‘Walking on ice’: The future of parole in a risk-obsessed society

Abstract

The aim of risk assessment and management in criminal justice is increasingly about minimizing opportunities to create harm to the public rather than maximizing opportunities to create change in offenders. This seems to be particularly the case in respect of parole, where the balance of public protection with rehabilitation has become increasingly unstable in prioritizing the former. This article examines parole decision making and management within the UK from the perspectives of both high risk offenders on licence and parole professionals. It discusses two key drivers to burgeoning recall rates: the stringency of licence conditions and the propensity of professionals to recall in the name of risk elimination rather than risk reduction. The article concludes that the effectiveness of parole is in question, not least in enabling re-entry and reintegration of high risk prisoners. In particular, the future sustainability of parole itself is deemed to be under threat.

Keywords

High risk parole public protection recall reintegration

Introduction

Risk assessment, for the purposes of identifying and classifying individuals or groups, has been a feature of governance for hundreds of years. Within criminal justice, the first risk prediction tool was piloted in the early 1930s (Harcourt, 2007), and today risk assessment tools and techniques abound as a means of targeting the most effective and efficient criminal justice interventions at the most dangerous offenders/offence groups. Those high risk prisoners eligible for parole (the early release from prison on licence to incentivize good behaviour in prison and to prepare for re-entry into the community), and in particular those who have served long-term custodial sentences for sexual and violent offences, are now less likely, however, to be granted—or to sustain the requirements of—parole. However, where parole is granted, such licensees are also increasingly likely to be recalled to prison because of failing to comply with supervision requirements or because of tensions among professionals tasked with the risk classification and management of such groups in the community.

This article argues that the term ‘high risk’ offers a justification to parole decision makers (for whom public protection is the primary aim) to take pre-emptive action to more closely monitor and more readily curtail supervision in the community for high risk individuals. While the parole board may commit to releasing high risk categories of prisoner, other professionals within the community (namely police and probation) may have a lower tolerance of managing that risk once those prisoners are released. In seeking to contain—or more ambitiously to eliminate—risk at the expense of enabling rehabilitation and reintegration, parole practices may prove counterproductive to public protection since released prisoners without constructive support are more likely to fall back on illegal means of survival (Harcourt, 2007; Robinson and McNeill, 2004; Weaver and Barry, 2014a; Werth, 2011).

First, the literature on risk, notably its history and rise in criminal justice, is explored—particularly in respect of parole. This article then highlights the lived experience of high risk individuals subject to parole supervision and the views of professionals overseeing the release of such prisoners into, and supervision within, the community. The implications for parole’s future of stringent licence conditions and professional propensities to breach and recall are that the population of eligible prisoners for parole will become increasingly high risk and high profile (Harcourt, 2007) as to make parole potentially unsustainable in the longer term.

The rise of risk in criminal justice

The concept of risk is not new in criminal justice, and risk categorization has long been seen as necessary, albeit controversial. Indeed, more than 250 years ago, Beccaria, cited in Hudson (2003), suggested that treating certain offenders more harshly, based on risk, was likely to be counterproductive to reducing crime. While originally used in criminal justice to gauge the probability of recidivism, and thereby to maximize on cost-efficiency (Werth, 2019), risk assessment has increasingly been used to gauge the probability of harm, despite Padfield (2002) suggesting that accurately predicting harm is highly unreliable.

Since the Second World War, rapid social and economic change has created uncertainty and insecurity about increasingly tenuous social discipline, interpreted by successive governments as reflecting moral decline and the need for greater public protection (Garland, 2001). This resulted in the view in the 1970s that ‘nothing works’ (Martinson, 1974), resulting in a growing shift from a more individualistic, rehabilitative stance to one of collective managerialism and punitivism, not least for high risk offenders: ‘from a focus on the singular case to group classification [. . .] [and from] knowing and normalizing individuals to a focus on identifying and managing populations’ (Werth, 2019: 5). The pre-1970s ‘Old Penology’ (Feeley and Simon, 1992: 451) focused on individual rehabilitation of offenders whereas the ‘New Penology’ (1992: 449) focused on the efficient assessment and social governance of the risks posed by both individual, rational actors (O’Malley, 2009) as well as high risk groups such as sex offenders (McAlinden, 2011). McAlinden (2011) notes that the highest risk offenders are indeed sex offenders, despite those offenders having a comparatively low probability rate of recidivism (Brayford et al., 2010; Brown et al., 2008; Erooga, 2008).

Kemshall and Wood (2007) suggest that the main precursors to the New Penology involved focusing on dangerous or persistent offenders, easing economic pressures on prisons and responding to a declining confidence in rehabilitation. Some commentators have questioned the extent of the shift away from rehabilitation for probation and social work supervisors (e.g. Lynch, 2000; Robinson, 2008; Werth, 2019), suggesting that these workers retain traditional concerns with re-entry and reintegration of ex-prisoners (Kemshall and Wood, 2007; McNeill, 2004; Ugwudike, 2011). Indeed, Garland (2001: 176) suggests that a focus on risk is not incompatible with rehabilitative concerns: risk control has shaped and reframed how rehabilitation is understood, but rehabilitation still exists ‘as a means of managing risk’. However, one underlying premise of the New Penology is that imprisonment and probation are no longer intended to rehabilitate offenders. Indeed, crime becomes ‘tolerable’ (Feeley and Simon, 1992: 455) and prisons become ‘a warehouse for the highest risk classes of offenders’ (1992: 460). Thus, in the latter half of the 20th century, a rise in crime made the primacy of rehabilitation untenable (Young, 1999); the need to expand the range of criminal justice interventions made greater assessment and categorization of risk advisable (Harcourt, 2007); and a rise in the prison population made the development of a parole system essential (Nellis, 2007).

