Parole for murderers and rapists?*

[*First published mid-2013] Last week a prostitute was murdered on the streets of St Kilda in Melbourne, where I am currently living part of the time. Journalist Wendy Squires yesterday drew parallels between that crime and the horrific rape and murder of ABC employee Jill Meagher by serial rapist Adryan Bayley.

Squires sought to make a somewhat strained connection with a current controversy over the actions of the Parole Board of Victoria which, at least according to the tabloid media, is consistently guilty of irresponsibly letting dangerous violent offenders loose on the community:

I believe that Jill and Tracy are one and the same – women in the wrong place at the wrong time, victims of a system gone wrong. Statistics show it is likely Tracy’s killer is a repeat offender, just like Jill’s – that he has hurt before and will do so again, and that if the parole board doesn’t stop making catastrophic decisions such as releasing Bayley, more Jills and Tracys will lose their lives, leaving those who love them shattered.

Of course, whether the unknown killer of the St Kilda prostitute (who may or may not be Squires’ acquaintance Tracy) is a repeat sex offender is by definition no more than baseless speculation. Nevertheless, the broader proposition that the Parole Board is consistently acting irresponsibly will soon be the subject of an official report to the Victorian government by former High Court Justice Ian Callinan. I am awaiting its findings with interest. The tabloid debate on this issue has been truly abysmal and ignorant.

At least for the majority of criminal offenders, including those who have committed sexual crimes, parole is an important and positive aspect of the criminal justice system. The prospect of parole provides an incentive for offenders in prison to make genuine efforts at training and rehabilitation,  while the probation period itself allows offenders to be released into the community under supervision for a period of time so that a better assessment can be made of whether they are safe to let loose on the community permanently. If the “truth in sentencing” brigade prevailed and all offenders serve their full sentences in prison, all of them including the Adryan Bayleys of this world would be let loose with no supervision at all. Hopefully Callinan’s report will be rather more thoughtful about these issues than the current tabloid debate.

Squires makes another point worth exploring:

I share Tom Meagher’s fury because the salient and sad fact is that serious sex offenders are almost impossible to rehabilitate. They must be kept locked up. And it shouldn’t just take a pretty brunette on her way home after a fun night out with colleagues to bring home this point. All women deserve safety and justice. Tracy is no exception.

However, the proposition that serious sex offenders are almost impossible to  rehabilitate is at best very simplistic, as this Australian Institute of Criminology report analyses.  This article from the American Psychological Association discusses the issues quite neatly:

Controversial questions swirl around the correctional system’s management of sex offenders: How long should they be incarcerated for their crimes of forcing sex acts on adults or children? How should they be monitored following release? Does psychological treatment in prison actually affect the risk of committing further offenses? And how can courts balance offenders’ potential for rehabilitation with a community’s need to protect its citizens?

Responses to these questions have varied over the years, and, accordingly, so has policy-making by the states and the federal government. Recent policies have been trending toward longer prison sentences and more restrictive after-release monitoring, stemming in part from a dismal view of treatment programs, treatment advocates say.

But many psychologists and policy advocates, including law professor John Q. LaFond, JD, of the University of Missouri-Kansas City, say that approach disregards key information on the nature of sex offenders–statistics show most are not likely to repeat their crimes–and on the increasing efficacy of offender treatment, largely due to a modern behavior modification model stressing relapse prevention through recognition and avoidance of criminal impulses…

Some of that optimism comes from a meta-analysis on the effectiveness of treatment for sex offenders published in Sexual Abuse: A Journal of Research and Treatment (Vol. 14, No. 2) in 2002. That analysis showed for the first time a significant difference between recidivism rates for sex offenders who were treated and those who were not, says psychologist R. Karl Hanson, PhD, lead author of the study and senior researcher for the Solicitor General Canada–the government agency that manages Canadian courts and corrections.

The study revealed, among the most recent research samples, sexual recidivism rates of 17.3 percent for untreated offenders, compared with 9.9 percent for treated offenders. Though that’s not a large reduction, the large sample size and widely agreed-upon research methods make it statistically reliable and of practical significance, Hanson says.

The article goes on to draw a distinction between the majority of sex offenders and extreme violent sex offenders  (e.g.  Adryan Bayley):

Psychologists have gleaned a number of important treatment insights in their research–the most basic of which is one size does not fit all.

“A large part of the challenge to managing this group is educating the courts that sex offenders are a highly heterogeneous population and not all of them are at high-risk for re-offending,” says psychologist Moss Aubrey, PhD, who does private assessment of male sex offenders in New Mexico.

People commit sexual crimes for different reasons, Aubrey says. “Some are highly predatory, highly psychopathic and have repeated offenses, making them more likely to re-offend,” he explains.

In the last 10 years, psychologists have made substantial advances in clearly identifying factors that increase an offender’s risk of committing an offense after release, Hanson says. These factors include the number of offenses, intimacy deficits, sexual preoccupations and age.

Actuarial scales for determining an offender’s risk of committing more sex crimes after treatment are available, but not always trusted by judges and many clinicians, Prentky says. More often, courts base release decisions on progress reports from prison psychologists–relying heavily on their expertise.

“Psychologists are essentially being asked to determine what level of risk an individual poses to a community even though there is no definitive way to know for certain,” LaFond says. “They’re being asked to balance that risk with the individual liberty concerns of an offender. Science has come up with tools to help them, but it’s still a huge responsibility and a terrible burden.”

It may well be that there is a distinct group of serious violent sex offenders who are simply beyond rehabilitation and therefore should simply be locked up and the key thrown away, as Wendy Squires apparently asserts about all sex offenders.  However, reliably identifying the members of that group prior to sentencing, so that they can be  subjected to an indeterminate sentence to protect the community from their predation, is the tricky bit. At the moment we do not even have a government agency specifically tasked with undertaking that job. It would seem most naturally to sit with the Director of Public Prosecutions, but resources would need to be provided by government and expertise developed over time. Hopefully the forthcoming Callinan report will provoke meaningful debate about issues like this.

Another article yesterday about serial child killer Derek Percy, who died in prison of lung cancer a couple of days ago after 44 years imprisonment, provides food for thought in relation to the concept of indeterminate sentencing for repeat extreme violent sex offenders:

The jury’s verdict of not guilty on the grounds on insanity was a blessing. Had he been convicted he would have inevitably been released after serving between 12 and 20 years, to almost certainly reoffend. The insanity finding resulted in an indefinite term (Governor’s pleasure), which would allow him to be released when he was no longer a danger.

Many Governor’s pleasure inmates (including one who killed a policeman) blended harmlessly back into the community after their illnesses were treated, but Percy was never going to be one of those.

This was because not one expert ever found he was suffering from a treatable psychological condition. In lay terms, he was more bad than mad.

The best detectives and the brightest medical experts have examined Percy, and none could work out what went on behind those black eyes.

A veteran prison psychiatrist, Dr Allen Bartholomew, once described him as ”the nearest thing to a robot I have ever met”, saying: ”His behaviour is above reproach, but what goes on in his mind I have no idea.”…

Every year Percy was interviewed by a battery of experts, and every year the conclusion would be the same – that he was a model prisoner inside who could never be trusted on the outside.

Indeed, he was considered too dangerous to be housed even in a secure psychiatric facility, and spent his years inside a prison.

One found: ”He is not certifiable, neither is he psychiatrically treatable, and he is totally unsuited to a mental institution.”

In 1983 a forensic psychiatrist found he was ”not mentally sick in the accepted sense. Percy is sexually grossly disturbed and should never be released from prison.”

**Image free for reuse.

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