The control continuum: analysing the scope and impact of post-release measures for offenders

• Author: Margaret Fitzgerald
• Position: B.C.L., LL.M. (Criminal Justice), PhD Candidate, University College Cork
• Pages: 1-42

2010] The Control Continuum 1

THE CONTROL CONTINUUM:

ANALYSING THE SCOPE AND IMPACT OF

POST-RELEASE MEASURES FOR OFFENDERS

MARGARET FITZGERALD*

INTRODUCTION

For many years the system of crime and punishment has

incorporated a concept that once an individual has served the

punishment for his crime, his debt to society has been paid, and

the criminal justice system has no further claim over him.

This idea that the individual would then be “free” undoubtedly

stemmed from a desire for punishment to be proportionate and

finite. Ever since Cesare Beccaria argued so eloquently for

proportionate punishment, the law has sought to hold this

principle as a beacon of justice and humanity within the criminal

justice system.1 Due process values within the system dictate that

an offender must be treated fairly and that punishment must be

proportionate to the crime and the criminal who commits that

crime.2 In dealing with offenders the law has been mindful of a

number of things. Prevention, deterrence, retribution and

rehabilitation have become the primary purposes of punishment

and it is within this capacity (of meting out punishment to accord

with these rationales) that the principle of proportionality is most

important.

There is another concept, however, that has progressively

begun to operate in punitive policy, and that is the concept of risk.

Our society has become increasingly risk-averse, and authorities

are reluctant to permit an individual to be released without some

form of post-release control and monitoring.3 As part of a new

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* B.C.L., LL.M. (Criminal Justice), PhD Candidate, University College Cork.

1 See Beccaria, On Crimes and Punishment (Leghorn, false imprint Haarlem,

1764); Young, On Crimes and Punishment, introduction (Indianapolis, 1986).

2 See for example: Court of Criminal Appeal in People (DPP) v. McCormack

[2000] 4 I.R. 356; Supreme Court in People (DPP) v. M [1994] 3 I.R. 306;

O’Malley, Sentencing Law and Practice (Thomson Round Hall, 2nd ed, 2006).

3 See generally Garland, The Culture of Control: Crime and Social Order in

Contemporary Society (Oxford University Press, 2001); Hebenton and

Thomas, “Sexual Offenders in the Community: Reflections on Problems of

Judicial Studies Institute Journal [2010:1

2

risk-aversion strategy, a number of provisions have been

introduced in the past decade, that permit judges at sentencing

stage to impose certain post-release conditions upon an offender,

or alternatively permit subsequent applications to be made to a

court for an order to control and restrain an ex-offender’s

behaviour in the community. This paper will examine the

provisions that have been enacted upon sex offenders, drug

trafficking offenders and other serious offenders, namely under

the Sex Offenders Act, 2001, the Criminal Justice Act, 2006, and

the Criminal Justice Act, 2007. Under these Acts ex-offenders can

be subject to supervision, notification requirements and to a

variety of other orders that act as a means of movement and

behaviour control. Such orders are in addition to an ordinary

sentence upon conviction, and represent a significant departure

from the notion that once a sentence has been served the legal

system has no further claim over an offender.

Although the rationale for post-release measures focuses

largely upon the prevention of crime, one of the inevitable

consequences for ex-offenders is that their sentence does not end

after imprisonment. For many the effects of a conviction can last

for life, and for others it can last for a substantial and often

indefinite period of time into the future. Thus it seems that there

is no such thing as a de jure sentence. This may be in

contradiction to the important principle of proportionality.

Retaining control of the individual post-release may have the

unintended consequence of excluding and marginalising the

individual, and ultimately make it more difficult for him to be

rehabilitated and re-integrated into mainstream social life.

The paper will be divided into a number of sections examining

the various types of orders that exist under recent legislation,

categorised in terms of the offenders upon whom they are

imposed: namely sex offenders (SOA 2001), drug traffickers

(CJA 2006), and serious offenders under the 2007 provisions.

The author will explain where these provisions have come from,

their purpose and effect, and will do so having regard to some

Law, Community and Risk Management in the USA, England and Wales”

(1996) 24 International Journal of the Sociology of Law 427.

2010] The Control Continuum 3

broader criminological and penological issues such as control,

risk, reintegration and public protection.

I. POST-RELEASE ORDERS:

DEALING WITH SEX OFFENDERS

An awareness of sexual offending has built up in Ireland

in recent times, and details of sexually-motivated crimes have

been brought into the sphere of public consciousness.4

A consensus on the need to establish an Irish sex offender register

developed and widened into a post-release arrangement package

that has also incorporated provisions on post-release supervision

and sex offender orders, similar to that in the UK and elsewhere.

A. The Register

The establishment of a register in the UK initiated the idea

of having a sex-offender register in this jurisdiction,5 which was

surprising because there was no evidence of any urgent “need” to

establish such post-release arrangements at the time. The idea was

not motivated by any high profile crime committed within the

jurisdiction like that of Megan Kanka in the US or Sarah Payne in

the UK, or by the release of any notorious sex offenders like that

of Sidney Cooke in the UK. White argues that the fact that no

such domestic examples existed may be a large factor in why

emphasis was placed on the image of the foreign sex offender.6

Allegations arose that foreign sex offenders were using Ireland as

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4 The foreign media (such as Sky News and British papers) which are

accessible by the Irish public, have reported high profile murders like that of

Megan Kanka in the US and Sarah Payne in the UK, and stories of the release

of convicted sex offenders in the UK and how they are being dealt with.

E.g. “Bed-sit rapist becomes subject of first legal exclusion order”

Independent, 24 December 1998; “500 paedophiles to be tracked by satellite

tags” Observer, 21 December 2003; “Paynes ask Blunkett for ‘Sarah’s Law’”

Guardian, 21 June 2002. See also McGuinness, Report of the Kilkenny Incest

Investigation (Dublin: Stationery Office, 1993).

5 Thomas, “Protecting the Public: Some Observations on the Sex Offenders

Bill 2000” (2000) 10 I.C.L.J. 12, 12.

6 White, “Controlling Sex Offenders: Raising Critical Questions about the Sex

Offenders Bill 2000” (2001) 4 I.J.F.L. 8, 11. White argues that unnecessary

and unhelpful attention has been placed upon the “foreign” sex offender in

deciding the appropriate measure to take in dealing with sex offenders.