Life by any other name?

Can sexual offenders ever be rehabilitated? How can we best protect society from people who have shown a willingness to do harm and have no regrets over their actions? In cases of rape or pedophilia, most people's response comes from the gut: society will always demand the toughest sentences, involving long prison terms. But jails, the Spanish Constitution says, are supposed not only to house wrongdoers, but also to rehabilitate them and return them to society. So what happens when, after serving a sentence, a prisoner is still considered to be dangerous? Does the state have the right to assume that an offender will reoffend? And if so, what can - or should - be done to prevent that from happening?

Justice Minister Alberto Ruiz-Gallardón believes that one way is simply to keep such offenders in jail, even after they have served their sentences. On Monday he proposed a procedure known as preventive detention for some criminals, such as rapists, pedophiles and drug traffickers, which would allow them to be kept inside for up to a decade after serving out their sentences if they were still considered to be a danger to society. The idea was announced following Ruiz-Gallardón's meeting with the father of Marta del Castillo, a 17-year-old murdered in 2009, whose body has never been found. Of the four young men accused of her killing, only one has been sentenced. Prosecutors believe that at least one of them was involved in the disposal of the corpse. There has been widespread public anger at the authorities' handling of the case, and a perception that the four accused, one of them a minor, made a mockery of the justice system by constantly changing their stories, refusing to cooperate with the police, and by showing no remorse for what happened.

Some jurists and other legal experts say that preventive detention lacks basic legal guarantees. Critics of the measure say that it is anti-Constitutional in that the law does not, at present, allow for action to be taken against somebody on the basis that they might commit another crime once they have served their sentence. Preventive detention also raises the question as to who would be tasked with deciding if somebody was still a risk. There is also the more worrying issue that if prison has not helped to rehabilitate an offender during their sentence, then even more time spent behind bars is unlikely to do so.

Ruiz-Gallardón's timing in making the announcement, after the well-publicized meeting with Del Castillo's father, has also prompted accusations that the justice minister is taking advantage of popular feeling. "Where is the research that supports a change to the law?" asks Julián Ríos, a lecturer in Penitential Law at the University of Comillas. "This is simply legislation through sensationalism; changes to the Penal Code demand far more rational processes based on technical perspectives," he adds.

The Justice Ministry says it is still studying the use of preventive detention, but believes it is "very necessary," while insisting that it would respect the Constitution. Sources at the ministry say that preventive detention, along with parole, would only be applied to a handful of offenders. "We are talking about extremely violent people: rapists, or those who commit violent robberies, along with repeat offenders, those who have shown that they are dangerous," says an expert who is advising the ministry. They add that it is difficult to put a figure on the likely number of offenders the measures would be applied to, but in Germany, which has already introduced preventive detention, along with Denmark, Italy and Switzerland, there are some 500 people who have been kept in prison after serving their sentences.

In Spain, preventive detention would have to be included as a possibility by judges when handing down a prison sentence, not when somebody was approaching the end of their jail term and was still perceived as a danger to society. When the sentence had been served, another tribunal - the composition of which has yet to be decided - would then determine whether preventive detention should be applied. "Any decision would constantly be assessed," say sources at the Justice Ministry. In Switzerland, independent experts are consulted, along with a panel similar to a parole board.

Does the state have the right to assume that an offender will reoffend?

Parole boards are typically made up of a psychologist, the prison governor, a social worker, and other experts and officials. "They make periodic assessments about a prisoner's progress or otherwise, and suggest measures to aid with rehabilitation both inside prison and during furloughs," says Dolores Muelas, the deputy director responsible for treatment programs at Madrid's Valdemoro prison.

Muelas says that rehabilitation is a continuous process that takes place throughout a prison sentence, but obviously requires the willing participation of offenders. They must first accept criminal responsibility for what they have done, as well as understanding their own emotions and motives, and the risk factors that led them to commit a crime in the first place. "These programs work on getting the subject to control their anger, their distorted thoughts about their victims, and getting them to learn to not take decisions that subsequently put them in risk situations," says Vicente Garrido, a lecturer in Criminology at the University of Valencia.

Progress in such rehabilitation programs is included in the reports given to prison boards, and are taken into account when deciding on whether to grant parole. "Would the same criteria be used in deciding on preventive detention? If returning a prisoner to society is based on the same factors as granting parole - for example, family contacts, a job - what happens to those who do not have that kind of support network?" asks Muelas.

Garrido says the idea of applying the same criteria to keeping dangerous prisoners behind bars, as to letting those who no longer pose a threat to society out, is not in itself problematic. "The difficulty is in evaluating how dangerous somebody is, because it is never possible to be 100-percent right in every case. If we do not establish clear criteria, there will be abuses." He says that he is worried about the wide range of crimes to which preventive detention could be applied.

Some legal experts say that preventive detention lacks basic legal guarantees

That said, the majority of sex offenders in Spanish prisons - who number around 3,600, and who would likely be subject to the Justice Ministry's measures - are successfully rehabilitated after undergoing treatment in prison. On average, around four percent of sex offenders go back out into society to carry out crimes after they are released from prison, according to research carried out by the University of Barcelona. This raises the question as to whether some offenders cannot be rehabilitated. Nineteenth-century prison reformer Concepción Arenal believed that there was no such thing as "born criminals," and that all men and women were open to improvement, saying: "One thing is not to have been corrected, and another to be incorrigible."

