NCJ Number
50741
Journal
International Journal of Law and Psychiatry Volume: 1 Issue: 1 Dated: (JANURAY 1978) Pages: 37-49
Date Published
1978
Length
13 pages
Annotation
ETHICAL ISSUES INVOLVED IN SENTENCING OR DETAINING DANGEROUS PEOPLE FOR THE PROTECTION OF THE PUBLIC ARE EXAMINED. RULES ARE SUGGESTED FOR DECIDING WHEN TO APPLY PURELY PROTECTIVE MEASURES.
Abstract
IN THE NAME OF PUBLIC PROTECTION, PSYCHIATRISTS, SENTENCERS, AND PAROLE AUTHORITIES ARE DETAINING PEOPLE AGAINST THEIR WILL FOR LONGER PERIODS THAN THEY CAN JUSTIFY ON OTHER GROUNDS. FOR THE SAKE OF ARGUMENT, IT IS ACKNOWLEDGED THAT DETENTION FOR SOME LENGTH OF TIME CAN BE JUSTIFIED IN TERMS OF WHAT THE OFFENDER DESERVES, AS A DECLARATION OF SOCIETY'S DISAPPROVAL OF THE ACTIONS, AS A MEANS OF DETERRING OTHERS, OR AS THE ONLY WAY OF ASSURING TREATMENT FOR THE OFFENDER'S DISORDER. THROUGHOUT THE REPORT, IT IS ASSUMED THAT THE AIMS OF SENTENCING ARE DETERRENCE, DENUNCIATION, AND REHABILITATION. SENTENCING AS JUSTIFIED ON THE BASIS OF PROTECTING THE PUBLIC IS A NEW CONCEPT, AND DANGEROUSNESS BECOMES A LIVE ISSUE WITH THE SHORTENING OF DETENTION PERIODS THAT LEGISLATORS, SENTENCERS, AND PSYCHIATRISTS REGARD AS JUSTIFIED ON OTHER GROUNDS. THE RETRIBUTIVE APPROACH TO SENTENCING IS BECOMING LESS PREVALENT. THERE IS NO DEFINABLE CATEGORY OF VIOLENT OR SEXUAL OFFENDER FOR WHOM IT CAN BE PREDICTED WITH CERTAINTY THAT HE OR SHE WILL DO SIMILAR HARM IN THE FUTURE; THERE IS ONLY ONE DEFINABLE CATEGORY OF WHOM THIS CAN BE PREDICTED WITH EVEN A HIGH PROBABILITY AND THAT IS FOR THE DEFENDER WHO DECLARES HIS OR HER INTENTION OF DOING VIOLENCE AGAIN. THEREFORE, IT CANNOT BE ARGUED THAT DETENTION IS JUSTIFIED SOLELY ON THE BASIS OF PAST VIOLENT ACTS. FIVE NONARITHMATICAL RULES TO HELP IN DECIDING WHEN TO APPLY PURELY PROTECTIVE MEASURES ARE OFFERED: (1) WHEN MEASURES INVOLVE SERIOUS AND LASTING HARDSHIP, AS ANY FORM OF DETENTION DOES, THEY SHOULD BE USED ONLY TO PREVENT SERIOUS AND LASTING HARDSHIP TO OTHER INDIVIDUALS; (2) THERE SHOULD BE GOOD REASON TO BELIEVE THAT ACTIONS TO WHICH THE FIRST RULE APPLIES ARE NOT AN ISOLATED EPISODE BEFORE PRESCRIBING DETENTION; (3) IF IT CAN BE REASONABLY ARGUED THAT CIRCUMSTANCES PROVIDING OFFENDERS WITH THEIR INCENTIVES HAVE CEASED TO EXIST AND THEY ARE UNLIKELY TO REPEAT THEIR BEHAVIOR, THIS FACTOR SHOULD OPERATE IN THEIR FAVOR; (4) IF ANY LESS DRASTIC MEASURE THAN DETENTION OFFERS A REASONABLE PROSPECT OF PROTECTING OTHERS, IT SHOULD BE USED; AND (5) IF THERE IS JUSTIFICATION IN DETAINING PERSONS OR PROLONGING THEIR DETENTION SOLELY FOR THE SAFETY OF OTHERS, CONDITIONS OF DETENTION SHOULD BE MADE AS TOLERABLE AS POSSIBLE. IT IS CONCLUDED THAT IT MAY BE DEFENSIBLE FROM A MORAL POINT OF VIEW TO DETAIN OR CONTROL CERTAIN PEOPLE FOR THE PROTECTION OF OTHERS AND THAT IT IS POSSIBLE TO DRAFT PROVISIONS FOR THIS PURPOSE WITH SATISFACTORY SAFEGUARDS. IT IS EMPHASIZED, HOWEVER, THAT HUMAN DECISIONS IN THIS AREA WITH ALL THEIR BIASES ARE UNAVOIDABLE AND THAT CUSTODIAL INSTITUTIONS SHOULD BE PLACES OF LAST RESORT FOR ALL TYPES OF OFFENDERS. (DEP)