Abstract
For parole scholars, Irish policy-makers, penal reform advocates, members of the legal profession, life sentence prisoners, families of people who were murdered and those otherwise interested in learning about the inscrutable political decision-making process governing the release of life sentence prisoners on a small island on the periphery of Europe, Killing Time, based on PhD research by Diarmuid Griffin conducted between 2007 and 2012, is an illuminating read.
Griffin brings the reader through a history of homicide rates in Ireland, changing public and political attitudes to crime and violence, the advent of risk technologies and the upward trend in time served for murder before release on parole. He compares and contrasts the parole process in various jurisdictions (including the highly punitive United States and European models that have opted for court-like structures to determine the appropriateness of release) with the murky Hibernian approach where the release decision is an entirely political one made by the Minister for Justice of the day, usually informed by the conservative recommendations of the Parole Board. The Minister’s power stems from the Criminal Justice Act, 1960, which governs all Temporary Release decisions.Griffin’s study argues that “a culture of cautiousness” (p. 116) pervades the Irish parole process, which might partly be explained by his discovery that the appointment of Parole Board members is itself political and linked to party allegiance. Indeed, one interviewee who was a former Minister for Justice used the phrase “party hacks” in reference to appointees of his political persuasion (p. 82). Few members would have had the confidence, the high profile or “the guts” of T.K. Whitaker, the former Chairman of the Sentence Review Group that preceded the Parole Board, to even contemplate confronting a Minister about unconscionable foot-dragging and threaten to go public “unless he made a decision” (see p. 68).
The highlight of the book for me was the rich use of qualitative interview data to shed much-needed light into the dark, cobwebbed corners of the parole process, revealing the tangled excuse for thinking that guides the making of timid recommendations by Parole Board members and the risk-averse, media-obsessed decisions of Ministers. Griffin’s research difficulties in obtaining access to parole review dossiers and the protracted negotiations with both the Parole Board and Department of Justice officials that ultimately proved futile speaks volumes about the guarded nature of release decision-making, and indeed the “closed, secretive and silo driven culture” of the Department as described by the Report of the Independent Review Group on the Department of Justice and Equality in 2014. 1
What came as something of a surprise, however, was that there was widespread support among interviewees for maintaining political decision-making control over the process on the grounds of public accountability. This is quite out of step with academic commentary and advocacy efforts in recent years to push for the Parole Board to be placed on a statutory footing with power to make release decisions without ministerial involvement.
Chapter 4 entitled “The Risk Factor” was particularly interesting. While risk assessment tools are central to the parole reports of both the Probation Service and Psychology Service of the Irish Prison Service, Griffin carefully conveys the limited understanding Parole Board members had of risk assessment instruments and their validity in individual cases. Members often preferred to trust their own layman’s intuition, adopting a “common sense” (p. 115) approach to assessing the dangerousness of the malefactor sitting before them at a review, rather than merely accept the expert view of the “overly professional” (p. 114) risk assessor, or other stakeholders such as prison Governors whose “subjective” appraisal of the applicant might be untrustworthy due to working in such close quarters with them (p. 114). Interestingly, according to Laplace (1951: 196), probability theory is “nothing more at bottom than good sense reduced to a calculus”.
The nature and gravity of the index offence (murder) and public protection were, unsurprisingly, dominant preoccupations among interviewees. Members took a dim view of failure to engage with rehabilitative treatment services in prison and were unimpressed that many people only started to engage with services in prison at the time of first review after seven years in custody. This was partly due to inadequacies in sentence management for life sentence prisoners. Additional risk factors that influenced members’ views of parole applicants’ suitability for release included institutional conduct, substance use, factors relating to family and community, educational attainment, age (being old and infirm lessens risk), learning disability and mental illness (p. 120). The cautiousness of members was evident in statements to the effect that if they perceived risk of any reoffending on the part of the parole applicant, such as shoplifting or public order issues, they would be loath to recommend release (p. 117). This was a rather zealous and costly approach to risk and public protection.
Chapter 5 analyses how public opinion and politics are intertwined, particularly in relation to attitudes towards punishment and just deserts for murder. Interviewees were highly attuned to how release decisions perceived as unduly lenient by the public could have very negative fallout for the Minister. Former Justice Ministers and Parole Board members alike professed themselves to be cognisant of public attitudes to the sanctity of human life and the need for a life sentence to mean a substantial period of time deprived of liberty. The media was the barometer for measuring public opinion. Interviewees took the view that very early release on parole, for example, before 10 years, would not send an appropriate message to the public about the value of human life, and would fail to deter lethal violence in the future. The fixation on the public mood and supposed beliefs about murder and life imprisonment reminded the reader of Annison’s (2015: 42) description of the rise and fall of Indeterminate Sentences for Public Protection, “illusory democratization” and the desirability of honouring “the public voice” in the context of dangerous prisoners.
