treatment for sex offenders published in Sexual Abuse: A Journal of Research and Treatment (Vol. 14, No. 2) in 2002. That analysis showed for the first time a significant difference between recidivism rates for sex offenders who were treated and those who were not, says psychologist R. Karl Hanson, PhD, lead author of the study and senior researcher for the Solicitor General Canada–the government agency that manages Canadian courts and corrections.

The study revealed, among the most recent research samples, sexual recidivism rates of 17.3 percent for untreated offenders, compared with 9.9 percent for treated offenders. Though that’s not a large reduction, the large sample size and widely agreed-upon research methods make it statistically reliable and of practical significance, Hanson says.

The article goes on to draw a distinction between the majority of sex offenders and extreme violent sex offenders  (e.g.  Adryan Bayley):

Psychologists have gleaned a number of important treatment insights in their research–the most basic of which is one size does not fit all.

“A large part of the challenge to managing this group is educating the courts that sex offenders are a highly heterogeneous population and not all of them are at high-risk for re-offending,” says psychologist Moss Aubrey, PhD, who does private assessment of male sex offenders in New Mexico.

People commit sexual crimes for different reasons, Aubrey says. “Some are highly predatory, highly psychopathic and have repeated offenses, making them more likely to re-offend,” he explains.

In the last 10 years, psychologists have made substantial advances in clearly identifying factors that increase an offender’s risk of committing an offense after release, Hanson says. These factors include the number of offenses, intimacy deficits, sexual preoccupations and age.

Actuarial scales for determining an offender’s risk of committing more sex crimes after treatment are available, but not always trusted by judges and many clinicians, Prentky says. More often, courts base release decisions on progress reports from prison psychologists–relying heavily on their expertise.

“Psychologists are essentially being asked to determine what level of risk an individual poses to a community even though there is no definitive way to know for certain,” LaFond says. “They’re being asked to balance that risk with the individual liberty concerns of an offender. Science has come up with tools to help them, but it’s still a huge responsibility and a terrible burden.”

It may well be that there is a distinct group of serious violent sex offenders who are simply beyond rehabilitation and therefore should simply be locked up and the key thrown away, as Wendy Squires apparently asserts about all sex offenders.  However, reliably identifying the members of that group prior to sentencing, so that they can be  subjected to an indeterminate sentence to protect the community from their predation, is the tricky bit. At the moment we do not even have a government agency specifically tasked with undertaking that job. It would seem most naturally to sit with the Director of Public Prosecutions, but resources would need to be provided by government and expertise developed over time. Hopefully the forthcoming Callinan report will provoke meaningful debate about issues like this.

Another article yesterday about serial child killer Derek Percy,who died in prison of lung cancer a couple of days ago after 44 years imprisonment, provides food for thought in relation to the concept of indeterminate sentencing for repeat extreme violent sex offenders:

The jury’s verdict of not guilty on the grounds on insanity was a blessing. Had he been convicted he would have inevitably been released after serving between 12 and 20 years, to almost certainly reoffend. The insanity finding resulted in an indefinite term (Governor’s pleasure), which would allow him to be released when he was no longer a danger.

Many Governor’s pleasure inmates (including one who killed a policeman) blended harmlessly back into the community after their illnesses were treated, but Percy was never going to be one of those.

This was because not one expert ever found he was suffering from a treatable psychological condition. In lay terms, he was more bad than mad.

The best detectives and the brightest medical experts have examined Percy, and none could work out what went on behind those black eyes.

A veteran prison psychiatrist, Dr Allen Bartholomew, once described him as ”the nearest thing to a robot I have ever met”, saying: ”His behaviour is above reproach, but what goes on in his mind I have no idea.”…

Every year Percy was interviewed by a battery of experts, and every year the conclusion would be the same – that he was a model prisoner inside who could never be trusted on the outside.

Indeed, he was considered too dangerous to be housed even in a secure psychiatric facility, and spent his years inside a prison.

One found: ”He is not certifiable, neither is he psychiatrically treatable, and he is totally unsuited to a mental institution.”

In 1983 a forensic psychiatrist found he was ”not mentally sick in the accepted sense. Percy is sexually grossly disturbed and should never be released from prison.”

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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whyisitso
whyisitso
8 years ago

the individual liberty concerns of an offender

I suppose the loss of a few lives of women who are reckless enough to be out on the streets late at night is a small price to pay for being able to address the the individual liberty concerns of an offender.

