Keeping Sex Offenders In Prison

Over the past few years, there has been considerable debate on whether serious sex offenders should be kept in prison after their sentence has expired if their reoffending post release is believed to be a significant risk.

Debate in Victoria as far back as 2004, prompted by the release of Brian Keith Jones, dubbed Mr. Baldy because he abducted boys, shaved their heads and raped them, eventually led to the Serious Sex Offenders Monitoring Act, which allows strict conditions to be placed on released offenders well past the end of the parole period.

New South Wales had the notorious Dennis Ferguson, who consistently reoffended and made no attempt at rehabilitation while in prison. The problem brought to public attention by his case in particular was that if someone like him serves their full sentence, they are released into the community with no parole period and hence nothing other than informal supervision by police, who may end up being the subject of a harassment complaint if the pervert in question finds a sympathetic bleeding heart to assist him. Absurdly, Ferguson was going to be allowed to stay on his release with a family with an eight year old daughter.

I can see three issues which require not just debate, but prompt and clear resolution (so often the inevitable disagreements in public debate are used by weak governments to avoid action).

Firstly, are there circumstances in which a sex offender is deemed such a risk of reoffending that they are detained indefinitely after the end of their original sentence and if so, is separate legislation necessary?

I think there are definitely such circumstances (Dennis Ferguson being a possible example). Further, I believe most of the community would agree with me. There are many cases in which child molesters or serial rapists have made no meaningful attempt at rehabilitation while in prison and have been deemed a high risk of reoffending by prison psychiatrists. Their civil right to be given a chance to reintegrate into the community at the end of their prescribed sentence is exceeded by the rights of others to be kept safe from their likely predatory behaviour.

I’m not in general a supporter of utilitarianism, but I think its principles usefully apply here: the probability of the person committing more crimes, combined with the severity of the consequences for their victims far outweighs the detriment to their own civil liberties.

We use the same argument when forcibly detaining people under the Mental Health Act. In fact, it is precisely this law which should be used to detain unacceptably high risk sex offenders indefinitely. There is no need for an entirely new act of parliament: if necessary, amend the Mental Health Act. Anyone who cannot control their urges to molest children or rape people should be considered criminally insane by any reasonable, operational definition.

In 2010, the US Supreme Court ruled that the US Federal Government had precisely this right. There are many elements of the US legal system which we should eschew, however I believe this is an example we should follow.

My second question is: If serious sex offenders are to be released back into the community, but close monitoring of a strict behavioural regime is deemed necessary for a long period ie. several years, is specific legislation such as Victoria’s Serious Sex Offenders Monitoring Act necessary or desirable?

Such legislation is currently necessary because offenders did not have strict conditions built into their parole when originally sentenced, sometimes many years ago. In the case of Dennis Ferguson, no strict, formal supervision on parole would have been possible because he served his full sentence.

I suggest it will remain necessary, as it is less open to abuse than its alternatives.

Suppose society attempted to instead handle the supervision problem via the Crimes Act, whereby sentencing guidelines were changed so that serious sex offenders or even other violent criminals were given, for example 25 years with a 10 year non-parole period instead of the current 15 and 10 and the judge had the ability to a priori impose parole monitoring conditions. Note that the Sex Offenders Monitoring Act only allows for a maximum 15 year supervision order. If someone had not reoffended within 15 years of strict supervision and behavioural control, it is highly unlikely another supervision order would be granted, so in this aspect, altering sentencing guidelines to allow much longer parole periods has the same effect as the provisions of the Sex Offenders Monitoring Act.

The difficulty with the proposed alternative is that judges would need to impose such long parole periods and strict conditions as a matter of course for a given range of offences, with only extraordinary reasons allowing any deviation. It would therefore cause effectively all people committing these types of offences to receive very long sentences. Release from prison at the end of the current “normal” sentence would thus be at the discretion of the parole board, informed by medical advice and the prisoner’s behavioural record. However, there would be no formal discretion as to the conditions and period of any post release monitoring; only in the rigour with which monitoring was performed. Sentences passed many years ago cannot take into account any genuine rehabilitation (if that is possible) and would therefore always err on the side of caution.

Some may hold the view that this conservative approach is desirable when it comes to sex offenders, however it is possible subsequent changes in community attitudes, unsupported by evidence, may lead to political pressure on parole boards to keep offenders incarcerated for the majority of their parole period, regardless of behaviour while in prison. In the absence of separate monitoring legislation, they would eventually be released into the community, angry and resentful at their long sentence, with little or no supervisory parole period, in complete contradiction to the original intent of the sentence.

Additionally, such long parole period sentencing conditions can be inappropriately extended to a host of other crimes in law and order auctions during election campaigns. There tends more public scrutiny and debate if a government seeks to amend separate legislation such as the Sex Offenders Monitoring Act to cover a significantly wider range of crimes than if it seeks to amend sentences and guidelines for existing offences.

My third question is: How do we safeguard against cynical or ideologically motivated governments extending specific monitoring or indefinite incarceration legislation to a much larger range of crimes, in the absence of any evidence it will work?

This last point is no theoretical discussion: there have already been calls to keep non-sex offenders in prison beyond their sentence.

My view is that indefinite incarceration should only be via the Mental Health Act. We should not allow any specific legislation which gives governments and their agents the power to keep sane citizens in prison past their sentence: it is too easily abused. It is effectively detention without the right to a trial.

Specific legislation to provide for strict behavioural controls and monitoring on release is a different matter. The person has been released as per their sentence. Imprisonment only occurs if parole conditions are breached.

It is more difficult to abuse the intent of the legislation by extending it to other offences because the law must then be changed and those amendments passed by both houses of parliament.

It would not be unreasonable for society to consider legislation which requires a minimum parole period (either some fixed time or proportion of sentence) for all custodial sentences. This is to counter situations where, for example a violent criminal is given 10 years with a non-parole period of 7, but does the full 10.

Model prisoners do not do their full sentence. Those who do are probably the highest risk of reoffending. It is reasonable to apply a utilitarian argument here and require strict monitoring for a year or two.

Adjunct to such legislation needs to be a strong Ombudsman’s office to support released prisoners in cases of abuse of the parole system via harassment and the right to a judicial hearing to assess the evidence if accusations of a breach of parole are made.