Rights Of Offenders Research Articles

The Treatment of Sex Offenders

Public policy is necessarily a political process with the law and order issue high on the political agenda. Consequently, working with sex offenders is fraught with legal and ethical minefields, including the mandate that community protection automatically outweighs offender rights. In addressing community protection, contemporary sex offender treatment is based on management rather than rehabilitation. We argue that treatment-as-management violates offender rights because it is ineffective and unethical. The suggested alternative is to deliver treatment-as-rehabilitation underpinned by international human rights law and universal professional ethics. An effective and ethical community-offender balance is more likely when sex offenders are treated with respect and dignity that, as human beings, they have a right to claim.

Establishing a compulsory drug treatment prison: Therapeutic policy, principles, and practices in addressing offender rights and rehabilitation

A Compulsory Drug Treatment Correctional Center (CDTCC) was established in Australia in 2006 for repeat drug-related male offenders. Compulsory treatment law is inconsistent with a therapeutic jurisprudence approach. Despite the compulsory law, a normative offender rehabilitation framework has been established based on offender moral rights. Within moral rights, the offender rehabilitation framework addresses the core values of freedom (supporting autonomous decision-making) and well-being (supporting support physical, social, and psychological needs). Moral rights are underpinned by a theory or principle which, in this instance, is a humane approach to offender rehabilitation. While a law that permits offenders to choose drug treatment and rehabilitation is preferable, the article discusses the establishment of a prison based on therapeutic policy, principles, and practices that respond to participants as both rights-violators and rights-holders. The opportunity for accelerated community access and a therapeutic alliance with staff has resulted in offenders actively seeking to be ordered into compulsory drug treatment and rehabilitation.

Risky Business: Predicting Recidivism

Society has become more and more preoccupied with both the ascertainment and avoidance of risk. This preoccupation has permeated the criminal justice system and courts are increasingly being required to evaluate the risk of reoffending, when considering the imposition of sentences and other control measures, particularly in regard to crimes of violence and sexual offending. This has resulted in the need for reliable risk assessment tools and expert evidence to assist judges in their task. While health professionals have willingly provided such assistance, it is apparent that even the current generation of risk assessment tools are not without their limitations. This has led to some commentators suggesting that such tools merely provide a veil of science over what really are moral and ethical questions as to which offenders pose an unacceptable danger to society. While not subscribing to that view, this article emphasises the need for experts to convey the limitations of such instruments clearly to the courts. It also suggests that any tools used must be aligned with the statutory criteria and that such tools must be used in combination with an individualised assessment of risk for each offender. The reasoning process must be transparent and set out clearly for the court. As sentences based on risk have the potential to place major restrictions on the rights of offenders, courts must have as much assistance as possible in the task of balancing the human rights of offenders with the risk to public safety posed by such offenders. R v Peta [2007] 2 NZLR 627 (CA) is used as a case study to illustrate both what can go wrong, as well as an example of best practice in this often precarious balancing exercise.

Crime-Prevention Jurisprudence? A Response to Andrews and Dowden

Recently Andrews and Dowden (2007) published an article proposing that both offender and victim well-being could be enhanced by utilizing the risk–need–responsivity model to guide the legal and court systems in crime prevention (rather than therapy). Consequently, crime-prevention jurisprudence (defined as a law-and-justice objective reflecting the language of personality and social psychology) was proposed as an alternative to therapeutic jurisprudence (defined as a mental-health objective reflecting the clinical language of forensic mental health). The authors erroneously claim that therapeutic jurisprudence is a mental-health concept whose aim is to provide therapy that improves well-being in offenders rather than to demonstrate concern for victims. In fact, therapeutic jurisprudence is a legal concept that utilizes social-science knowledge to highlight the therapeutic and anti-therapeutic impacts of the law, legal procedures, and legal roles on all individuals, including victims. This article will respond to Andrews and Dowden by challenging three assumptions they make regarding the role of therapeutic jurisprudence. This response concludes that the focus of offender rehabilitation should be on enhancing community protection by balancing offender rights and victim rights. Therapeutic jurisprudence already provides such a framework and, therefore, the promise of crime-prevention jurisprudence fails to add value.

Offender Rehabilitation: A Normative Framework for Forensic Psychologists

Community protection from offenders is addressed through punishment, deterrence, incapacitation, and/or rehabilitation. The current public policy debate about community protection refers to community rights as opposed to offender rights as if the two are mutually exclusive. However, in this article it will be argued that offender rehabilitation can enhance community protection if it addresses community rights and offender rights. The author proposes a normative framework to guide forensic psychologists in offender rehabilitation. The normative framework considers psychological theory—the risk-need model to address community rights and the good lives model to address offender rights. However, forensic psychologists operate within the context of the criminal justice system and so legal theory will also be considered. Therapeutic jurisprudence can balance community rights and offender rights within a human rights perspective. The proposed normative framework guides forensic psychologists in the assessment of risk, the treatment of need, and the management of readiness in balancing community rights and offender rights. Within a human rights perspective, forensic psychologists have a duty to provide offenders with the opportunity to make autonomous decisions about whether to accept or reject rehabilitation.

