The Ethics and Dilemmas of Preventive Detention

<p>There has been a considerable increase in the use of preventive sentencing in New Zealand since the mid-1980s. It has become widely accepted across Western society that preventive sentencing and supervision regimes are needed to protect the public from dangerous offenders. This thesis examines whether the development and use of preventive sentencing regimes is ethically justified, and if not what changes need to be made in order to alleviate some of the ethical dilemmas associated with indeterminate sentencing regimes. Preventive detention practices in Australia the UK and the US are reviewed to establish general practice regarding the development of legislation, use of risk assessment and the detention of dangerous offenders. This is compared to New Zealand practices, through research and analysis of three preventive detainee case files. The files confirm that the ethics of preventive detention has shifted from protecting the rights of individual offenders to protecting the public from them.</p>

The Ethics and Dilemmas of Preventive Detention

<p>There has been a considerable increase in the use of preventive sentencing in New Zealand since the mid-1980s. It has become widely accepted across Western society that preventive sentencing and supervision regimes are needed to protect the public from dangerous offenders. This thesis examines whether the development and use of preventive sentencing regimes is ethically justified, and if not what changes need to be made in order to alleviate some of the ethical dilemmas associated with indeterminate sentencing regimes. Preventive detention practices in Australia the UK and the US are reviewed to establish general practice regarding the development of legislation, use of risk assessment and the detention of dangerous offenders. This is compared to New Zealand practices, through research and analysis of three preventive detainee case files. The files confirm that the ethics of preventive detention has shifted from protecting the rights of individual offenders to protecting the public from them.</p>

Throwing Away the Key: An Examination of the Renaissance of Preventive Detention in New Zealand

<p>The indeterminate sentence of preventive detention has experienced a renaissance in New Zealand since the 1980s. What was once a seldom used, emergency provision intended for application to the most dangerous offenders in our society, is now used with alarming frequency: while fifteen offenders served sentences of preventive detention in 1981, the number had risen to 263 by 2014. This thesis seeks to explore the forces driving the renaissance of preventive detention in New Zealand. Throughout advanced liberal democracies, there has been a shift toward risk driven penal policy. Significant social, political, and economic changes in these societies from the 1980s onwards - such as the neoliberal reforms, and the associated uncaging of risk; social liberation and restructuring; and the cultivation of lifestyles; have contributed to, and exacerbated ontological insecurity and anxiety. The delegation of risk by the state to the individual has produced the variety of benefits and opportunities it was intended for, however it has also left people feeling insecure about their safety and wellbeing within the modern society, knowing that the shrunken state is unwilling, or unable to intervene and protect them. The expansion of preventive detention is an example of the state stepping in and performing a ‘spectacular rescue’ (Pratt and Anderson, 2016: 12). The revival and expansion of preventive detention has been part of the response of the New Zealand government to the intolerable risk of irreparable and irredeemable harm, posed by violent and sexual offenders in particular. The significant increase in the use of preventive detention is representative of a wider trend of risk driven penal policy throughout the main English speaking societies. While the parallel strand of punitive penal policy has been explored in great depth, the trend toward risk driven penal policy has elicited less focus. Within the literature, there is a lack of identification of risk driven penal policy as a separate strand of development, subject to a separate line of inquiry. This thesis seeks to add to the literature on the influence of risk, exploring it as the driving force behind the revival of preventive detention.</p>

Throwing Away the Key: An Examination of the Renaissance of Preventive Detention in New Zealand

<p>The indeterminate sentence of preventive detention has experienced a renaissance in New Zealand since the 1980s. What was once a seldom used, emergency provision intended for application to the most dangerous offenders in our society, is now used with alarming frequency: while fifteen offenders served sentences of preventive detention in 1981, the number had risen to 263 by 2014. This thesis seeks to explore the forces driving the renaissance of preventive detention in New Zealand. Throughout advanced liberal democracies, there has been a shift toward risk driven penal policy. Significant social, political, and economic changes in these societies from the 1980s onwards - such as the neoliberal reforms, and the associated uncaging of risk; social liberation and restructuring; and the cultivation of lifestyles; have contributed to, and exacerbated ontological insecurity and anxiety. The delegation of risk by the state to the individual has produced the variety of benefits and opportunities it was intended for, however it has also left people feeling insecure about their safety and wellbeing within the modern society, knowing that the shrunken state is unwilling, or unable to intervene and protect them. The expansion of preventive detention is an example of the state stepping in and performing a ‘spectacular rescue’ (Pratt and Anderson, 2016: 12). The revival and expansion of preventive detention has been part of the response of the New Zealand government to the intolerable risk of irreparable and irredeemable harm, posed by violent and sexual offenders in particular. The significant increase in the use of preventive detention is representative of a wider trend of risk driven penal policy throughout the main English speaking societies. While the parallel strand of punitive penal policy has been explored in great depth, the trend toward risk driven penal policy has elicited less focus. Within the literature, there is a lack of identification of risk driven penal policy as a separate strand of development, subject to a separate line of inquiry. This thesis seeks to add to the literature on the influence of risk, exploring it as the driving force behind the revival of preventive detention.</p>