The governmentality literature (for an overview, see Rose, 2000) likewise focuses on the retreat from welfarist, government-led risk reduction towards more punitive policies based on the management and individualization of risk. Hudson (2003) suggests that risk categorization, when coupled with blame and stigma, has exacerbated the individualization of risk. Risk categorization derives from what Young (2007) cites as a ‘weak’ rather than a ‘strong’ version of social exclusion, where the former blames the excluded and the latter blames the excluders. The more the excluded (or in this case, the criminalized) are blamed, the more likely such groups are to be denied inclusion (see also Harcourt, 2007). Rose (2000) argues that advanced liberal societies comprise two methods of controlling problematic populations, based on the responsibilization of citizens and the securitization of consumption. These are ‘circuits of inclusion’ (2000: 324) which regulate and control conduct by incorporating marginalized individuals, and ‘circuits of exclusion’ (2000: 330) which manage more ‘dangerous classes’ such as poor, homeless and workless individuals as well as known offenders. Some professionals in criminal justice seek to re-affiliate the excluded and to reattach them into circuits of inclusion (notably many probation and social work practitioners in criminal justice who encourage reintegration approaches within supervision). However, there are also professionals who deem reintegration or re-affiliation untenable for certain individuals (for example, those defined in insurance terms as ‘bad risks’ (2000: 326)), preferring to neutralize and contain these ‘anti-citizens’ (2000: 330) through imprisonment.

Contemporary thinking on rehabilitation versus punitivism, however, fails to fully differentiate between what I would argue are two distinctive and competing demands within criminal justice—community supervision as an alternative to a custodial sentence and community supervision as part of a custodial sentence, the latter in the form of parole and non-parole licences and the subject of this article. There is also a tension between the respective roles and responsibilities of the various professionals supervising high risk released prisoners in the community, roles which have various capacities for discretion in decision making (Lynch, 2000; Robinson and McNeill, 2004). Lim (2011: 17) highlights institutional attempts to both create and tame risk and that risk governance ‘serves particular interests’. The current, increasingly punitive and incapacitative strategies relating to the management of risk from parolees in the UK are a case in point. Indeed, nowhere within the UK criminal justice system is risk more acutely felt than in the system of parole, where the target population is already proven in law to be high risk through conviction for a serious offence and confirmed as such because of a sentence of long-term imprisonment.

The concept of parole is a relatively recent phenomenon in the UK, being introduced only 50 years ago through the Criminal Justice Act 1967. Two of the defining features of the early parole systems across the UK were assisting the rehabilitation of released prisoners on licence and protecting the public from serious harm (Justice, 2009; Kincraig Committee, 1989). However, the Kincraig report identified a stark difference between Scotland and England and Wales in terms of parole being granted: in 1987, 57% of prisoners eligible for parole in England and Wales were granted it, compared with only 28% in Scotland (Kincraig Committee, 1989). While the Kincraig Committee offered no explanation for this divergence in two jurisdictions with otherwise similar crime and sentencing levels, the inference is that Scotland’s parole board members are more risk averse than their counterparts south of the border. Certainly, that figure of 28% receiving parole in Scotland has not changed considerably in the ensuing 30 years (Parole Board for Scotland, 2017), and is even lower for high risk prisoners, with, for example, only 13% of those on life licence in Scotland being granted parole in 2015–2016 (Van Zyl Smit, 2018).

Scotland has recently witnessed a significant increase in the number of recalls to prison following breach of licence conditions. In 2012–2013, of those licensees who had been breached post-release, the Parole Board for Scotland recalled 69% of those on parole licence; 63% on non-parole licence; 71% on extended sentences; and 62% on life licence (Parole Board for Scotland, 2014). Three years later, those figures had increased to 78% on parole licence; 89% on non-parole licence; 85% on extended sentences; and 67% on life licence (Parole Board for Scotland, 2017). In the seven years from 2004/2005 to 2011/2012, the recall rate in Scotland doubled from 351 to 702 prisoners, and in 2015 it was not projected to change dramatically over the following seven years (Scottish Government, 2015). For those high risk prisoners released on life licence in Scotland, recall figures were only 10 in 2002/2003 but increased to 89 in 2016/2017 (Van Zyl Smit, 2018).

In England and Wales, the Prison Reform Trust (2018a) notes that while less than 1% of released prisoners on parole have committed a further serious offence, the number of determinate prisoner recalls has more than doubled between 2012 and 2016 and despite the abolition of Indeterminate Sentences for Public Protection (IPP) in 2012, the number of recalls from such sentences continues to rise (Beard, 2019) and to cause concern (Prison Reform Trust, 2018b).

The two key drivers to these rises in the recalled prison populations, not only in the UK but also in the USA, include: (1) an increase in the number of ex-prisoners being breached because of an inability to comply with increasingly stringent licence conditions (Padfield, 2013; Scottish Government, 2008; Solomon et al., 2014); and (2) an increased propensity on the part of parole boards, police officers and probation officers to recall following breach (see, for example, Hucklesby, 2017; Parole Board for Scotland, 2017). These two drivers to increased recall rates are explored further below through the views and experiences of licensees and parole professionals.

