Indeterminate Sentencing: Synthesising public protection, rehabilitation and human rights obligations

Abstract

England and Wales, like many comparable jurisdictions, has relied increasingly upon measures designed to protect the public from offenders perceived to pose a danger. Incapacitative sentencing is inherently problematic as prediction is highly unreliable and this leads to manifest injustice when those wrongly categorised are incarcerated for lengthy periods. Alternative objectives are marginalised when public protection is paramount. This is logical: if an offender will never be released, why try to rehabilitate him? Our contention is that incapacitation should not be pursued in isolation. Taking 'natural life' sentences and Imprisonment for Public Protection as examples, we develop an argument that jurisprudence from the European Court of Human Rights allows states to adopt incapacitative strategies only where suitable rehabilitative provision is available. As provision is chronically under-resourced at present, we contend that this jurisprudence jeopardises any strategy which is solely incapacitative. Instead, what is required is a synthesis of the (apparently distinct) objectives of protecting the rights of offenders, including the right to rehabilitation, with protecting public safety.