Tracking high-risk, violent offenders: an examination of the National Flagging System .

• Author: Yessine, Annie K.
• Position: Canada

Violent and sexual offences elicit a great deal of public fear. As a consequence, governments in Canada and elsewhere have enacted policies and program reforms directed towards individuals convicted of such crimes. Approaches to minimizing the danger posed by high-risk, violent offenders and lessening public concern have taken numerous forms. Responses have included criminal law and sentencing reforms (e.g., civil commitment of violent offenders), treatment services, prohibitions as well as other preventative measures such as employment screening, community notification, and public registries (e.g., sex offender registration, child abuse registries). In general, these new modes of crime control are characterized by the setting up of formal multi-agency "public protection" partnerships, the drawing up of protocols to address particular issues such as the sharing of confidential information, the classification of offenders into specific risk groups, as well as the development, implementation, and monitoring of individual risk management plans (Kemshall and MacGuire 2001).

International responses to high-risk, violent offenders

On the whole, policies and practices adopted in the United States, the United Kingdom, and Australia demonstrate a profound shift towards more severe penalties and restrictions on dangerous offenders, and enhanced efforts to identify and respond to them. In the United States, for example, as a result of a highly publicized incident involving the sexual assault and mutilation of a seven-year-old boy, Washington State enacted controversial legislation in 1990, the Sexually Violent Predator Act. This omnibus bill introduced the first end-of-sentence civil commitment laws, which legally authorized the commitment of incarcerated offenders who had committed a sexual offence to a psychiatric facility after the expiration of their criminal sentences. However, because the new laws appeared to use civil commitment to achieve non-therapeutic aims, they were seen by many as potentially undermining the integrity of psychiatry, particularly in defining mental illness and the clinical conditions for compulsory treatment (Zonana, Bonnie, and Hoge 2003).

In 1993, in response to the criticisms advanced by mental health practitioners and the growing national interest raised in the civil commitment of dangerous sexual offenders, the American Psychiatric Association appointed a task force to find how best to deal with these offenders. One task force recommendation was that "societal concerns about the need for punishment and incapacitation of dangerous sex offenders should be met through customary sentencing alternatives within the criminal justice system and not through involuntary civil commitment statutes" (American Psychiatric Association Task Force Report 1999, cited in Zonana et al. 2003: 135). In other words, civil commitment laws in the United States were viewed as flawed public policies. Nevertheless, they have been adopted in a number of American states and have so far withstood challenges (Fabian 2003).

One of the most widespread measures adopted by jurisdictions in the United States is sex offender registration (SOR) programs. In a nutshell, SOR programs require convicted sex offenders to register with, and report their addresses to, the police. The main purpose of SOR programs is to help police prevent and investigate sex offences committed by convicted sex offenders. Other objectives of such provisions have also been suggested, including the fact that they may be a deterrent and/or act as a medium to support community notification. The first SOR program was introduced by California in 1944 (Coffin 2001). Three additional American states implemented such measures during the 1960s, and between 1985 and 1989, seven other states established SOR programs. Today, all U.S. jurisdictions have passed sex offender registration laws. Although there are important differences in the registration processes used across jurisdictions, the state programs largely conform to the model prescribed by federal legislation (Jacob Wetterling Act 1994). U.S. federal standards call for the registration of any individual, aged 21 or older, who has been convicted of an offence against a minor or of a sexually violent offence and who is residing, working, or studying in any U.S. state. The act also advocates that a subgroup of offenders (i.e., individuals convicted of a sexually violent offence and suffering from a mental abnormality or personality disorder) be designated as sexually violent predators.

Similar responses to community outrage over public safety and protection were observed in the United Kingdom and Australia. With the enactment of the Sex Offenders Act in 1997, the U.K. Sex Offender Registration program requires certain offenders, usually those convicted of an offence against a child or other serious sexual offences, to remain registered with local police for various lengths of time (ranging from five years to life, depending on the seriousness of the offence). In Queensland, Australia, a form of sex offender registration program was also introduced in 1989, allowing the court to impose a reporting requirement on offenders convicted of a sex offence against a person less than 16 years of age. A number of other pieces of legislation in Australia (Criminal Law Amendment Act 1945; Dangerous Prisoners [Sexual Offenders] Act 2003; Penalties and Sentences Act 1992) provide, in one way or another, for continued detention of sexual offenders beyond sentence completion.

