of Justice Bill, which represents the third executive attempt to reduce judicial power over discretionary release and yet another attempt at shifting France towards ...
Chapter 1 Setting the stage. Defining concepts Martine Herzog-Evans As I am about to finish editing this book, the French Parliament has enacted a Ministry of Justice Bill, which represents the third executive attempt to reduce judicial power over discretionary release and yet another attempt at shifting France towards a quasiautomatic – and mandatory – early release system; thus, marginalising the concept of fair trial and eliminating the offenders’ point of view from the equation. Meanwhile, and conversely, England and Wales will be required to include fair trial into its own release system after Osborn v. the Parole Board; problem-solving courts, including reentry courts, are being replicated throughout the entire world whilst Belgium, France’s neighbour, has a dual release system largely due to the desire to contain overcrowding. Within Europe, there is an extreme diversity of situations: some jurisdictions prefer judicial discretionary release; others executive discretionary release; others executive automatic release; others still, like Belgium, a mixed system (Padfield et al., 2010). In many jurisdictions, however, ‘safety measures’ such as mandatory post-release supervision or preventive detention have developed (see e.g. Drenkhahn et al., 2012) against the backdrop of an approach of increasing ’bifurcation‘(to quote Pratt, 2002), separating low and medium risks whose jurisdictions increasingly want to faster release and in bigger numbers, and high risk offenders who are conversely submitted to more restrictive measures (Keyzer, 2013; McSherry, 2013). In many jurisdictions, the pressure of overcrowding due to years of punitive penal policies can push more qualitative considerations to the background. Historical, cultural, legal and institutional factors have generated very distinct legal frameworks and policy choices. To date, comparative studies focusing on release have been mainly descriptive, albeit indispensable, in order to visualise a clear picture emerging within Europe (Padfield et al., 2010), with the notable exception of Padfield (2007), who focused specifically on fairness in release, but unfortunately only in Anglophone jurisdictions. Since then, many changes have occurred and it is time to address in a more systematic and perhaps more multidisciplinary way, the two main issues that the European overview by Padfield et al. (2010) have uncovered. This book thus endeavours to add to the extant literature by specifically focusing on these two issues: firstly, is automatic early release at a given point in time (e.g. half or third point) better than a discretionary release system whereby a court, a judge, a commission, a board or an individual, decides based on a series of parameters, be they behavioural, social, psychological or criminological? Secondly, which is the best, an early release system whereby an executive body or individual makes the decision or a system where this decision-making belongs to a judicial body (a court or judge)? Indeed, these questions are to be understood within a given legal context, itself largely the consequence of history, culture, legal culture, and practice. Could there be, however, broader and universal truths? With the idea of best justice, human rights, but also criminological efficiency in mind, can we draw general conclusions that can transcend the contextual relativity of each jurisdiction? What can we learn from comparative law and criminology that may be generalisable? These are
5
SETTING THE STAGE. DEFINING CONCEPTS the theoretical questions that this book, perhaps too optimistically, endeavours to answer. It is however necessary to first try and define the concepts which will constitute the basis of our joint enterprise.
1.
Defining discretionary and automatic release
1.1. Defining discretionary release In her chapter, Christine Morgenstern (chapter 5) argues that a release system cannot be deemed ‘discretionary’ if the court, body, or person must release the offender when he/she meets pre-set required conditions. In my opinion, this still accounts for a discretionary system as the body, person or court still has to appreciate whether the person meets the legal criteria for release and typically thus makes an assessment about his eligibility, readiness for release, treatment or programme, and about the risks he may represent for the community. For this reason, for the purpose of this book, discretionary release will be defined as meaning that a court, a body or a person has the power to analyse, ponder, and interpret, according to the law or relevant regulations, the elements contained in the file, presented during the hearing – if there is one – what is known about the person’s case, personality and circumstances – current and projected when released – before reaching a decision, whether it then must (as in German law) release him when all conditions are met or can (as for instance in French law). In such a context, the prisoner is expected to show some level of agency, since he is expected to file an application and to elaborate a release plan, alone or with the help of welfare, social, and health agencies, the probation service, charities, and/or his attorney and family. In such a system, focus is either on merit, and therefore in particular on behaviour, or on desistance and rehabilitation as a desired outcome deriving from the release plan, and the offender’s motivation and agency. The expectation is that prisoners shall be encouraged to prepare for their release by taking classes, working, participating in programmes, undergoing treatment for addiction, or mental illness, rather than idly waiting for their sentence to be served. It is also expected that they will prepare a credible and tailored release plan that will meet their criminogenic needs, the context and place of their release, and the needs of victims and the community. It is also hoped that motivation will gradually derive from such efforts and projections into their future, with the help of the aforementioned agencies and individuals.
