Criminology

Question
Queenslands Dangerous Prisoners (Sexual Offenders) Act (2003) provides that sexual offenders to be detained or supervised beyond the expiration of their sentence in cases where a court finds that there is a high degree of probability that they represent a serious danger to the community. Consider whether this legislation can be justified on the grounds of the correctional goals of retribution, incapacitation, deterrence and rehabilitation. Why do you think there is no similar legislation directed toward serious nonsexual offenders

Introduction
Queenslands Dangerous Prisoners (Sexual Offenders) Act, 2003 (the Act) provides that sexual offenders to be detained or supervised beyond the expiration of their sentence in cases where a court finds that there is a high degree of probability that they represent a serious danger to the community. To consider whether this legislation can be justified on the grounds of the correctional goals of retribution, incapacitation, deterrence and rehabilitation, arguments against the measures will be outlined and followed by a consideration of arguments for. These will then be considered as a whole, in consideration of correctional goals. Finally, an opinion will be briefly given to consider why there is no similar legislation directed toward serious nonsexual offenders. These investigations will show that, although it is justifiable to have separate criminal policies for sexual offenders as a type of offender, the measures taken under Queensland law are not justifiable due to less restrictive means, thereby making the limitations disproportional.

Before addressing the arguments in full, the Act should be considered within the context. Pursuant to Sections 8 and 13, the Act essentially allows the imposition of an additional sentence without determination of guilt. However, it must be noted that the Act is very particular.  Before the provisions of the Act can be utilised, it must be preceded by a prior conviction of an offence which is sexual in nature and must be supported by the reports of two medical practitioners to the effect that the perpetrator cannot control their sexual instincts (Campbell, 1993, p.81). The Act has in fact already been constitutionally challenged in the case of Fardon v Attorney-General (Qld) (2004) 210  HYPERLINK httpen.wikipedia.orgwikiCommonwealth_Law_Reports o Commonwealth Law Reports CLR 50. However, such challenge was not accepted fully by the High Court of Australia.

Arguments against the Act
Resistance to the relevant provisions in the Act have been staunched, particularly with respect to the way in which the Act appears to violate widely accepted legal principles under the rule of law. Detractors noted that due to the priority placed upon a citizens liberty, the only reason the state is granted the punitive power of imprisonment is the judiciarys core function, i.e., to adjudge and punish criminal guilt (Keyzer, Pereira  Southwood, 2004, p.247). However, through this Act, the courts are seemingly exercising a non-judicial function in that they prescribe a sentence (after a sentence for a crime has already been served) with no determination of guilt (Gray, 2004, p.42). A fundamental principle of legality  serving to provide the states exercise of power over the citizen with a semblance of legitimacy  is that punishment needs to be based on a finding of guilt, such determination of guilt being based on an actual past act, as opposed to a potential future act (Keyzer, Pereira  Southwood, 2004, p.248).

The Act must then, due to its proposed lack of legitimacy, be passed upon and take into consideration issues of the violation of fundamental human rights. Liberty is one of the most fundamental human rights (OGorman, 1998, p.2). Constituents cannot be arbitrarily deprived of their liberty, within a democratic state at that.

Additional issues relate not only to the challenges in assessing risk, but also in determining a balance between community protection and individual liberties (Biles, 2005, p.3).

Arguments in favour of the Act
Though there are very clear human rights infringement concerns and constitutional questions relative to the Act, proponents have suggested that there are many ways in which the Act can survive despite the continuous challenge of its constitutionality. Studies show that sex offenders are not uniform in their requirements for effective deterrence (Smallbone  Wortley, 2000, p.67, 76). Therefore, it is appropriate to consider a standard for continued incarceration on the basis of a considered enquiry such as this one. This is supported by the fact that offenders are dishonest about their acts which are constitutive of offenses. Thus, an objective standard should be used to determine what their responses to rehabilitation initiatives could be (Smallbone  Worltey, 2000, p.75). The foregoing is in line with the current shift from the punishment fits the crime to the punishment fitting the offender scheme (Ronken  Johnson, 2008, p.7).

