Negotiating penal hybridity: Time–space boundary-work in parole decision making

Constructing parole as qualitative time

Through their narratives, the interviewees portray the time of parole as qualitative rather than quantitative. The interviewees stated that through the parole process, the prisoners should go through an ‘experience’ (Zack) by which they capture the ‘opportunity’ (Roni), ‘chance’ (Gad) and ‘possibility’ they are given by the parole board (Zack). They frame the act of release in temporal qualitative terms, as an exceptional moment in which the parole board will, when the right time arrives, bestow upon the prisoner a ‘gift’ (Noam) or ‘prize’ (Dina). The licence period also constructs a qualitative-liminal ‘transitional time’ of ‘test’ and ‘journey’ that the parolees should undergo when re-integrating back into the community (Dina). Constructing the time of parole as qualitative, the interviewees rejected the notion that the mere passage of time justifies parole. Instead, the interviewees specified that as the prisoner makes his way out of prison, ‘the passage of time isn’t important … the question is what he made [of] prison, not how much time he served’ (Adi).

Correspondingly, when deciding parole, the interviewees described their parole assessment as temporally open, elastic and fluid. Their temporal look combined ‘past, present and future’ (Rina) to capture the right moment of becoming a ‘new man’ (Saul). Also, since ‘it’s hard to point [to] the beginning point of such transformation’ (Daniel), their work cannot be bound by strict temporal limits. When negotiating their work, they constantly move between past, present and future. This process is neither simple nor linear and does not clearly differentiate between periods of time, but rather consists of a ‘combination between past, present and future’ (Nina). Located at the far end of the penal continuum, they described themselves as ‘look[ing] forward and backward’ (Saul).

This qualitative temporality allows the interviewees to accommodate both past-looking and future-looking demands. For example, the interviewees can repair, re-order and ‘correct’ past harms and address future needs through the prisoner’s remorse: ‘he needs to regret the past, that is the beginning of the repentance, and afterwards commit for the future’ (Isaac). Similarly, victim compensation is important ‘to return things to their past … the wheel can never go back, but the victim feels that the prisoner comes and amends his actions’ (Sam). Thus, remorse and victim compensation were described as non-linear and temporally fluid.

(a) Boundary-spanning through qualitative time

In performing their temporal work, and utilizing time as qualitative-expansive, the interviewees are able to span their work with that of other actors, particularly the sentencing court and correctional officers. Through such work they synchronize the past-looking time of the sentencing court with the future-looking time of correctional officers and incorporate both into their decision making. First, the interviewees’ adoption of qualitative time allows them to synchronize the retributive concepts of the sentencing court to the sphere of parole. For example, the interviewees reinterpret the past-looking retributive concept of ‘paying a debt to society’ as a rehabilitative rather than retributive value and connect it to post-sentencing reform: ‘paying his debt to society happened when I was convinced that the prisoner is undergoing a true rehabilitative process’ (Zack). Similarly, rather than using a punitive conceptualization, they reframe the retributive concept of ‘desert’ as a reward for rehabilitative efforts: ‘desert, reward and punishment, is that a prisoner who [is] paroled feels that there is a reward for his rehabilitation’ (Roni).

The interviewees also accommodate sentencing proportionality trends into their parole work. For instance, they justify parole in cases of extreme pains of imprisonment: ‘If imprisonment is for retribution, according to the new sentencing law, so special suffering in prison goes inside [that]’ (Isaac). In this way, though sentencing is temporally behind them, the interviewees harness sentencing’s past-looking logic to rationalize their own present and future-looking decision making.

Second, the interviewees’ qualitative temporality is also used to span the related work of correctional officers. This includes re-ordering the work of rehabilitation in prison and community. For example, in common cases of short sentences (less than one year), no prison rehabilitation programmes are possible, and the interviewees explained that they ‘cannot require the prison therapists to accommodate their treatment to the length of the sentences’ (Adi). To address this problem, the interviewees change the order of things. Instead of relying on prison rehabilitation to justify parole, they use the future mandated rehabilitation/supervision or reports of past-rehabilitation during the sentencing (e.g. pre-sentencing report) to fill this void. All this rehabilitative work was described as belonging to the ‘extension’ of the ‘rehabilitative continuum’ (Ruth) that can be negotiated when considering parole. By so doing, the interviewees sophistically synchronize their qualitative and fluid time with other temporal discourses.

