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Another commonly stated function of the criminal law is the protection of
society by the incapacitation of dangerous offenders.
Crime is reduced by restricting the offender's opportunity to commit
"Prison works" was the phrase used by
Michael Howard, when he was Home Secretary, at the Conservative Party
Conference in 1993.
Ministry of Justice provided evidence that
of more than 1,700 inmates were let out 18 days early in 2007 in an
attempt to ease the pressure on jails. Six had committed a total of eight
new crimes after being let out and another 18 had gone missing after
failing to report in regularly. Thirty were recalled to jail within a few
Children, mentally ill and petty offenders
The former head of the Prison Service Martin Narey told the Observer
newspaper, in July 2006 that that thousands of children, mentally ill
people and petty offenders were in prison that did not belong behind bars.
The Home Secretary has announce that he will build more jails, rather than
pledge any early cut in numbers.
Home Secretary Douglas Hurd, under Margaret Thatcher reduced the number of
prisoners by 4,000.
Other sentences that protect society.
Most societies allow for some special form of protective sentencing.
The Criminal Justice Act 1991 broadly endorses the concept of
sentencing proportionate to the seriousness of the crime but allows longer
sentences to be imposed in cases of violent or sexual offences 'if it is
necessary to protect the public from serious harm from the offender'
(section 2(2)(b) ).
Similarly, with the wide array of offences carrying a maximum penalty of
life imprisonment (for example, rape, causing grievous bodily harm with
intent, aggravated burglary, etc.) the sentencing judge can impose such a
maximum penalty upon an offender perceived to be dangerous to society.
Finally, it must be remembered that non-custodial protective sentences can
be imposed. Thus disqualifying an offender from driving is regarded as one
of the most effective means of protecting road-users from dangerous
Variations in sentencing produce injustice.
Two widely differing examples of protective sentencing will help reveal
the nature of, and the difficulties with, utilising the criminal law and
the process of punishment for this purpose.
In Nicholls (1970) the offender was convicted of one count of
indecent assault on a girl aged seven. He had no less than nine previous
convictions for indecent assault and attempted rape of children aged
between four and nine years of age. The court imposed an extended sentence
of ten years' imprisonment on the basis that the offender was a danger to
While extended sentences have now been abolished, a court could today
still achieve the same result by utilising section 2(2)(b) of the
Criminal Justice Act 1991.
The other case is a famous and controversial United States Supreme Court
decision, Rummel v. Estelle (1980) in which a sentence of life
imprisonment for obtaining $120.75 by false pretences was affirmed. The
defendant had two previous convictions: fraudulent use of a credit card to
obtain $80 worth of goods (nine years previously), and passing a forged
cheque of $528.36 (four years previously). He was prosecuted under a Texas
recidivist statute making life imprisonment mandatory upon a third felony
conviction. A majority in the Supreme Court rejected a claim that life
imprisonment was a grossly disproportionate punishment and held that it
was legitimate for a state to segregate recidivists from the rest of
society 'for an extended period of time'.
What is "dangerous"?
The contrast between these two cases leads us directly to a consideration
of two central problems associated with sentencing on such bases.
First, how is 'dangerousness' to be defined for these purposes? Most
people would agree that Nicholls with his persistent sexual
aggression constituted a 'danger' to children. But can the same be said of
If protective sentencing is to be employed, it must surely be limited to
those who are dangerous in the sense of being likely to cause serious
Of course, this approach in itself raises problems. While most would agree
that death, serious bodily injury and serious sexual assault clearly
qualify as serious harms for this purpose, controversy arises in relation
to a host of other harms, for example, 'loss or damage to property which
results in severe personal hardship' (Floud Committee, 1981). One
thing does, however, seem certain. It could not be seriously asserted that
the kind of offence Rummel might in future commit could possibly
justify the imposition of a sentence of life imprisonment.
The second problem is one of predicting or identifying dangerousness.
How probable must it be that Nicholls or Rummel will offend again
before we are justified in imposing an incapacitative sentence?
How immediate, how frequent and how specific must the risk be?
Numerous research projects have been undertaken aimed at developing
accurate criteria for predicting dangerousness. For instance, Greenwood
(1982) developed a seven-factor prediction index (based on previous
criminal history, drug use and unemployment) to identify persons likely to
commit frequent acts of robbery or other violent crimes in future.
The problem with this and many other projects is that research has been
based on the admissions of imprisoned offenders only, which has prompted
the cynical response that this is 'like trying to learn about the smoking
habits of smokers generally by studying the smoking activity of residents
of a lung cancer ward' (Von Hirsch, 1986).
Even more serious is the fact that such projects to date have tended to
yield rather too many 'false positives' (classifications of dangerousness
that did not materialise).
Punishing people on likelihood of future
This last point is critical. A 'false positive' is not just a statistic.
It is a human being locked up in prison because society has made a mistake
in wrongly predicting him to be dangerous.
Accordingly, until such time as more accurate prediction criteria have
been developed (if this were ever possible) it must be highly questionable
whether punishment for such reasons can be justified.
There is a related question of whether it can ever be permissible to
punish people on the basis of what they might do in the future.
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