Each country, state, province, region, and jurisdiction handle dangerous offenders in different ways. Over the past several decades, there has been a move on the part of some governments to get tough on crime by imposing mandatory minimum and indefinite sentences on offenders thought to be at a high risk for new crimes. This article focuses on two examples of this movement in the Western world: the civil commitment laws that were adopted in several U.S. jurisdictions and the dangerous offender legislation adopted nationwide in Canada.
The difference between committal legislation in Canada and that in the United States is that in Canada, if offenders are considered dangerous, they are sentenced to indefinite terms of incarceration at the beginning of their sentences, whereas in the United States, a small group of sexual offenders can be civilly committed at sentence expiry. Presumably, while incarcerated, these individuals could participate in treatment programs that are designed to equip them for a parole release to the community while paying due regard to the safety of the public. However, direct comparisons between Canada and the United States are not yet possible due to the lack of a single, criminal national database in the United States.
U.S. Approach
In the United States, decisions to confine offenders indefinitely are made at sentence expiry using civil commitment laws. For the most part, these measures are brought against offenders who have histories of convictions or sexual crimes. In the United States, civil commitment actions are brought against sexual offenders who are thought to be mentally ill in some manner and are thought to require further treatment. Offenders can be incarcerated indefinitely or until decision-makers determine that they have been successfully treated and could be released without compromising the safety of the public.
Canadian Approach
In Canada, the primary dangerous offender legislation is Section 753 of the Criminal Code of Canada, which was passed in October 1977. This legislation was intended to restrain offenders whose behavior was unlikely to be inhibited by normal standards of behavioral restraint. Offenders so designated are sentenced to indeterminate periods of incarceration or until such time as their risk to reoffend could be safely managed in the community. In August 1997, the legislation was revised so that it became possible for an offender so designated to receive a determinate sentence, although most received indeterminate sentences (life). The majority of these offenders (71.5%) were sentenced for at least one sexual offense.
The 1997 legislation was amended again in 2008. This amendment requires the prosecutor to apply for the dangerous offender designation if the offender was convicted of a designated (personal injury) offense and had two prior convictions for a designated offense for which the offender received a sentence of at least 2 years. This means that prosecutors have to apply for dangerous offender designation in cases where such an application might not have been considered prior to the amendment. In addition, the law also requires the accused to prove he or she should not be declared dangerous rather than requiring the prosecution to establish dangerousness at the sentencing stage.
The number of individuals declared dangerous offenders under Section 753 increased by 20% between 2004 and 2008 (the end of year to the end of year). In the same 5-year period, there was only an 8% increase in the total offender population. Not only is the number of individuals who are designated as dangerous offenders increasing, but so is the proportion of First Nations people who receive an indeterminate sentence as dangerous offenders. For example, in Saskatchewan, 82% of offenders sentenced as dangerous offenders as of 2016 were First Nations people although they represent only about 14% of the provincial population. While perhaps not as dramatic, a similar pattern exists in the rest of Canada. Although the number of indeterminately incarcerated offenders continues to grow, there is no available evidence to indicate that this has resulted in increased public safety. In fact, the low release rates make it unlikely that there are sufficient numbers of parole releases to properly study long-term release practices.
In the case of offenders serving determinate and indeterminate sentences, the responsibility for the decision to release the offender rests with the Canadian National Parole Board. Theoretically, the National Parole Board would release an individual when he or she would no longer represent an unmanageable risk to the public. However, it has been found that there is a negligible effect on parole on imprisonment rates because so few offenders receive parole that there is almost no effect of parole on the number of people incarcerated. According to Anthony Doob, Cheryl Marie Webster, and Allan Manson, the low parole rates in Canada suggest that abolishing parole altogether would have limited effect on the number of incarcerated offenders. This is also true for offenders who were declared dangerous and received indeterminate sentences.
A study by Terry Nicholaichuk and colleagues (2013) investigated whether the presumed intent of the legislation was actually translated into sentencing practice. They examined the correctional careers of indeterminately sentenced dangerous offenders, the majority of whom were sentenced for sexual crimes. For the group of 193 men designated as dangerous offenders between 1977 and 1997, the average length of their incarceration was 17.7 years. For the 31 offenders from the group who were conditionally released, the mean number of years of incarceration prior to their release was 14.4 years. Only one individual who was designated a dangerous offender after 1997, and who reached his parole eligibility date, was released. He was incarcerated for 9.8 years prior to his transfer to a minimum-security facility. Finally, of the 31 released dangerous offenders, only two reoffended, but neither with a sexual offense.
Although the intent of the dangerous offender or civil commitment legislation seems reasonable when taken at face value, it appears that this intent may not be reflected in actual practice. At least in Canada, the sentence appears to be applied randomly. Dangerousness is a legal term rather than the one based on research data. Therefore, the sentence does not necessarily reflect the offender’s empirically derived estimate of risk. Being declared a dangerous offender with an indeterminate sentence overwhelmingly predicts that the individual will die in prison regardless of his level of risk or current age. Although this may satisfy the get tough on crime advocates, it seems to be a policy that disproportionately penalizes some minority groups (e.g., Indigenous minorities).
References:
- Doob, A., Webster, C., & Manson, A. (2014). Zombie parole: The withering of conditional release in Canada. Criminal Law Quarterly, 61(3), 301–328.
- Nicholaichuk, T., Olver, M., Gu, D., & Takahashi, Y. (2013). Correctional careers of dangerous offenders. Criminal Law Quarterly, 59(4), 487–497.
- Nicholaichuk, T., Olver, M., Gu, D., & Wong, S. (2014). Age, actuarial risk, and long-term recidivism in a national sample of sex offenders. Sexual Abuse, 26(5), 406–428.
- Public Safety Canada. (2014). Corrections and conditional release statistical overview. Retrieved from http://www.publicsafety.gc.ca/cnt/rsrcs/ pblctns/2014-ccrs/index-eng.aspx