Locked Up to Make Us Feel Better: Petty Criminals Are Increasingly Being Given Life Sentences Not for Crimes They Have Committed, but to Protect the Public from Their Possible Future Behaviour. Soon Our Prisons Will Hold More People in Such Preventive Detention Than Murderers

By Rose, David | New Statesman (1996), March 19, 2007 | Go to article overview

Locked Up to Make Us Feel Better: Petty Criminals Are Increasingly Being Given Life Sentences Not for Crimes They Have Committed, but to Protect the Public from Their Possible Future Behaviour. Soon Our Prisons Will Hold More People in Such Preventive Detention Than Murderers


Rose, David, New Statesman (1996)


Almost unnoticed, a fundamental change in penal policy is gathering pace. The main factor in the length of a sentence is, increasingly, not the severity of a crime, but the supposed risk that an offender will do something worse if released.

[ILLUSTRATION OMITTED]

Risk assessment is at best an inexact science--often, as we shall see later, shockingly so. But its emerging role in the sentencing process is having dramatic consequences: hundreds, soon to be thousands, of petty arsonists, pub brawlers and street muggers are in effect being given life, usually on the basis of highly subjective pre-sentence reports.

The change is certain to cause a further great rise in the prison population, already at record levels, having grown faster under new Labour than under any previous government. It is also arousing deep concern among lawyers, and will top the agenda at a special conference organised by the Criminal Bar Association in Birmingham next month.

The consequences for classical notions of justice are profound. Old lags have a saying: "If you can't do the time, don't do the crime." It needs reformulation: "If you can't do the time, don't have a background that might make a bureaucrat think if ever you're set free, you might be dangerous to the public."

At the heart of this shift is a piece of legislation whose import was barely appreciated when it passed through parliament: the Criminal Justice Act 2003, with its indeterminate public protection (IPP) sentences. According to the act, judges must impose an IPP--life in all but name--on any person convicted of any one of 153 separate violent and sexual offences, if they believe, in the words of the act, that there is "a significant risk to members of the public of serious harm from the commission of further specified offences". In an appeal judgment last year, one of the most senior criminal appeal judges, Lord Justice Judge, made clear how huge a departure this is: "Although punitive in its effect, with far-reaching consequences for the offender on whom it is imposed, it [the IPP] does not represent punishment for past offending. The decision is directed not to the past, but to the future."

It is not as if it had been difficult to lock up the truly dangerous under existing legislation. For decades, judges have been able to give "discretionary" life sentences to those convicted of certain crimes short of murder, such as rape and wounding with intent to kill. After 1998, the "two strikes and you're out" law (now replaced by the IPP) meant that anyone convicted of one of a short list of very serious crimes for a second time got life automatically.

However, the scale on which the IPP is being used dwarfs these older measures. Discretionary and automatic life sentences used to be given about 200 times each year. Since coming into force in April 2005, the IPP has been imposed more than 2,000 times, with a rate of over 100 new IPPs each month. As an official told me, Home Office models predict that by 2011, there will be 12,500 inmates serving IPPs--more than three times as many as those doing life for murder.

"Risk panic"

Hard cases, as the saying goes, make bad law, and the cases that the government cited to justify the 2003 act were very hard indeed--such as the release of the paedophiles who killed the 14-year-old Jason Swift in 1985. Such debate as there was helped to fuel a "risk panic", in which the media have focused obsessively on crimes committed by previous offenders who should have been under supervision, such as the 2005 murder in Reading of the teenager Mary Ann Leneghan.

It cannot be stressed sufficiently that there is no empirical basis for this panic at all. A study of sex offenders emerging from long-term imprisonment, published in 2002 by a team led by Oxford University's Roger Hood, found (as had earlier, similar projects) that their reconviction rate is reassuringly low. …

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