Dangerousness, Risk and the Governance of Serious Sexual and Violent Offenders

Karen Harrison

• Publisher: Routledge
• Year: 2012
• Print ISBN:
  9780415668620
• eBook ISBN:
  9781136673894
• Topic: Law
• Subtopic: Forensic Psychology
• Index: Law

Dangerousness, Risk and the Governance of Serious Sexual and Violent Offenders is a fully up-to-date, comprehensive and user-friendly guide on those offenders who are often assessed as being dangerous.

Outlining, evaluating and commenting on specific methods, regimes and strategies for dealing with dangerous offenders throughout each chapter, this book begins by considering what a dangerous offender is and providing a brief historical account of how the label has been used for different types of offender over the last three or four centuries.

The book examines sentencing policy in addition to early and current dangerousness legislation, evaluating the available sentences specifically designed for dangerous offenders and assessing their use and appropriateness. The role of risk and risk assessment tools is discussed, considering what risk assessment is, the way in which it works and how over recent times it has become more reliable and valid. It looks at the practical realities of how serious sexual and violent offenders are dealt with by the penal system in England and Wales.

Finally, specific offender groups are considered, including female offenders, children and young people and mentally disordered offenders. Each chapter considers whether there are any differences in terms of policy, assessment and management strategies when sentencing and managing each distinct group; and if not whether any such modifications are required.

This book will be key reading for students of law, criminology, social policy, psychology and sociology and of interest to criminal justice professionals including the police, prison officers, probation officers, psychologists, lawyers and judges.

1

Dangerousness and the Dangerous Offender

Introduction

Although the terms danger, dangerous and dangerousness are used in common parlance, their actual precise meanings in criminal justice terms is much more elusive, with Shaw arguing that ‘the problem of “dangerousness” is [in] its definition’ (1973: 269). Considering the nature of this book, it would seem appropriate that the first task is to decide on, or at least attempt to define, what such concepts mean and appraise their use in the context of historical, political, legal and social perspectives. Such an assessment, albeit in brief, is the main aim of this chapter (for a fuller discussion, see Rennie 1978; Pratt 1997, 2000).

Existing Definitions

The Oxford English Dictionary (2009a) currently defines dangerous as ‘fraught with danger or risk; causing or occasioning danger; perilous, hazardous, risky, unsafe’, and danger as ‘power (of a person, weapon, or missile) to inflict physical injury’ (Oxford English Dictionary 2009b). Webster’s New World College Dictionary (2009a, 2009b) correspondingly defines dangerous as ‘involving an active threat’ and danger as ‘the general term for liability to injury or evil, of whatever degree or likelihood of occurrence’. It is worth noting that, while contemporary definitions appear to focus on physical concepts, this is not where the term danger originates from. Rather, its linguistic roots come from the Latin derivative dominium, which meant lordship or sovereignty. Sarbin therefore argues that the real meaning of danger is power, where danger is ‘a symbol denoting relative power in a social organisation’ (1967: 286).

Over the last half century, there have been a number of reports and studies that have attempted to define these terms, particularly for legal and clinical purposes. One of the first looked at the difference between violence and danger, arguing that, while ‘violence denotes action; danger denotes a relationship’ (Sarbin 1967: 285). Dinitz and Conrad note that, although violence can occur from organic, psychological or situational factors, ‘danger is a function of social structure’ (1978: 100). Furthermore, Sarbin argues that danger and violence are connected, as an offender will often ‘use violence to change the [social] system when no other alternatives are available for maintaining an acceptable social identity’ (1967: 293). This, he argues, is dangerous conduct because it threatens the dominium.