Methodology

With few measures of effectiveness available from the extant research within the UK in respect of parole decision making and management, and with a dearth of empirical evidence of the impact of the New Penology on practice (Ugwudike, 2011), this article is informed by two recent studies, one in England (Weaver and Barry, 2014a) and the other in Scotland (Barry et al., 2015) to explore the above two drivers to increased recall rates, drawing on the views and experiences of licensees, parole board members and supervising police/probation officers. The English study (quotations below referenced ES) explored the process and outcomes of community supervision within Multi-Agency Public Protection Arrangements (MAPPA)¹ in an English Probation Trust and involved interviews with 26 high risk (i.e. levels 2 and 3) MAPPA offenders on post-release supervision in early 2013. Face to face interviews with these service users took place in probation offices, or in approved premises, alongside interviews with 26 parole professionals (nine probation officers, five police officers and 12 policy makers—the latter comprising four senior probation staff, two senior police officers, four MAPPA Strategic Management Board members and two National Offender Management Service staff). However, all licensee identities were protected and therefore the matching of licensees to supervisors was not feasible. The licensees ranged in age from 22 to 71, with an average age of 42, and two were female. These respondents were on orders such as Life Licence, Imprisonment for Public Protection (IPP), Parole and Non-Parole Licence, Community Supervision and Sexual Offences Prevention Orders (SOPOs).²

The Scottish study (quotations below referenced SS) explored perceptions of compliance with, and breach of, community-based supervision in Scotland and included interviews during 2013 and 2014 with 69 ex-prisoners or currently recalled prisoners convicted of mainly serious violent or sexual offences. These respondents were part of a wider study of 250 service users (the remaining 181 in the sample were on community payback orders and other alternatives to custody) and 125 professionals, the latter including sheriffs, lawyers, senior management and basic grade staff in criminal justice social work³ and senior management in the Scottish Prison Service, the police and the Parole Board for Scotland. The 69 ex- or current prisoners, all of whom were male, ranged in age from 20 to 73 with an average age of 41. Again, all licensee identities were protected and therefore the matching of licensees to supervisors was not feasible. Through purposive sampling, there were similar numbers of compliers (32) and breachers (37). A total of 35 of the 37 breachers had been recalled to prison at some point since their order began. The majority of respondents were interviewed face to face in their own homes or in social work offices, but 14 were interviewed in prison. These Scottish respondents were, or had been prior to recall, on orders such as Life Licence, Parole and Non-Parole Licence, Extended Sentences⁴ and SOPOs.

Perceptions of the management of licensees

The following two sub-sections discuss the two drivers to increased recall rates based on professional and licensee attitudes and practices. The article then explores the implications of recall processes/outcomes for the future management of high risk released prisoners, concluding that parole’s future is in danger of being eroded by the increasing use of containment through selective incapacitation as the default position for managing high risk offenders.

The stringency of licence conditions

The granting of parole is a double-edged sword for many prisoners: although it means earlier release from prison, the conditions attached to such release can be onerous and debilitating, as well as being perceived as unjust/unlawful by many licensees. There is a perception among many on licence either that their supervisors seem discriminatory or inconsistent in responding to potential breaches or that the conditions are too onerous/unrealistic for compliance to be sustainable—‘more punitive than prison’ (Padfield, 2018: 61; see also Digard, 2010; Foucault, 1975; Werth, 2011).

Licence conditions in Scotland have increased in number and severity since first introduced in 1967. At that time, there were six conditions attached to a release licence which related to supervision, employment, accommodation and so on. In 1993, the Prisoners and Criminal Proceedings (Scotland) Act introduced four more conditions for all licensees: complying with supervision requirements; informing one’s supervisor if questioned by the police; residing in suitable and approved accommodation; and cooperating with job search advice. For registered sex offenders, the 1993 Act included not four but 12 additional conditions (making a total of 18 different requirements for those convicted of sex offences), adding limitations on the use of the internet and public spaces, as well as restrictions on social networks and relationships. In England and Wales, the number of conditions can vary from seven to over 15 (Padfield, 2014).

There seems to be little, if any, consultation between parole boards, prison staff and potential licensees in drawing up those licence conditions (Padfield, 2014) despite the fact that negotiating those conditions with potential licensees might encourage prisoner ownership of both the process and outcomes of post-release supervision (Ugwudike, 2016; Weaver and Barry, 2014b):

You see the licence on the day before you’re released. And then you’ve gotta sign for it. . . You can say ‘I’m not signing for that’ and the Governor will say ‘well, I’m gonna sign for you because you’re out tomorrow anyway, regardless if you sign it or not, and if you want to take it up with the powers that be outside, that’s up to you’.

(42-year-old male, SS)

The ‘powers that be outside’ tend to be MAPPA for high risk offenders, but as will be seen below, there is a tension among the differing MAPPA partners, notably the police and probation officers/social workers about what ‘risk management’ means in the context of post-release community supervision and the extent to which licence conditions can inform such risk management. Several prisoners released on licence suggested to us that they had been ‘set up to fail’, a finding also highlighted by Padfield (2014). One of the main reasons for this perceived unfairness is because some conditions could potentially infringe privacy rights, for example where sex offenders feel compelled to allow police officers, without warrant, to inspect electronic equipment for illegal internet access or data storage (Walden and Wasik, 2011). Coupled with the possibility that their whereabouts and conviction history are known by the community to which they have been released, several respondents also mentioned being subject to vigilante attacks or threats from neighbours—attacks which were often prompted by frequent and unannounced police home visits which could severely disrupt re-entry and reintegration, and by licence conditions themselves:

[T]hat was one reason I took the new house, moved away. Just to get another sort of fresh start. . . It wasn’t so much even the neighbours, it was the yob element clocking [I was living there]—cos that’s what [happened] the first time [I was attacked], they noticed the unmarked police car.

(69-year-old male, SS)

[I]f we put too many restrictions sometimes on people, that makes them feel anxious, frustrated, pissed off, they can’t do certain things with their licence, actually increasing the risk of them offending. I think it’s necessary to have restrictions on some people some of the time but it needs to be a bit more carefully thought out why we’re putting these restrictions on.

