The role of prior punishment in preventive detention decisions

ABSTRACT

Preventive detention legislation allows for ongoing detention or supervision following completion of an offender’s sentence. Consideration of public protection should drive the administration of preventive detention, however research has indicated retributive concerns also drive decision making. Two studies were conducted to examine the motives driving preventive detention decisions, and how contextual variables affected the balance between retributive and public protection motives. In Study 1, participants were presented with information about an offender’s remorse, prior punishment, and risk of re-offence. In Study 2, participants were presented with information about an offender’s prior punishment and offence type, and the relative strength of various potential mediators was tested, to determine factors driving effects of prior punishment information. Overall, results demonstrated participants were driven by both retributive and public protection motives, as well as personal characteristics (e.g. political orientation, prejudice against offenders) when making preventive detention decisions. Findings are discussed in terms of their implications for preventive detention legislation.

KEYWORDS:

• Sex offenders
• preventive detention
• punishment sufficiency
• sentencing
• risk

Acknowledgements

The authors gratefully acknowledge the support of the Australian Government Research Training Program Scholarship to the first author.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 Note that Carlsmith et al. (2007) referred to the public protection motive as the ‘utilitarian’ motive. However, in utilitarianism, the community includes the offender, and safety is not the only potential benefit (specifically, it is the maximisation of utility). In John Stewart Mill’s utilitarianism, therefore, unrestricted freedom is a very important utility, requiring considerable counterbalancing in the consequentialist calculation of maximum utility. With risk assessments underlying preventing detention decisions erring on the side of caution, resulting in significant overestimations of the likelihood of risk, that counterbalancing is compromised. It may not be the case, therefore, that the public protection motive described by Carlsmith et al. (2007) meets strict criteria for ‘utilitarianism’. So, while we investigate the same public protection motive examined by Carlsmith et al. (2007), we employ the terminology ‘public protection’ rather than ‘utilitarian’ to describe the motivation of interest. Henceforth, therefore, we refer to Carlsmith et al’s (2007) construct of ‘utility’ as ‘public protection’.

2 Two attention checks were employed: 1. Henderson is a: a) Thief, b) Sex Offender, or c) Murderer; and 2. Henderson is subject to the: a) Road Safety Act 1986, b) Building (Amendment) Act 2004, or c) Serious Sex Offenders (Detention and Supervision) Act 2009). Data from participants who answered incorrectly were discarded on the basis that the participant had not properly attended to the information provided.

3 One categorical manipulation check was included for each independent variable in the study: 1. Upon release, experts have determined that: a) there is 4% chance the Henderson will reoffend, or b) there is 70% chance the Henderson will reoffend; 2. The punishment assigned for Henderson’s last crime (i.e. Henderson’s current sentence) was: a) a 5 year sentence in a minimum security prison, or b) a 25 year sentence in a maximum security prison; 3. It is clear that Henderson: a) is tremendously remorseful for what he has done, or b) feels no remorse for what he has done. Data from participants who answered incorrectly were discarded on the basis that the participant had not correctly registered information relating to the experimental condition to which they had been randomly assigned.