Does Enhanced Detention of Prisoners Really Protect the Public?

Law and Home Affairs Minister K Shanmugam announced in Parliament this week that the government was considering detaining prisoners beyond their jail terms for those who commit serious hurt and sexual offences. Last year, the Ministries of Home Affairs and Law invited the public to provide feedback on this proposal. However, detaining prisoners beyond their existing sentences is not new. Since 1953, the government has been using Correctional Training and Preventive Detention to deal with offenders who commit serious crimes in order to protect the public. When the review was called last year, its intention was to streamline the two existing regimes.

According to the government, recent years have seen “egregious” cases in which offenders committed serious violent or sexual offences after their release from prison. Therefore, more should be done to “protect the public” from dangerous offenders who might “continue to pose a serious public safety risk” upon their release from prison. The proposed changes seek to “ensure that an offender’s risk to public safety is duly assessed before release, and that the offender’s re-integration into the community is closely supervised and assessed, before he is permanently released without supervision”.

These are the key changes the government wants to make:

Corrective training will be removed: the Preventive Detention (PD) regime will be re-named ‘Detention for Public Protection.’
Under the ‘Enhanced Detention for Public Protection’, the minimum eligibility age will be lowered to 21 years. Previously, the PD regime was only for those age 30 years and above.
The Court must specify a minimum incarceration period of between 5 and 20 years, that the offender must serve before being considered for release. The minimum incarceration period is intended to be punitive in nature and reflect the gravity of the offence.
Only (i) repeat offenders; or (ii) first-time offenders who pose a serious threat to the life, safety or physical or mental well-being of other persons, may be sentenced to EDPP. For both scenarios, the Court must determine that it is in the interest of the protection of the public that the offender be detained for at least the minimum incarceration period, and be released only if the offender is suitable for release.
Review for release on licence: After the offender has served the minimum incarceration period, the Detention Review Board (DRB) will review whether or not the offender should be placed on Review on Licence (ROL). The Minister for Home Affairs will consider the recommendation of the DRB, and what would best serve the interest of the protection of the public, in determining if the offender should be placed on ROL. If the Minister decides not to place the offender on ROL, the offender will be re-evaluated annually on his suitability for ROL.
Supervision during release: While on ROL, conditions may be imposed. For instance, an offender may be subject to curfew or electronic monitoring. Breaches may result in revocation of the ROL. If the offender reoffends while on ROL, the Court shall have the discretion when sentencing the offender for the fresh offence, to additionally impose an enhanced punishment of up to 20 years.
Permanent release: After an offender has completed a period of supervision, the DRB will assess if the offender should: (i) be permanently released; (ii) continue to be on ROL; or (iii) have the ROL revoked and be re-detained in prison9. If the offender is not permanently released, the offender will be re-evaluated annually. The Minister for Home Affairs will consider the recommendation of the DRB, and what would best serve the interest of the protection of the public.

Our Concerns

We propose that the government do a comprehensive review of the public detention regime, with the view of abolishing it in the future.

Criminological developments and evidence have shown that prolonged incarceration is ineffective for rehabilitation and re-integration into society and, in fact, can exacerbate mental health problems. It leads to “alienation from the social system” (Sutton, 1992) and the loss of livelihoods and relationships (Giffiths, Dandurand & Murdoch, 2007). It can take a serious toll on someone’s mental health (Marier & Reyes, 2014).

More data and clarity of key concepts are also needed in order to have a robust debate on the effectiveness of preventive detention:

1. Defining Egregious Cases

The government has said that they have seen ‘egregious cases’ from repeat offenders after they were released from prison that the scheme is intended to address. However, justifying the need for the DPP and the EPD scheme on this basis requires clearer empirical data that should be provided to the public by the government.

How is egregious defined? For such cases, what is the percentage of repeat offenders?
What were the economic or social circumstances of these individuals between the time they were released and when they re-offended?
Were they diagnosed with mental health problems before?
What types of rehabilitation programmes did they participate in while they were in prison and when they were released?
What post-incarceration support aimed at reducing the risk of reoffending and promoting reintegration has been provided to individuals who have been under the PD scheme? Is this support adequate?

