Winston Churchill used to say that a fanatic is a person who can't change his mind and won't change the subject. According to Dictionary.com, a fanatic is a person marked by an extreme, unreasoning enthusiasm for a cause.
At times, some of Australia’s prominent civil libertarians sound like fanatics. Most recently, when defending the rights of odious recidivist sex offenders like Victoria’s Brian Jones, alias “Mr Baldy”, due for prison release this August. Baldy was locked up for serial crimes of kidnapping and shaving the heads of young boys before assaulting them. Soon after his first release from jail, he attacked a young child again.
Look, I know it is the job of Liberty Victoria’s vice-president Jamie Gardener to condemn the intention of the Bracks Government to introduce electronic tagging of repeat offenders like Baldy. To say things like “Liberty views with grave concern any adding on of sentences to people who have served their time set down by the courts [because this] is not something that is consistent with human rights".
But what folks like Gardener often seem to forget is that no civil right, no matter how important, is absolute. The rights of repeat sex offenders like Baldy need to be balanced against those of the children to be protected from winding up as his next victim. Otherwise, when absolute rights clash, impenetrable deadlock is the result, and all chance of consensus is lost.
The question is, does the Bracks plan get that balance right?
I think he does. Gardener’s worry seems to be that tagging offenders like Baldy punishes them twice - first by incarceration, then by monitoring - for the same crime. But this is not an on-going worry. If the tagging legislation passes, future sentences will include post-release surveillance (rather than adding it on at the end). This means that this problem - technically termed “double jeopardy” - falls away. The real infringement of electronic surveillance is on a prisoner’s rights to privacy. Whether the data from their bracelet is downloaded daily through the phone, or transmitted in real-time, those wearing electronic tags will be living in the equivalent of a Panopticon:
The Panopticon is an architectural figure envisioned by political philosopher Jeremy Bentham. It has a central tower around which is built an annular structure divided into cells that extend the entire width of the building to allow both inner and outer windows.
The occupants of the cells are isolated from one another by walls, but able to be observed collectively and individually by an unseen observer in the tower.
The problem for the prisoners of the Panopticon, and for those wearing elctronic tags, is that they can - and know they can - be seen, but they are unable to see in return. Nor do they know who is looking at them and when, and what - if anything - their observers do with the knowledge they gain. Even if data on their movements is not to be used against them (something that is not the case with the electronic tag, which will most likely be used to ensure prisoners conform to whatever movement restrictions the courts sets down as a condition of their release), those in the Panopticon suffer a complete loss of privacy, and the dignity and personal power that comes with it.
But if the electronic tags actually stop pedophiles from re-offending, then this loss must be weighed against the gain of increased community safety. According to Don Thomson, Professor of Forensic Psychology at Charles Sturt University, we have reason to believe that tagging will deter offenders from committing further crimes against children. If the prisoner knows an alarm will sound if he violates prescribed boundaries, he’s unlikely to do so on pain of either being caught in the act or, if the violation is only discovered later, the certainty of being convicted and locked away, perhaps for good. And there is some evidence, from a handful of studies posted on the web that electronic monitoring, if combined with effective therapy, does reduce rates of re-offending.
But this is the rub. While the government is effusive about the benefits of surveillance, there’s been no mention of increased funding for the evaluation and provision of effective treatment for sex offenders. Yet is it critical that such funding be provided, not only to ensure we get value from the money spent on the bracelets, but because treatment is the best way to make the community as safe as we can for children.
According to Professor Thomson, money is desperately needed to both properly evaluate which treatments work, and to provide them to convicts inside and outside the prison walls (where the temptation of real children running around provides the one true test of cure). Until funds to do this work are found, we can’t really look our children in the eye and say we’ve done all we can to make them safe. Because the best way to avoid released prisoners re-offending is not to track them, but to change them.