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Friday, November 16, 2012

Alternative Approaches: Canadian and German Models

While I am not opposed to the detention of actually dangerous men who have the requisite mental illness under the law and constitution, I am vehemently opposed to Minnesota's response to the preventable Dru Sjodin tragedy, which I allege has been illegal, unconstitutional, and in violation of International Human Rights Standards.

I did some research over the past few days regarding what Models other countries use to deal with the issue of incapacitating dangerous, mentally ill sex offenders, and found some fascinating answers. The world community is watching, especially the British and the Germans, who recently had a recent revision to their preventive detention scheme determined to be in violation of Human Rights. The portion struck down mirrors Minnesota's post-prison civil commitment. We'll get to that in a moment...but first:

Let's begin with Sicherungsverwahrung--the German Model for dealing with dangerous, mentally defective, recidivisctic, convicted sexual criminals/offenders, and I am of the belief that this Model is a vastly superior Model to the US approach stemming from Stephanie's Law. The German Model imposes the Measure of Sicherungsverwahrung at SENTENCING, thus making the entire process more fundamentally fair, honest, and up front.

The concept is that in addition to sentencing a convicted, recidivistic sexual offender to a term of imprisonment under the criminal code/law, the offender is also sentenced to the possibility of additional confinement at the conclusion of his criminal sentence.

Whether this "collateral sanction" is in fact imposed, is largely up to the offender (and his behavior, treatment/rehabilitation motivation, etc.) rather than the State. If the offender refuses to mitigate his risk, or if he increases it, Sicherungsverwahrung is imposed, and the purpose is for incapacitation/State Safety unless and until it is determined that the offender is no longer in need of this sanction, and that Public Safety will not be unreasonably endangered by the release of the sex criminal from Sicherungsverwahrung.

Controversy over imposition after sentencing
The Sicherungsverwahrung is usually imposed in the original verdict, but can be imposed later under certain circumstances. This practice of subsequent incapacitation orders was ruled a violation of Art 7 of the European Convention on Human Rights by the European Court of Human Rights.[5] Subsequently a huge discussion in Germany over the handling of this verdict occurred. In reaction to this the Federal Constitutional Court of Germany issued a verdict on Sicherungsverwahrung in May 2011, deeming it unconstitutional.[6]


Here is a link to an excellent article describing it in detail:

https://dl.dropbox.com/u/24465959/states%20abusing%20power%20or%20controlling%20risk.pdf




CANADA, ENGLAND, WALES-Dangerous Offender
 


Canada
In Canada, anyone declared a dangerous offender by the courts is subject to an indefinite period of detention

Canada
In Canadian criminal law, a convicted person who is designated a dangerous offender may be subjected to an indeterminate prison sentence, whether or not the crime carries a life sentence, but this does not apply to convictions of first degree murder, second degree murder, high treason, and treason.[1] The purpose of the legislation is to detain offenders who are deemed too dangerous to be released into society because of their violent tendencies, but whose sentences would not necessarily keep them incarcerated under other legislation, such as the Correctional and Conditional Release Act. Under subsection 761(1) of the Criminal Code, the Parole Board of Canada is required to review the case of an offender with a dangerous offender label after seven years, and parole may be granted as circumstances warrant, but the offender would remain under supervision indefinitely. After the initial review, the Parole Board must conduct subsequent reviews every two years.[2] According to Corrections Canada, on average 24 dangerous offenders are admitted to the Canadian prison system each year. Paul Bernardo is one well-known dangerous offender.
The dangerous offender provisions have been found constitutional: "The individual, on a finding of guilty, is being sentenced for the 'serious personal injury offence' for which he was convicted, albeit in a different way than would ordinarily be done. He is not being punished for what he might do. The punishment flows from the actual commission of a specific offence."[3]
On October 17, 2006, the Canadian government introduced legislation that made it easier for Crown prosecutors to obtain dangerous offender designations. The amendments provide, among other things, that an offender found guilty of a third conviction of a designated violent or sexual offence must prove that he or she does not qualify as a dangerous offender.[4] This legislation was passed in 2008. Under previous legislation, the Crown had to prove that the individual qualified as a dangerous offender. The amendment reverses the onus for individuals convicted of three violent offences. Such individuals must now demonstrate to a court that despite the three convictions, they should not be designated as dangerous offenders.
Canadian courts also have the option of designating convicts "long term offenders". A hearing is held after sentencing, and, if a judge rules the accused is likely to re-offend after release, a 10-year period of community supervision is required after the sentence is completed.

What each of the Alternative Approaches or Models to Preventive Detention offer is a constitutional vehicle for the state to exercise their police power at sentencing under the legitimate state interest of public safety flowing from the commission of a serious personal injury offense, like a violent sexual assault and attached at sentencing for the criminal offense.

Either Model satifies the same State Interest as MN SO CC--Preventive Detention, and these Models eliminate the moral hoax of treatment as legal justification, and thus eliminate the neccessity of mental institutions. By removing 1)the need to use mental institutions (with the clinical staffing challenges and costs) and 2) by avoiding potential liability (and the enormous resources and financial costs associated with defending constitutional  challenges) and the 3) money pit that any efforts to sustain the present system would surely cause, the State of Minnesota will save hundreds of millions of taxpayer dollars or more over the next 20 years.


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