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People's initiative for a real life sentence: the negative effects of safety threats in direct democracy (juillet 2004)

André Vallotton

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A new constitutional law

1« Sexual or violent offenders who are considered highly dangerous and untreatable by experts at the time of conviction, shall be sentenced to life imprisonment due to the serious risk of recidivism. Early release and leave shall not be permitted”.

2Since 8 February 2004, the Swiss Constitution has a new law, article 123a, which defines a category of persons deprived of their liberty for life. Freedom cannot be envisaged without “new scientific knowledge establishing that the offender is treatable and is thus no longer a threat to the community”.

3This initiative, accepted by 56% of the population and by an overwhelming majority of cantons, except Basel City and Vaud, challenges one of the premises of sentencing, namely that all prisoners are human beings who can change over time and even reform. It also reflects distrust in Switzerland's institutions and, paradoxically for a country proud of its system of direct democracy, it introduces into the constitution a category of people deprived of some of their rights for life.

4A commission of experts has been asked to prepare a law that encroaches as little as possible on the European Convention on Human Rights. The law should come into force, if accepted, early 2006 ­ at the same time as the revision of the general part of the criminal code.

More stringent security policies

5It is important to understand the events leading up to the vote. Ensuring the safety of the population has become a priority in all western countries where it could lead to similar motions, causing democratic states to compromise their democratic structures.

6A case in point is France where parliamentarians have recently proposed to reinstate the death penalty1 for terrorists. In France, as in other countries, parliamentarians feel reassured by tougher laws and longer sentences.

7But does a deterioration of public safety justify life imprisonment for particularly dangerous persons? Does the more comprehensive knowledge we now have of violent delinquency justify toughening security measures? Where will this search for a scapegoat end, whereby anyone different is turned into an enemy or potential criminal ?

8Nothing can justify such emergency measures. Certainly not a vague feeling of discomfort aimed, moreover, at the wrong target.

Civil insecurity and social insecurity

9Following a period of high growth that blurred the flaws in the economic system and enabled the redistribution of a limited amount of wealth needed for the survival of the majority, globalisation has led to a thorough change in lifestyles. Today's society is turning more and more into a society of individuals2 where solidarity has given way to ruthless competition. Although humankind enjoys greater freedom, it has also developed an inordinate need for security and feels a growing malaise about society ­ the community's protective role is disappearing and the fundamentals of survival, such as work, unemployment benefits, sickness insurance and pension funds, should no longer be taken for granted.

10By adopting economic measures3 to counter security threats, governments only increase this feeling of insecurity, which is taken as an excuse and exploited by politicians and the media alike. More worryingly, the population, badly in need of reassurance, is receptive to their arguments. However, in spite of statistical trends that highlight only extreme cases, the fear felt and the risks run are not commensurate. Those who are afraid of delinquents are seldom potential victims4. The typical victim lives in, or moves in, high-risk circles for want of a better option. Fear, on the other hand, is felt more by those whose lives are empty than those with busy social calendars.

11Unfortunately, this lack of contact and communication is worsening. Conflicts that in the past were settled amiably amongst neighbors ­ sometimes after a healthy quarrel ­ are likely to turn into more serious offences if committed by the virtual stranger who lives next door5.

The economics of safety

12Why, moreover, should anyone bother to reduce this feeling of insecurity when many businesses make a living out of it? The increase in private security companies, alarm system salesmen and suppliers of integrated units is proof that a market exists that disregards targeted prevention. But when experts6 have an obvious interest in selling surveillance cameras and turnkey prisons, or hiring security guards, how can you expect them to be objective? And when the prospect of new votes attracts politicians, it is a fact that “wonder drugs” sell better than problem solving

Media influence

13Other factors, such as the media, increase this sense of insecurity.

14When television introduced the leather-jacketed teddy-boys in the 1960s, it immersed itself completely in the teddy-boy culture and presented it in the right context. In those days it was still possible for the spectator to remain detached from the subject treated.

