Indeterminate Sentences and Public Protection.

Here, Brian Barder discusses indeterminate sentences, and it's pretty clear that he doesn't think much of them.
His  analysis divides into two.  Such sentences, he argues, are not only wrong from the practical point of view, but are wrong in principle.

The practical aspects were dealt with adequately by the Court of Appeal. It is surely wrong, as a matter of law, to impose a conditional sentence on an offender when the  offender has not the slightest chance of complying with those conditions.  That was the essence of the Court of Appeal's decision. There is a relatively simple way to avoid this practical problem. Impose a statutory duty on the court, as part of the pre sentence investigation,  to obtain from HM Prison Service confirmation that any condition they was considering imposing- what courses he should complete and the like-were available. And  it is  reasonable that these conditions could be fulfilled before the offender's first parole hearing.
However I'm not persuaded that such sentences are wrong in principle.

Brian seems to argue that once the tariff- the length of time the judge sets for the offender to be incarcerated-has been completed, any further period in custody is "preventative detention" and that "preventative detention" can be imposed for  trivial offences.  Though he does not help the reader by defining what amounts to a trivial offence. He then continues by asserting that even release after that period of detention is dependant on

"the farcical notion that some group of 'experts' can predict the future by making a judgement about the future behaviour of a person who may have committed a single offence in the past — and has been punished for it."

Here, Brian is  discharging both barrels at the Parole Board. I find this characterisation of their work in this field unattractive. The very expression "preventive detention" in this context is unhelpful and pejorative .
Leaving aside the mandatory life sentence prisoner, to whom special rules apply,  the Board is never asked to "predict the future behaviour of an individual.." before he or she is released. A process which Brian correctly points out is nearly impossible. What members of the Board are asked to do is determine whether the offender is likely to commit any offence during the remaining period of the sentence when he of she  should be in custody.
These are the Board's  directions;

"in deciding whether or not to recommend release on license, the Parole Board   shall consider primarily the risk to the public of a further offence being   committed at a time when the prisoner would otherwise be in prison and   whether any such risk is acceptable. This must be balanced against the   benefit, both to the public and the offender, of early release back into the   community under a degree of supervision which might help rehabilitation and   so lessen the risk of re-offending in the future. The Board shall take into   account that safeguarding the public may often outweigh the benefits to the   offender of early release."

The Board have been making these decisions for years, and it may surprise the general public that they are nearly always get it  right. It's the rare mistake that  attract the headlines.This is so even when the Parole board order the release of non mandatory "lifers".

The Indeterminate  Sentence does give a judge one more weapon to deal with a difficult sentencing dilemma.

A has been accused of downloading pornographic images if children. The images are of the worse kind. At the same time he faces six allegations of indecent assault on children. None of these offences attract a life sentence. He has no previous convictions. He pleads guilty to all offences.  He has been on bail.The judge orders pre sentence reports to include a psychiatric assessment. The reports confirm that A is not suffering from any mental illness. The judge cannot impose a Hospital Order. But the reports speak of a man  likely to present a continual danger to children. The  guidelines suggest 4 years to be the appropriate sentence. He will be released from any supervision after three years. During  that time he cannot be compelled to undergo any specific rehab. He leaves custody still a danger.

By imposing an Indeterminate Sentence the judge is able to fulfil one of his important functions-to protect the public.

Comments

[Brian Barder]

Tony,

I'm surprised that you appear not to see the crucial difference between (1) an assessment by a parole board (or anyone else) of the degree of probability that someone will represent a danger to the public once released, in order to decide whether he should be released on parole before completing the full sentence imposed by the judge, and (2) making that assessment to decide whether the offender should be released after he has served the tariff imposed, which is the "punitive" part of an indeterminate sentence -- i.e. after he has "paid his/her debt to society", as the cliché has it. Every day served in prison by an offender after he has completed his tariff is absolutely correctly described as 'preventive detention', and yes, that's indeed a strongly pejorative term, and meant to be so. Imprisonment after the tariff has been served is neither meant as a deterrent nor as retributive punishment -- those requirements are embodied in the tariff and have by definition been satisfied.

There can be no more justification for keeping in prison someone who has been duly punished by serving his tariff, on the off-chance that he might offend again, than there would be for arresting and locking up someone who has never committed an offence but who is thought by some authority to be liable to commit one in future. It does indeed entail the farcical pretence that some group of men in suits can forecast the future, and on the basis of their forecast can keep in prison a person who has either done nothing illegal, or else who has done something illegal but been duly punished for it.

Of course there are various ways short of preventive detention of minimising the danger to the public of someone who has either committed an offence and been punished for it, or has not committed an offence but who is reasonably suspected of being likely to do so in the future. You know better than I do the various conditions that can be imposed when someone is released early on licence or parole, involving regular reporting to the parole officer or the police, monitoring by the parole service, etc. Some of the non-punitive measures of this kind could in principle be applied to people for whom imprisonment can't be justified but of whom there seems to be a reasonable suspicion of future offending. But personally I would be extremely suspicious even of that. Everyone without exception is a potential danger to the public and there is absolutely not the smallest chance of identifying those who will actually become one. We know that a huge majority of offenders sent to prison will re-offend after their release: does that mean that, on the logic of indeterminate sentences, they should all be kept in jail after serving their sentences because of the statistical certainty that most of them will re-offend if they are released?

