Indefinite imprisonment

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Indefinite imprisonment or indeterminate imprisonment is the imposition of a sentence of imprisonment with no definite period of time set during sentencing. It was imposed by certain nations in the past, before the drafting of the United Nations Convention against Torture (CAT). [1] The length of an indefinite imprisonment was determined during imprisonment based on the inmate's conduct. The inmate could have been returned to society or be kept in prison for life.

Contents

In theory, an indefinite prison sentence could be very short, or it could be a life sentence if no decision is made after sentencing to lift the term. In many cases, either a minimum term is imposed or the maximum that can be served is the maximum allowable by law in the jurisdiction for the particular offense.

Rationale

The main reason for imposing indefinite (as opposed to fixed) sentences is to protect the community. An offender can then be kept behind bars until it is determined the offender would not pose any danger to society. [2]

In some places, indefinite sentences have been around for a long time. [3] In other jurisdictions, they have been introduced more recently.

Australia

Queensland's Dangerous Prisoners (Sexual Offenders) Act 2003 authorised the continued detention of sex offenders who had served their term of imprisonment. The other Australian states followed with similar legislation. [4]

Tasmania

An offender who is at least 17 years of age and has been convicted of at least two violent or sexual offences can be declared a dangerous offender and detained indeterminately. A judge must consider the potential of future harm that could be caused by the offender, the circumstances of the offenses, medical and psychiatric opinion, and any other matters of relevance. The decision passed by the court is not reviewable; the indeterminate sentence(s) commence upon the expiration of any determinate sentence imposed, and release is only by way of an order from the Supreme Court.

Seven Tasmanian offenders are serving one or more consecutive sentences of indefinite imprisonment as of July 2012.

Western Australia

The Criminal Code Act 1913 (WA) and the Crimes (Serious and Repeat Offenders) Act 1992 (WA) contain provisions for the indeterminate incarceration of youths and adults convicted of particular offenses.

The indeterminate sentence(s) commence upon the expiration of any determinate sentence imposed, and are reviewed every three years after that, effectively giving a minimum term of the determinate sentence plus three years. Release is through a Supreme Court Order or at the discretion of the Governor.

The longest effective minimum term imposed is 30 years, being served by paedophile Mark Pendleton (an indefinite sentence to commence on the expiration of 27 years) for sexual offences committed against girls between 1977 and 1996, possessing child exploitation material in his cell, and being the ringleader of a conspiracy with fellow paedophiles to abuse children in Thailand. [5]

Another paedophile, Christian Michael Roach, was sentenced to three consecutive indefinite terms with an effective minimum term of 30 years in 2008 (the indefinite sentences to commence on the expiration of 27 years) for drugging and sexually abusing nine young women and girls between 1987 and 1999, and the manslaughter of one of them, but Roach hanged himself in his cell ten days after being sentenced.

Northern Territory and South Australia

The Criminal Code Act 1983 (NT) and the Sentencing Act 2017 (SA) allow for the indefinite incarceration of a person who is determined to be a habitual criminal and/or incapable of controlling sexual urges.

In South Australia, the indefinite sentence(s) commence upon the expiration of any determinate sentence imposed, and are reviewed every three years after that, effectively giving a minimum term of the determinate sentence plus three years. Release is only by way of an order from the Supreme Court.

In the Northern Territory, a prisoner serving one or more indefinite sentence(s) has a nominal sentence set at 70% of the sentence that would have been imposed if the prisoner were not declared dangerous, 20 years (25 years in some circumstances) if the sentence imposed would have been one or more consecutive sentences of life imprisonment, or any other term as is fixed by the court.

The indeterminate sentence must be reviewed by the court when the nominal sentence has expired and every three years afterward.

Australian Capital Territory, Queensland and Victoria

The Sentencing Act 2005 (ACT), the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), and the Sentencing Act 1991 (Vic) concern habitual offenders.

An offender can be incarcerated indefinitely if there is a high probability because of the offender's character, nature of their offense, psychiatric evidence as to the danger of the defendant, and any other relevant circumstances that the offender poses a serious threat to the community. The indeterminate sentence must be reviewed by the court when the nominal sentence has expired and every three years afterward.

