Indefinite imprisonment

Indefinite imprisonment or indeterminate imprisonment is the imposition of a sentence by imprisonment with no definite period of time set during sentencing.^[1] Its length, rather, is determined during imprisonment based on the inmate's conduct. The inmate could be returned to society or to kept behind bars for the remainder of his/her natural life.

In theory, an indefinite prison sentence could be very short, or it could be a life sentence if no decision is made after sentencing to lift the term. In many cases, a minimum term is imposed, or the maximum that can be served is the maximum allowable by law in the jurisdiction for the particular offense.

Views

While some think the concept of the indefinite sentence is one of the most effective,^[2] the Howard League for Penal Reform have defined indefinite sentences as "fundamentally flawed".^[3]

Rationale

The main rationale for imposing indefinite as opposed to fixed sentences is to protect the community. An offender can then be kept behind bars until it is determined that his/her release would not pose any danger to society.^[4]

Uses by location

In some places, indefinite sentences have been around for a long time.^[5] In other jurisdictions, they have been introduced more recently.

Australia

Indefinite imprisonment was introduced in Queensland in 2003 under the Dangerous Prisoners (Sexual Offenders) Act 2003. This allows indefinite detention to be imposed on dangerous individuals, particularly sex offenders. The remainder of the Australian states (except New South Wales) later followed with similar legislation.^[6]

Tasmania

An offender who is at least 17 years of age and has been convicted of at least two violent or sexual offences can be declared a dangerous offender and detained indeterminately. A judge must consider the potential of future harm that could be caused by the offender, the circumstances of his or her offenses, medical and psychiatric opinion, and any other matters of relevance. The decision passed by the court is not reviewable; the indeterminate sentence(s) commence upon the expiration of any determinate sentence imposed, and release is only by way of an order from the Supreme Court.

Seven Tasmanian offenders are serving one or more consecutive sentences of indefinite imprisonment as of July 2012.

Western Australia

The Criminal Code Act 1913 (WA) and the Crimes (Serious and Repeat Offenders) Act 1992 (WA) contain provisions for the indeterminate incarceration of youths and adults convicted of particular offenses. The indeterminate sentence(s) commence upon the expiration of any determinate sentence imposed, and are reviewed every three years after that. Release is through a Supreme Court Order or at the discretion of the Governor.

Peadophile Mark Pendleton is currently serving an indefinite sentence to commence on the expiration of 27 years for sexual offences committed against girls between 1977 and 1996, possessing child pornography in his cell, and being the ringleader of a conspiracy with fellow paedophiles to abuse children in Thailand. ^[7] Another paedophile, Christian Michael Roach, was sentenced to three consecutive indefinite terms to commence on the expiration of 27 years in 2008 for drugging and molesting nine young women and girls and the manslaughter of one of them between 1987 and 1999, but he hanged himself in his cell ten days later.

The Northern Territory and South Australia

The Criminal Code Act 1983 (NT) and the Criminal Law (Sentencing) Act 1988 (SA) allow for the indeterminate incarceration of a person who is determined to be a habitual criminal and/or incapable of controlling his or her sexual urges.

In South Australia, the indeterminate sentence(s) commence upon the expiration of any determinate sentence imposed, and are reviewed every three years after that. Release is only by way of an order from the Supreme Court.

In the Northern Territory, a prisoner serving indefinite sentence(s) has a nominal sentence set at half the sentence that would have been imposed if not they were not dangerous, or 20 years (25 years in some circumstances) if the sentence imposed would have been one or more consecutive sentences of life imprisonment. The indeterminate sentence(s) must be reviewed by the court when the nominal sentence (the minimum term the offender would have been required to serve if they were not dangerous) has expired, and every three years after.

The Australian Capital Territory, Queensland, and Victoria

The Sentencing Act 2005 (ACT), the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), and the Sentencing Act 1991 (Vic) govern habitual offenders.

An offender can be incarcerated indeterminately if there is a high probability, given the offender's character, the nature of his or her offense, psychiatric evidence as to the dangerousness of the defendant, and any other relevant circumstances, that the offender poses a serious threat to the community. The indeterminate sentence(s) must be reviewed by the court when the nominal sentence (the minimum term the offender would have been required to serve if they were not dangerous) has expired, and every three years after.

The minimum nominal sentence that can be imposed is ten years, but the sentencing judge can extend this if they believe that the prisoner's criminal history and/or the nature of the prisoner's offending warrants it.

The longest nominal sentence on sentence(s) of indeterminate imprisonment is 30 years, currently being served by serial pedophile Geoffrey Robert Dobbs (Queensland), who pleaded guilty to 124 sex offences and one count of attempting to pervert the course of justice committed against 63 girls aged between one month and 15 years (including five family members) under his care as a teacher and youth leader from 1972 to 2000.

Canada

In Canada, an inmate classified as a dangerous offender can be given an indefinite prison sentence. This means the offender is at risk for causing a "serious personal injury."^[8]

New Zealand

In New Zealand, indefinite imprisonment is called "preventive detention", and is handed down to individuals convicted of violent or sexual offences (such as sociopathic murderers, serial rapists or recidivist pedophiles) where it is likely that the offender will re-offend if released. Such individuals will only receive parole if they can demonstrate they no longer pose a threat to the community.

Preventive detention has a minimum period of imprisonment of five years, but the sentencing judge can extend this if they believe that the nature of the prisoner's offending and/or the prisoner's criminal history warrants it.

The longest minimum period of imprisonment on a sentence of preventive detention is one of 26 years, being served by convicted killer Graeme Burton, who murdered two victims and injured four others between 1992 and 2007.^[9] No women have yet been sentenced to preventive detention.

United Kingdom

Indefinite sentencing has been used in the United Kingdom since 2005.^[10]

In 2007, the Queen's Bench Division of the High Court ruled that the continued incarceration of prisoners serving indefinite sentences unlawful where the prisons lack the facilities and courses required to assess their suitability for release,^[11] bringing up concern that many dangerous offenders would go free.^[12]

In 2010, a joint report by the chief inspectors of prisons and probation stated that indefinite prison sentences are unsustainable with the current situation of prison over-crowding in the UK.^[13]

United States

Some U.S. states have various forms of indefinite sentencing, and many states have effective indeterminate sentencing with evaluation-based parole.

Most states have a life sentence without the possibility of parole for crimes of a heinous nature that are not eligible for the death penalty (or as an alternative sentence to the death penalty), where the offender will remain incarcerated for the remainder of his or her natural life.

The United States Federal Prison system has no automatic parole, and all offenders must serve at least 85% of their sentences before being eligible for release. Like the LWOP, life imprisonment in the Federal Prison System parole means that the offender will remain incarcerated for the remainder of his or her natural life.^[14]

See also

• Indefinite detention
• Three strikes law

References