Non-disclosure of information in the prosecution of preventive detention regimes

<p>Preventive detention has been adopted as a measure of counter-terrorism law in many jurisdictions. It has been authorised under the Security Certificate regime in Canada and the Control Order regime in United Kingdoms. Since their adoption, the two regimes have become objects of much debate. The reason is that they both legalised the use of secret evidence and secret hearings in their prosecution. The issue arose whether the non-disclosure of such information in a judicial review to decide the reasonableness of a control order/a security certificate deprives terrorist suspects from a fair hearing. This paper explores that question by analysing two landmark cases in the United Kingdom and Canada: AF (No 3) and Charkaoui I. The paper’s thesis is that the findings of the courts in these two cases are reasonable. However, the alternative to full disclosure as adopted by both the United Kingdom and Canada – the Special Advocate model – is currently too limited. This paper subsequently offers solution for this: the judges should have a more active role in investigating the relevant facts of the cases.</p>

Non-disclosure of information in the prosecution of preventive detention regimes

<p>Preventive detention has been adopted as a measure of counter-terrorism law in many jurisdictions. It has been authorised under the Security Certificate regime in Canada and the Control Order regime in United Kingdoms. Since their adoption, the two regimes have become objects of much debate. The reason is that they both legalised the use of secret evidence and secret hearings in their prosecution. The issue arose whether the non-disclosure of such information in a judicial review to decide the reasonableness of a control order/a security certificate deprives terrorist suspects from a fair hearing. This paper explores that question by analysing two landmark cases in the United Kingdom and Canada: AF (No 3) and Charkaoui I. The paper’s thesis is that the findings of the courts in these two cases are reasonable. However, the alternative to full disclosure as adopted by both the United Kingdom and Canada – the Special Advocate model – is currently too limited. This paper subsequently offers solution for this: the judges should have a more active role in investigating the relevant facts of the cases.</p>

Self-rating of depression in elderly prisoners in North Rhine-Westphalia, Germany

Aim: Against the background of the rising number of elderly people being incarcerated and the rare data on this special subgroup, the aim of our study was to collect first empirical data on the affective state of elderly prisoners in North Rhine Westphalia, Germany. Methods: Data were collected in nine German prisons. We included elderly prisoners from pretrial prevention, penal sentences, open enforcement, preventive detention and from special detention units for elderly inmates. For the evaluation of the affective state, we used the Patient Health Questionnaire (PHQ-9). Sociodemographic and crime-related characteristics were documented. Findings: In total, n=116 prisoners (91.4% male) were included. The age ranged from 53 to 91 years (65.6±6.3 years). In our sample, 48% reported at least mild depressive symptoms, which is a significantly higher prevalence of depressive symptomatology than in the general population aged 60 years and older. Differences were found with regard to the type of detention, as prisoners in open enforcement showed significantly less symptoms compared to those in pretrial prevention and preventive detention. The participants reported in general more somatic symptoms as sleep disturbances and fatigue compared to mood items as feelings of sadness. Originality: It is the first study assessing the affective state of older prisoners in Germany. The high rate of depressive symptoms in our sample is in line with findings from international studies underlining the need for adequate diagnostics and therapy. In addition, in a previous study depression was indirectly linked with a greater risk of re-incarceration, fortifying the need for successful treatment of depression in prison both for the individuum and for society.

IMPLEMENTATION BY THE LAW ENFORCER OF A COMPLEX OF MEASURES FOR FORMING THE LEGAL CONSCIOUSNESS OF THE OFFENER IN CONDITIONS OF DEPRIVATION OF FREEDOM

The formation of the legal consciousness of an offender in the process of executing a sentence of imprisonment is investigated. The means of correction of those sentenced to imprisonment are analyzed. The directions of educational work with convicts are noted. It is indicated that a significant role in the formation of the legal consciousness of the convict is acquired by the personality of the law enforcer, whose activity requires a value-anthropological approach. Collective and individual forms of educational work are analyzed. The features of the formation of legal consciousness at various stages of the execution of punishment are investigated. It is noted that the success of the formation of legal consciousness is determined by the solution of the identified problems of the legal consciousness of the convict and the formation of personal legal values. The foreign experience of preventing unlawful behavior after the end of the term of imprisonment is analyzed. It is concluded that it is impossible to apply preventive detention in the Republic of Belarus due to the term of the punishment.