The innocence rights of sentenced offenders

1. The innocence rights of sentenced offenders Dr. Mary Rogan Dublin Institute of Technology E: mary.rogan@dit.ie B: http://maryrogan.wordpress.com

2. Post-release orders • Orders which can be made at the time of sentencing, but which take effect after release from imprisonment • Recent expansion • Sections 26 and 26A Criminal Justice Act 2007 • “Registers” • Why these are of concern • Reintegration • Effectiveness • ‘The failure model’ • Innocence rights

3. Section 26 Criminal Justice Act 2007 • Applies to offences in Schedule 2 • Murder • Causing serious harm • Threats to kill or cause serious harm • False imprisonment • Firearms offences • Aggravated burglary • ‘Organised crime offences’ • Drug trafficking offences (including possession and s.15A)

4. The orders • Monitoring Order • Offender is required to notify an Inspector of the Garda Síochána of address as soon as practicable after release • Any 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

5. The protection of persons order • Prohibits 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 person • Maximum of 7 years

6. Breach • Offence • “Without reasonable cause” • Summary conviction: • Fine €2,000 • Imprisonment up to 6 months • Or both

7. Section 26A • Introduced by section 14 of the Criminal Justice (Amendment) Act 2009 • Applies to: • Offences under Part 7 of CJA 2006 • Organised crime offences • Offences in Schedule 2 CJA 2007 committed as part of or in furtherance of the activities of a criminal organisation

8. Section 26A • ‘Post-release (restrictions on certain activities) order’ • May: • Restrict offender’s movements, actions or activities • Impose conditions subject to which the offender may engage in any activity • Place restrictions on the offender’s association with others or conditions subject to which the offender may association with others • Up to 7 years • Fine of €5,000 and/or 12 months’ imprisonment for breach on summary conviction

9. Section 26A • Court must consider it in the public interest to make an order • Having 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 interest • Fall into a category of restrictions and conditions in a scheme

10. Restrictions • July 2010 • Refrain from attending at such premises, place or locality at all or specified times • Attend at premises/place/locality • Those who intend to leave the State for 7 days or more notify a member of the Garda Síochána in person before and after period abroad

11. Restrictions • Notify a member of the Garda Síochána of any names used by the offender other than the name the offender was convicted under • Notify of address and change of address • Refrain from activities • Restrictions and conditions on associations with others (except immediate family)

12. Revoking/varying the order • The 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 revocation • Application made on notice to Inspector of the Garda Síochána in the area where the offender ordinarily resided at the time the order was made or where the person currently resides • May receive legal aid for s.26 but not s.26A?

13. Comparisons with sex offender legislation

14. Sex Offenders Act 2001 • Court “shall consider” post-release supervision • Takes place under a probation officer • Court 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 offender

15. Some differences • Precision of the conditions • 2001 Act: must be explicitly laid down by the judge and explained to the offender (section 31) • Much wider and more vague under section 26/26A • ASBOs • Need for clarity in our criminal law • Supervision and support of professionals • Sections 26 and 26A focus on ‘protection’ rather than rehabilitation

16. Reintegration and post-release orders

17. Another hurdle to reintegration • A major departure from the principle that once a person has served his/her sentence the state has no further ‘call/claim’ on that person • Stigma • Potential impact on links with community, family, activities, employment opportunities • The ‘collateral consequences’ of imprisonment increase

18. Successful reintegration • Motivation • Housing • Support of professional services • Drug treatment • Community supports • Pre-release planning • Education • Mental health • Employment

19. Effective? • NESF: no mention of such orders • Council 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 areas • Superficial response • Solutions to offending are usually to be found outside the criminal law

20. Necessary? • The behaviour targeted is likely to fall within standard criminal definitions anyway • Penalties for breaches are low but may be more significant than would have been the case under comparable criminal law • Unlikely to be a greater deterrent than existing criminal laws • Administrative burden on the Gardaí has yet to be calculated

21. The ‘failure’ model

22. What this says about how we think of punishment • An assumption that offenders are incapable of change • That our prison system is incapable of making any difference to behaviour • May be with good reason! • But is further contact with the criminal justice system the answer? • The “zig-zag” nature of desistance

23. What this says about how we think of punishment • “No 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 orders • “Super ASBOs”

24. Innocence rights

25. The presumption of innocence • An erosion of the presumption for those who have served their sentences • A very significant departure in principle • The reach of the criminal justice system lengthens • May be easy to breach • More 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?

26. The presumption of innocence • Procedural safeguards • Need for the terms of such orders to be drawn tightly • Need to avoid a ‘blunderbuss’ approach or over-reliance on the submissions of the prosecution • The type of evidence which can be introduced (section 26A) • Proven to what standard? • The accused’s awareness of the order at the time and, much later, on release

27. The presumption of innocence • The burden • For the individual to show “reasonable cause” in the case of breach of an order to avoid conviction and sentence • For 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?

28. Conclusion • These orders: • Do much to restrict innocence rights • Are unlikely to be effective • Have yet to be justified by those who have introduced these significant changes • Their use needs to be closely monitored as their effects become more apparent • Who is subject to them? • These orders should not be extended and their existence/current form should be reconsidered

29. Thank you E: mary.rogan@dit.ie B: http://www.maryrogan.wordpress.com

30. Selected further reading • Lewis et al (2007) “What works in resettlement” Criminology and Criminal Justice 7(1) 33-53 • Makarios, Steiner & Travis (2010) “Examining the predictors of recidivism among men and women released from prison in Ohio” Criminal Justice and Behavior37(12) 1377-1391 • Petersilia (2003) When Prisoners come home: Parole and prisoners reentry. New York: Oxford University Press.

31. Selected further reading • Maruna and Immarigeon (Eds). (2004) After Crime and Punishment. Cullompton: Willan • Letourneau et al (2010) “Effects of South Carolina’s 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.

32. Selected further reading • Maguire 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).