NCJ Number
85076
Journal
British Journal of Criminology Volume: 22 Issue: 3 Dated: (July 1982) Pages: 229-254
Date Published
1982
Length
26 pages
Annotation
Although the Floud Report on the dangerous offender, written by Britain's Howard League for Penal Reform, improves on three other dangerousness papers, those of the Scottish Council on Crime, the Home Office, and the Advisory Council on the Penal System, it contains significant errors of logic in its ethical and political arguments. Comparison to an approach to dangerousness based upon Dworkin's theory of rights points up these deficiencies.
Abstract
Floud's first principle, 'just distribution of risk,' spells out four conditions for distributing risk: the offender threatens grave harm, is at fault, and has caused or risked grave harm before, and there is no less restrictive way for dealing with him. Testing these conditions using quarantine and disease as an example of threat to public safety, Floud obtains the wrong answers, (because of the intentionality condition), thus undermining one basic tenet. Floud's second principle, that the public has a right to be presumed free of harmful intentions, is built to counteract the problem occurring in the quarantine example (a diseased person can be presumed innocent of intending harm). Floud is forced to get around the newly constructed contradiction by limiting the range of the principle of just redistribution of risk to the standard for preventive sentencing. An approach based on Dworkian theory maintains that all citizens must be treated with equal concern and respect, with an individual right only being defeated by a competing right. Applied to protective sentencing, the certainty of an offender's being denied his right to freedom outweighs the possibility of the citizenry being denied the right to safety. This Dworkian test eliminates the variable of intentional harm that troubled Floud's quarantine test. Two additional problems with Floud are the distinction made between actual false positives (an offender is determined to be dangerous but in actuality would not reoffend) and dispositional false positives (if the decision is sound, the reality of further offending is not crucial to justifying detention). The populist tendency strand in Floud is another weak point. The assertion that fear converts risk into danger and citizens have a right to protection opens the way to mass detention justified by irrational fear. Finally, Floud's assertion of the rationality of bifurcation and claim that their approach could have produced about 140 protective orders in 1978 are unsubstantiated. Twenty-three references are provided.