Human behavior is nothing if not complex, says Orlanda Varela, a psychiatrist with many years of experience working in prisons. "There is a somewhat innocent perception of what medicine can do; that psychology and psychiatry can correct all behavior problems or derangements. But there are behavior patterns that cannot be changed," she says. Varela says she knows of cases where offenders are approaching the end of their sentence and have still not changed: "Pedophiles who do not see their victims as such, who are still not aware of the harm they cause, which is a key aspect of rehabilitation."

Varela says that other solutions have to be found for people like this: "Through culture, through the law, through society, through probation, and support networks. Other countries simply lock these kinds of offenders away forever, although it has been shown that this is not the best way. We have to be sure that we do not make mistakes. To what extent is the system and its experts to evaluate if somebody has been reeducated? The damage that can be caused by a mistake terrifies me."

"The research on reoffending backs the argument that people will commit crimes again, but in a democracy, sentences should have a fixed limit based on principles of proportionality, guilt, and rehabilitation. This means that the state cannot keep doling out prison sentences, even if we call it preventive detention," says Julián Rios. He says that preventive detention is effectively imposing two sentences: "The first for the crime that has been committed; the second for the impossibility of measuring how dangerous someone is."

Where is the research behind this? This is legislation via sensationalism"

Xabier Etxebarria, a lecturer in Penal Law at Deusto University, believes that preventive detention would breach a number of legal guarantees provided by the Constitution, namely the principle of guilt, proportionality, and the presumption of innocence. "It blurs the lines between sentencing and security measures, as well as the idea of parole, and it blurs the line between what is imputable and what is not imputable, and between guilt and dangerousness," he says. "It is making a mockery of the Constitution to assume that a prison sentence has not helped to rehabilitate somebody, and that the prisoner must pay the price for the failure of our institutions by spending more time in prison than corresponds to the seriousness of the crime," he says.

José Miguel Sánchez Toma, a lecturer in Penal Law at Madrid's Rey Juan Carlos University, is unhappy at the justice minister's proposals: "The law is quite clear on this: that extra security measures can only be applied when a crime has been committed. Preventive detention is an admission of defeat regarding prison treatment. This is a measure based on the presumption that somebody is going to commit a crime."

Sánchez Toma, a member of judicial reform group Otro Derecho Penal es Posible (or, A different penal law is possible), says the proposals for preventive detention are a way of implementing life sentences. "The difference is that this life sentence is based on the idea of the possibility of a crime being committed." He adds that preventive detention sentences couldn't be served in prison, because they are institutions designed for the serving of sentences for crimes.

The Justice Ministry says it is also looking into whether people placed in preventive detention would serve their sentences in a prison, or some other kind of facility, as happens in some countries in Europe. "If they were kept in prison, it would have to be within a regime that placed special emphasis on rehabilitation and the belief that at some point in the future these people could be released. It is clear that this kind of measure could not prevent all crimes, but it would allow us to limit the risk these people present. We have to address this question," say Justice Ministry sources, pointing to the use of preventive detention in other countries in Europe.

These programs work on getting the subject to control their anger"

The Spanish bar association has yet to comment on the proposals, saying it will wait until the Justice Ministry makes a final announcement. In the past it has opposed legislation in response to specific events, such as the Marta del Castillo case.

The survivors of violent crime and their families will almost always see the sentences handed down to those responsible for the damage they have caused them as insufficient; but justice cannot be applied in the heat of the moment, and in the final analysis, the punishment must match the crime, something that Muelas believes is essential if prisoners are to be rehabilitated.

"From a psychological perspective, tagging on the possibility of preventive detention is very damaging." She cites the example of the so-called Parot doctrine, applied to terrorists in Spain, who are often given multiple life sentences. In Spain time off for good behavior is subtracted from the 30-year limit. So, if a person was sentenced to 150 years, but displayed good behavior, such as getting a degree, or working a prison job, time off accrued would be deducted from the 30-year limit, rather than from the 150. The Parot doctrine created a special class of prisoners, for whom time off would be deducted from the total sentence, rather than the 30-year limit. In other words, 15 years off for good behavior would in these exceptional cases be deducted from the 150-year sentence, thus allowing for de facto life imprisonment. "We had a prisoner who was told a month before he was due to come out that his sentence was to be increased. In terms of rehabilitation, it is better for prisoners to know how long they will serve, rather than having the threat of remaining indefinitely in jail," she says.

The dilemma of whether to extend a dangerous offender's sentence is not new. But opponents of preventive detention say that the debate should focus on whether there are other ways to prevent reoffending.

Most sex offenders in Spain are rehabilitated after prison treatment

"The state needs to work on better programs in jails, and on creating support networks, on providing therapy after a prisoner has been released. The problem is that it is always going to be easier to see prisons as giant warehouses for criminals rather than exploring other routes," says Vicente Garrido.

He argues that rehabilitation programs begun in prison have to continue once a prisoner has been released. "It isn't just about putting somebody under surveillance, but making them feel that they have help and support, and can continue to work toward being a useful member of society," he says. The reality is that there is no support network for prisoners once they are released, despite evidence from other countries showing that they prevent offenders from committing the same crimes that put them in jail in the first place.

Mercedes Gallizo, the head of Spain's prison service between 2004 and 2011, believes that rehabilitation works. "It would work a lot better if we put more resources into it. Life sentences do not work, call them what you will. It is very depressing to have to deal with human beings that we have decided cannot be helped. There will be people that it is difficult to help, but we must not accept the idea that they are in any way the majority," she says.