Consent and probation: An analogy with contract law

Abstract

The Journal EJprob recently published a special issue on consent in sentencing. The EPR (2010) refer to consent on numerous occasions, and in most legal systems consent is required at the sentencing stage. However, in many cases, the alternative is custody, which raises concerns over how freely consent is given and whether it is a mere formal exercise. Social scientists have tried to theorise consent building on compliance, legitimacy of justice, or notions such as therapeutic alliance and offender agency. Some have deplored the existence of a ‘contractual governance’. This article shall argue that a renewed analysis of contract law has the potential to respect offenders’ agency and their right to govern their own lives, whilst taking stock of their need for treatment and compensating for their vulnerable condition. It shows that more rather than less contract is needed in order to avoid both punitive governance and neo-paternalism.

Law as an extrinsic responsivity factor: What’s just is what works!

“…Furthermore, Self-Determination Theory (Deci and Ryan, 1985, 2002) has empirically demonstrated the utmost importance of intrinsic autonomy and has developed an autonomy supportive treatment model, where, in particular, practitioners are, whenever possible, required to give offenders choice and to ‘provide a clear rationale’ for treatment. Legal theory also supports autonomy supportive supervision, particularly in light of the model of contractual autonomy of will (Herzog-Evans, 2015c). Self-determination is additionally considered as being a core human right principle (Hurphy, 2013).…”

“…As much as possible, substantive laws should thus create a framework within which practitioners and institutions should respect offenders’ need for agency and autonomy, whilst ensuring public protection and avoiding paternalism. A contractual model of autonomy, particularly with its insistence on professional/layman’s ‘super-information’ does offer a basis for managing this delicate balance (Herzog-Evans, 2015c).…”

“…● This quasi-contract should also mention practitioners’ and institutions’ obligations, because contract theory implies that, in most cases, both parties have obligations (Herzog-Evans, 2015c). Practitioners and institutions would, in particular, provide: support, social work, availability, information and evidence-based treatment approaches as we know them today;…”

“…Whilst so far, they have been essentially imposed on prison services (Belda, 2007), there is no reason to spare probation services from similar duties. A human rights and quasi-contractual basis for offender engagement to which the probation services or the CJS would be a party might offer the legal framework for reciprocal engagements (Herzog-Evans, 2015c).…”

Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The French Perspective

“…A difficulty arises, however, in terms of consent: whereas release and most community sentences are pronounced with the consent of the offender, safety measures are imposed whether they like it or not. Consent is nonetheless not a constitutional or a cardinal principle of criminal law, and its importance can only be stressed on the basis of theoretical 94 or empirical 95 arguments. The detention of dangerous offenders, whether with RS or UMD, raises serious issues in terms of the right to freedom of movement and the right to family contact.…”