Further, proponents also noted that the real scope of the Act must be considered because the Act is not a permanent inhibition to release  and therefore not a permanent deprivation of liberty  but merely just a prolonged one (Smallbone  Wortley, 2000, p.75). It also serves, very importantly, to encourage offenders to properly involve themselves more in their rehabilitation programmes (Ronken  Johnson, 2008, p.6). As Maconochie has quoted, certain types of sentencing are designed to place the prisoners fate in his own hands (Daunton-Fear, 1967, p.335).

The most important benefit of the Act, which also served as the fundamental reason for its drafting, is that any deprivation of individual rights has been done in consideration of the rights of the community, which is taken with priority (OGorman, 1998, p.7 Daunton-Fear, 1967, p.350). The balancing of rights is not only a conceptual act, but also a legitimate one in a pluralistic society (Alexy, 2003, p.136). In other words, the fact that some individual rights may have been potentially violated does not automatically mean that said violation is unjustifiable - rather, it is an inevitable result of competing interests within the society. If one then considers the European Courts ruling that such an infringement can be justifiable (especially if the sentence is particularised and review procedures exist), the non-permanence of the sentence  and its express allowance for review and appeal proceedings - becomes a strong indication of the Acts constitutionality (Biles, 2005, p.52). This is enhanced by the fact that the final decisions in detentions are made by an independent judiciary, which utilises impartial decision-making procedures. As long as the test for risk is strongly connected to considerations of the prisoners ability to reform, the call for other forms of detention is diminished as community protection appears justified (Campbell, 1993, p.83). Practically, too, very few prisoners have actually ever been considered under the provisions of the Act (Campbell, 1993, p.82).

Justifiability under correctional goals
While the positions of each side were briefly expressed, these arguments should be considered in sum against the typical goals of sentencing. Importantly, it has been noted that
 it would be archaic to limit the definition of punishment to retribution. Punishment serves several purposes retributive, rehabilitative, deterrent  and preventative. One of the reasons society imprisons those convicted of crimes is to keep them from inflicting, future harm, but that does not make imprisonment any less of a punishment (United States v Brown 381 US 437 (1965) at 458).

The main purpose of imprisonment is not only to punish an offense, but it also serves as a deterrent (Keyzer, Pereira  Southwood, 2004, p.150). The question then arises what purpose does this form of sentencing serve As seen, the key goal is to maintain community safety (which is neither retributive nor deterrent), but does this goal relate to other correctional goals The proposal seems the best manner to associate its goal to rehabilitative functions (Ashworth, 2005, p.75 Biles, 2005, p.44).

However, even if the goal is intended to relate broadly to a correctional goal, the real question is whether it has successfully achieves its goal. This is because, if the Act cannot achieve its goal, it will not be able to successfully justify the infringement of the prisoners liberty. In Australia, justifiability is considered through examination of whether a law is targeted at a legal objective, which means must then be proportionate to the goal, as well as successful in achieving it (Biles, 2005, p.53). It should be noted from the outset, though, that the Acts application to a general grouping, rather than a case by case determination, is a strong indication against proportionality (Gray, 2004).

Whether or not this Act is proportional must be considered whether there are less restrictive means available to achieve the same goal if it is to withstand challenge (Dershowitz, 1974, p.237). It must be remembered that rehabilitation occurs in and outside of prison (Daunton-Fear, 1967, p.357). However  would rehabilitation initiatives outside of prison be adequate in achieving the goal of protecting the community There are research initiatives which actually suggest yes. The threat to communities comes from recidivism levels. Research shows that what is needed to prevent offenders recommitting sexual crimes is responsive therapy, something which could be served by rehabilitation initiatives beyond prison (Biles, 2005, p.46). Even more interesting is the fact that to prevent sexual offenders from reoffending, due to their high dropout rates from rehabilitation programmes, community support from offenders family and friends has been shown to be key  something which cannot be facilitated at all by continued incarceration (Biles, 2005, p.46).