(Social Worker 3, SS)

However, while licensees rarely saw conditions as a direct means of reducing reoffending, and indeed often felt conditions undermined aspirations towards desistance and reintegration (see also Werth, 2011), many respondents in the Scottish study, irrespective of whether they complied with or breached licence conditions, felt that those conditions in and of themselves often provided boundaries which protected them from associating with known offenders (see also Goffman, 2014):

I had friends and stuff from over the years [and the licence] gave me the excuse I needed sometimes to distance myself from them or distance myself from things that I’d been involved in, in the past. . . It was good as a tool that way to just say ‘well I can’t. . . I need to look after myself’.

(39-year-old male, SS)

Despite offering boundaries, certain conditions can also be counterproductive in terms of reintegration (Harcourt, 2007). Erooga (2008) argues that US sex offender registration, community notification and residency restriction laws, for example, are ineffective because they deprive supervisees of the right to freedom of movement and association that many need for successful reintegration, such as in gaining employment and living near supportive family: aspects of a ‘normal’ life which can further an individual’s progress towards a prosocial lifestyle (see also Goffman, 2014; and Cross, 2017 in respect of high risk offenders in Scotland). As Hudson (2003: 35) also argues: ‘the risk posed by people classified as dangerous is future and speculative, but the deprivation they face is real and immediate’.

Professional propensities to recall following breach

Different professionals hold different views about how, in the context of parole practice, released prisoners should be managed, with some seeking exclusion and some seeking inclusion of high risk individuals. As noted earlier, the New Penology suggests a marginalization of rehabilitation in favour of the containment and management of offenders (Simon, 1993), with the ultimate aim of ‘more or less permanent sequestration’ of the most dangerous (Rose, 2000: 335). However, on the basis of the empirical data illustrated here from the UK, this applies mainly to the police supervising high risk offenders on licence. The police in the USA, however, have no formal role within parole but there is an additional tier of dedicated practitioners to manage licensees, namely, ‘parole agents’ who have the legal authority to carry firearms, to search property and persons (Simon, 1993), and their powers to arrest, confine and re-imprison make them ‘a walking court system’ (Simon, 1993: 193). In the UK, however, police and probation officers are actively involved in parole among other policing and probation duties but represent different agencies with different remits and approaches to risk management which can undermine the overall effectiveness of multi-agency working with high risk offenders (Barry, 2007), as one police officer suggested:

Police and other agencies are coming from two different directions. . . we are often arresting them and making sure they go back to prison.…. other agencies are more for the rehabilitation angle. . . I had a discussion this morning about one of our offenders who is very high [risk] with a probation officer here and you couldn’t have asked for two different accounts of the same person. As far as [the probation officer was] concerned, he is engaging, he’s doing everything he needs to do, he’s showing good signs of moving forward. As far as I’m concerned, I am trying to ask for more money so I can do a surveillance operation on him because I think he is the most nastiest, horriblest man and he is going to offend very soon. . . At the end of the day, they are going to offend however we manage them.

(Police Officer 2, ES)

However, there is the potential for a greater merging of professional roles in the UK (arguably not dissimilar to ‘parole agents’ in the USA) within MAPPA, exemplified by the ‘politically driven transformation of the culture and practice of probation from a social service orientation to a surveillance-led focus on public protection’ (Padfield and Maruna, 2006: 338). Despite the potential for MAPPA to encourage a closer merging of the remits and practices of police and probation/social work in the UK, the research drawn on here suggests that certain increases in risk are still seen more by probation officers/social workers than the police as manageable in the community, rather than needing to resort to re-incarceration. The police in the English study in particular had a view of their role as primarily surveillance and arrest: ‘The way I stop them reoffending is by catching them doing something else. . . we’ll catch you and we will breach you for everything that we can breach you for’ (Police officer 1, ES). Nash (2014: 412) would dispute the above view, however, in suggesting that the traditional epitomization of police activities as ‘crime fighting, danger, chases and arrests—blue light scenarios’ is increasingly being replaced by the police forming closer working relationships with offenders in their care, notably with sex offenders. However, many of the licensees themselves in the English and Scottish studies did not experience those closer working relationships with the police suggested by Nash. They often failed to see a difference in approach between the police and probation/social work staff, and indeed spoke, as illustrated below, of the perceived unfairness of the criminal justice system more widely—a system which seemed intent on catching them out rather than helping them out. Many implied that they were ‘walking on ice’ while on licence and being watched, by the police in particular, in anticipation of them failing:

Do you know what I felt like when I first came out? I felt as though they were waiting for me to mess up, like making a mistake.

(27-year-old male, SS)

They came to my house the day I was [released]. I wasn’t in my house 10 minutes and they were at my door: ‘we’ll be watching you’ and all that, ‘we know what you’re all about’.

(21-year-old male, SS)

Just as Goffman’s (2014: 195) respondents in ‘fugitive communities’ spoke of their distrust and anger at police ‘management’ of them, the perceptions of harassment from some of the current respondents overshadowed any feelings of support or encouragement which they had hoped for from those police officers who supervised them:

[t]hey search the house, they go through my mobile phone. . . they go through everything every month and you just think, surely at least one month you could just sit down [and] ask me how I’m getting on.

(49-year-old male, SS)

Equally, Johnson et al. (2007) note that ‘the police service has less empathy with sex offenders than other criminal justice professionals’ (quoted in Nash, 2014: 412). Increasingly, the primary police role with registered sex offenders is to prevent future crime rather than enforce current sentences, a role described by O’Malley (2009: 11) as ‘information broker’ (see also Rose, 2000). Werth (2019: 7) highlights the ‘hybrid process’ that practitioners are involved in to evaluate risk, drawing on information sources that are not only actuarial, but also clinical and cultural, including surveillance, disclosure, home visits and extended sex offender registration. That hybrid process is utilized most notably in the UK’s MAPPA practices with high risk offenders.

