The responses to these problems concerning the definition of dangerousness according to Duff are expanded on throughout this thesis, particularly when considering sentencing theory. Duff is clear that dangerous offenders are not offenders who have committed only one offence. (Duff, 2001 p167) Indeed he is supportive of the position of another key proponent of communicative theories of punishment von Hirsch, who argues that it should be possible for first time offenders to receive a more lenient sentence rather than repeat offenders receiving a harsher sentence. (Von Hirsch, 2000 p193-194) The argument to support this view considers that as humans we are fallible and this approach allows for the possibility that an offender has had a moment of madness or a serious deviation from their usual character.
For Duff the definition of dangerousness leads to the conclusion that the offender should be subject to a special form of incapacitation which would be a longer custodial sentence that would be usual (see Chapter 8). Thus evidence of dangerousness from only one offence, however serious, would not be sufficient to justify the detention of the
offender outside the normal rules of sentencing. (Duff, 2004) Non-dangerous offenders who have committed a serious violent crime would already receive a substantial custodial
sentence following consideration of the harm caused and their culpability (see Chapter 6 and 7). Offenders need to be given the opportunity to repent, reconcile and reform, even those who have committed very serious violent offences; an opportunity that all rational, autonomous citizens are given when they have committed a crime. It could also be argued
64
that this is part and parcel of living in a liberal democracy and a certain level of crime must be accepted in order for a democratic system to flourish.
It is also the case that there is scope within our existing legal system to take into account the punishment and sentencing of offenders who do not carry out serious violent crimes themselves but instead orchestrate and/or incite such crimes. And there is a certain amount of understanding within sentencing guidelines for those who are manipulated by such offenders through the consideration of mitigating factors such as duress. The empirical evidence needed to reach the conclusion that such offenders were dangerous would be a persistent pattern of such offending which caused serious harm to others through the commission of such offences. Duff sets the bar high for proof of dangerousness (Duff, 2001 p170-175) and the same would be the case for these types of offenders. The definition is constructed in such a way that creates a small limited group of offenders who could be considered dangerous which does not preclude offenders who incite others to commit serious violent crimes that cause extensive harm to other members of the community.
The issue of when an offender moves from a presumption of harmlessness to a presumption of harmfulness is more problematic. The presumption of harmfulness leads to the offender receiving an extended sentence for the crime for which for which they are currently convicted. So presumably the presumption of harmfulness would either have to have been in place before the offender was convicted (so after a previous punishment and release it was decided that the offender was now presumed harmful rather than harmless so future offences would then be subject to a different sentence) or the judgement of harmfulness could come at the point of sentencing based on the empirical evidence provided by the previous crimes and punishments of the offender to the courts.
65
Duff insists that there should not be a set of indicators or assessments as to what makes an offender dangerous and is equally non-prescriptive as to when the presumption of harmlessness becomes the presumption of harmfulness. (Duff, 2004) There are however, examples of the type of offender that Duff envisages are dangerous (Duff, 2001 p164-165) and the offender must have committed a series of serious violent crimes which are the empirical evidence of a dispositional property of dangerousness. These provide the basis for a decision as to when an offender moves to being considered harmful and so dangerous. This does not however, provide a process by which the presumption of harmfulness occurs.
The types of offences that could be considered as serious and violent and what constitutes an attack on society would also benefit from a short examination. It would seem that on a superficial level it is self-evident what kind of offences would constitute serious and violent offences that are mala in se (wrong in and of itself), crimes that are against the person and which cause the greatest level of harm. Less clear is what constitutes an attack on the values of the community and why the persistent commission of violent crimes amount to an assault on society. (Duff, 2001 p165-172) It is a requirement of Duff’s communicative theory of punishment that it operates within a liberal-communitarian society and the law should be a reflection of the values of society. The law does not create wrongs, it defines certain actions as wrong, but those wrongs should be a reflection of the values of society. The law is then reflective of the prevailing norms and values of the society. To persistently flout those laws could be seen to be attacking the norms and values of society, in addition to the harm caused to members of that society who are the victims of those crimes.
66
There are indeed certain crimes mala in se, for example unprovoked violent attack with intent to commit murder, which would obviously be in violation of the values of any liberal society. There are also crimes that are dependent on the values of the present society which may not be viewed as serious, or even a crime, at different times. In Duff’s list of possible examples of dangerous offenders is the sexual predator. (Duff, 2001 p165) No one would argue that violent sexual attacks on women are acceptable in any society. However, it was not so long ago that in the United Kingdom homosexuality was viewed by the majority of citizens as a serious sexual crime. As times changes the values of the community changes as so what is viewed as dangerous changes. (Pratt, 1997) Therefore what could be seen as persistent criminal behaviour that constitutes an attack on the values of the community will also change. Duff’s theory seeks to change not only the criminal justice system, but also how the community more broadly interacts. (Duff, 2001 chp5) If this is the case then it will be clearer as to what the values of society are and then how they are violated through dangerous offending behaviour. Dangerousness seen as an attack on the values of the community requires a strong community position and clear acceptance as to what the values of society are and how the law reflects those views. If it does not do these things then what constitutes a persistent attack on society through offending behaviour is open to different interpretation.
3.5 Dangerous offenders; the fundamental problem for the communicative