Law vs economics: preventive detention

From Andrew Geddis:

National plan to legislate to permit the ongoing “civil detention” of offenders deemed at high risk of future sexual or violent offending even after their jail sentence [is] complete. Civil detention[,] now apparently called “Public Protection Orders”… would thus be a retrospective restriction applied to some prisoners on top of the original sentence that they received for their crimes, based purely on the prediction that they inevitably will commit further offences when and if released.

the proposed Public Protection Orders differ from preventive detention in that they are imposed not because of a crime already committed, but rather purely because of predictions of a crime to come.

That’s a difference that has been held important by the European Court of Human Rights (see here), as well as the United Nations Human Rights Commission (see here and here). Both of these bodies have said it is OK for a country to sentence someone to an indefinate period of detention for something they have done (combined with a justified fear of what this shows they may do when released). However, altering a person’s prison sentence once this has been imposed purely because of fears the person may do bad things in the future is a no-no from a human rights perspective.

As I understand it (not being a lawyer) there will now be two ways to spend an indefinite period of time in jail: either you committed a crime, posed a risk to the community at the time of sentencing and still pose a risk to the community, or you committed a crime and pose a risk to the community at the time of release. Apparently the latter is more problematic for lawyers because the ‘indefinite’ bit happens after sentencing. From the perspective of an economist I find that a bit perplexing.

First of all, let’s suppose that we think putting people who pose a risk to the community in jail indefinitely is a good thing. Presumably the motivation for doing it is to protect the community from harm; any other motivation seems hard to justify. So, at what point following the conviction for a crime would we be concerned about harm to the community? Certainly not when the person is incarcerated, and probably not when they’re in custody awaiting sentencing. Surely the time at which we might be concerned is when we have to make a decision about releasing them. Does it matter when, between conviction and potential release, they were adjudged to be a risk to the community? Well, certainly not from the perspective of the potential victims. So why would there be some fundamental difference between preventive detention and an equivalent test incorporated in a Public Protection Order (PPO)? To go a bit further, if it’s a good idea to keep people who are a risk to the community in jail, surely we want the option to keep them there up until they are released. Anything else risks being unable to react appropriately if the convict develops risky behaviours while in jail.

Now I can understand that people might be concerned about abuse of power and the unethical use of PPOs, but there seem to be similar problems with preventive detention. The best one can argue is that the PPO gives more time for the justice system to abuse its power, but I can’t see why judicial checks on that would be any less effective than judicial discretion over preventive detention.

I’d very much welcome any lawyers to clear it up for me, because I may very well be entirely confused here!

  • DT

    Its about the Rule of Law, which includes a principle of no retrospective criminal legislation. It basically means that you can’t make something illegal or change the sentence for it so that it applies to people that have already done it. Basically, people ought to be able to make a decision whether or not to do something knowing what the consequences might be. 
    This goes against that principle. People sentenced in the period when there was no preventitive detention would have thought when they committed the crime that it would not be possible to sentence them indefinitely, this effectively changes that after they have made their decision to do the crime.
    There are other issues with this. In particular, why should a bunch of bureaucrats get to revisit a judges decision in sentencing? The judge is supposed to consider risk of reoffending and public safety, and if they anticipated a problem they should have taken that into account when choosing the sentence.

    • http://www.tvhe.co.nz jamesz

      Its about the Rule of Law, which includes a principle of no retrospective criminal legislation.

      The point Geddis makes is not about retrospective action, it’s about the difference between deciding at the time of sentencing and deciding after sentencing. I think he’s saying that indefinite detention, not linked at the time of sentencing to a crime that has been committed, is worse than PD.

      why should a bunch of bureaucrats get to revisit a judges decision in sentencing?

      First, it doesn’t need to be bureaucrats, it could quite easily be a judicial decision. Secondly, it is because they have better information near to time of release than the judge has at the time of sentencing. That is particularly the case for the type of criminals who these orders would apply to, since they would most likely have quite long custodial sentences in teh first instance. It seems possible that the risk of them reoffending could change over the course of the sentence. Indeed, the possibility of being subject to a PPO may encourage them to seek rehabilitation while imprisoned.

  • Ben

    I think the point is more the issues around punishments based on probabilistic assessments of future offending (I think Geddis’ title supports this interpretation).  For example, if we could somehow be certain that there was an 80% chance that a prisoner would reoffend there would still be a one in five chance they wouldn’t.  The reality is that our ability to estimate isn’t all that good.  Particularly given that we are reasoning about particular offenders from general data.

    You could try to argue that we should lock people up before they commit a crime if our certainty passes a certain threshhold (ignoring my earlier points about the problems applying this to an individual), but western society has generally frowned on locking up groups of people because a subset of them will/have/are likely to commit a crime.

    • http://www.tvhe.co.nz jamesz

      I wholly agree with that interpretation. I just don’t see the difference between PPOs and PD in that sense. PD implies that we’re already OK with locking people up on some probability of future offending.

  • Ben

    In that case it sounds like you’re arguing that we have one bad law and that justifies another similar one.  Or more favourably that Geddis’ is obliged to explain why PD is ok but not PPOs – which he does by saying that PD is a response to a crime that has been currently proven, while PPOs are about a potential future crime.

  • Ben

    Ignore that, having reread your post and comment I think this is the point: sentences are given for four reasons – punishment, deterrance (both for the offender and for other potential offenders), community safety, and rehabilitation.  PD can be justified on each of these grounds.  However, PPOs can only be about community safety.  Your point is that in terms of that one ground PPOs are similar to (and probably better than) PD.  Geddis’ point is that PPOs fail because they are antitheical (sp?) to how the law works in relation to the other grounds (eg you shouldn’t be punished for something you haven’t done). 

  • ike

    Lawyers and psychiatrists are not clairvoyant. The government has no right to ignore the rights and civil liberties of and individual just because other individuals SAY they are dangerous. I would declare war on any government that instituted these policies.