1.2. Defining automatic release Early automatic release refers to a system where all or part of early prisoner release occurs at a predetermined point in time – whether by law or depending on the sentencing court’s decision –, whether he or she is ready and has a release plan or not. In such a system, the focus is equality of treatment, predictability, simplicity; it can also be the need to process a greater number of prisoners out of prison than a discretionary system would. With automatic release, a prisoner is by law entitled to early release at a given point in time, which greatly varies from one jurisdiction to another, and at times
6
MARTINE HERZOG-EVANS from a given type of prison to another or based on the penal category to which the prisoner belongs (e.g. either a first time offender or a recidivist). Purely automatic early release systems do not require a decision-making body or person. However, they do require for a person, agency or body, usually the prison service and its staff, to process cases and calculate when a prisoner has reached the point in time when he is by law entitled to early release. In some cases, a person or body may need to appreciate whether the prisoner belongs to an excluded category – for instance in mixed systems. Automatic release systems may ignore offenders’ immediate needs after release, and be only focused on their leaving the premises as has been the case with France’s out of court so called ‘simplified procedures’; they can also, and conversely, tend to the systematic preparation of all prisoners’ reentry – not just the well organised few as with discretionary systems – and support through the gate, as the Danish system tries to sustain (see Anette Storgard chapter 6), through collaborative prison and community efforts. In many cases, the prisoner's agency may also take a second seat, unless his reentry plan is the result of a joint effort and is thus not made for – or against – him but by and with him. In such a context, the focus is on equality (: all prisoners reaching a given point in time are released), and, increasingly, on the desire to free prison space. In some cases, automatic release is not accompanied by much supervision or support, as is the case in France with so-called simplified release procedures, if at all, as in England and Wales with Home Detention Curfew. Conversely, in other cases, automatic release takes the form of mandatory release and supervision. In such instances, automatic release can actually be justified by punitive considerations, the alternative being that the offenders in question will serve their full sentence without being subjected to any obligations or control upon their release. As in most cases, their level of risk will have excluded them from early release measures. Such systems (labelled 'safety measures’ in French law – see van der Wolf and HerzogEvans, chapter 9) may consist of releasing offenders early in order to subject them to mandatory risk focused supervision. This supervision can also be imposed when the offender has fully completed his sentence. At the extreme, he can be sent to a different form of detention centre, either a prison or a treatment centre or a mix of both. This form of post release detention can also constitute a sanction for having breached mandatory supervision. Therefore, mandatory supervision can be defined as being a form of supervision which is imposed on the prisoner upon his release, be it early or not, whether he does or does not willingly prepare a release plan. Such systems mainly focus on risk and ways of managing it. They typically apply to sex or violent offenders and other serious offences, and have little concern for offender agency. Behind this apparent clear-cut dichotomy, in practice the actual process is much more complex.