Nicholas Gruen
Admin
Nicholas Gruen(@nicholas-gruen)
8 years ago

Thanks for an interesting and informative post Ken,

I think one of the key concepts that I’d like to see used is the burden of proof or disproof regarding sentencing. If someone has committed horrendously violent crimes – whether they’re sexual or otherwise – my own view is that a rational system would lock them up for some fixed term which would be some retribution and then ‘at the govnr’s pleasure’ until they could discharge a relatively strong burden of proof (short of beyond reasonable doubt I guess) demonstrating that they do not pose a further risk to the community. Perhaps this is too strong, as I can see it might end up incarcerating for life lots of violent young men who can be let out in their forties and won’t reoffend.

But the way in which the civil liberties types talk about the rights of the convicted criminal (as opposed to the rights of the accused) seems pretty precious to me. If they’ve committed horrendous crimes they’re lucky to be let out and the dominant consideration should be the safety of the community and the relative cost to the community of the alternatives.

In this regard it’s always seemed to me to be strange that those on the left regard the right wing ‘three strikes and you’re out’ meme doing the rounds of the right in the US as so draconian. I’m not sure that two strikes mightn’t be a better rule, though I concede that the problem with all these rules is that young men can do things twice or three times, which they wouldn’t do twenty years later. If someone murdered after having been released after a twenty year sentence for murder, what, for goodness sake would be wrong with locking them up and throwing away the key at that point?

Ingolf Eide
Ingolf Eide(@ingolf)
8 years ago
Reply to  Nicholas Gruen

A second to Nicholas’ thanks, Ken.

Nicholas, I thought most objections to “three strikes and you’re out” were because the most trivial offences (say shoplifting) could count as one of the three. Have I got that wrong?

Nicholas Gruen
Admin
Nicholas Gruen(@nicholas-gruen)
8 years ago
Reply to  Ingolf Eide

I have always assumed it was three violent crimes.

Wikipedia describes it thus “Three-strikes laws are statutes enacted by state governments in the United States which mandate state courts to impose harsher sentences on habitual offenders who are convicted of three or more serious criminal offenses.”

conrad
conrad
8 years ago
Reply to  Nicholas Gruen

As you can see it differs from state to state. I was under the possibly incorrect impression that various interpretations of things like “drug offenses” meant that people who were essentially harmless except to themselves were getting stuck in jail (and presumably more harmful after they got out). I guess if you want to lock up 1% of your population at any given time, you really have to think of ways to put them in.

Bill Posters
Bill Posters
8 years ago
Reply to  Nicholas Gruen

But the way in which the civil liberties types talk about the rights of the convicted criminal (as opposed to the rights of the accused) seems pretty precious to me.

Ever been down to the criminal courts and sat through a trial? It’s an eye-opener. Yes, beyond reasonable doubt and all that, but compared to civil courts, proceedings are decidedly fast and loose.

whyisitso
whyisitso
8 years ago

But the way in which the civil liberties types talk about the rights of the convicted criminal (as opposed to the rights of the accused) seems pretty precious to me.

My comment (censored by Nick, I assume) was simply using sarcasm to express precisely the same position.

I think the word “precious” is well applied to this blog.

whyisitso
whyisitso
8 years ago
Reply to  Ken Parish

Thanks for your explanation, Ken. I know a number of commenters use the endnote “/sarc” (on this and other blogs) to denote this type of comment but I’ve always thought that was rather insulting to readers’ intelligence.

conrad
conrad
8 years ago

I think you’ve hit the nail on the head with: “However, reliably identifying the members of that group prior to sentencing, so that they can be subjected to an indeterminate sentence to protect the community from their predation, is the tricky bit.”

The real problem here is how reliable you want reliably to be. If even the rehabilitated offenders have a 9.9% chance of recidivism, I imagine most people would still suggest that’s far too high a risk to let people out early, and I doubt too many people are going to be convinced by data showing that certain groups have very low rates of re-offending (especially older groups).

Of course, the other real problem is that keeping people in jail is exceptionally expensive, and so the general public really need to make up their minds who they exactly want in there (say, drug dealers vs. violent criminals — I know which I’d rather!) or else pay for crazy rates of incarceration like the US. But no-one ever forces the general public to make this choice as it’s all too politically contentious — indeed it’s hardly even mentioned. This means it seems pretty inevitable that people are going to be let out too early at least some of the time, including ones where there might have been a better trade-off.