For policy purposes, however, reference is more commonly made to the term dangerousness, although we still refer to offenders as dangerous. In 1975, the Butler Report argued that dangerousness was ‘a propensity to cause serious physical injury or lasting psychological harm’ (Home Office and Department of Health and Social Security 1975: xiii), equating dangerousness with a physical disease, but not further defining what it meant by either ‘serious’ or ‘lasting’. Consultant Forensic Psychiatrists in the same report argued that it was ‘unwanted behaviour which is threatening or disturbing to the public and may require that the offender be placed in custody to protect the public’ (ibid.: 59). Earlier, but in the same year, the Scottish Council on Crime provided a slightly tighter test, defining dangerousness as ‘the probability that he will inflict serious and irremediable personal injury in the future’ (Scottish Council on Crime 1975: para. 122). Two years later, it was held to be ‘an unpredictable and untreatable tendency to inflict or risk serious, irreversible injury or destruction or to induce others to do so’ (Scott 1977: 128), and a year after this the dangerous offender was viewed to be that ‘repetitively violent criminal who has more than once committed or attempted to commit homicide, forcible rape, robbery or assault’ (Dinitz and Conrad 1978: 99). In the 1980s, dangerousness was defined as ‘a pathological attribute of character: a propensity to inflict harm on others in disregard or defiance of the usual social and legal constraints’ (Floud and Young 1981: 20), with an acknowledgement that ‘violence is almost universally regarded as the hallmark of dangerousness’ (ibid.: 7). Interestingly, it was also recognised that ‘dangerousness inheres in situations, not in persons; that there are no “dangerous persons”, but only dangerous situations, harmful behaviour and unacceptable (or, at least, unaccepted) risks’ (ibid.: xvi). This was further emphasised by Floud, who argued that ‘there is no such psychological or medical entity as a “dangerous” person and that “dangerousness” is not an objective concept’ (1982: 213). Furthermore, Gunn, a year later, argued that dangerousness is made up of a number of elements, of which he felt three stood out the most: ‘destructiveness, prediction and fear’ (1982: 7).

Current academic interpretations include Holmes and Soothill (2008), who state that it is a pathological attribute of character (although, as offenders labelled in this way are rarely constantly dangerous, they warn that it should not be viewed as a character trait), and Thompson, who classifies it as ‘a concept that hints at an inherent and immutable individual characteristic’ (2007: 85). In fact he argues that the term no longer actually exists, being replaced rather by the concept of ‘risk of serious harm’ (ibid.). Additionally, a more recent interpretation is that dangerous offenders are ‘those who commit the most serious acts of physical and sexual violence’ (Hebenton and Seddon 2009: 343). Recent policy and strategy documents also contribute to, or perhaps further muddy the water when seeking, a clear definition. HM Prison Service’s Dangerous Offender Strategy, for example, states that a dangerous offender is

someone with convictions for sexual or violent offences who is assessed as presenting a high or very high risk of serious harm . . . a risk which is life threatening and/or traumatic and from which recovery, whether physical or psychological can be expected to be difficult or impossible.

(HM Prison Service 2004: para. 2)

Likewise, the Criminal Justice Act (CJA) 2003 states that an offender is dangerous if he has previously been convicted of a specified offence (which can include any one of 88 sexual offences and 65 violent offences), and the court decides that there ‘is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences’ (s. 229 CJA 2003). Serious harm is categorised as ‘death or serious injury whether physical or psychological’ (s. 224(3) CJA 2003).

There are consequently several definitions from which to choose from, although with little consensus between them they do not really help to decide what category of person is or should be seen as dangerous, although clearly the more modern definitions appear to concentrate on just sexual and violent offenders. Perhaps, then, the task for this chapter is not so much about how dangerousness is defined, but rather what is meant by the term dangerous offender. As outlined in more detail below, the meaning and understanding of the term has changed over time, with changing notions and hence constructions of who is perceived to be dangerous. The next section, therefore, looks at the historical and sociological constructions of the dangerous offender.

Historical and Sociological Constructions of the Dangerous Offender

The concept of dangerous types is not new. For example, in biblical times, the first Christians were seen as dangerous, as too were thousands of women who were accused of being witches in the late Middle Ages (Rennie 1978). Furthermore, in medieval times, the label was given to the landowner, who had power over slaves, peasants and vassals and the authority to control every aspect of their lives. Dangerousness, in this sense, was therefore connected with ownership and power (Dinitz and Conrad 1978). Elizabethan times, however, saw the dangerous offender being defined for the first time. This included:

scholars going about begging; all seafaring men pretending losses of their ships and goods on the sea; all idle persons going about either begging or using any subtle craft or unlawful games and plays, or feigning to have knowledge in physiognomy, palmistry or other like craft science; . . . all jugglers, tinkers, pedlers and petty chapmen; all wandering persons and common labourers refusing to work for the wages commonly given; . . . [and] all persons who wander abroad begging.

