Are Open-ended Sentences Unjust?
The European Court of Human Rights recently ruled ‘arbitrary and unlawful’ the UK practice of indeterminate prison sentences for the protection of the public (IPPs). Currently more than 6,000 prisoners in this country are serving such sentences. The judges did not, however, rule the very idea of IPPs to be unlawful. What they quite rightly see as objectionable is the extension of sentences for prisoners who have failed to attend rehabilitation courses they have not been given the opportunity to attend. This truly Kafka-esque state of affairs cannot be allowed to continue.
Penal reformers, however, including Francis Crook of the Howard League and Juliet Lyon of the Prison Reform Trust, claim that open-ended or conditional sentences are unjust in principle, since they amount to imprisoning people not for what they have done in the past but for what they might do in future.
Open-ended sentences, however, can be seen as backward-looking. Throughout her time in prison, the prisoner is serving a sentence for the offence of which she was convicted. It might seem odd to claim that the punishment proportional to some offence depends on the behaviour of the prisoner once she is in prison. But how to proportion punishment to crime is a notoriously difficult issue, and it’s not obvious why an indeterminate sentence is any less appropriate as a punishment than a determinate one.
One has to admit, however, that this defence of IPPs appears somewhat disingenuous. The real justification for them is indeed there in their name: they are for the protection of the public, not for giving people their just deserts. But many have seen as at least a partial point in favour of imprisonment that the public are protected from the criminal, and deterrence is of course a standard argument in favour of punishment in general.
But doesn’t that mean that IPPs are in effect punishing the innocent? For once the offender has served her minimum tariff, it must be the case that she has paid her debt to society. As we’ve seen, her original offence isn’t really what justifies keeping her in prison. That is indeed a forward-looking matter: protecting the public from things she might do if released.
This seems to me a good point. The question is whether punishing the innocent is always unjustifiable. Some of our other judicial practices can certainly be described in these terms. Consider strict liability. If some 17-year-old comes into my off-licence brilliantly disguised as a middle-aged woman, with a fake ID, and buys a can of cider, I can be prosecuted under UK law, even if I’ve taken every reasonable measure to ascertain her age. The justification for this legislation is clearly forward-looking: to encourage those selling alcohol to check the age of their customers as carefully as they can. Nor is there anything arbitrary about strict liability. Someone going into alcohol retailing will know the risks, just as a burglar may know she is risking an IPP and a prisoner serving an IPP may know in advance that her sentence will be extended if she doesn’t meet the requisite conditions. As long as IPPs are extended in an open and procedurally just way, the analogy with strict liability seems strong.