Multi-agency partnerships such as MAPPA have attempted to create a framework for cooperation and collaboration between the police and probation (HMICS and Care Inspectorate, 2015), notably where breach and potential recall are being considered:

I did my probation training in the late 90s and although it wasn’t perhaps implicitly said, I think there was a sort of throwback to the view that probation could never—wouldn’t speak to the police. . . We were being viewed suspiciously by the police and I think it was reciprocated. I can’t remember probation ever arranging to have somebody arrested at the probation office back when I qualified. That was just unheard of. So I think one of the positive things that’s come out of MAPPA is a bringing together of those two agencies with very different sort of cultural backgrounds.

(Probation Officer 4, ES)

As the above quotation implies, the police can request that a parolee be arrested at a time when a probation appointment is scheduled, for recall purposes or because of an alleged new offence. Equally, probation/social work staff can ask the police to arrest somebody who they wish to be recalled. However, despite the closer working relationship between police and probation/social work, several probation staff in the English study nevertheless described the police as ‘pushy’ about recalling:

I’ve actually had a [police] officer who said to me. . . in a negative way. . . ‘I thought you guys were supposed to be managing risk!’ He couldn’t understand why we didn’t just jump straight into recalling somebody back to prison.

(Probation Officer 1, ES)

[The police] can’t just ring us up and say ‘recall this person’ based on some intelligence because that legally is not a sound reason to recall someone.

(Senior Probation Officer, ES)

We had a problem with the police where they would say ‘we’ve got so and so in the cell for shoplifting, I notice he’s on licence, we want him recalled’. Well, the point is it’s not their decision. . . however, we did fall into a trap of saying ‘yeah, OK’, and then as soon as you’ve recalled them, [the police] drop the investigation.

(Probation Officer 2, ES)

This final quotation above highlights the confusion over what constitutes risk in determining whether to recall. The alleged offence allows breach procedures to be initiated, but it is the risk posed by the alleged offender within the community that is seen as the justification for seeking to recall somebody on licence, irrespective of whether new charges are later pursued. However, the above suggestion that the police might ‘drop the investigation’ once an individual is recalled was also a bone of contention for some ex-prisoners who reported being recalled arbitrarily and on the basis of an allegation with no guarantee that they would be released and may indeed remain in prison on recall because of presenting a potential risk.

Many licensees mentioned that recall could happen in a seemingly haphazard, sudden and arbitrary way, and could be triggered by police or probation/social work anticipating the greater risk of a licensee, for example, becoming homeless, ‘not coping’ in the community or breaking an approved premises regulation—none of which relate to the original conviction but are seen by some professionals as increasing risk to the public. Equally, one social worker suggested that they themselves were taken unawares by the actions of the police in some instances of recall:

I had nothing to do with the breach. The police submitted intelligence to the parole board and the parole board immediately recalled my client and nobody told me. . . he can’t have been recalled, I haven’t sent a breach report. . . I phoned up the parole board and they said, yeah we had information from the police.

(Social Worker 1, SS)

Equally, many licensees spoke of being recalled to prison on a charge, often being acquitted if the case came to court, but still remaining in prison for a substantial time thereafter—often months but sometimes years—because of the perceived risk that they had posed from having merely been in the wrong place at the wrong time and/or being wrongfully accused:

I shouldn’t be getting recalled for allegations, they should be waiting until it goes to court, until you’re [found guilty], then they could recall you, and if. . . nothing comes of it, you should be released back on your licence.

(29-year-old male, SS)

In contrast to the police, probation officers/social workers seemed more reluctant to use their powers to breach and recall a licensee unless the risk that individual poses to the community had significantly increased because of a failure to comply with licence conditions or the committal of a further offence. Probation and social work supervisors are more likely to suggest that the ends of public protection are best served by a model of risk management which emphasizes not only public protection but also social reintegration, akin to Rose’s (2000) circuits of inclusion cited earlier. Practitioners, according to Werth (2019: 6) ‘sometimes “push back” against risk techniques’, just as parolees themselves do (Werth, 2011). Probation and social work supervisors are also more concerned about avoiding the adverse effects of recall where it is deemed counterproductive to an individual’s progress in the community (in sustaining employment or accommodation), and where it is not commensurate with the risk of harm posed to potential victims:

We’re social workers, we’re not police officers. . . It’s not just black and white and that’s the big sort of conundrum we have with our police colleagues because, with them, everything’s black and white: the law is the law and there’s no discretion. Whereas with us, we appreciate that these people have transgressed, they’ve committed offences, some serious, some not so serious, but at the end of the day, they’re human beings and we take that into consideration. We take into consideration their life circumstances, their environment.

(Social Worker 2, SS)

However, irrespective of police and probation supervisors’ enthusiasm or otherwise for breach and recall, the ‘buck stops’ with the Parole Board. The primary concern for parole board members is that of public protection and the management of risk, and such members explicitly emphasized at interview in the Scottish study that their decision making is not informed by either reintegrative or rehabilitative concerns or indeed by legislative considerations. In regulating compliance with post-release licences, parole board members solely respond by determining the extent to which potential non-compliance represents a risk to public safety. This is particularly evident in the context of allegations of further offending on licence, which, despite not always resulting in a conviction, can nevertheless result in a return to custody because, as the quote below suggests, the standard of proof for parole boards differs from that applied in criminal proceedings:

The standard of proof before the board, if it ever came to be proved, is on the balance of probabilities and we’ve no need for corroboration, whereas the criminal standard is corroborated evidence beyond reasonable doubt. It may not be possible to prove it to the criminal standard but the board can yet hold established that a rape had occurred or a domestic abuse had occurred. . . So the approach the board takes is different from the approach [that] the court and the public prosecutor need to adopt. I would be very uncomfortable if the board were denied the opportunity to consider a recall until the outcome of criminal proceedings.