The minimum nominal sentence that can be imposed is ten years, but the sentencing judge can extend that if the prisoner's criminal history or the nature of the prisoner's offending warrants it.

The longest nominal sentence imposed on one or more sentences of indefinite imprisonment is 30 years, currently being served by serial paedophile Geoffrey Robert Dobbs (Queensland), who pleaded guilty to 124 sexual offences and one count of attempting to pervert the course of justice committed against 63 girls aged between one month and 15 years, including five family members and girls under his care as a teacher and youth leader, between 1972 and 2000.

Canada

In Canada, an inmate classified as a dangerous offender can be given an indefinite prison sentence. That means the offender is at risk for causing a "serious personal injury." [6]

New Zealand

In New Zealand, indefinite imprisonment is called preventive detention and is handed down to individuals aged 18 or over convicted of a qualifying violent or sexual offences if it is likely that the offender will re-offend even if given the maximum term of imprisonment otherwise allowed. Such individuals will not receive parole unless they can demonstrate they no longer pose a threat to the community.

Preventive detention has a minimum period of imprisonment of five years, but the sentencing judge can extend that if the nature of the prisoner's offending or the prisoner's criminal history warrants it.

The longest minimum period of imprisonment on a sentence of preventive detention is one of 28 years, which was given in 1984. [7]

United Kingdom

England and Wales

Imprisonment for public protection was a form of indefinite sentence that was used in England and Wales from 2005 until 2012, in addition to the traditional life sentence. [8] The imprisonment for public protection sentence was abolished in 2012, but offenders already serving that sentence remained in prison. [9]

Scotland

In Scotland, the Order for Lifelong Restriction was implemented by the Criminal Justice (Scotland) Act 2003, which gives a judge of the High Court of Justiciary the power to impose a sentence for serious violent and sexual offences, that includes the life imprisonment or detention of the offender. The offender is subject to a process of risk assessment and risk management by the Risk Management Authority through a Risk Management Plan, which includes ways to manage the risks from the offender in prison and, where allowed by risk assessment, through release on licence. Should an offender be released from prison or detention they will be subject to more intensive supervision, treatment, and monitoring. [10] [11]

United States

Some US states have various forms of indefinite sentencing, and many have effective indeterminate sentencing with evaluation-based parole.

The US federal prison system does not allow parole for any crimes committed after 1987: therefore, a sentence of life imprisonment means that the prisoner will be incarcerated for the remainder of their life.

Indeterminate sentencing existed in every U.S. state from the 1930s to the mid-1970s. The Model Penal Code, developed in the 1950s, focused on offenders' treatment needs rather than on retribution: generous amounts of good conduct time could be awarded by prison officials.

By the mid-1970s, indeterminate sentencing was under attack, as arguments were made that racial and other invidious biases influenced officials, that rehabilitative treatment programs were ineffective, and that broad, standardless discretion denied constitutional due process and permitted undue leniency that undermined the deterrent effects of sanctions. [12]

Federal supervised release is also sometimes cited as an example of indeterminate sentencing. [13]

See also

Related Research Articles

Life imprisonment is any sentence of imprisonment for a crime under which convicted criminals are to remain in prison for the rest of their lives or indefinitely until pardoned, paroled, or commuted to a fixed term. Crimes that warrant life imprisonment are usually violent and/or dangerous. Examples of crimes that result in life sentences are murder, torture, terrorism, child abuse resulting in death, rape, espionage, treason, drug trafficking, drug possession, human trafficking, severe fraud and financial crimes, aggravated criminal damage, arson, and hate crime, kidnapping, burglary, and robbery, piracy, aircraft hijacking, and genocide, crimes against humanity, war crimes, severe cases of child pornography, or any three felonies in the case of a three-strikes law.

<span class="mw-page-title-main">Parole</span> Provisional release of a prisoner who agrees to certain conditions

Parole is a form of early release of a prison inmate where the prisoner agrees to abide by behavioral conditions, including checking-in with their designated parole officers, or else they may be rearrested and returned to prison.

In Canada, England, and Wales, certain convicted persons may be designated as dangerous offenders and subject to a longer, or indefinite, term of imprisonment in order to protect the public. Other countries, including Denmark, Norway, and parts of the United States have similar provisions of law.