Sex offender risk assessment: Consideration of human rights in community protection legislation

Objectives. Risk assessments provided to judicial decision makers as a part of the current generation of legislation for protecting the public from sexual offenders can have a profound impact on the rights of individual offenders. This article will identify some of the human rights issues inherent in using the current assessment procedures to formulate and communicate risk as a forensic expert in cases involving civil commitment, preventive detention, extended supervision, or special conditions of parole.Method. Based on the current professional literature and applied experience in legal proceedings under community protection laws in the United States and New Zealand, potential threats to the rights of offenders are identified. Central to these considerations are issues of the accuracy of current risk assessment measures, communicating the findings of risk assessment appropriately to the court, and the availability of competent forensic mental health professionals in carrying out these functions. The role of the forensic expert is discussed in light of the competing demands of protecting individual human rights and community protection.Conclusion. Actuarial risk assessment represents the best practice for informing judicial decision makers in cases involving sex offenders, yet these measures currently demonstrate substantial limitations in predictive accuracy when applied to individual offenders. These limitations must be clearly articulated when reporting risk assessment findings. Sufficient risk assessment expertise should be available to provide a balanced application of community protection laws.

Social information processing, subtypes of violence, and a progressive construction of culpability and punishment in juvenile justice

Consistent with core principles of liberal theories of punishment (including humane treatment of offenders, respecting offender rights, parsimony, penal proportionality, and rehabilitation), progressive frameworks have sought to expand doctrines of mitigation and excuse in order to reduce culpability and punishment. With respect to juvenile justice, scholars have proposed that doctrinal mitigation be broadened, and that adolescents, due to aspects of developmental immaturity (such as decision-making capacity), be punished less severely than adults who commit the same crimes. One model of adolescent antisocial behavior that may be useful to a progressive theory of punishment in juvenile justice distinguishes between instrumental violence, by which the actor behaves thoughtfully and calmly to achieve personal gain, and reactive violence, which is characterized as impulsive, emotional retaliation toward a perceived threat or injustice. In particular, social cognitive differences between instrumental and reactive violence have implications for responsibility, length and structure of incarceration, rehabilitation, and other issues that are central to a progressive theory of juvenile culpability and punishment.

The policy and practice of protective sentencing

This article discusses some recent empirical research into the sentencing of dangerous offenders in England and Wales in its wider socio-legal context. It is particularly concerned to draw attention to the ways in which the operation of those procedural constraints that circumscribe judicial discretionary decisions in this area bear little relevance to notions of moral legitimacy, nor the legal rights of offenders, victims or the wider community.

Conditioning the President's Conditional Pardon Power

From the inception of this nation's history, presidents have offered pardons and commutations of sentences conditioned on a surprisingly wide array of conduct. Presidents have offered clemency on the condition that offenders refrain from alcohol, provide support for family members, leave the country, join the navy, drop claims against the United States, and restrict their travel or speech. By attaching conditions, presidents may protect the public or benefit it in other ways. Although such pardons may advantage society, imposing conditions may restrict the constitutional rights of offenders. In order to escape the harsh confines of prison, offenders may have little choice but to accept restraints on their exercise of constitutionally protected freedoms. Moreover, exercise of conditional pardons may permit presidents to accomplish objectives that they could not otherwise attain. As an example, presidents can commute sentences of a particular class of offenders conditioned on supervised release or parole even if Congress has rejected such penological alternatives. Nevertheless, this Article argues that exercise of the pardon power generally should remain vested in the president's discretion, checked only by the political process. Even though coercion is inherent in conditional offers, we should trust offenders to choose between complying with the conditions and staying in prison longer because they generally benefit from that choice. And, in light of the president's role under the pardon clause in making judgments about optimal punishment, presidents can alter the sentencing framework set by Congress. Oversight by Congress, the press, and subsequent presidents tempers presidential overreaching. This Article argues, however, that judges can play a critical role in helping check abuse of the conditional pardon power in two contexts. First, judges should negate a presidential condition in the rare case when the condition shocks society's conscience, such as requiring a prisoner to donate a kidney. Second, offenders should also be entitled to challenge any condition that violates constitutional restraints on the president's authority such as a First Amendment ban on providing support for particular religious expression. In short, although there should be no review of the process by which presidents reach the decision to pardon, the reasons for the decision, or the appropriateness of the condition selected, limited review of conditions that shock the conscience or violate constitutional restraints on presidential authority is warranted.

Criminal Offenders and Right Forfeiture

It is plausible to believe that the only way that legal punishment can be made consistent with the basic moral rights of offenders is to hold that offenders have, through their crimes, forfeited those rights. Numerous problems with the right forfeiture view are discussed. In its stead, I urge the view that legal punishment should be understood as justifiably curtailing the moral rights of offenders. Offenders retain some of their basic moral rights, while others are severely limited by legal punishment.