(Parole Board Member 1, SS)

Parole board decision making, based on the above cited ‘balance of probabilities’, is not a matter for the courts but an administrative decision where ‘[t]he presumption of innocence, so important at the pre-trial stage, is secondary to the recall process’ (Padfield, 2013: 38). For parole boards to act on the balance of probabilities rather than beyond reasonable doubt conflicts with the idea encapsulated in evidence law that historic misdeeds ‘are not necessarily a guide to current culpability’ (Raitt, 2013: 219). There is a general evidence rule that people should only be convicted on proof of what they are accused of rather than on their reputation for, or even past record of, previous misdeeds. While this rule of evidence only applies, at present, in criminal proceedings to establish guilt, the rationale behind the rule should, it is argued, apply equally in parole considerations, namely that reliance on evidence of past misdeeds is not sufficiently probative of current behaviour on parole, is collateral to the main issues in considering recall and is, indeed, unduly prejudicial.

Conclusion: The effectiveness of parole in managing risk

Examples have been given in this article of how the system of parole in the UK has become a potential site of conflict between released prisoners and the various MAPPA professionals tasked with supervising them in the community, thus undermining its effectiveness. For licensees, a seemingly arbitrary, inconsistent and ill-defined approach to risk management in the community prompted over four-fifths of licensees at interview in Scotland to comment on the perceived unfairness of the criminal justice system (see also Digard, 2010; Morgenstern et al., 2018). Such unfairness was particularly apparent in respect of the often indeterminate nature of recall—‘once you get recalled, it’s hard to get out’ (Probation Officer 3, ES), irrespective of whether they complied with or breached their conditions. Licence conditions and the constant fear of recall also tended to frustrate access to employment and social networks, leaving licensees being told what they cannot do in the name of public protection rather than what they can do in the name of reintegration (Hudson, 2003). Harcourt (2007: 28) describes a ‘ratchet effect’ which, when predicting high risk offences and profiling those for selective incapacitation, creates a concentrated high risk prison population and is counterproductive to re-entry and reintegration, since such high profile supervision ‘reduces work opportunities, breaks down families and communities, and disrupts education’ (2007: 29). Harcourt (2007: 188) anticipates that the prison population will increasingly comprise the highest-risk, highest-profile offenders and that already ‘the prediction of future dangerousness has begun to colonize our theories of punishment’. Taken to its logical conclusion, it could be argued that the prison population in the future will comprise such high risk and persistent offenders as to make parole unsustainable as a risk management tool.

For parole board members, the aim is to ensure public protection by releasing early on supervision only those prisoners for whom ‘the level and nature of risk are deemed to be manageable’ (Parole Board for Scotland, 2018: 9). This potentially creates a tension between deciding which prisoners parole board members consider to be a management risk if released into the community, and which prisoners MAPPA considers to be a management risk once released into the community. For the police at least, the end result of parole could be argued to be recall in the name of risk elimination. Indeed, parole itself could be argued to be a risk indicator for certain police colleagues. And for probation officers/social workers who continue to regard reintegration as an aim of supervision, their ability to make a constructive difference to the lived reality for released prisoners is minimal within a criminal justice system that focuses increasingly on risk elimination at the expense of risk management (Hudson, 2003).

These differing views and practices of the respective criminal justice agencies, coupled with the doubts that many practitioners often have about being able to alleviate poverty and marginalization through criminal justice policy and practice, have led to wider social policy concerns from such professionals about parole’s role in assisting reintegration. Goffman (2014), for example, highlights the fact that police in deprived areas within the USA are unable to alleviate social problems facing many high risk offenders and that their primary role is mere containment. Several probation and social work practitioners in the two studies illustrated in this article also had reservations about being able to offer constructive support to released prisoners in the current socio-economic climate, leaving the onus on released prisoners themselves to effect their own reintegration (Barry, in press) despite barriers imposed by licence conditions.

Feeley and Simon (1992) note that high recall rates used to be seen as a sign of failure but are now seen as a sign of success for the parole system. However, both Padfield (2013) and the Prison Reform Trust (2018b) argue that high recall rates should, on the contrary, be seen as a failure on the part of the criminal justice system rather than a success on the part of the parole system. Within the USA, Simon (1993: 201) argues that parole supervision had become ‘a temporary space between initial release from prison and inevitable return to prison’. In the UK, the burgeoning cases of re-arrest and re-incarceration of released prisoners for breach of licence conditions are often not subject to the due process of legal scrutiny or a fair trial because, as illustrated above, the situation for licensees being recalled to prison is justified merely on the balance of probabilities and processed, without legal scrutiny, as an administrative rather than a legislative exercise. As seen in the empirical research drawn on above, because of increasingly stringent conditions, licensees are more likely to breach or to be breached, and because of their increasingly risk averse practices, police and probation/social work supervisors and parole board members are more likely to recall.

Based on the statistics cited earlier, the increasingly cursory use of parole and the arbitrary use of recall with high risk offenders in the UK currently presents not only a legislative and practical barrier to ensuring justice for high risk prisoners on release, but also an ethical and human rights dilemma because reintegration is undermined by rigorous conditions, and rights to due process and liberty are undermined by the over-use of recall. Gelsthorpe (2007: 486) suggested that by the end of the 20th century, probation officers in England and Wales had become ‘screws on wheels’, enforcing rather than facilitating compliance. The Human Rights Act 1998 could go one of two ways, in Gelsthorpe’s view, either to encourage a rights culture or to fire-watch cases being brought that could undermine the status quo. Due process rights are ‘fundamental to the rule of law’ (Gelsthorpe, 2007: 497) and, as Hudson (2003: 28) suggests: ‘should not be compromised or suspended for reasons of utility’. And yet utility, in a neo-liberalist context, trumps due process in the name of risk elimination. Safety is more important than equality, security more important than liberty. Hence Clear and Cadora’s (2001: 59) contention that risk control is indeed about ‘containment, not change’.

