Hope has become an increasingly important concept in legal and philosophical debates about punishment.
For those serving indeterminate sentences, however, hope lies in the shadow of risk.
Release from prison depends on the person’s ability to navigate the structures of risk management to show that they can be safely managed in the community. In this context, hope matters because steps towards change ought to preserve hope for a different future beyond prison, and beyond supervision, surveillance and control.
Reflecting this, the European Court of Human Rights has held that life and indeterminate sentences must provide meaningful opportunities for rehabilitation and a realistic prospect of release if they are to comply with Article 3 of the European Convention on Human Rights, which prohibits inhuman or degrading treatment.
Scotland’s risk-based sentence
The importance of hope is brought into sharp focus through an examination of the human implications of Scotland's Order for Lifelong Restriction (OLR). Introduced by the Criminal Justice (Scotland) Act 2003, the OLR is an indeterminate lifelong sentence imposed on individuals assessed as presenting a future risk of serious harm. Unlike a determinate sentence, release is not secured by the passage of time. Instead, a person subject to an OLR must demonstrate that the risk they pose can be safely managed in the community. Release can only be granted by the Parole Board for Scotland.
More than two decades after its introduction, around 310 people have received an OLR and around 92% remain in custody beyond the punishment part of their sentence. The nearest equivalent, the Imprisonment for Public Protection (IPP) sentence in England and Wales, was abolished in 2012 amid concerns about its overuse, prolonged detention and barriers to progression.
The erosion of hope
My doctoral research explored the human consequences of the OLR through interviews with judges, lawyers, policy makers, prison personnel, psychologists, psychiatrists and criminal justice social workers involved in its operation.
A key finding of my research was that the OLR expects individuals to demonstrate change while gradually eroding one of the very conditions upon which change depends: hope.
The OLR was implemented to protect the public from serious harm. Yet my research suggests that over time, the operation of the sentence has generated harms which directly contribute to the erosion of hope.
In prison
The erosion of hope occurs through the cumulative effects of repeated risk assessments, delays in prison, limited programmes and opportunities, making the route through the sentence uncertain.
One practitioner captured the harms of prolonged uncertainty by reflecting:
The degradation of the integrity of the individual that long sentences…can cause, means that in some ways we would be as well having the death penalty, because you're having the disintegration of the person over a much longer period of time in a way that's actually quite cruel.
(Edward, Senior Legal Professional)
Hope is relational
Hope is relational and shaped by interactions with and between others. Research participants described the gradual erosion of hope for the OLR group, as very few persons subject to the OLR progress toward release.
The erosion of hope is not confined to those serving the sentence. Practitioners also describe the emotional burden of cultivating and sustaining hope in those designated as bearers of exceptional risk while questioning whether the system itself provides sufficient grounds for that hope.
Hope beyond prison
The OLR was designed to extend beyond imprisonment through lifelong risk management. Even for the few persons who have been granted release on the OLR, the sentence continues to shape everyday lives which are lived in the permanent shadow of risk. Lifelong licence, disclosure requirements and the enduring designation of dangerousness, influence opportunities for employment, relationships, reintegration, citizenship and belonging. This raises broader questions about whether and to what extent it is possible to move beyond the identity conferred by the sentence.
What now for Scotland?
Twenty years after its introduction, it is timely to take stock of how the OLR operates in practice and what we know about its effects. Recent scrutiny by the Scottish Human Rights Commission, along with concerns raised by UN experts about indeterminate sentencing more broadly, makes weighing up the impacts of Scotland’s dangerous offender framework – in respect of hope – increasingly important.
Ultimately, the issue is not confined to whether the OLR manages risk, but whether it does so, without creating new risks and harms, in a manner consistent with human dignity and human rights.
