Playing With Parole
Does tinkering with our long-standing parole system actually increase public safety?
In Oliver Stone’s recent sequel to the classic film Wall Street, we are treated to a scene of Gordon Gekko standing in line awaiting his release after years in jail. The camera is focussed tightly on Gekko’s soft but slightly wrinkled hands as he accepts the return of items in his property bag that were seized from him two decades ago when he began his incarceration. “One watch. One ring. One gold money clip with no money in it,” the desk officer intones. The camera then pulls out and up for the shot the audience has all been anticipating. “And one mobile phone,” he says slapping down a device the size of a brick that today’s youth would be forgiven for mistaking as a lunchbox rather than a cell phone.
While I recognize the dangers of drawing too many object lessons from Hollywood cinema, that brief scene encapsulates much of the public’s misunderstanding and misapprehension of the Canadian parole system. The shrill cry from conservative legislators and concerned citizens is a common refrain: “Ten years should mean ten years – not seven.” It is an argument that is compelling in its simplicity and difficult to debate until one engages in a broader discussion of the complex mechanics of a criminal sentence.
When a Judge makes an order for a ten year custodial sentence, that decade encompasses the entirety of the offender’s lifespan to be spent under the supervision of the custodial criminal justice system. How we deconstruct that decade is a fair subject for debate but the starting point must be that the length of sentence pronounced by the Judge is all that we have to work with. If we choose to legislate that offenders serve 100% of their sentence behind bars, we must be prepared for the inevitable consequences of releasing someone back into society after years of separation and isolation with absolutely no safety net nor any lawful way to supervise their reintegration. I opened this discussion with the Wall Street clip in order to demonstrate just how changed the world would appear to an offender being released after a lengthy sentence. I have seen clients released from custody after much shorter sentences and being handed other relics from their property bags rendered obsolete by the passage of time during their sentences: subway tokens long since expired, keys to a home long since repossessed. Our expectation that we can successfully reintegrate people incarcerated for any length of time by simply releasing them into society with a pat on the back and a tip of the hat is wildly naive. One would never expect zoo officials to reintroduce animals to the wild by simply parachuting them onto the savannah from which they came. That would ensure the death of the animal, other creatures in its neighbouring habitat, or both. Yet that is precisely the tactic proposed for potentially violent criminals by proponents of the anti-parole camp.
The alternative – though by no means a perfect system – is a phased or gradual reintroduction into society monitored by a competent parole system. In the Canadian system, that typically results in statutory release after serving two thirds of the custodial sentence imposed. An offender thus released would be subject to constant monitoring – and assistance – by his or her parole officer. They may be placed in a half-way house to facilitate reintegration or be directed into employment retraining programs. Offenders will frequently be assigned to non-custodial treatment programs to deal with underlying drug or alcohol dependencies that brought them to jail in the first place. Missteps on the road to reintegration while on parole can be dealt with by the statutory powers of the parole officer.
Parole is able to incentivize positive behaviour by engaging a carrot-and-stick approach. Failures can be punished by revocation of parole resulting in the offender returning to jail to complete the remainder of their sentence. The prospect of early parole is the primary force motivating positive pro-social conduct while incarcerated. Take away parole and an inmate is left with no tangible reason to choose good conduct over bad while in jail.
So long as we have not abandoned the primary goal of our criminal justice system – rehabilitation – an equitable system of parole is a positive sentencing force that should be strengthened and encouraged rather than being vilified and attacked.
Could you please clarify why you conflated parole (which is earned) with statutory release (which is automatic)? Statutory release undercuts the primary thrust of your argument, which appears to be that the system should encourage “good behaviour” while in prison – as you know, statutory release applies to convicted criminals “who were denied release on full parole” (http://www.csc-scc.gc.ca/text/faits/03-04-eng.shtml). Statutory release applies *irrespective* of the offender’s “good behaviour”, and indeed is applied even when the offender has manifested “bad behaviour”. I’m a little unclear, therefore, why the two, entirely separate, systems were described as similar, and why you think an automatic release enhances the incentive system which you seem to want to erect.
Additionally, I was wondering if you could please point towards the legislative or judicial authority for the assertion that rehabilitation is the “primary” goal of our criminal justice system.
Interesting argument. Bob’s question about parole vs. statutory release is a good one. I also wonder if your argument doesn’t suggest that part of the problem is in the way sentences are described. If we say 10 years, and they get out in 6, we’re surprised. If we say 6 years, plus up to 4 years for bad behaviour, maybe no one is shocked when they get out in 6. And if they are, the issue is the sentence, not the parole system.
Thanks for the comments Bob and Jason. To a certain extent, it is fair to point out that the Statutory Release system — although strictly speaking a form of a parole — is a different breed of animal. What needs to be remembered is that although Bob is correct that Statutory Release isn’t “earned”, it can be “lost”. I readily admit that cases of denial of statutory release are few and far between but an inmate can lose this right if their institutional conduct is egregious. Thus, it does indeed impact on custodial behaviour.
I believe the primary thrust of my argument remains intact even with the admission that statutory release is, more often than not, automatic. While on statutory release, an offender is still serving a “jail sentence” but in the community under direct supervision of their parole officer. Breaches of the myriad conditions that can be placed on statutorily released prisoners can send them right back to the institution to serve out the remainder of their sentence. If we simply hold someone until the last day of their sentence and then release them without any intervening transition period, we are reliant on the probation system to enforce ‘good behaviour’. Probation is at a distinct disadvantage compared to parole as the former lacks any real ‘teeth’. A breach of probation can be reported by the probation officer and would result in the institution of new criminal proceedings which typically would take months to resolve in an entirely new trial. The consequences for breach of parole are both more severe and more immediate.
As for my assertion that rehabilitation is a primary objective of our justice system: the primary support for this proposition is one of basic utilitarianism. Unless we start sentencing every offender to life imprisonment for every offence, we have to deal with the reality that virtually every single custodial inmate will eventually return to society (most of them in relatively short order). If we do not prioritize rehabilitation of these offenders, we are dooming ourselves to recidivism. More directly, s. 718 of the Criminal Code sets out the “purpose and principles of sentencing” which are to “contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society…” The section then goes on to list specific objectives aimed at achieving the broader goal where the classic principles of sentencing are enunciated including denunciation, deterrence and rehabilitation [s. 718(d)]. Moreover, countless appellate cases have made it clear that, for first offenders and youthful offenders rehabilitation is to be the primary principle of sentencing whereas in all other cases it is to remain a critical consideration in crafting any sentence.
Finally, Jason’s suggestion that judges pronounce sentences which disclose the parole eligibility is a bit tricky to implement but has definite value in making our system more transparent to the public. Judges themselves don’t get to decide when an offender is released on parole for obvious reasons – they’re not around to assess the offender’s conduct months or years later when the question of parole crystallizes. On the other hand, it may be wise to enact legislation that would require judicial disclosure within a sentence of the earliest parole eligibility along with the statutory release date. This would demonstrate to the public the real range of possibilities available to the offender within the sentence pronounced.