This culture of containment is experienced by supervisees as unfair: it undermines the values and principles surrounding incentivized early release and disrupts ex-prisoners’ reintegration back into society. As a result, it has been argued here that parole has moved precipitously away from a combination of rehabilitation, reintegration and public protection, towards a focus solely on public protection with the use of recall becoming the default position for high risk offenders on licence. Given Harcourt’s (2007) ratchet effect of targeting and imprisoning the highest risk offenders, the capacity and propensity of parole board members to release prisoners on licence could increasingly be undermined. Indeed, it could well lead to the eventual unsustainability and hence demise of parole itself because of the negative impact of supervisory requirements on released prisoners’ ability to desist and reintegrate. Released prisoners by and large want to reintegrate into mainstream society, whereas many of the professionals tasked with their management now want to contain them. As Padfield (2013: 43 citing Maguire and Raynor, 2006) suggests: ‘perhaps the most fundamental question is not whether society can resettle prisoners (probably it can), but whether it really wants to’.

Footnotes

Acknowledgements

I would like to thank the following people for their helpful and constructive comments relating to earlier versions of this article: David Cross; Colin Hamilton; Genevieve Lennon; Donald Nicolson; Beth Weaver; Colin Webster; and the Journal’s anonymous reviewers.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship and/or publication of this article: the article draws on the findings of an ESRC-funded empirical study of professional and service user views of compliance and breach [grant reference: ES/J02340X/1] and a study of probation supervision of high risk offenders funded by a Probation Trust in England.

ORCID iD

Monica Barry

Notes

Author biography

Monica Barry is an independent criminologist based in Scotland. Her recent research has focused on perceptions of interventions in the criminal justice system in the UK, prison treatment programmes in Scotland and appropriating the philosophical concept of ‘recognition’ within criminology.

References

Barry

(2007) Effective Approaches to Risk Assessment in Social Work. Edinburgh: The Scottish Government.

Barry

(in press) Au-delà de l’individualisation des processus de désistement : Le rôle des politiques et pratiques sociales dans la réduction de la délinquance des jeunes. Criminologie 53(1): 00–00.

Barry

Moodie

Weaver

, et al. (2015) Regulating justice: The dynamics of compliance and breach in criminal justice social work in Scotland. Final report to ESRC, Grant No. ES/J02340X/1.

Beard

(2019) Sentences of imprisonment for public protection. Briefing Paper No. 6086, June. London: House of Commons.

Brayford

Cowe

Deering

(eds) (2010) What Else Works? Creative Work with Offenders. Abingdon: Routledge.

Brown

Deakin

Spencer

(2008) What people think about the management of sex offenders in the community. Howard Journal 47: 259–274.

Clear

Cadora

(2001) Risk and community practice. In: Stenson

Sullivan

(eds) Crime, Risk and Justice: The Politics of Crime Control in Liberal Democracies. Cullompton: Willan.

Cross

(2017) A human rights-based approach to community justice: Adding value to desistance focused practice. European Journal of Probation 9(2): 149–168.

Digard

(2010) When legitimacy is denied: Offender perceptions of the prison recall system. Probation Journal 57(1): 43–61.

10.

Erooga

(2008) A human rights-based approach to sex offender management: The key to effective public protection. Journal of Sexual Aggression 14(3): 171–183.

11.

Feeley

Simon

(1992) The New Penology: Notes on the emerging strategy of corrections and its implications. Criminology 30(4): 449–475.

12.

Foucault

(1975) Discipline and Punish: The Birth of the Prison. New York: Random House.

13.

Garland

(2001) The Culture of Control: Crime and Social Order in Contemporary Society. Oxford: Oxford University Press.

14.

Gelsthorpe

(2007) Probation values and human rights. In: Gelsthorpe

Morgan

(eds) Handbook of Probation. Cullompton: Willan.

15.

Goffman

(2014) On the Run: Fugitive Life in an American City. Chicago, IL: University of Chicago Press.

16.

Harcourt

(2007) Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age. Chicago, IL: University of Chicago Press.

17.

HMICS and Care Inspectorate (2015) Joint thematic review of MAPPA in Scotland. Edinburgh: HMICS/Care Inspectorate.

18.

Hucklesby

(2017) Non-compliance and the breach process in England and Wales. In: Boone

Maguire

(eds) The Enforcement of Offender Supervision in Europe: Understanding Breach Processes. Abingdon: Routledge, 134–151.

19.

Hudson

(2003) Justice in the Risk Society: Challenging and Re-affirming Justice in Late Modernity. London: SAGE.

20.

Justice (2009) A New Parole System for England and Wales. London: Justice.

21.

Kemshall

Wood

(2007) High-risk offenders and public protection. In: Gelsthorpe

Morgan

(eds) Handbook of Probation. Cullompton: Willan.

22.

Kincraig Committee (1989) Parole and related issues in Scotland, Cm. 598. Edinburgh: Scottish Executive.

23.

Lim

W-K

(2011) Understanding risk governance: Introducing sociological neoinstitutionalism and Foucauldian governmentality for further theorizing. International Journal of Disaster Risk Science 2(3): 11–20.

24.

Lynch

(2000) Rehabilitation as rhetoric: The ideal of reformation in contemporary parole discourse and practices. Punishment and Society 2(1): 40–65.

25.