Patrick
Patrick
8 years ago
Reply to  conrad

Couldn’t agree more conrad.

I’d strongly support any move to decriminalise/legalise drugs on a whole host of grounds, not least of which being the reduction in prisoners and consequent concentration of penal/justice resources.

Ingolf Eide
Ingolf Eide(@ingolf)
8 years ago
Reply to  Patrick

Amen.

You probably already know about it but in case not the Drug Law Reform Australia was launched earlier this year.

The debate about decriminalising drugs clearly isn’t quite as taboo as it used to be.

Patrick
Patrick
8 years ago
Reply to  Ingolf Eide

And so it should: http://www.globalcommissionondrugs.org/wp-content/themes/gcdp_v1/pdf/Global_Commission_Report_English.pdf

But I don’t see that party, or the LDP http://ldp.org.au/ as really moving drug law reform far out of the fringes, unfortunately.

If you look at tax reform, there’s a lot of work put into building consensus around the key parameters. The timeframes for the participants in this are quite long, out to a decade, and they are largely piggy-backing on an existing (narrow) “elite” consensus.

Drugs probably needs a similar degree of focus over a similar timeframe, but it’s hard to see who would do it. Someone like Don Arthur’s mob would be best suited I’d think, or one of the loose umbrella groupings he would occasionally participate in.

Jim Rose
Jim Rose
8 years ago

I thought treatment makes psychopaths more dangerous.

Ingolf Eide
Ingolf Eide(@ingolf)
8 years ago

I’m sure you’re right, Patrick. Any meaningful change is probably a long way off.

Thanks for the link. That’s some group of commissioners. The report seemed to make good sense but I was surprised there wasn’t more discussion about removing the profit motive from dealing in drugs. Seems to me that’s the most effective way to undercut organised crime and the corruption and disruption that flows from it. Any thoughts?

As an aside, I hadn’t realised WA decriminalised cannabis back in 2004.

Patrick
Patrick
8 years ago
Reply to  Ingolf Eide

I admit that the lack of focus on the profit motive seems odd. I’d certainly agree that the profit motive is an absolutely central problem with the current war on drugs approach.

There are quite a few elliptical references to it though:

There appears to be almost no limit to the number of people willing to engage in such activities to better their lives, provide for their families, or otherwise escape poverty.

It is not appropriate to punish such individuals in the same way as the members of violent organized crime groups who control the market.

Also, it is a very short report. There’s probably quite a bit on the profit motive if you can get through the footnotes (I admit to not having tried).

Ingolf Eide
Ingolf Eide(@ingolf)
8 years ago
Reply to  Patrick

I followed your suggestion and searched for “profit”. In one form or another, it appeared five times so t

As you’d expect, they’re very aware of this aspect, with the clearest expression on page 15:

We also need to recognize that it is the illicit nature of the market that creates much of the market-related violence – legal and regulated commodity markets, while not without problems, do not provide the same opportunities for organized crime to make vast profits, challenge the legitimacy of sovereign governments, and, in some cases, fund insurgency and terrorism.

This does not necessarily mean that creating a legal market is the only way to undermine the power and reach of drug trafficking organizations.

So, they circle around it but in this summary at least, don’t tackle it head on.

Ingolf Eide
Ingolf Eide(@ingolf)
8 years ago

Nicholas and conrad,

Couldn’t reply in line so had to move it down here.

As conrad says, it varies (quite dramatically it seems) between different states. California in particular, and Georgia to a lesser degree, are the worst (or best, depending on one’s point of view).

California had imprisoned more than 4,800 criminals for 25 years to life on third strikes; the state also identified more than 40,000 second-strike offenders who would await such a sentence were they subsequently convicted for any one of roughly 500 crimes. Georgia had sent approximately 1,000 defendants to prison for life without parole under its two strikes law and identified another 1,000 offenders eligible for that fate were they to subsequently commit one of the “seven deadly sins.”

and

Statistics demonstrated that more than twice as many defendants’ third-strike offenses [ in California] were for drug possession or petty theft as for murder, rape, or kidnapping. Some of these nonviolent third strikes included seemingly innocuous offenses, such as shoplifting, stealing packages of steak, and drinking alcohol at a liquor store without paying for it.