(b) Boundary-making through qualitative time

The interviewees also use their qualitative-expansive time to demarcate their work from other actors. Unlike the court, which ‘cannot change [any part of] of the sentence after it was imposed’ (Sam), the qualitative time of the interviewees is ever-changing. The interviewees contrasted the different temporal orientations of parole and sentencing:

The board’s great advantage is that the court deals with the past and the board with the future … A judge, even the best, if he doesn’t have mystical abilities, can’t know the future … In the board, in contrast, you know more about the man, and you need to look into the future. (Saul)

Thus, there is a temporal distinction between the limited knowledge of sentencing and wider perspective of parole.

This temporal distinction carries several important boundary-related meanings. First, since the length of the sentence is ‘related to the time of trial’ the ‘time of prison is another period’ (Gad). Second, the interviewees demarcate their work from the temporal orientations of statistical risk experts. Such experts are overly bound by past events when assessing risk, and therefore neglect the prisoner’s dynamic factors, the possibility of change and ‘miss many character traits … that can be updated’ (Eli). As qualitative conceptions of time are used for boundary-work, the interviewees described how they use space for boundary-spanning and boundary-making.

Constructing parole as a therapeutic space

Half of the interviewees described how they negotiate their work with other actors through conceptualizing the parole board as a broadly defined ‘therapeutic space’, and their professional identity as largely therapeutic (Lahad, 2001: 63).

The therapeutic-narrative of this half of the interviewees rejects the parole board as court-like. These interviewees argued that the ‘parole board is not a court’ (Gad), ‘what happened in court is not my business’ (Zack) and even stressed the importance of a parole decision-maker’s ‘disconnecting himself’ from being a judge as parole decision making is ‘a process that one needs to undergo with himself’, and one that many parole chairpersons do not undergo (Or). Instead of seeing the parole hearing as court, these interviewees construct the parole hearing as a therapeutic ‘space of compassion and mercy’ where one can ‘see the rehabilitation with his own eyes’ (Saul). Parole decision making, several argued, is ‘a matter of heart’ and through the hearing they convey to the prisoner ‘sensitivity’, ‘full respect’, ‘care’ and ‘empathy’. This may be communicated through their voice tone: ‘my tone was containing, relaxed, not resistant’ (Adi). They also express care for the prisoners’ physical conditions (e.g. air conditioning); to secure the prisoners’ privacy they ask the prisoner’s permission to disclose their name on the parole decision.

During the parole hearings, they try to help the prisoners feel ‘comfortable’, ‘calm’ and to overcome their ‘embarrassment’ (Isaac), and encourage them ‘to speak freely’ and ‘to talk openly’ (Saul). They also described the parole hearing as an intimate space in which they learn a great deal about, and become intimately connected with, the prisoners. Owing to their sense of closeness to the prisoner, they can then ‘look in his eyes’, see his ‘trauma’, listen to his ‘story’ (Isaac) and try to ‘get into the depth of his soul’ (Saul). They also strive to develop the prisoner’s trust in their work and to reach the prisoner’s ‘core’ identity during the parole hearing:

I try to peel from this man all the shells and get to his core, like you peel an orange, and get to the core … you need to talk with him and you understand his diagnosis … I create with him a positive interaction. (Isaac)

In line with reaching the prisoner’s inner core, throughout the hearing they observe ‘the prisoner’s body language, how he sits, how he behaves [in relation] to his environment’ (Ami), capture the prisoner as ‘a whole, with heart, emotion, brain and mind’ and ‘learn a lot from his tear and smile’ (Samuel). Likewise, at the hearing they express interest in the prisoner’s ‘childhood experiences’ (Eli). Such communication also includes expressions of care and empathy towards the prisoner:

You should pay attention to the human side, not only [to] formality, so you are asking him: so, what’s with your fiancé? Did you set a date for a wedding? The man before you melts, enjoys, saying: he cares for me … you need to be a little social worker. (Or)

This informal, caring and therapy-oriented construction of parole work is also demonstrated by the interviewees’ willingness to exceed the functions of neutral arbiters. Some interviewees related instances in which they attempted to ‘persuade’ prison correctional officials to establish another rehabilitation programme for an uncooperative prisoner (Seth) or used their ‘creativity’ (Adi) to phone correctional therapists outside prisons in order to overcome bureaucratic challenges in favour of the prisoner (e.g. get a recommendation sooner).

In conceptualizing the parole board as a therapeutic space, the interviewees identified personal communication with the prisoner as key to the parole’s success: ‘the attitude [of the parole decision-maker] is more important than the bottom-line of the decision … the success depends on the connection with the prisoner’ (Or). The interviewees also described how they question the prisoners about their progress and challenges and motivate them to continue along the path of progress. Such personal positive communication with the prisoners allows the interviewees to ‘open’ the prisoners, find their ‘inner insight’, remove their ‘resistance’ and ‘denial’, and allow for ‘personality change’ and ‘personal transformation’. It is therapeutically important that their communication engages the prisoner himself. The communication should cut through the ‘lawyers’ games’ and may even take place ‘above the head’(Saul) of the prisoner’s counsel to ensure that the prisoner’s voice is what the parole board hears.