15Nowadays, an event that takes place 2,000 kilometres away is on our television screens within seconds. In less than a minute it is presented as if it had happened next door and the explanations given appeal to the viewer's emotions.

16Debates that pit opponents against one another have replaced more exhaustive reporting. Facts are only used to illustrate theories that generalise and over-simplify. Fleeting emotions have stamped out personal opinion and long-term vision.

History of the initiative

17The ground was therefore particularly conducive to turning a democratic right into an instrument outside the law.

Direct democracy

18Switzerland's democratic process is unique. All constitutional changes and agreements with other countries must be accepted by the people and the cantons. It takes 100,000 citizens to propose a change to the constitution. The proposal is examined by the government and parliament and then voted on by the people. It takes 50,000 citizens, or 8 cantons, to question a federal decision, law or decree and demand that it be put to popular vote7. Similar processes of direct democracy exist at the federal, cantonal and communal levels. They grant citizens the right to criticize government decisions and at the same time give them considerable responsibility in areas where informed decision-making is not always easy.

19The initiative for a real life sentence is a perfect example of how difficult it is to make decisions in this new, highly emotionally environment.

A favorable context for two reasons

20The people's initiative on “Life sentences for highly dangerous and “untreatable” sexual or violent offenders” capitalized on the safety-conscious mood of the moment ­ regardless of the corrective measures the authorities had been taking for several years.

21The second half of the 20th century had produced an administration that was no better prepared to cope with violent delinquency than its neighbors'.

22At the beginning of the 1990s, Switzerland was far behind Canada, the Netherlands and Germany in its handling of sexual and violent offenders. There was no equivalent to Pinel8 in Switzerland and many experts envied the Dutch TBS9 cognitive-behavioral programmes. Some institutions were considering new care and control structures ­ thanks mainly to manager training programmes in Portugal10 and Montreal ­ but most cantons were not prepared for a radical change in their approach to sexual offenders.

23A series of events decided otherwise. At the same time as the Dutroux scandal in Belgium, a number of murders shook Switzerland. A young girl-scout was raped and killed by a prisoner on leave. A prisoner on parole was convicted in 1995 for five new sexual assaults and murders he had committed during the previous 15 years. Another sexual offender, a respectable citizen well known in his village, was found guilty of the murder of five teenagers. His first victims had been raped and burnt alive. The last had managed to escape and had helped to identify and arrest the murderer before he was able to commit more crimes.

24In the first two cases, the experts' assessments proved wrong. The offenders' irreproachable behavior had influenced them into granting ever lighter sentences without studying in depth how their pervert personalities might evolve. In both cases, they failed to recognize that the prisoners' behavior was linked to their mental disorders.

25Nonetheless, these tragic murders had a positive effect on the structures in place.

26Danger-assessment commissions were set up in most cantons11 and today, no sentence can be reduced without their approval12. New evaluation scales make it possible to formulate guarded prognoses13. Assessments before or during a trial are now carried out by independent experts, which rules out any risk of empathy between the therapist and the offender14. Specialized teams are now dealing with dangerous criminals in different ways. Cognitive approaches complement the more traditional methods and research is being carried out in the larger cantons.

27The new criminal code makes provisions15, in a more transparent and flexible way, for prisoners to be treated as outpatients or institutionalized instead of sentenced. It also provides, if necessary, for their confinement once they have completed their sentences, along the lines of the Dutch model. These security measures are revised regularly. They can be commuted at any time to other forms of treatment ­ and eventually parole ­ and can be enforced for as long as the danger subsists. The legal provisions for these measures have thus been carefully formulated. They take into account expert knowledge at the time of conviction and give due consideration to both public safety and individual rights.

An outdated initiative

28Paradoxically, the initiative was launched at a time when public safety was (nearly) guaranteed. And lately, confirming the probability of horrendous crimes, there have been no new murders of this kind. The vote was based on fear only.