As I have argued in my original post (http://www.barder.com/ephems/696), this vicious injustice at the heart of the indeterminate sentence system is just another symptom of ministers' obsessive desire to protect themselves against any accusation of having failed to "do something" to guard the public against any conceivable risk, whether from passive smoking or from someone who the security services think, on however flimsy grounds (or none at all), might one day do something vaguely associated with terrorism. Hence the itch to lock up or deport people who have done nothing wrong (or who have been punished for any past wrong-doing) on the basis of someone's belief that they can predict thast person's future behaviour. It's on a par with control orders, and with the government's misguided attempts to insert provisions in the Mental Health Act to permit the indefinite detention of people with indefinable and untreatable mental conditions. And there's an element of it in ASBOs. We should force our masters to abide by the ancient, well established rule that no-one should be imprisoned except after conviction of an offence defined by law pursuant to the sentence of a properly established court following a fair trial by his peers. Indeterminate sentences blatantly fail that test.

It's fundamentally wrong to lock up people of sound mind who have committed no offence (or who have been punished for any offence they might have committed) for fear of what they might do in the future. Period.

Surely on mature reflection you can agree with that?

Brian
http://www.barder.com/ephems/

[Tony]

Brian,
No. On mature reflection....that's a bit of an insult, the original post was completed only after thought... I cannot agree.
Your argument is based on the notion that once the "tariff" has been served it is wrong in principle to detain the offender a day longer. Dealing with offenders who, on sentence,are seen to pose an unacceptable risk to the public when they have completed the "tariff", this is indeed a novel legal concept.
If, on mature reflection, you truly believe that then you must write directly an addition to your blog post opposing the present life sentence provisions. After all a lifer, whether mandatory or not, must persuade the Parole Board he no longer poses a threat. He will not be released until he does so. And, notwithstanding your minimal respect for the Parole Board, they get most risk assessments right. And that is so whether they are dealing with lifers of short term prisoners; whether they are dealing with serious or less serious offenders.The IPP is, after all, a life sentence in all but name.
Having read the PRT briefing paper I note that they are not calling, as you seem to be, for the wholesale destruction of IPPs. Their conclusions on page 11 are moderate and sensible suggestions for reform. I cannot quarrel with any of them! I suspect they would agree with Mr Justice Collins who is reported in today's Graun as saying:-
""Because of the failings of the government, a fairly large number of IPP prisoners are likely to be released if the court of appeal finds the detention unlawful. This is very worrying," said the judge. "It must be recognised that the consequences are truly disastrous because I think it is inevitable that short-term lifers will have to be released whether or not they remain a risk to the public."
I concur.
t

[Brian Barder]

Tony,

No insult was intended and I don't in the least mind your inviting me to reconsider my own views on this after mature reflection. Suggesting that someone is sufficiently open-minded to be open to persuasion by rational argument is a compliment, not an insult.

You pointed out in your original post that mandatory life sentences are different from indeterminate sentences (IPPs), which is clearly right -- hence the reason for my not addressing the question of life sentences in my own post or in my comment on yours. (I happen to think that mandatory life sentences are also wrong in principle, but for quite different reasons, and I'll decide for myself what and what not to write on my own blog, thanks.) The key point is that life sentences are passed only for the most serious offences, whereas an IPP may be imposed for quite minor ones (no, there's no need to define these terms, which are widely understood). You say yourself that "the IPP is, after all, a life sentence in all but name", and others have made the same comment. Do you really think it's defensible to pass what is "a life sentence in all but name" on a person whose offence is so trivial that his tariff has been set at a mere 18 weeks? As the redoubtable Juliet Lyon, director of the Prison Reform Trust and no woolly knee-jerk liberal, has said, "The Prison Reform Trust has come across people given tariffs for their sentence of just 18 weeks. The tariff, as in the life sentence, is the minimum time that must be served. It represents the retribution or punishment for the offence." If 18 weeks' imprisonment is regarded by the trial judge as sufficient punishment for the offence committed, what possible justification can there be for keeping him in prison for years after the tariff has been served -- indeed, in principle perhaps for life? The only conceivable 'justification' for this is to protect the public from offences by the person concerned which he has not yet even committed: and if that isn't 'preventive detention', I don't know what is. Preventive detention is a monstrosity and should be reserved for those régimes which can see nothing wrong with the Gulag, Belsen or Guantanamo Bay.

I rest my case!