2. Statistics on Preventive Detention

How many inmates have been sentenced to preventive detention and corrective training over the years? Has there been an increase, decrease or figures have remained the same?

3. Studies on Effectiveness of Programmes

Are there any longitudinal studies of offenders of serious and violent crime, to determine the effectiveness of the rehabilitation programmes they participate in? If so, can the government publish them or make them accessible to the public?

4. Impact of Indeterminate Sentences

In the UK, it has been found that inmates serving indeterminate sentences have a significantly higher incidence of mental health problems than the rest of the prison population, and makes it harder for families to support them in their re-integration to society. They also say that the mental disorders of these individuals may be pre-existing conditions and contributed to their offending behaviours. (Straub, Annison). Are similar assessments being done in Singapore? We are concerned that the government may be conflating ‘dangerousness’ with mental illness.

5. Defining ‘Dangerous’ Individuals

How is ‘dangerous’ defined beyond reference to their previous offence?
At what level of ‘dangerous’, should an offender be incarcerated indeterminately, rather than receive a fixed sentence?
What criteria will be used to determine if someone is ‘safe’ for release? What risk assessment tools are being used to determine ‘dangerousness’? If risk assessment tools are used, have their efficacy been reviewed or studied?
Does this risk assessment account for the impact of incarceration itself on the likelihood to reoffend? Does this risk assessment account for support that can be provided to the offender that make them less ‘dangerous’?

6. Reconsider mandatory imposition of other prescribed punishments

The government should reconsider the necessity of the mandatory imposition of the other prescribed punishments to an offence, such as fines or caning. The mandatory prescribed punishments can cause additional hardship that do not serve the purpose of the preventive detention regime, and the court should have flexibility to choose not to impose it if there is no necessity for it.

7. Indeterminate sentencing prejudicial to rule-of-law

Indeterminate sentencing of between 5 and 20 years is prejudicial to the separation between executive and judicial decision-making. It effectively allows the Minister to substitute the judge’s decision-making with their own, and places too much power in the hands of the Minister to decide how long an offender should be imprisoned.

Many details are also unclear in the proposed annual review by a Detention Review Board (DRB) to assess an offender’s suitability for release before the 20-year maximum period, many details are unclear: Who will be the members of the board? What criteria will they use to determine whether an inmate is fit for release? Will the board be an independent body? There has to be more transparency on this. Indeterminate sentencing undermines the rule of law: sentencing should be fair and proportionate.

8. Appeal Process

There should be an appeal process if an inmate is not satisfied with the board’s assessment and the Minister’s decision. They should be allowed to appoint a lawyer to represent them in the review process, and this lawyer should be attainable through the Criminal Legal Aid Scheme.

9. Singapore’s International Law Obligations

Singapore ratified the United Nations’ International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in 2017. Article 5 of ICERD states that everyone should enjoy “the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution”.

In a ‘Thematic Discussion on Non-Citizens and Racial Discrimination’ in March 2004, which discussed the rights of citizens and non-citizens to be treated equally before the law, the ICERD committee is of the opinion that states have “a duty to protect non-citizens from discriminatory and unlawful practices and human rights abuses perpetrated by State agents, including arbitrary detention or race-related ill-treatment or torture”.

Additionally, “All activities that could trigger mandatory detention of non-citizens should be clearly and narrowly delineated; independent judicial review of the grounds for detention should be permitted; Governments should meet a burden of proof corresponding to the deprivation of liberty entailed; and administrative detention should be limited to a reasonable and finite period”.

We are concerned that the proposed preventive detention regime does not adhere to our international obligations to ensure that ‘detention should be limited to a reasonable and finite period.’

We are also concerned that the proposed DPP regime is not sufficiently ‘narrowly delineated’, given the wide range of offenses in which preventive detention may be imposed.