Griffin’s research suggests that Parole Board (hyper)vigilance is born essentially of emotion and foreboding, not logic based on objective information-processing. Members are unwilling to stick their necks on the line, just in case. As one interviewee stated: And as a member of the Board, any indication whatsoever that a person is a risk I would be very, very slow personally to, add my name I suppose really, add my voice to a recommendation to release that person. (p. 117)
Having read extensively on trauma, neurobiology, survival responses and the autonomic nervous system recently, I have learned that human beings are a lot less rational than we like to believe. Judges, juries, Parole Board members, ministers and indeed convicted murderers share the same basic stress response system as all other humans. Our prefrontal cortex, which governs reasoning, cognitive information processing, self-awareness, conceptual thinking, speech, impulse control, consequential decision-making and empathy, literally goes offline when we feel threatened or fearful.
Homicide (especially brutal predatory murder by a stranger) engenders fear. It makes all humans feel unsafe. At its core, parole decision-making is about figuring out whether a convicted murderer is safe to release on an unsuspecting public. This is not an easy, clear-cut task, even with the assistance of actuarial risk assessment tools, reports from prison managers and other intelligence, including the Garda (Ireland’s National Police and Security Service) view. Visceral revulsion at the parole applicant’s past rage under the influence of drugs or alcohol, or their history of coercive control and violence in the family home melded with the concern that they might do something similar again – irrespective of enthusiastic engagement with therapeutic services and exemplary institutional conduct – means that a decision-maker is, naturally, prone to relying on their gut instinct. This is due to our neurobiology, our ancient unconscious survival mechanisms. Our instincts are there to protect us and keep us alive.
If the “alarm bell” of the parole decision-maker’s emotional brain (Van der Kolk, 2014: 64–65) goes off when they meet a parole applicant, if their spidey senses tell them the person sitting before them might do something awful if released, the cortical brain will have a hard time overriding this embodied sense of trepidation. Moreover, active engagement by family members of the deceased in a parole process are likely to amplify the emotional reactions of parole members, rather than strengthen the powers of the prefrontal cortex. This is due to empathy and the ability to feel other people’s pain. Emotions are contagious. For this reason, enhanced victim participation in the parole process, particularly if they are allowed to make oral representations (under Section 13(1)(f) of the Parole Act, 2019) is highly unlikely to lead to earlier release on parole.
Layman’s intuition, while it might not fit comfortably within a legal belief system based on man as a “rational being” 2 or a sophisticated human rights framework, makes perfect sense if we understand that our primitive reptilian brain and emotional limbic system dominates behaviour when we are afraid and under stress. Griffin’s valiant efforts to gain clarity about the hierarchy of reasons for parole denial and delay suggests that decision-makers often follow their gut reactions to parole applicants and then try to rationalize their fear-based, emotional “decisions” later with reference to various risk factors and statutory considerations. They cobble together a rag-bag of half-baked reasons as to why a person is not yet ready to be released, because they do not feel he is a safe bet. If their reasoning appears muddled, fluffy or to fly in the face of Supreme Court case-law that the life sentence is “wholly punitive” (Lynch v Whelan (2012: 24) and contains no preventative component, this is perhaps because they only have recourse to reason after the fact to explain their emotional and fear-based responses to individuals.
Whether reform of the Parole process, along the lines discussed in Chapter 7 will be capable of removing the emotional, fear-driven quality of release decisions remains to be seen. Right now, Parole Board members have the luxury of not being accountable for their recommendations. Although their recommendations enjoy an 85% success rate, due largely to their conservative approach, there is no real skin off their nose if a Minister ignores their suggestions. The stakes for them, at a personal level, are not really very high under the current system. In the event of a catastrophic release error, it is the Minister’s head that may well roll as the ultimate decision-maker. Their heads are safe, at present. However, the balance of power will change fundamentally once the Parole Act 2019 (enacted on 11 July 2019) is commenced and parole decision-making power transfers from the Minister to an independent statutory Parole Board. 3 Under Section (8)(2) of the Act, the Parole Board as a body corporate will be capable of being sued. 4 People convicted of murder will only be eligible for parole after 12 years, under Section 24(1)(a). However, the transfer of parole power means that the buck will stop with members, and their instinctual fear of releasing a convicted murderer early, only to have them go on to do bad things on the outside, might well become more deeply felt, rather than less.