A habitual offender, repeat offender, or career criminal is a person convicted of a crime who was previously convicted of other crimes. Various state and jurisdictions may have laws targeting habitual offenders, and specifically providing for enhanced or exemplary punishments or other sanctions. They are designed to counter criminal recidivism by physical incapacitation via imprisonment.

Some jurisdictions may commit certain types of dangerous sex offenders to state-run detention facilities following the completion of their sentence if that person has a "mental abnormality" or personality disorder that makes the person likely to engage in sexual offenses if not confined in a secure facility. In the United States, twenty states, the federal government, and the District of Columbia have a version of these commitment laws, which are referred to as "Sexually Violent Predator" (SVP) or "Sexually Dangerous Persons" laws.

Preventive detention is an imprisonment that is putatively justified for non-punitive purposes, most often to prevent further criminal acts.

In England and Wales, life imprisonment is a sentence that lasts until the death of the prisoner, although in most cases the prisoner will be eligible for early release after a minimum term set by the judge. In exceptional cases a judge may impose a "whole life order", meaning that the offender is never considered for parole, although they may still be released on compassionate grounds at the discretion of the Home Secretary. Whole life orders are usually imposed for aggravated murder, and can only be imposed where the offender was at least 21 years old at the time of the offence being committed.

<span class="mw-page-title-main">Incapacitation (penology)</span> One of the functions of punishment

Incapacitation in the context of criminal sentencing philosophy is one of the functions of punishment. It involves capital punishment, sending an offender to prison, or possibly restricting their freedom in the community, to protect society and prevent that person from committing further crimes. Incarceration, as the primary mechanism for incapacitation, is also used as to try to deter future offending.

<span class="mw-page-title-main">Parole Board for England and Wales</span>

The Parole Board for England and Wales was established in 1968 under the Criminal Justice Act 1967. It became an independent executive non-departmental public body (NDPB) on 1 July 1996 under the Criminal Justice and Public Order Act 1994. The Parole Board is governed by the Parole Board Rules 2016 made by Parliament under the Criminal Justice Act 2003. Parole Board members are appointed by the Secretary of State for Justice, but are required to take judicial decisions independent of Government.

At His Majesty's pleasure is a legal term of art referring to the indeterminate or undetermined length of service of certain appointed officials or the indeterminate sentences of some prisoners. It is based on the proposition that all legitimate authority for government comes from the Crown. Originating in the United Kingdom, it is now used throughout the Commonwealth realms, Lesotho, Eswatini, Brunei and other monarchies. In realms where the monarch is represented by a governor-general, governor or administrator, the phrase may be modified to be at the Governor's pleasure or variations thereof, since the governor-general, governor, lieutenant governor or administrator is the king's personal representative in the country, state or province.

In Germany, life imprisonment has an indeterminate length and is the most severe punishment that can be imposed. A person sentenced to life imprisonment may normally apply for parole after having served 15 years. If the parole court rejects the application, the inmate may reapply after a court determined blocking period no longer than two years. If the court has determined a "severe gravity of guilt" exists, parole is delayed for a non-specific period beyond 15 years.

Life imprisonment in Canada is a criminal sentence for certain offences that lasts for the offender’s life. Parole is possible, but even if paroled, the offender remains under the supervision of Corrections Canada for their lifetime, and can be returned to prison for parole violations.

Life imprisonment has been the most severe criminal sentence in New Zealand since the death penalty was abolished in 1989, having not been used since 1957.

<span class="mw-page-title-main">Criminal sentencing in Canada</span> Overview of criminal sentencing in Canada

Canadian criminal law is governed by the Criminal Code, which includes the principles and powers in relation to criminal sentencing in Canada.

A rehabilitation policy within criminology, is one intending to reform criminals rather than punish them and/or segregate them from the greater community.

In England and Wales, the imprisonment for public protection sentence was a form of indeterminate sentence introduced by section 225 of the Criminal Justice Act 2003 by the Home Secretary, David Blunkett, and abolished in 2012. It was intended to protect the public against criminals whose crimes were not serious enough to merit a normal life sentence but who were regarded as too dangerous to be released when the term of their original sentence had expired. It is composed of a punitive "tariff" intended to be proportionate to the gravity of the crime committed, and an indeterminate period which commences after the expiration of the tariff and lasts until the Parole Board judges the prisoner no longer poses a risk to the public and is fit to be released. The equivalent for under-18s was called detention for public protection, introduced by s. 226 of the 2003 Act. The sentences came into effect on 4 April 2005.