(An Act for the Punishment of Rogues, Vagabonds and Sturdy Beggars, 39 Elizabeth c. 4 (1597–98), cited by Rennie 1978: 7)

A clear shift was thus seen from the all-powerful, to those classified as members of an underclass, ‘feared not because of their power but because of the lack of it’ (Dinitz and Conrad 1978: 129). The dangerous were henceforth seen as the poor: beggars, vagabonds, escaped servants, strangers and gypsies, and, although previously seen as just a social nuisance, those who could be viewed as wanderers were additionally classified as dangerous by the sixteenth century (Rennie 1978).

In the eighteenth and nineteenth centuries, the dangerous were those who were challenging authority’s power, with examples including French revolutionists, the Italian Carbonari and, in England, working men’s associations created at the time of the Industrial Revolution (Rennie 1978). These people were thought to possess a power of destruction, not just of property, but, more worryingly, against tradition, order and the law. Categorisation of dangerousness was therefore based on civil disobedience rather than any other maxim (Pratt 1997). Individuals thought to be dangerous at this time were people such as Karl Marx, Friedrich Engels (Marxism) and Mikhail Bakunin (anarchism). Indeed, in modern-day China, dangerous offenders are still defined to include political activists and counter revolutionists (Epstein and Hing-Yan Wong 1996).

Other mentions of dangerousness in the nineteenth century related not to dangerous offenders per se, but rather to the dangerous classes. These included dispossessed agricultural workers, trade unionists, political agitators, criminals (Pratt 2000) and the poor. These were often referred to as the proletariat, being only fit to reproduce (Rennie 1978). In 1840, Fregier, for example, spoke about an underclass that included both the virtuous (working) poor and the vicious (idle) poor, of which it was the latter who were the objects of fear (Dinitz and Conrad 1978). Brace, moreover described them as the ‘ignorant, destitute, untrained and abandoned youth’ (Rennie 1978: 4). Membership of the dangerous classes was based on a lack of wealth rather than behaviour, with the premise being that the labouring class, a term used synonymously with dangerous, would inevitably have some lapse in moral integrity due to their economic state and dispossess honest citizens of their money (Rennie 1978). This was also seen in literature, with Dickens, in Oliver Twist, describing the criminal poor as the dangerous classes of Victorian London, with similar references made by Victor Hugo in Les Miserables.

Radzinowicz likewise describes the portrayal of the dangerous classes as ‘a race apart, morally depraved and vicious, living by violating the fundamental law of orderly society, which was that a man should maintain himself by honest, steady work’ (1966: 38–9). Brace argued that:

The cheapest and most efficacious way of dealing with the ‘Dangerous Classes’ of large cities is not to punish them, but to prevent their growth; to so throw the influences of education and discipline and religion about the abandoned and destitute youth of our large towns; to so change their material circumstances, . . . that they shall grow up as useful producers and members of society.

(1872, cited by Dinitz and Conrad 1978: 101)

Dangerousness was therefore a biological factor rather than an actual physical threat, with emphasis given to wealth rather than actual danger. As Dinitz and Conrad (1978) note, while the poor and dangerous were viewed as dangerous, the rich and dangerous were viewed simply as rich. This would appear to be apparent even today, where street crime is always held to be a crime, but in some circles white-collar crime is classified as ‘an aberration of the free enterprise system’ (102).

The collection of criminal statistics in the mid 1800s, however, began to change this view of the poor, with statisticians realising that being poor was not, on its own, a good indicator of criminality. Crime was actually more likely to take place in the affluent cities than the impecunious rural areas, and an individual was more likely to commit crime if he had seen a downturn in his economic state rather than because of long-term poverty (Rennie 1978). While dangerous people still existed at this time, they were seen more as representatives of a dangerous class rather than as an individual threat to fellow man.

In the second half of the nineteenth century, concern began to shift from the dangerous classes to individual people, and thus the penal concept of the dangerous offender was born. The move from the dangerous classes to the dangerous individual was largely due to a social change in risk and to whom or what these levels of risk affected, including a transition in the political economy of dangerousness.

It is a quality that is no longer possessed by a class but by individuals or small groups of criminals; it is a quality that no longer threatens to tear down the portals of the state itself in an orgy of blood and destruction; instead, it is targeted at the quality of life of its individual subjects; it is not a quality that threatens their physical existence, but insidiously puts at risk all by which their worth as citizens is judged – their property.