29Nonetheless, the initiative collected 194,390 signatures. Despite several attempts by the government to negotiate with those who had formulated the initiative ­ mainly victims and sympathizers backed by a rising right-wing party ­ they refused to withdraw their proposal.

30The initiative was accepted by a large majority despite opposition from the government. It was rejected by 134 votes to 38 by the lower chamber (National Council), and rejected unanimously by the Council of States16.

31It should be mentioned that the campaign effort differed from region to region, as well as among the different factions. Those in favour of the initiative were more committed and emotionally involved; those against it said very little. Aside from a dense, and mostly unconvincing, technical document, too few politicians dared to voice their opinions for fear of antagonizing their voters. Only a handful of experts and magistrates had the courage to speak out against it; most of the others remained silent. In the two cantons that turned down the initiative, politicians, magistrates and experts had taken the campaign seriously and had explained clearly the aberrations and consequences of the vote.

Could this result have been avoided?

32Sentence enforcement has undoubtedly changed for the better. From atonement to meditation, the road is impressive.

33Given human nature, this change is not surprising. A community's survival instinct greatly conditions the ways its laws are enforced. In groups where each individual counts, the death sentence and other forms of permanent removal from society have been replaced with alternative means of crime control. In other words, justice's symbolic sword has been replaced with a sewing needle17!

34But when the spirit of revenge is latent, it is likely to resurface with each new period of fear ­ for instance, after a particularly heinous crime. Still, under no circumstance should people's political rights be restricted to prevent them from taking such emotional decisions, especially when similar behaviour is to be feared in Parliament as well.

35Providing a steady flow of factual, on-line information is the only way to avoid this risk. The more options the voter has, more the information available should be substantial, exhaustive and accessible.

36In direct democracy, the role of the politician and the authorities is not limited to listening to the voters and anticipating their feelings. They should provide them with quality information and tools to help them choose.

37In this sense, the votes of the cantons of Vaud and Basel are encouraging. Since these cantons are no more virtuous than the others, it is most likely that the commitment of both their local governments and their experts managed to reassure part of the public opinion.

38The main concern should be to popularize without over-simplifying, to explain incessantly and to carry out daily information campaigns.

What about the future?

39It is unlikely that this new constitutional provision will be revised any time soon. All that can be done to fight it is to wait for the law to be presented. Given today's simplistic way of thinking and the fact that the proposal threatens to be as unpalatable as the article itself if the provisions of the European Convention on Human Rights are not taken into account, the law might still be deemed non-applicable. Indeed, no psychiatrist in his right mind can assert in good scientific faith that a condemned person is permanently dangerous and untreatable. No expert can give a prognosis for the next 50 years. Even in serious psychopathic cases, the percentage of recidivism drops sharply after the age of 4118.

40As a wide range of protective measures are now available against violence, there is still a chance that this new constitutional law will remain nothing more than a threat.

Conclusion

41This democratic set-back should nonetheless teach us a lesson. Information and opinion-forming have become absolute requirements in today's society where individuals are more emotional than rational. Regardless of economic and social uncertainty, only information can help to defend the one effective protection the individual and society have: the democratic state.