Brian
http://www.barder.com/ephems/

[Tony]

Brian,
I'm not yet sure I can tease out your principled objection here. I think we both agree that, as the PRT pointed out, the implementation of IPPs has been woeful.
If your view is that an offender is entitled to release as soon as he has completed the tariff, than you must object to the life sentence. Why bother the Parole Board with all that nonsense of risk assessment? After all they are engaged in "the farcical notion that some group of 'experts' can predict the future by making a judgement about the future behaviour of a person who may have committed a single offence in the past — and has been punished for it."
And I don't think you can shimmy out of that by asserting that IPPs deal with "trivial offences" unlike "real" life sentences. If memory serves s225 of the 2003 CJA only clicks in when the offence(s) carries/carry a 10 year sentence.
The 18 week IPP is a complete nonsense. A more realistic example is that of A in my original post. Go on, put your gown on and dish out a plate of porridge. One of the objectives of your sentence ought to be public protection. I suspect you may be tempted towards an IPP.
t

[Brian Barder]

Tony,

You say that "[t]he 18 week IPP is a complete nonsense", and I agree, but that's what's happening, as the evidence of the Prison Reform Trust testifies. Jack Straw himself refers to "short-term lifers", which are produced by the IPP and which demonstrate that IPPs are not being imposed only on very serious offenders: "short-term lifers" ought in a sane world to be a contradiction in terms. A comment on my own blog refers to someone given an IPP with a mere two-year tariff, evidence of a relatively minor offence.

There's all the difference in the world between provision for conditional early release of a person who has been sentenced to life in prison, and an IPP. A life sentence is given for a grave crime, usually murder, where either parliament (in the case of mandatory sentences) or the trial judge reckons that the offence demands the most severe punishment, aka retribution, available under the law, i.e. imprisonment for life. In such cases the tariff laid down by the judge states the earliest date at which the offender may even be considered for release on licence or probation if the probation board is satisfied that he represents no danger to the community, even though he has not yet paid his debt to society by serving out the full term to which he has been sentenced, namely imprisonment for life. This is a merciful option designed to encourage lifers to behave well in prison, to show remorse, undertake anger management courses, and so forth. It recognises that a certainty of being kept behind bars until you die is inhumane and counter-productive in terms of rehabilitation, one of the main aims of imprisonment. There is no question here, by definition, of a prisoner being kept in prison after he has served the sentence deemed appropriate to his crime, i.e. imprisonment for life.

Contrast this with the IPP. Here the tariff is entirely different. It represents the length of time in prison required for punishment (retribution), the equivalent of the lifer's life sentence. Once the tariff has been served, the punishment has been completed and society's right to retribution (if you believe in that sort of Old Testament garbage, which I don't) has been satisfied. After that, the sole purpose of continuing to incarcerate the former offender -- 'former', because he has done his bird and is entitled to his fresh start in life -- is to "protect the public" against the possibility that he might re-offend if released. But all prisoners, not just lifers and those on IPPs, are liable to reoffend on release, as the statistics show. If the IPP prisoner is required to "prove" to the parole board that if released he will no longer be a danger to the public (reversing the onus of proof that we apply in all other circumstances, incidentally), and if, having failed to convince the parole board on this point, he may be kept in prison indefinitely, what on earth is the justification for not applying this Wonderland logic to every single inmate of every single prison? To do so would of course entail turning most of Britain into one enormous prison, but that's an argument from practicality, not from principle.

I repeat: for the IPP (but not for the person serving a life sentence), every day and every hour spent in prison after expiry of the tariff is preventive detention. And that is a blasphemy, a spit in the eye of every principle of justice that we have evolved over the centuries. There are now over 3,000 people on whom this wicked perversion of a sentence has been imposed, and the figure rises all the time. It's a major scandal. But if even people like you, formidably well informed, a person of principle, can't see it, what hope of persuading the tabloid-reading, Tory-voting polloi to rise in anger, demanding its immediate repeal? Eheu, fugaces, Postume, Postume...

Brian
http://www.barder.com/ephems/

[Tony Hatfield]

Brian,
Public protection,is an important raison d'etre of both the "short life sentence" IPP and the non-mandatory life sentence.
And that's where, I'm afraid, our opinions diverge. I look towards the danger to the public posed on release, often years down the line, rather than the offence committed. The offence has to be serious of course, but to engage the IPP provisions it must carry a minimum of 10 years custody.These are serious violent or sexual offences.
One of the purposes of punishment is public protection. That is surely uncontroversial.This requires dangerous offenders committing serious violent or sexual offences to be locked up until they present an acceptable risk. I would have thought that position, again, was uncontroversial.
I notice you have not yet accepted the challenge to sentence A.
t

[Brian Barder]

Er -- "sentence A"?

[Fred]

This IPP sentence might make sense if it was only imposed on people who present a high serious risk to the public. I know someone who got an IPP with 18 months tariff which left 5 months to tariff date after his sentence. He is still in prison one year after expiry of tariff with a parole hearing that keeps moving further away. To date he has not had a parole hearing and the prison and probation service seem desperate to keep him in prison. He has been assessed as 3% risk of being reconvicted on release! Surely the general population present a higher than 3% risk so why is he still in prison? I am sure there are many more like this and it is time Straw and his other cronies took a proper look at IPPs and released all of them who have passed their tariff dates - particularly those who cannot get a parole date. Why does it seem better to let out violent people and people who have continually been sent to prison but keep someone in who presents a 3% risk of reconviction? What about human rights - is the government mad or something. Does the government like overcrowded prisons - where is the belief that people can change - I could go on forwever.