Examples of alternatives can be seen in Canada, which adapted already existing laws to try and combat the problem of sexual offenders (Queenslands adaption of an existing law would also serve to counter the argument by many that the new form of sentencing violates the prisoners legitimate expectation of release) (Biles, 2005, p.29). Canada has incorporated into the law  working upon their peace keeping laws  long-term offender designations which, on a case by case basis, are a form of continued supervision that incorporate numerous interventions and can last after detention for as long as 10 years (Biles, 2005, p.28). Such interventions are also supported by the concerns that prevention of recidivism interventions should be multi-faceted and should include sociological and situational prevention, which are initiatives that cannot be facilitated through continued incarceration (Smallbone  Wortley, 2000, p.65-70).

It should be noted that the Canadian measures have meant that more perpetrators have been subjected to their expanded measures than currently have been subjected to the Queensland indefinite sentencing measures (Biles, 2005, p.28). This actually serves, though, to expose one of the most ironic shortcomings of the Act. If the fundamental goal of the Act is to protect communities, the measures to do so are so restrictive on individual rights that courts are hesitant to utilise them, it may actually mean that serious sexual offenders are less restricted by the Queensland measures than the Canadian ones. To justify the infringement of the Act, a high standard of risk has to be shown  it would in fact be more protective of society to have a lower standard of showing a risk thereto. However, dealing with such risks must be through less restrictive means. It is, after all, the civil commitment to prison which opposition finds repugnant  not necessarily the utilisation of other forms of commitment (Keyzer, Pereira  Southwood, 2004, p.247).

Beyond sex offenders
While the Act may be difficult to justify, it nevertheless remains interesting to consider why its scope was limited to sex offenders. In Queensland, the awareness of child sexual abuse is on the rise (Smallbone  Wortley, 2000, p. ix). The communities at the time that the Act was passed had expressed growing concerns not only about the nature of sexual crimes, but also about the fact that with such crimes rehabilitation was seemingly having inconsistent or uncertain results (Biles, 2005, p.18).

Recidivism rates, however, are difficult to prove. Therefore, a comparison of such rates between types of offenders is equally difficult (Ronken  Johnson, 2008, p.7). There has been no actual indication that the recidivism rates of sexual offenders would warrant a specialised intervention (OGorman, 1998, p.7 Biles, 2005, p.43). That being said, perhaps, community response and perception should be more influential indicators of moves in policy to legitimise government response (Ronken  Johnson, 2008, p.7). As the United Kingdom wrote in the forerunning of its own Sexual Offences Act, 2003 (which also shows that the Queensland social movements are in coordination with international ones)
Sexual crime, and the fear of sexual crime, has a profound and damaging effect on the lives and individuals of a community. A responsibility rests on the Government adequately to protect everyone from such crimes... (Biles, 2005, p.22). (Italics supplied)

Without empirical proof of recidivism, this Act must then surely be a risk constituting a form of unfair discrimination The judiciary have always traditionally treated crimes of a sexual nature more harshly (Campbell, 1993, p.83). However, beyond the apparent perception of the nature of such crimes, there may be in fact a greater societal purpose for it there is a known and significant under-reporting of sexual offences which should have had an impact on determining policy and treating known offenders more harshly when the opportunity arises (Biles, 2005, p.59). Further, sexual offenders are not honest about their offending acts, which can make their particularised rehabilitation difficult (Smallbone  Wortley, 2000, p.75). While this may make it justifiable to consider sexual offenders differently from other types of offenders because of public responses to their crimes and the nature of their crimes, this does not mean that the Acts form of specialised consideration is justifiable in the end.

Conclusion
Opposition to the Act tends to only push forward the notion that the Act infringes on individual liberty. At face value, this is true. Still, at least proponents of the Act have correctly identified that the argument must go beyond that  an infringement of human rights can be justifiable. What is problematic is that much of this argument around the Act gets overwhelmed by semantics. Since the question relates to its justifiability and proportionality, the fundamental point should always be to compare its aim to its outcomes in order to properly establish an answer to a very simple question is it effective The method selected by the Act does not serve to effectively fulfil the correctional goal of rehabilitation. Further, this lack of efficacy makes the infringement of individual rights unjustifiable  especially when it is considered that less restrictive means are available. While sexual offenders may be legitimately treated differently by policy, it is possible that there would have been more effective and less restrictive means by which the Queensland lawmakers could have regulated for this distinction.