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Notes

1 Draft law to reinstate the death sentence for terrorists. Registered at the Presidence of the National Assembly on 8 April 2004, Assemblée Nationale N°1521, Paris
2 See L'insécurité sociale, Qu'est ce qu'être protégé ?, Robert Castel, La République des Idées, Seuil, France 2003
3 Paradoxically, the only serious experiments on prevention show that you often have to invest to save, and that unapproved prevention expenditure can cost several times that amount in corrective measures. See http://www.prevention.gc.ca/en, the Canadian website on National Crime Prevention Strategy, for examples of a good economic analysis of prevention programmes
4 Les Suisses face au crime : leurs expériences et attitudes à la lumière des enquêtes suisses de victimisation, Martin Killias, in collaboration with Claude Chevalier, André/Grüsch : Rüegger, cop.1989 Collection Criminologie vol.5
5 L'industrie de la punition, Nils Christie, AutrementFrontières, Paris 2003
6 Violence et insécurité, Laurent Muchielli, La Découverte sur le vif, Paris 2002
7 Federal Constitution of the Swiss Confederation of 18 April 1999, articles 138-142
8 The Pinel Institute website (www.pinel.qc.ca/index.htm) provides a good overview of the problems involved in violence prevention and the treatment of mental disorders
9 TBS (a special measure within the criminal code), Zorn Publishing Company, Leiden, 1992. TBS, a special hospital order of the Dutch criminal code, Ministry of Justice, The Hague,1994
10 TBS-KLINIEK of Kijvelanden, Algemeine informatie, Poortugaal, 1994
11 They are required by the new criminal code : art. 62d, 64b and 75a (Swiss Criminal Code 2002)
12 A study by Henriette Haas of the Lausanne Institute of Criminology and Police Forensic Evidence on the impact of the danger-assessment commission of the canton of Zurich shows that the number of sentence reductions has dropped only slightly but that recidivism has practically disappeared
13 Täterprofile und operative Fallanalysen - Mythen und Fakten / Volker Dittmann in: Mehr Sicherheit, weniger Freiheit ?. - Chur ; Zürich : Rüegger, cop. 2003, p. 71-89; Was kann die Kriminalprognose heute leisten ? / Volker Dittmann in: "Gemeingefährliche" Straftäter. - Chur ; Zürich : Rüegger, cop. 2000, p. 67-95, and Beurteilung und Behandlung sogenannter gemeingefährlicher Straftäter aus forensisch-psychiatrischer Sicht / Volker Dittmann In: Innere Sicherheit und Lebensängste. - Bern [etc.] : P. Haupt, cop. 1997, p. 123-140
14 The new criminal code very rightly requires that, before a detainee is granted parole, an expertise be carried out by an expert who has neither treated the prisoner nor taken care of him in any way (art. 62d and 64b, Swiss Criminal Code 2002)
15 Swiss Criminal Code of 13 December 2002: art. 56-65, art.75a, art.76.2 and art.90-91
16 It is exceptional for a public initiative to be accepted. Of the 326 initiatives tabled since the creation of the modern Confederation, only 14 have been accepted. The two that preceded the initiative for a real life sentence were on the protection of the alpine regions against transit traffic in 1994, and on Switzerland's adhesion to the United Nations in 2002
17 Le traitement psychologique des sujets psychopathiques et des personnalités antisociales/Thierry Pham Hoang/RFCCC,Février-Mars 1998, Vol. III- no 1, p.1-6; Zwischen Mediation und Lebenslang : neue Wege in der Kriminalitätsbekämpfung / Schweizerische Arbeitsgruppe für Kriminologie / Entre médiation et perpétuité : nouvelles voies dans la lutte contre la criminalité / Groupe Suisse de Travail de Criminologie ; Koffi Kumelio, F. Afande, [et al.] ; Ed. : Volker Dittmann...[et al.] Chur ; Zürich : Rüegger, cop. 2002 Collection Reihe Kriminologie Bd. 20
18 Le traitement psychologique des sujets psychopathiques et des des personnalités antisociales, Thierry Pham Hoang, RFCC, February-March 1998, Vol. III, n°1 p.1-6
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Référence électronique

André Vallotton, « People's initiative for a real life sentence: the negative effects of safety threats in direct democracy (juillet 2004) », Champ pénal/Penal field [En ligne], Archives, mis en ligne le 25 novembre 2005, consulté le 25 octobre 2014. URL : http://champpenal.revues.org/51 ; DOI : 10.4000/champpenal.51

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André Vallotton

André Vallotton est délégué aux Affaires pénitentiaires du Canton de Vaud (Suisse).

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