McAlinden

A-M

(2011) The reintegration of sexual offenders: From a ‘risks-’ to a ‘strengths-based’ model of offender resettlement. In: Farrall

Hough

Maruna

, et al. (eds) Escape Routes: Contemporary Perspectives on Life after Punishment. London: Routledge.

26.

McNeill

(2004) Desistance, rehabilitation and correctionalism: Developments and prospects in Scotland. The Howard Journal 43(4): 420–436.

27.

Martinson

(1974) What works? Questions and answers about prison reform. The Public Interest 35: 22–54.

28.

Morgenstern

Murillo

Ravagnani

, with contributions by Zaniboni

(2018) Fairness issues in breach process: European perspectives. In: Boone

Maguire

(eds) The Enforcement of Offender Supervision in Europe: Understanding Breach Processes. Abingdon: Routledge, 19–38.

29.

Nash

(2014) ‘Scum cuddlers’: Police offender managers and the sex offenders’ register in England and Wales. Policing and Society 26 (4): 411–427.

30.

Nellis

(2007) Humanising justice: The English Probation Service up to 1972. In: Gelsthorpe

Morgan

(eds) Handbook of Probation. Cullompton: Willan.

31.

O’Malley

(2009) Governmentality and risk. Legal Studies research paper no. 09/98. Sydney: University of Sydney.

32.

Padfield

(2002) Beyond the Tariff: Human Rights and the Release of Life Sentence Prisoners. Abingdon: Routledge.

33.

Padfield

(2013) Understanding Recall 2011. Faculty of Law research paper no. 2/2013. Cambridge: University of Cambridge.

34.

Padfield

(2014) Dominant executive decision making: England and Wales: Does it matter who enforces English sentences? In: Herzog-Evans

(ed.) Offender Release and Supervision: The Role of Courts and the Use of Discretion. Oisterwijk: Wolf Legal Publishers.

35.

Padfield

(2018) Monitoring prisons in England and Wales: Who ensures the fair treatment of prisoners? Crime, Law and Social Change 70: 57–76.

36.

Padfield

Maruna

(2006) The revolving door at the prison gate: Exploring the dramatic increase in recalls to prison. Criminology and Criminal Justice 6(3): 329–352.

37.

Parole Board for Scotland (2014) Annual report 2012–13. Edinburgh: Parole Board for Scotland.

38.

Parole Board for Scotland (2017) Annual report 2015–16. Edinburgh: Parole Board for Scotland.

39.

Parole Board for Scotland (2018) Corporate plan 2018–21. Edinburgh: Parole Board for Scotland.

40.

Prison Reform Trust (2018a) Bromley briefings prison factfile. Autumn. London: PRT.

41.

Prison Reform Trust (2018b) Response to the Ministry of Justice review of the law, policy and procedure relating to parole decisions. London: PRT. Available at: http://www.prisonreformtrust.org.uk/Portals/0/Documents/Consultation%20responses/Ministry%20of%20Justice%20consultation%20on%20reconsideration%20of%20Parole%20Board%20decisions.pdf.

42.

Raitt

(2013) Evidence: Principles, Policy and Practice. Edinburgh: Greens Concise Scots Law.

43.

Robinson

(2008) Late-modern rehabilitation: The evolution of a penal strategy. Punishment and Society 10(4): 429–445.

44.

Robinson

McNeill

(2004) Purposes matters: Examining the ends of probation. In: Mair

(ed.) What Matters in Probation Work. Cullompton: Willan, 277–304.

45.

Rose

(2000) Government and control. British Journal of Criminology 40(2): 321–339.

46.

Scottish Government (2008) Scotland’s choice: Report of the Scottish Prisons Commission. Edinburgh: Scottish Government.

47.

Scottish Government (2015) Prison statistics and population projections Scotland: 2013–14. Edinburgh: Scottish Government.

48.

Simon

(1993) Poor Discipline: Parole and the Social Control of the Underclass, 1890–1990. Chicago, IL: The University of Chicago Press.

49.

Solomon

Kachnowski

Bhati

(2014) Does parole work? Analyzing the impact of postprison supervision on rearrest outcomes. In: Herzog-Evans

(ed.) Offender Release and Supervision: The Role of Courts and the Use of Discretion. Oisterwijk: Wolf Legal Publishers.

50.

Ugwudike

(2011) Mapping the interface between contemporary risk-focused policy and frontline enforcement practice. Criminology and Criminal Justice 11(3): 242–258.

51.

Ugwudike

(2016) The dynamics of service user participation and compliance in community justice settings. Howard Journal 55(4): 455–477.

52.

Van Zyl Smit

(2018) Life imprisonment: An appropriate ultimate penalty in Scotland? Paper presented to the Howard League Scotland, Edinburgh, 12 March.

53.

Walden

Wasik

(2011) The internet: Access denied controlled! Criminal Law Review, issue 5.

54.

Weaver

Barry

(2014a) Managing high risk offenders in the community: Compliance, cooperation and consent in a climate of concern. European Journal of Probation 6(3): 278–295.

55.

Weaver

Barry

(2014b) Risky business? Supporting desistance from sexual offending. In: McCartan

(ed.) Responding to Sexual Offending: Perceptions, Risk Management and Public Protection. Basingstoke: Palgrave Macmillan, 153–169.

56.

Werth

(2011) I do what I’m told, sort of: Reformed subjects, unruly citizens, and parole. Theoretical Criminology 16(3): 329–346.

57.

Werth

(2019) Risk and punishment: The recent history and uncertain future of actuarial, algorithmic, and ‘evidence-based’ penal techniques. Sociology Compass 13: 1–19.

58.

Young

(1999) The Exclusive Society. London: SAGE.

59.

Young

(2007) The Vertigo of Late Modernity. London: SAGE.