(a) Boundary-spanning through therapeutic space

The therapeutic space and other characteristics that are associated with a therapist’s identity allow these interviewees to connect their work with the work, tools and knowledge of rehabilitative actors (e.g. pre-sentence probation report, prison social worker report). For example, the interviewees described how they ‘guide’ community correctional officers during the licence period to increase the rehabilitative success (Roni): it is essential to promote ‘the cooperation of the correctional officials outside’ because the parole board releases the prisoner ‘from door to door’ (Roni)—directly from the parole board to the community hostel. The interviewees also constructed the parolee’s status as belonging simultaneously to both the carceral and the community: ‘he walks outside … but the prison walls are still around him’ (Saul). The prisoner’s agency is liminal and ‘broken’:

‘He is like a man that broke his leg and removed his cast and needs stilts, a walker … and now needs supervision, work, electronic monitoring, individual and group therapy, urine samples’. (Dina)

This narrative portrays releasing the prisoner as only the part of the process; further physical/occupational therapy is needed. The success of parole supervision is a function of the collaboration between their work (e.g. deciding licence conditions) and the community supervision work that implements their vision.

(b) Boundary-making through therapeutic space

The therapeutic narrative is used not only to span the work of other actors and professions, but also to demarcate their work from that of other actors. First, the interviewees construct sentencing judges as distant from the field. They described their conception of the parole board as a ‘different space’, a ‘place of treatment’ and a ‘place of healing’ (Seth) in contrast both to the ‘punitive’ sentencing court and the ‘survival space’ of prison (Saul). The sentencing judges ‘live in an ivory tower’ and are ‘outsiders’ to the ‘real’ life of prison (Saul). Such judges fail to ‘see the people’ and adjudicate ‘only by the book’ (Daniel). These judges lack the ‘perspective’ that comes with ‘dealing with the crème de la crème of the criminals, only prisoners, all the time’ (Or). In contrast, the interviewees try to ‘dialogue’ with the prisoner, a process that appears in ‘no book’ and cannot normally be made in court (Saul).

Second, the Attorney General’s (AG) counsels, representing the State, were described as important but also as lacking therapeutic orientation. Such AG counsels are overly pessimistic regarding rehabilitation and overly risk-oriented in order to avoid professional harm: ‘They almost always resist release … I don’t get that … maybe, to be rude, they wish to cover their asses’ (Adi). In contrast, the interviewees’ therapeutic orientation is part of their optimistic belief in the human ability to change, a belief mandatory for a parole professional.

Third, these interviewees emphasized how their human-based holistic assessment contrasts with statistical risk experts’ work. Such risk experts are ‘computer clerks’ that produce ‘robotic’ risk scores (Joel), lack a ‘humane attitude’ and ‘don’t see the prisoner’ (Saul). Instead, as ‘no two drops of water are alike, no two cases are alike’ (Nina). These interviewees valued their own therapeutic individual assessments to decide parole.

Constructing parole as a judicial space

The other half of the interviewees, however, described how they negotiate their work with other actors through conceptualizing the parole board as a ‘judicial space’ (Mulcahy, 2007). The interviewees defined the judicial space broadly, in terms of symbolic, normative, substantive and procedural elements and their professional identity and powers as largely judicial.

These interviewees described the parole board as ‘half-equal to court’ (Dina) or equated the two: ‘a parole board is a court’ (Rina). Their work is ‘sort-of like-judging’ and ‘like a trial’ (Gad) and even ‘more judicial than a criminal court itself’ (Saul). The impact of their decision is ‘like a guillotine’ (Saul) and is ‘almost like a sentence that you imposed as a judge’ (Rina). Beyond emphasizing the substantive similarities between the board’s and court’s decisions, the interviewees also described the likeness between their symbolic procedural aspects. They wear, for example, court-dress during the hearing and are called ‘your honour’ by the prisoner. The prisoners ‘stand when they [the interviewees] enter the hearing room’ (Isaac) and, as in court, the AG counsel sits to the board’s right and the prisoner’s counsel and the prisoner sit to the left. The board, they argued, is ‘the only board’ that is sentencing-like, the hearing process opens with the parties’ arguments, concludes with the prisoner (or their counsel) speaking last and culminates with a thorough written decision, akin to a judicial decision: ‘I’m a judge, I can’t scribble a line-and-a-half and just say, “this is a decision”’ (Roni). One interviewee described that before the hearing she tells the other parole members (non-judges) that ‘the board is a court … to make them feel responsible’ (Dina).