10. Lack of Clarity on Rehabilitation Approach

Besides keeping offenders away from society for an indeterminate period of time, the proposal does not mention how it plans to rehabilitate and re-integrate them into society after their release. There have to be more details on this.

We understand that the prisons uses a LSI-R framework to determine whether an inmate is eligible for rehabilitation:Under the LSI-R framework, inmates could be categorized Class A, B, C or D:

Class A was for “offenders who will change regardless whether rehabilitation treatment is given”;43 they were considered inmates of “low risk and needs” that were “unlikely to reoffend”;
Class B was for inmates who “will likely change if appropriate treatment or rehabilitation is given”;45 they were inmates with “moderate risk and needs”, who were “less likely to reoffend if rehabilitation is given”;
Class C was for “high risk and needs” inmates;47 in 1999, they were viewed as those “not likely to change regardless whether rehabilitation or treatment is given”;48 in 2010, such prisoners were determined “likely to reoffend unless intensive rehabilitation is given”;
Class D was for “foreigners and the mentally ill whose ‘rehabilitation was not a concern’”.

We assume that offenders in this regime fall under Class C. Will they be given intensive rehabilitation? What does intensive rehabilitation look like?

11. Marginalisation of ethnic minorities in the rehabilitation process

In a study by Narayanan and Lien (2015), they argued that the higher recidivism rates among Malay and Indian offenders has led to discrimination and systemic marginalisation of ethnic minority inmates:

…the higher recidivism rate among the Malay and Indian offenders relative to the Chinese has led to the exclusion of minority inmates from participation in rehabilitative programs. While there is no explicit discrimination based on race per se, prison authorities are reluctant to extend rehabilitative opportunities to ethnic minorities who are perceived to be recalcitrant offenders. As one senior prison officer plainly stated: I mean given our limited resources and based on the risk of relapse prediction by our psychologists, we have to make sure that we put our resources where we get our returns back. . . I mean you put in your money in investment schemes where you get the best out of it. . .We have to show results too.

One ex-inmate in their study shared his experience:

I went to see the superintendent officer for the multimedia course which is a two two-year course. Even without going through me, he told me, “Just look at your record. You’re an eight timer”. “Why don’t you give me a chance”, I asked. Then he told me, “One class can only take 30 people so first and second timers will get their choice first”.

They cite the experience of a Malay-Muslim informant who had been convicted five times for drug and penal offences:

There is really no way to break from this. It is a chicken and egg thing. They say you cannot change and so don’t put me on program. I am not prepared to go out (out of prison) but have to. No choice. Outside cannot survive, commit crime again and then come inside (prison).

Narayanan and Lien cite a 2010 Report of the Committee on the Prevention of Reoffending, which states that a significant number of Indian/Hindu inmates are released annually into the community without undergoing any form of rehabilitation programs in prisons. Both researchers conclude that “given the heightened racial consciousness and systemic racialization in prisons, such exclusion from rehabilitative programs may be interpreted as a form of institutional discrimination against minorities.” One Malay respondent of their study said:

I wanted to go for this trade course, I told my RO (Rehabilitation Officer) about it. He said that I cannot go because of my record and also no vacancy. Then two weeks later, I find out that one Chinese guy has applied for it. He also same like me, third timer, but how come he got it? Last time when my brothers all say that “Yellow Ribbon” is really for “Yellow” people only (meaning the Chinese), I didn’t believe. Now I do.

References

Ganapathy Narayanan, Lian Kwen Fee (2016): Race, re-integration, and social capital in Singapore
Giffiths, Dandurand and Murdoch (2007): The Social Reintegration of Offenders and Crime Prevention
Haney (2003): Mental Health Issues in Long-Term Solitary and “Supermax” Confinement
Marier and Reyes (2014): Incarceration and Reintegration: How It Impacts Mental Health
Straub, Annison (2020): The mental health impact of parole on families of indeterminate-sentenced prisoners in England and Wales
Sutton (1992): Basic Education in Prisons: Interim Report. United Nations Educational, Scientific, and Cultural Organization, Hamburg (Germany). Inst. for Education.