Post-release orders and innocence rights

The innocence rights of sentenced offendersDr. Mary RoganDublin Institute of TechnologyE: mary.rogan@dit.ieB: http://maryrogan.wordpress.com

Post-release ordersOrders which can be made at the time of sentencing, but which take effect after release from imprisonmentRecent expansion Sections 26 and 26A Criminal Justice Act 2007RegistersWhy these are of concernReintegrationEffectivenessThe failure model Innocence rights

Section 26 Criminal Justice Act 2007Applies to offences in Schedule 2MurderCausing serious harmThreats to kill or cause serious harmFalse imprisonmentFirearms offences Aggravated burglaryOrganised crime offencesDrug trafficking offences (including possession and s.15A)

The ordersMonitoring OrderOffender is required to notify an Inspector of the Garda Sochna of address as soon as practicable after releaseAny change of address and any proposed absence of > 7 days must be notified in writing to the Inspector Can be made for up to 7 years The protection of persons orderProhibits a released person from engaging in behaviour which:In the opinion of the court, would be likely to cause the victim of the offence concerned or any other person named in the order fear, distress or alarm or would be likely to amount to intimidation of any such personMaximum of 7 yearsBreachOffenceWithout reasonable causeSummary conviction:Fine 2,000Imprisonment up to 6 monthsOr bothSection 26A Introduced by section 14 of the Criminal Justice (Amendment) Act 2009Applies to:Offences under Part 7 of CJA 2006Organised crime offencesOffences in Schedule 2 CJA 2007 committed as part of or in furtherance of the activities of a criminal organisationSection 26APost-release (restrictions on certain activities) orderMay:Restrict offenders movements, actions or activitiesImpose conditions subject to which the offender may engage in any activityPlace restrictions on the offenders association with others or conditions subject to which the offender may association with othersUp to 7 yearsFine of 5,000 and/or 12 months imprisonment for breach on summary convictionSection 26ACourt must consider it in the public interest to make an orderHaving regard to: evidence in the trial; evidence in relation to sentence; previous convictions or other personal circumstances Consider the restrictions are no more than reasonably necessary in the public interestFall into a category of restrictions and conditions in a schemeRestrictionsJuly 2010Refrain from attending at such premises, place or locality at all or specified timesAttend at premises/place/localityThose who intend to leave the State for 7 days or more notify a member of the Garda Sochna in person before and after period abroadRestrictionsNotify a member of the Garda Sochna of any names used by the offender other than the name the offender was convicted underNotify of address and change of addressRefrain from activitiesRestrictions and conditions on associations with others (except immediate family)Revoking/varying the orderThe person subject to the order may apply to be released from it The court which made the order can vary or revoke the order if satisfied that there are circumstances occurring since the making of the order warranting variation or revocationApplication made on notice to Inspector of the Garda Sochna in the area where the offender ordinarily resided at the time the order was made or where the person currently residesMay receive legal aid for s.26 but not s.26A?Comparisons with sex offender legislation Sex Offenders Act 2001Court shall consider post-release supervisionTakes place under a probation officerCourt may also impose conditions on the offender e.g. counselling, treatment, doing things as necessary to protect the public Court must have regard to need to protect the public and the need to rehabilitate the offenderSome differencesPrecision of the conditions2001 Act: must be explicitly laid down by the judge and explained to the offender (section 31)Much wider and more vague under section 26/26AASBOsNeed for clarity in our criminal lawSupervision and support of professionals Sections 26 and 26A focus on protection rather than rehabilitationReintegration and post-release ordersAnother hurdle to reintegrationA major departure from the principle that once a person has served his/her sentence the state has no further call/claim on that personStigmaPotential impact on links with community, family, activities, employment opportunities The collateral consequences of imprisonment increase Successful reintegrationMotivationHousing Support of professional servicesDrug treatmentCommunity supportsPre-release planning EducationMental healthEmploymentEffective?NESF: no mention of such ordersCouncil of Europe on social reintegration: no mention of such orders Irish Penal Reform Trust report (2010)Unlikely to be more effective than investment in these areasSuperficial responseSolutions to offending are usually to be found outside the criminal lawNecessary?The behaviour targeted is likely to fall within standard criminal definitions anywayPenalties for breaches are low but may be more significant than would have been the case under comparable criminal lawUnlikely to be a greater deterrent than existing criminal lawsAdministrative burden on the Garda has yet to be calculated

The failure modelWhat this says about how we think of punishmentAn assumption that offenders are incapable of changeThat our prison system is incapable of making any difference to behaviourMay be with good reason!But is further contact with the criminal justice system the answer?The zig-zag nature of desistanceWhat this says about how we think of punishmentNo such thing as an ex-offender only offenders who have been caught before and will strike again (Garland, 2001)Was this the intention?England and Wales: post conviction ordersSuper ASBOs

Innocence rightsThe presumption of innocenceAn erosion of the presumption for those who have served their sentencesA very significant departure in principleThe reach of the criminal justice system lengthens May be easy to breachMore short sentences?Is proof of a conviction alone enough to give rise to a presumption that the person will engage in this kind of behaviour many years from now? The presumption of innocenceProcedural safeguardsNeed for the terms of such orders to be drawn tightlyNeed to avoid a blunderbuss approach or over-reliance on the submissions of the prosecutionThe type of evidence which can be introduced (section 26A)Proven to what standard?The accuseds awareness of the order at the time and, much later, on release

The presumption of innocence The burdenFor the individual to show reasonable cause in the case of breach of an order to avoid conviction and sentenceFor the individual to seek revocation of the order Are these orders themselves punishments without procedural protections and on the premise of preventing future offending? With constitutional implications?

ConclusionThese orders:Do much to restrict innocence rightsAre unlikely to be effectiveHave yet to be justified by those who have introduced these significant changesTheir use needs to be closely monitored as their effects become more apparentWho is subject to them?These orders should not be extended and their existence/current form should be reconsideredThank youE: mary.rogan@dit.ieB: http://www.maryrogan.wordpress.com

Selected further readingLewis et al (2007) What works in resettlement Criminology and Criminal Justice 7(1) 33-53Makarios, Steiner & Travis (2010) Examining the predictors of recidivism among men and women released from prison in Ohio Criminal Justice and Behavior 37(12) 1377-1391Petersilia (2003) When Prisoners come home: Parole and prisoners reentry. New York: Oxford University Press. Selected further readingMaruna and Immarigeon (Eds). (2004) After Crime and Punishment. Cullompton: WillanLetourneau et al (2010) Effects of South Carolinas Sex Offender Registration and Notifcation Policy on Adult Recidivism Criminal Justice Policy Review 21(4) 435-458.Padfield and Maruna (2006) The revolving door at the prison gate: Exploring the dramatic increase in recalls to prison Criminology and Criminal Justice 6(3) 329-352.Selected further readingMaguire and Raynor (2006) How the resettlement of prisoners promotes desistance from crime: Or does it? Criminology and Criminal Justice 6(1) 19-38. Healy, (2010) The Dynamics of Desistance. Cullompton: Willan. NESF, (2002) Reintegration of Prisoners. Dublin: NESF.Council of Europe (2006) Social Reintegration of Prisoners.Rogan (2007) Extending the reach of the state into the post-sentence period Dublin University Law Journal 15(1).