The judicial process was discussed by way of its tools, actual and metaphorical. For instance, interviewees expressed a need to adopt a criminal procedure and rules of evidence and to transfer the hearing to real courtrooms to more fully reflect the judicial nature of their work. The interviewees also construct the parole board as judicial space through the values, metaphors, emotions or techniques with which they describe their work: ‘judicial experience’, ‘judicial mind’, ‘judicial emotions’, ‘sense of justice’. They described their processes with judicial rhetoric such as ‘balancing’, ‘distinguishing’, ‘legal interpretation’, ‘proportionality’ and ‘rights’. This intersection of the parole board’s conceptual and actual decision-making processes with those of the judiciary is used for boundary-work.

(a) Boundary-spanning through judicial space

The courtroom atmosphere and the judicial tools and logics allow the interviewees to span their parole work with judicial materials, such as case law, indictments, sentencing remarks, determinations (e.g. culpability level) and the sentencing testimony of the prisoners. Perceiving themselves as acting within judicial space and with judicial authority, the interviewees push the AG’s counsels and the correctional officers to agree to parole through their ‘mediation’ and use their authority to persuade the prisoners themselves to accept the full meaning of the parole terms. The parole board at times spans and straddles the judiciary even more directly. The interviewees described the sentencing court’s remarks as the starting point for the parole determination, as ‘giving the basis, the description of the man; it’s his character framing’ (Saul). The interviewees’ judicial background (Joel) enable them to comfortably utilize and negotiate the judicial tools and logic. The judicial narrative is given special importance in justifying the denial of parole on the punitive grounds of retribution, general deterrence or to preserve public confidence in criminal justice in serious cases. In such cases, they can ‘put [themselves] in the place of the judge’ (Saul) without being an ‘appeal-like’ forum over the sentencing court’s determinations (Joel). Rather, they see their function as largely judicial.

(b) Boundary-making through judicial space

The judicial narrative simultaneously allows the parole board to demarcate its work from others actors, especially correctional actors. The interviewees do so through emphasizing their judicial powers—inherent to their judicial identity and space—as a normative and review authority.

First, they negotiate the meaning of several parole factors as carrying both instrumental and normative value. Parole factors such as crime severity, criminal history, victim compensation, remorse and even prison conduct hold normative-moral significance and are considered as part of the question of whether parole is ‘appropriate’ or ‘deserved’. Such assessment allows them to accept/deny parole in some cases despite contrary opinions of correctional officers. For example, even if the correctional officials assess a prisoner as low-risk, granting him parole still ‘is not appropriate regardless of his risk’ (Roni) if that prisoner fails to compensate the victim. Similarly, in cases of negative prison conduct ‘the prisoner’s release is not appropriate even if he doesn’t pose risk according to [the] risk assessment’ (Samuel). Conversely, in ‘doubtful cases’, despite a negative correctional assessment, they can grant parole based on their ‘judicial courage’ as they feel that parole is ‘deserved’ (Isaac).

Second, they construct their work as a review authority over other actors’ work. Their asserted role as a review authority is a manifestation of their judicial responsibility and their role as an objective ‘quasi-judicial body’ is a manifestation of their neutrality: ‘The board is a body that reviews clinical authorities’ decisions … it’s a quasi-appeal of the clinical bodies’ decisions’ (Daniel). As part of this review-authority narrative, their judicial responsibility is to ‘investigate’ the deeper ‘truth’ behind the correctional officials’ opinions (Isaac), to ‘ask for clarifications’ (Or) and ‘explanations’ and to ‘raise doubts’ (Daniel). Such review authority is used to demarcate the interviewees’ work from that of several actors. First, the correctional community officers, as ‘too lenient’ and even ‘naive’ (Noam), need review by a ‘judicial conscience’ that is sensitive to issues of public safety (Roni). Second, correctional prison officers, described as over-emphasizing the discipline and security interests of the prison regime, require the parole board’s ‘objective’ review. The interviewees remain neutral despite their prison-based location and disconnect themselves from prison work: ‘we are not a branch of prison service, not even a little’ (Roni).

Third, intelligence officers’ work requires a careful review to mitigate ‘power imbalance’ between the officers and the prisoner. This may include investigating their credibility actively: ‘I invite[d] him to the board and told him: “get into details, what’s your source?”’ (Saul). In a similar way, the General Secret Service’s opinions, submitted for terror-related prisoners require a careful review, as they are overly based on ‘suspicions’ and ‘rumours’ (Gad). Thus, where the interviewees interpret their work as spanning the work of the judiciary, they simultaneously demarcate that work from that of the risk, correctional and intelligence professions.