The recent sentencing in Queensland of a convicted paedophile to an indefinite
sentence under the Penalties
and Sentences Act (1992) (pdf, 743 kb), and the present attempt by the
Queensland Government to keep a convicted rapist in prison past his release date
under the Dangerous
Prisoners (Sexual Offenders) Act (2003) (pdf, 520 kb), will no doubt be
welcomed by many in the community. Certainly, these proceedings have found broad
support in the media, or were at least reported without much in the way of serious
analysis or criticism. Both individuals concerned were convicted of despicable
crimes and there will be little sympathy for their personal fates. However, the
disgust that we may feel towards these two offenders should not prevent us from
questioning the rational and ethical bases of their sentences.
The principal rationale for imposing an indefinite sentence - as opposed to
giving a fixed-term sentence - is protection of the community. It is believed
that there are some individuals who present such a danger to the community that
they must be kept in prison until their risk of reoffending no longer exists.
It is argued that just when the individual will be safe to release - if ever -
cannot be properly determined at the time of sentencing. So, the release date
is left open, to be decided by experts at a later time. The offender's progress
in custody can be monitored and they will be released only when they are declared
to no longer present a serious danger to the community. The principle of indefinite
sentencing is consistent with the criminal justice goal of incapacitation. However,
there are two problems.
First, an indefinite sentence violates the just-deserts principle that a person
should receive a punishment that is proportional to the harm they have done. This
principle is in turn based on the fundamental premise that a person should only
be sentenced for the crimes that they have committed, not for the crimes they
may commit. Indefinite sentences, on the other hand, involve a punishment that
varies according to a person's post-offence behaviour. Thus two offenders committing
similar crimes may serve vastly disparate sentences. Keeping a person past their
release date is in effect punishing them, not for their crimes, but for their
failure to rehabilitate. Moreover, their continued incarceration represents a
punishment for crimes they have not yet committed.
The second problem with indefinite sentences is a practical one, though with
serious ethical implications. Indefinite sentences rest on the assumption that
it is possible to distinguish reliably between those who will and those who will
not be a danger to the community in the future. In fact, the ability to accurately
predict recidivism is a skill that mental health professionals conspicuously lack.
The research is clear: psychologists and psychiatrists - particularly when they
are relying solely on their clinical judgement - get it wrong almost as often
as they get it right. The task becomes even more difficult when predictions about
post-release behaviour are made on the basis of prison behaviour - how a person
behaves in the highly structured and artificial prison environment may say very
little about how they will behave in the "real" world.
Criminal justice decision-makers are particularly prone to false positive predictions,
that is, predicting that someone will reoffend when they do not. This is due in
part to an understandable conservatism in decision-making - the desire to err
on the side of caution. No-one wants to be seen to be responsible for releasing
a prisoner who goes on commit further serious crimes. More generally it reflects
an overestimation by many practitioners of the recidivism rates of serious offenders.
In the case of sex offenders, in particular, there is a widespread assumption
that reoffending is inevitable. However, there is now a great deal of evidence
to show that, once caught, most sex offenders do not go on to be reconvicted of
new sex offences.
There have been two important findings that consistently emerge from studies
of sex offender recidivism. First, the majority of sex offenders are found to
be in the lower risk categories - relatively few imprisoned sex offenders (about
10 per cent) can be categorised as a high recidivism risk. Second, of these high-risk
offenders, just over half are found to be reconvicted of new sexual offences within
15 years of their release from prison. Thus for every 100 incarcerated sex offenders
that we could justify categorising as high risk, about 48 will not be reconvicted
for new sexual offences after 15 years.
The well-documented inability of mental health professions to predict an offender's
potential danger to the community does not stop them from making confident assertions
in court and to parole boards, nor does it stop courts and parole boards from
continuing to seek expert opinion on the matter. Eliminating prediction error
cannot be achieved simply through better training. A large part of the problem
lies in the nature of offending behaviour itself. People offend not just because
of who they are (dispositional factors), but their offending also depends upon
the post-release circumstances (situational factors). The use of standardised
prediction instruments (so-called actuarial methods) to supplement clinical judgement
can improve predictions. But even if accuracy rates were increased to, say, a
respectable 75 per cent, one in four offenders would still misclassified.
Balancing the rights of individual offenders on the one hand and community
safety on the other is a tricky business. Indefinite prison sentences for dangerous
offenders, certain to reoffend, violates the principle of just-deserts, but arguably
can be justified in terms of the criminal justice goal of incapacitation. However,
the issue becomes even more problematic if there is no accurate basis for distinguishing
those who represent a serious danger to the community, and those who do not.
Both the indefinite sentencing provisions of the Penalties and Sentences
Act (1992) and the post-sentence detention provisions of the new Dangerous
Prisoners (Sexual Offenders) Act (2003) require a court to be satisfied to
a "high degree of probability" that an offender represents a "serious
danger to the community". Setting such a high threshold of probability is
no doubt a reflection of the government's aim to protect against the arbitrary
imposition of indefinite detention. However, in setting the threshold so high,
the legislation has perhaps inadvertently relied on the ability of professionals
to provide advice that is currently beyond their level of knowledge and expertise.
Associate Professor Richard Wortley is a lecturer at the Griffith University School of Criminology and Criminal Justice. He worked as a prison psychologist for nearly ten years before beginning an academic career, and is currently national chair of the Australian Psychological Society's College of Forensic Psychologists.
Dr Stephern Smallbone is a lecturer at the Griffith University School of Criminology and Criminal Justice. He worked for eight years as a correctional and consulting psychologist, specialising in the assessment and treatment of sexual offenders. His research on developmental aspects of sexual crime has been the subject of national and international research awards.