Canada's response to high-risk, violent offenders

With the introduction of community notification protocols as well as sex offender and child abuse registries, Canada has followed the international trend towards tighter responses and more severe penalties for violent and/or sexual offenders. Two of the earliest measures were enacted in the form of the 1947 Habitual Offender and the 1948 Criminal Sexual Psychopath provisions of the Criminal Code of Canada (CCC). In 1961, however, following the recommendations of the McRuer Commission (1958), a number of amendments were effected to the Criminal Sexual Psychopath provisions (e.g., the replacement of the term criminal sexual psychopath, which was judged ambiguous, with the term dangerous sexual offender). Continued dissatisfactions with the reformed provisions (e.g., disparities in application, targeting of non-violent sexual and property offenders, and failure to include dangerous non-sexual offenders) led to the enactment of Bill C-51, the Criminal Law Amendment Act (1977). This act repealed the Habitual Offender and Dangerous Sexual Offender legislations and introduced the Dangerous Offender (DO) provisions under Part XXIV of the C.C.C.

The statutory criteria for the establishment of a DO application requires offenders to be convicted of a Serious Personal Injury Offence (SPIO; section 752 of the C.C.C., R.S.C. 1985, c. C-46) and to demonstrate a repetitive and persistent pattern of aggressive behaviours manifested by the failure to restrain those behaviours and/or to control sexual impulses. Despite the fact that the main objective of the new Dangerous Offender provisions was to extend the Dangerous Sexual Offender law to include non-sexual violent offenders, studies continue to find that the majority of DO cases remain sexual offenders (Bonta, Harris, Zinger, and Carriere 1996; Bonta, Zinger, Harris, and Carriere 1998; Ministry of the Solicitor General 1993; Trevethan, Crutcher, and Moore 2002).

In 1997, the enactment of Bill C-55 introduced some revisions to the DO provisions, most notably the establishment of the Long-Term Offender (LTO) category. With the LTO amendment, the court can now impose a term of up to ten years of community supervision to offenders after completion of a prison sentence of two or more years. Although long-term supervision orders were initially designed to provide a community sentence especially suited to manage sex offenders, a decision by the British Columbia Court of Appeal in 1999 extended the legislation to non-sexual, violent offences. In essence, the LTO designation requires evidence of substantial risk that the offender will reoffend, but a reasonable possibility that such risk can be managed in the community with appropriate supervision and intervention. Safe reintegration and risk management are thus key features of the Long-Term Offender provisions.

The application of the DO and LTO provisions of the C.C.C. is not taken lightly by the courts. Since 1978, there have been only 410 individuals declared dangerous offenders, with nearly 98 percent of current DOs serving an indeterminate sentence (Public Safety and Emergency Preparedness Canada [PSEPC] 2004). Although somewhat more frequently imposed, long-term supervision orders are still relatively rare, with 271 offenders under long-term supervision in 2004. Sexual offenders represent the majority of both dangerous offenders (82%) and long-term offenders (78%).

This brief recent history of international legislative and policy developments targeted at high-risk, persistent offenders reveals a strong move towards both longer or indeterminate incarceration terms, and longer and more stringent periods of surveillance and monitoring in the community. It should nonetheless be noted that this rapid growth in the number and severity of preventative measures against dangerous offenders has occurred despite numerous objections on the grounds of ethics and principle (Kemshall and MacGuire 2001). The European Court of Human Rights, for instance, has recognized that once the purpose of detention has shifted from punishment to detention for preventative purposes, detention could become unlawful and arbitrary. One particular reason that preventative measures can be seen as an infringement of freedom in a free and democratic society relates to the fact that public policies and practices rely on assessment of risk...