Abstract
The furore that surrounded the release of convicted rapist John Worboys in England in 2018 and the subsequent resignation under political pressure of the chair of the Parole Board has thrown the spotlight yet again on the place of parole in the criminal justice system.
Parole, or any form of release prior to the expiration of the formally announced sentence of the court, has always been controversial and has occupied a legally ambiguous space between the judiciary and the executive. Rarely regarded as a right rather than a privilege, it has sometimes been viewed as giving offenders undue leniency and at other times it has been regarded as undermining the sentence of the court. More recently is has been seen as posing a risk to the society into which prisoners are ‘prematurely’ release and, independent of any penal philosophy, it has often been used as a means of relieving pressure on overcrowded prisons.
In Getting Out, Thomas Guiney provides an historical case study of the development of parole in England and Wales based on an approach described as ‘historical institutionalism’, which is one that focuses attention on the way that institutions shape political behaviour and outcomes rather than upon the role that great people or great ideas have in influencing public policy (Chapter 2).
Forms of parole, early release or release on licence or tickets of leave have been in existence for over 170 years. Release on licence schemes came with the advent or penal transportation while modern forms of parole were introduced in the United States and New Zealand in the early twentieth century and in Canada and various Australian states from the mid-1950s. In this context, the England and Wales seems to have been a late adopter (Chapter 3).
Writing in the tradition of Radzinowicz and Hood, Bailey and Scull, Guiney methodically traces the steps that were taken to introduce parole in England and Wales, the public and private debates regarding the nature of the system, how it changed over the decades in the face of the pressures of growing prison numbers, high profile incidents involving released prisoners, political differences between Labour and Conservative governments, internecine differences between various government agencies, the subtle private pressures of the judiciary, the demands of non-government organisations and the scrutiny of review bodies. The book is the product of a close study of Home Office archives, the personal papers of key participants, parliamentary debates, reports of government and advisory bodies and secondary sources, some of which had to be obtained through freedom of information requests.
In some respects, this book is a little solipsistic, focusing as it does on a particular moment in history in England and Wales. For readers in the UK, this is likely be of great interest as it documents, in minute detail, the policy debates, key players and political and social circumstances that led up to the Criminal Justice Acts of 1967 (Chapter 4), 1982 (Chapter 6) and 1991 (Chapter 8). However, for readers outside the UK, the problems and contradictions that he identifies – indeterminacy and determinacy, consequentialism and retributivism, the role of the judiciary and executive and political expediency (p. 226) are universal and perennial.
Among the many issues that he raises is the question of what is meant by ‘early release’. Guiney defines it as ‘the various legal and administrative mechanisms by which the custodial element of a sentence may be reduced by executive action, with the remainder served either in the community under licence or terminated unconditionally’ (p. 6). However, the word ‘early’ has pejorative overtones as it implies that the offender should serve the full term of imprisonment imposed by the court. However, if one regards custody as embracing more than the period of actual confinement to include the period during which the State may coercively intervene in an individual’s life, then ‘release’ is not early but implicit in the structure of the sentence, particularly if it is conditional. As Guiney notes, there have been various forms of early release or combinations of imprisonment and conditional releases in England and Wales including remissions and wholly or partly suspended sentences, each of which, he documents, had problematic interactions with the parole system.
‘Early release’ has also been problematic in terms of public perceptions. The phrase ‘truth in sentencing’ came to represent the growing dissatisfaction of the public (and in some cases the judiciary) with parole, remissions, pre-release and other schemes. Critics saw such schemes as undermining the sentence imposed by the courts and as giving administrative authorities too much power (Chapter 7).
Another issue is the constitutional balance of power between the judiciary and executive. Judges may regard the variation of the sentence imposed by them by another body as undermining their authority. However, different jurisdictions may regard the periods of custody and supervision as having different purposes. In some countries the period in prison may be regarded as being the time required to allow a parole board to assess a prisoner’s suitability for release while in others the minimum term, or non-parole period set by the court, will represent the minimum period required to meet the objectives of the sentence, in particular punishment and deterrence.
Guiney traces the changing rationales for early release over time. Originally conceived of as a means of rehabilitating and integrating offenders back into the community, and as a form of aftercare, parole has evolved into a risk management system. But, as so often occurred in England and Wales, parole, remission and suspended sentences were primarily used for pragmatic reasons such as to ease pressure on prison space as the prison population grew rapidly in the 1960s and 1970s.
The distribution of powers between legislatures, the courts and parole authorities will vary widely between jurisdictions. In some, release on parole will be automatic after the expiration of a minimum term or non-parole period set by a court while in others the parole authority has exclusive jurisdiction to release at the expiration of the minimum term. The power of the parole authority may depend on the length of sentence or the type of prisoner being sentenced. The distribution of powers will often reflect the level of trust that the various arms of government have in each other as well as the trust that the public has in any of them. The question of who has the ultimate authority to decide release – an independent board or a politician is one that bedevils many criminal justice systems. The answer will partly depend upon whether parole is regarded as a semi-judicial function or an administrative function and who is willing to bear the political risk of failure.
Guiney’s comparative historical analysis of the development of parole in the UK from the 1960s is an attempt to recognise the present’s connection to past events, to challenge what Paul Rock described as ‘chronocentrism’ (p. 229) in order to better understand the path dependency of policies and institutions. However, by concentrating on this moment in history he misses the opportunity to place the development of parole in a comparative jurisdictional context. There is little reference to developments of parole systems in the United States, Australasia, Canada and Europe from the early to mid-twentieth century. From reading this description of the policy process in England and Wales one could draw the conclusion that policy makers worked in a UK-centric bubble, which is not to say that the UK was completely unaware of, or uninfluenced by, broader intellectual currents. The just deserts penal philosophy articulated by von Hirsch and others from the early 1980s argued for the importance of ‘just punishment’ or censure in sentencing, for proportionality in punishment and against the indeterminism that characterised the rehabilitative model that permeated so much of sentencing and parole in the United States up to the 1980s and resulted in substantial reforms (p. 162).
In his postscript, which takes the reader on a brief tour of parole since the mid-1990s, Guiney identifies new forces that shaped parole in the UK: greater recognition of human rights, actuarial forms of justice and the centrality of risk, the politicisation of justice and the rise of populist punitiveness, the recognition of the rights of prisoners to procedural justice and the move from rehabilitation to punishment to risk management. With the emergence of sentences such as imprisonment for public protection, even concepts such as maximum penalties have become obsolete and in many other jurisdictions, for high risk and dangerous offenders, parole has been superseded by possibly indefinite supervision and detention orders managed by new bodies such as post-sentence authorities. Also missing from his discussion is the evolution of role of victims in the parole system which has resulted in victims having the right to make submissions to parole boards as well as being represented on the boards themselves.
Guiney’s intention is to highlight the role that early release has played in the criminal justice system of the liberal democratic state and to describe the nature of statecraft in such societies. In achieving that objective, he amply demonstrates that criminal justice is inherently political and that the policy making process is not linear, logical, clear and evidence-based but ‘contested, messy and contingent’ (p. 212). It’s a salutary lesson for all those interested in understanding penal change and how laws are made.