Treatment of Offenders With Mental Disorders

Back to table of contents Previous article Book Forum: Forensic IssuesFull AccessTreatment of Offenders With Mental DisordersC. ROBERT SHOWALTER, M.D., C. ROBERT SHOWALTERSearch for more papers by this author, M.D., Harrisonburg, Va.Published Online:1 May 2000AboutSectionsView EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinked InEmail This volume is a welcome addition to the forensic mental health literature. As the title suggests, it focuses on mental health treatments for the mentally ill offender in contrast to the more frequently appearing forensic works addressing the issues involved in the various types of preadjudication or presentencing mental health assessments provided by forensic specialists. The number of convicted offenders in the United States increases each year. The publication of a book devoted to treatment issues involving the mentally disordered offender population is timely inasmuch as the correctional population increased more than two and one-half times from 1980 to 1993. Eight percent to 19% of prisoners have substantial psychiatric or functional disabilities, and another 15% to 20% will require some form of psychiatric intervention during their period of incarceration (1).This collection of essays is well arranged, beginning with a discussion of the administrative aspects of treatment programs for offenders with mental disorders, a discussion both thoughtful and practical, which carefully counterbalances the dual mandates to provide treatment to the mentally disordered offender while ensuring adequate custodial safeguards to protect the public. This is followed by a succinct summary of the legal aspects of treating mentally disordered offenders, beginning with a survey of the evolution of the law relevant to the treatment of mentally disordered offenders in the time before the civil rights movement and extending through the civil rights movement to the 1980s and 1990s, a period during which fundamental decisions affecting the rights of offenders substantially revised some of the legal mandates of the civil rights era. The survey concludes with a review of the current state of evolving mental health law, which is seen as incorporating subtle but important changes that will have an impact on the mental health treatment of mentally disordered offenders. Three chapters follow that discuss the specific and sometimes unique problems associated with the delivery of mental health services for the mentally disordered offender in the three primary venues where treatment is most likely to be provided: community-based programs, inpatient facilities, and jails and prisons. The volume is completed with discussions of specialized treatment issues and protocols that apply specifically to three groups of emotionally vulnerable offenders who may require mental health interventions and treatment: sexual offenders, mentally retarded offenders, and juvenile offenders.Although there is no general editorial comment outlining the overall design or any intended unifying themes for each chapter in this volume, several general (and useful) patterns are generally noted as components of each chapter. First, each chapter recognizes, in ways appropriate to the subject matter discussed, the challenges of the unique contexts and constraints within which mental health services are provided to offenders. Also addressed are the unavoidable tensions that are inherent in the dual mandate to provide mental health services to mentally disordered offenders (some of whom are treatment resistant) and at the same time ensure the security and protection that the public demands. Second, each clinically oriented chapter contains a cogent summary of the available research and clinical data pertinent to the subject. Third, the chapters are written in a straightforward and practical manner that facilitates application of the research and clinical data presented to the development and maintenance of good clinical practice and sound professional judgment standards for the treatment of the mentally disordered offender. Fourth, recognizing that the demand for clinical mental health services to the offender population is increasing and that patterns of service delivery generally are in a state of transition and ongoing change—a phenomenon likely to persist for some time to come—most of the clinically oriented discussions include both conceptual and specific clinically applicable materials that administrators and clinicians alike will find useful in ongoing program development. Fifth, the more treatment-oriented chapters all stress the need for more research in the area of linking together treatment methods and treatment outcomes to increase both the credibility and the efficacy of the mental health services provided.This book (both the text and extensive reference lists at the end of each chapter) can certainly be useful to mental health professionals who provide services to offenders and forensic administrators working in programs in which offenders may require mental health services. It can also be an informative addition to materials developed for use in a wide range of forensic teaching and training programs.Edited by Robert M. Wettstein. New York, Guilford Publications, 1998, 438 pp., $45.00.

10.1023/A:1006179322525

Offenders sentenced to prison often retain little control over their own labor. But is the view that the state rightfully controls the labor of offenders defensible? I argue that it is not, that though other rights of offenders might justifiably be curtailed by legal punishment, the right to control their labor is retained by offenders. The state must therefore seek to attract the labor of prisoners, rather than compel it. Numerous benefits to offenders and the wider community would result from having prisoners work and be paid for it. However, if prisoners are to perform paid labor, the state will have to facilitate it. Various kinds of facilitation and the problems with them are discussed.

Imprisonment: The legal status and rights of offenders : G.D. Treverton-Jones Sweet and Maxwell Limited (North Way, Andover, Hampshire, England SP10 5BE), 1989, 227 pp., hardcover—$25.00

Imprisonment: The legal status and rights of offenders : G.D. Treverton-Jones Sweet and Maxwell Limited (North Way, Andover, Hampshire, England SP10 5BE), 1989, 227 pp., hardcover—$25.00

The delinquent and the insane: right and adequacy of treatment.

Book reviewed in this article: Recent court decisions have opened the question of whether the rights of offenders are being transgressed when they are involuntarily committed to mental institutions. The question is part of the fundamental moral issue of how to balance society's right to protection against the individual's right to freedom. The mental health professions are directly involved in the issue through the question of “adequacy of treatment.”