(Pratt 1997: 17)

Centred largely on repeat offenders, dangerous offenders were property recidivists and fraudsters, including those who would commit crime and then move on to the next town with a different name and identity (Pratt 2000). The terms repeat or habitual offender began to be used synonymously with the idea of the dangerous offender. Originally, fear of such offenders was just experienced by the upper classes but, as the romance of the highwayman who only stole from the rich disappeared, criminality became a threat and a reality for all. Therefore, the risk to the state as experienced in the nineteenth century was now being replaced by a risk to all individuals who owned property. Consequently, in 1895, the habitual prisoner, who was constantly in prison for minor offences, was seen as one of the most dangerous classes of offenders (Radzinowicz and Hood 1980).

Interestingly, at this stage in history, violent and sexual offenders were perceived to be less dangerous than property offenders. This was so even though violence in private (that is, against women and children) was prevalent, and crimes of a sexual nature were actually on the rise (Pratt 1997). In all likelihood, this was due to the fact that insurance was not freely available and so once property had been stolen it was often irreplaceable (Pratt 2000), making it more valuable than personal self. It is also worth noting that it was only men who could hold property, and women who wanted to avoid being ‘ruined’ could not talk about offences of a sexual nature (Pratt 1997).

This duality in offences can also be explained by the fact that English Law paid more attention to property crimes, considering violent and sexual crimes as mere torts that could be made right through compensation. So, while the feudal classes would often engage in acts of violence, it was the crimes of theft and robbery committed by the lower classes that were feared the most (Rennie 1978). Property offenders were therefore given what we may now consider disproportionate sentences of imprisonment for their crimes, especially when compared to those handed out for physical assaults. For example, in 1877, a man who had kicked his 13-year-old stepdaughter into unconsciousness, causing a one-and-a-half-inch wound to her abdomen and partial paralysis to her leg, received a four-month custodial term. Another man who was convicted of stealing five silver spoons was sentenced to seven years of penal servitude (Pratt 1997).

It was not until the 1880s, therefore, that the dangerous offender was labelled in such a way that we might now be acquainted with. Garofalo, an Italian criminologist working with Lombroso, was the first to divide criminals into groups, with one known as temibilita, meaning fearsomeness or frightfulness. Ferri, another criminologist and colleague of Lombroso, took the groupings one step further, converting it to the related term of pericolosita, or dangerousness. Both terms were used to suggest that these were offenders who were likely to reoffend in the future, and so the labelling of recidivists in this way was to demonstrate their capacity for future offending. All three men were from the positivist school of criminology, which argued that the key question regarding criminals was not what they had done in the past but the extent to which they posed a danger to society in the future (Rennie 1978). Contrary to classical jurisprudence, where punishment is sought to fit the crime, positivists believed that the punishment should fit the offender and should be whatever was needed to protect society from danger. Positivism is based on the belief that science can predict dangerousness and that, if possible, a person should be treated and cured; but if this is not possible, he should then be confined (Bottoms 1977). This was the beginning of sentencing the offender rather than the offence and the creation of indeterminate sentencing based on public protection. In 1910, this belief was also held by Prins, who categorised two types of dangerous individuals: the mentally deficient and the recidivist (Rennie 1978), with other early positivists viewing the dangerous offender as ‘falling somwhere between the healthy and the psychotic, the resposible and irresponsible, the doomed and the far from hopeless. The dangerous offender was both mad and bad’ (Dinitz and Conrad 1978: 105, emphasis in original).

Membership again changed in the 1930s, as children became to be viewed as more valuable, being members of the family rather than mere commodities of them. With more families having to move in order to find work, children were often being cared for by relative strangers, which gave rise to more opportunities for people to commit sexual crimes against them. As this began to be acknowledged, such offenders were additionally labelled as dangerous, with the concept of dangerousness being, for the first time, sexualised (Sutton 2000). For example, the Report of the Departmental Committee on Persistent Offenders defined the dangerous offender as including ‘certain sexual offenders . . . particularly those who commit repeated...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• List of illustrations
• Preface
• List of abbreviations
• 1. Dangerousness and the dangerous offender
• 2. Sentencing policy and dangerousness legislation
• 3. From dangerousness to risk and risk assessment
• 4. The use of imprisonment
• 5. Strategies of risk management
• 6. Strategies of risk reduction
• 7. Women Offenders
• 8. Children and young people
• 9. Mentally disordered offenders
• Notes
• References
• Index