<span class="mw-page-title-main">Sentencing in England and Wales</span>

Sentencing in England and Wales refers to a bench of magistrates or district judge in a magistrate's court or a judge in the Crown Court passing sentence on a person found guilty of a criminal offence. In deciding the sentence, the court will take into account a number of factors: the type of offence and how serious it is, the timing of any plea of guilty, the defendant's character and antecedents, including their criminal record and the defendant's personal circumstances such as their financial circumstances in the case of a fine being imposed.

An Order for Lifelong Restriction is a sentence that can be imposed by a judge of the High Court of Justiciary on serious violent and sexual offenders in Scotland. Such an order is an indeterminate sentence that will see the convict subject to indefinite imprisonment and supervision by electronic monitoring for the rest of their lives. An offender will only be released on licence where it is determined that the risks posed to the community can be correctly and safely managed.

The New Zealand Parole Board is an independent statutory body established in 2002 that considers offenders for parole. Its task "is to undertake an assessment of the risk that long-term sentenced offenders might pose to the safety of the community if they were to be released before the end of their sentence". The Board also sets conditions of release for offenders so their reintegration back in to the community can be effectively managed. Once the conditions are set it becomes the responsibility of Community Corrections to manage the offender." 'Long term' is defined as more than 24 months. Short-term prisoners are automatically released after serving half their sentence.

The Uniform Determinate Sentencing Act of 1976 was a bill signed into law by Governor Jerry Brown to changes sentencing requirements in the California Penal Code. The act converted most sentences from an "indeterminate" sentence length at the discretion of the parole board to a "determinate" sentence length specified by the state legislature. The act was one of the largest drivers in a ninefold increase in California's prison population in the two decades after the act passed.

References

  1. ↑ The social welfare forum: Official proceedings [of the] annual meeting. National Conference on Social Welfare. 1886. p.  94 . Retrieved 2010-01-26– via Internet Archive. Indefinite prison sentence.
  2. ↑ "Can criminal justice decision-makers be relied on to get it right every time?". On Line Opinion. 8 September 2003. Retrieved 2010-01-26.
  3. ↑ Klein, Philip (1920). Prison methods in New York state, a contribution to the study of the theory and practice of correctional institutions in New York State . Retrieved 2010-01-26.
  4. ↑ Ronken, Carol; Johnston, Hetty (2012). "Balancing Rights: Arguments for indefinite detention of dangerous sex offenders" (PDF). Bravehearts Inc. Archived from the original (PDF) on 4 March 2016. Retrieved 2 May 2015.
  5. ↑ Paedophile Mark Pendleton sentenced to more jail time for sexually abusing two girls
  6. ↑ "Controversial criminal sent back to prison". CBC News. 2004-07-07. Retrieved 2015-05-01.
  7. ↑ Offenders on Indeterminate Sentences (PDF). Topic Series. Wellington: Department of Corrections. 2014. p. 5. Retrieved 26 May 2016.
  8. ↑ Ford, Richard (May 8, 2007). "Indefinite jail terms forecast to treble in the next five years". The Times. London. Retrieved 2010-01-26. Huge numbers of offenders are being given the jail term, driving upwards the overall number of those in the prison system on indefinite sentences, including life.
  9. ↑ Barnes, Sophie (2012-09-18). "Indeterminate sentences: a 'stain' on the criminal justice system". The Guardian. London.
  10. ↑ "Criminal Justice (Scotland) Act 2003". www.legislation.gov.uk. The National Archives. 26 March 2003.
  11. ↑ "RMA Scotland | Order for Lifelong Restriction | FAQs". www.rmascotland.gov.uk. Risk Management Authority. 2005. Retrieved 13 April 2017.
  12. ↑ Tonry, Michael (September 1999). "Reconsidering Indeterminate and Structured Sentencing" (PDF). Sentencing and Correction Issues for the 21st Century.
  13. ↑ Doherty, Fiona (June 2013). "Indeterminate Sentencing Returns: The Invention of Supervised Release". New York University Law Review. 88 (3).
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