REVIEW OF THE RESEARCH LITERATURE ON SERIOUS VIOLENT AND SEXUAL OFFENDERS:
A SUMMARY
Clare Connelly and Shanti Williamson, School of Law, University
of Glasgow
The full review is being published by the Scottish Executive Central Research Unit at the same time as this Report
This review was undertaken to assist the work of the MacLean Committee on Serious Violent and Sexual Offenders, by providing a review of current literature on how serious violent and sexual offenders and severe personality disordered offenders are treated and managed.
MAIN FINDINGS
INTRODUCTION
1. The main aim of the research was to provide a summary of current and recent UK and international literature on the sentencing of dangerous offenders and the subsequent management of these offenders in hospital or prison settings and upon release into the community. The key objectives of the research were to:
2. This research was conducted from 5 July until 30 September 1999. A literature search was conducted using available electronic, CD-ROM, and on-line databases. The literature search was conducted for references published in the English language or for those with an abstract in the English language. Literature published in languages other than English is excluded from the present review. Although this does not seriously affect the quality of the review, it does present a bias towards English speaking countries in the review of literature. Web sites of countries identified as having relevant legislation were consulted, and individuals with a local knowledge of their jurisdiction were contacted where possible.
Serious violent and sexual offender legislation
3. The literature revealed a substantial amount of information on both the current and prior legislative provisions to deal with this group of offenders. Established and operational provisions were identified in the USA, Canada, Australia, New Zealand, The Netherlands, Germany, Switzerland, Denmark and England and Wales. Additional but limited information was collated on Belgium, Norway, Italy, Spain, Iceland, Finland, France, Hungary and Poland.
4. Shared approaches to dealing with serious violent and sexual offenders exist within and between jurisdictions. In those countries where sentencing laws are determined at State level, e.g. USA and Australia, variations between some States are evident alongside a movement towards a unified approach that prioritises public safety. To help examine different countries, a model approach is used and two models are considered (see below).
The community protection model
5. This model is found in the USA, Canada, Australia and New Zealand. The USA can be distinguished from the other jurisdictions as the indeterminate sentencing takes the form of civil commitment, which is applied after the completion of a prison sentence. It only applies to sexual offenders and the legislation of this type which exists in different States take the form of sexual predator statutes. For non-sexual violent offenders the normal sentencing provisions (e.g. 'three-strikes') are available. In Canada, Australia and New Zealand indeterminate sentencing, similar to the USA, is available. Although this legislation also prioritises public protection and incorporates review mechanisms in respect of detention, there are some notable differences. The legislation in these countries does not make the same distinction between sexual and non-sexual violent offenders. Also, the decision on indeterminate sentencing is made at the point of disposal for the index offence and not at the completion of the prison sentence, as in the USA. Constitutional and human rights challenges to this legislation have highlighted that a system of regular review of detention is essential.
The clinical or therapeutic model
6. The Netherlands, Germany, Switzerland and England and Wales have been described as having a more clinical approach to dangerous offenders, which is orientated more towards treatment than punishment and public protection. The TBS order in The Netherlands allows post-trial detention in a forensic mental hospital for offenders with partial responsibility and those deemed wholly without legal responsibility. Treatment is provided in this setting. An offender can elect not to be assessed to receive such an order, which is made at the point of sentencing. If the offender chooses not to participate, he/she will receive a normal prison disposal. Review procedures in respect of these orders are stringent and allow for regular review.
7. Like The Netherlands, Germany provides hospital detention for the partially responsible offender. The decision to include an offender in such a regime, however, focuses on considerations of dangerousness and previous convictions rather than illness. Surgical castration is available in respect of sexual offenders and indeterminate civil commitment can be used for offenders who are dangerous and insane, but this is rarely used.
8. In Switzerland preventative detention is available for offenders who have a deep-seated personality disorder and have committed a serious violent offence. Detention is aimed at preventing future similar offending. Regular review provisions are incorporated.
9. Those offenders committing the most serious offences in Denmark will receive a dangerous offender order if a risk of future offending is evident. The order, which is initially for a fixed period, is renewable. Serious sexual offenders are castrated in Denmark. Surgical castration has now been replaced by chemical castration combined with psychotherapy.
10. Due to the existence of disposals, such as the hospital order and hospital and limitation direction, which are available to convicted offenders with mental disorder, England and Wales may be considered as belonging to the clinical model. However, recent legislation in the form of longer than normal sentences, and current proposals for further change, evidence a distinct shift towards the public protection model.
Shared characteristics
11. While having individual legislative provisions, all of these jurisdictions also have shared characteristics. A large number of countries have introduced legislation following a high profile crime committed by a recently released offender with some history of serious offending.
12. The largest category of offenders in receipt of indeterminate sentencing or detention is sex offenders. The treatment of this group appears to be problematic and various approaches have been adopted with limited success. A very large number of offenders in every jurisdiction have been described as suffering from personality disorders and, often, severe personality disorders. It is not always clear from the literature, however, how the author defines this category.
13. Internationally, there appears to continue to be a growth in the creation of new forms of indeterminate sentencing. A movement away from an emphasis on treatment and rehabilitation towards prioritising public safety is obvious not only in the legislation which is already in force, but that which is currently in the process of becoming law.
Evaluation of effectiveness
14. There is limited literature available which is concerned with the effectiveness of these legislative provisions. That which does exist presents a mixture of results. The common trait in this literature is the approach adopted. The legislative provisions are either evaluated on the basis of how successful they are at reducing recidivism or, alternatively, whether they comply with human rights or constitutional provisions.
15. The current public protection legislation has not been in existence for long enough to allow evaluations to have been conducted. The USA provisions, which are some of the earliest, only came into force for the first time in 1990. The majority of offenders detained under these provisions have, therefore, not yet been released.
Compliance with human rights provisions
16. Each of the jurisdictions outlined is required to comply with the protections contained within their national equivalent of the European Convention on Human Rights. Scotland is no exception to this.
17. The position in the USA in this regard is outlined in the case Kansas v Hendricks. In this case, in 1997, the United States Supreme Court approved the constitutionality of Kansas' sexual predator statute. The Supreme Court's disposal of the constitutional issues raised can only be interpreted as providing approval for the viability of a model of community protection within a country and legal system strongly founded on the principles of liberty and due process.
18. In this decision and in those of the European Court of Human Rights the essential compliance criteria appear to be an absence of inhuman treatment or punishment, which may in Europe affect the lawfulness of compulsory castration, particularly if this was to be surgical. Access to a review process by the offender is also essential. The lawfulness of the USA model, whereby indeterminate sentencing is not passed until after the prison sentence has been served, is unique to this jurisdiction. It is possible that if such a system existed in Europe it would be deemed to be in breach of the European Convention on Human Rights.
Further research
19. Additional evaluation on recidivism of offenders in receipt of provisions for serious violent and sexual offenders would contribute to knowledge of the effectiveness of these provisions. Further evaluation of treatment approaches using comparable methodology would also be beneficial.