7
SETTING THE STAGE. DEFINING CONCEPTS
1.3. Adding complexity to the equation As Frieder Dünkel (chapter 8) states in this volume: 'looking more closely, so-called automatic or mandatory release is not as "automatic" as it seems. In fact, within the discretionary systems one can find different forms of discretion that are sometimes considerably restricted (thus coming close to a quasi-mandatory release system), sometimes opening a wide range of discretion which raises the question of arbitrariness when looking at the outcome of respective decisions. Therefore, the core question is not so much to differentiate between discretionary or automatic release, but instead to see whether the law requires a positive prognosis or whether the exclusion of a negative prognosis already justifies release'. Moreover, as Kevin Reitz argues in his chapter (n° 4), another distinction is probably even more important in the United States than automatic or discretionary release, that of determinate versus indeterminate sentences. 'An “indeterminate” prison sentence is one in which an offender’s date of release cannot be predicted with fair accuracy from the court’s judgment at the conclusion of a criminal trial. The actual length of term will be fixed by one or more decision-makers who exercise later-in-time release discretion in a way that is neither routinized nor reasonably knowable in advance' whereas 'A “determinate” prison sentence is one in which an offender’s date of release can be predicted with fair accuracy from the court’s judgment at the conclusion of a criminal trial. The actual length of term may be adjusted by one or more decision-makers who exercise later-intime release discretion in a way that is routinized or reasonably knowable in advance'. Further adding to the complexity of this picture, several U.S. jurisdictions have composite rules that refer to both systems. However, Kevin Reitz rightly explains that this is just a matter of perspective as release impacts whether a sentence is determinate or not. He claims a system where there is a lot of discretion in release is actually a system where the sentence is much less determinate than it expresses on paper at the front door
2.
Defining judicial and executive decision-making
If a discretionary system can be attached to either a judicial or an executive decisionmaking body, an automatic release system is not naturally linked to judicial decisionmaking.
2.1. Defining executive decision-making In many jurisdictions throughout the world an executive body or person may be in charge of releasing offenders. It typically is a prison governor or commission, or a Parole Board; it may be a probation officer, or a probation service. An executive body or person may have quasi-judicial powers as is often the case with Parole Boards. However, by nature, they are in fact not fully independent from the government or other executive bodies (see à propos of England and Wales, Elliott, 2007; and à propos of New Zealand, Ellis, 2007). Their decision-making process may include elements of due process (in particular a hearing and at times the right to an attorney), but rarely all of them or for all cases.
8
MARTINE HERZOG-EVANS Indeed, such a body or person may be taking orders or be following guidelines from their hierarchy, the Ministry of Justice, or from policy makers. Even when they are actually independent administrative bodies with no direct link – other than funding – with the executive, they may nonetheless not appear to be fully impartial in the eyes of offenders or the public (Elliott, 2007; Ellis, 2007). In executive release systems, courts may however be in charge of deciding on breach and recall cases.
2.2. Defining judicial decision-making Judicial decision-making refers to a single judge or a court in charge of releasing prisoners early. This court may a minima be competent for release and breach cases. A maxima, they can also be competent for prisoners' transfers, disciplinary sanctions (or the appeal thereof), and other prisoners’ rights matters. In most cases, when a judge or court decides on release issues, it is also in charge of breach cases. Judicial decision-making generally guarantees that a fair trial will take place and, in particular, that the prisoner will have a say and will be allowed to be assisted by an attorney. But such is not necessarily always the case. In France, before 2000, even though a judge, the juge de l’application des peines (J.A.P.) was in charge of releasing prisoners, his decisions were made in an administrative commission, within the prison, surrounded – and thus heavily influenced by – prison staff (Herzog-Evans, 1994) and, in most cases not only did a hearing not take place, but also he did not see the prisoner at the point of deciding on the case, although he/she had often seen this prisoner beforehand. This is the system to which the current French government partly moved France back to (: Reoffending and Individualisation of sentences Act, 2014), a change that has greatly influenced the present book project.
3.
How this book came about
In 2010, Nicola Padfield, Dirk van Zyl Smit and Frieder Dünkel (2010) edited the aforementioned very important European comparative volume where the release systems of twelve jurisdictions were described following an identical framework. In the present volume, Frieder Dünkel updates this earlier work (chapter n° 8) adding to a strikingly contrasted picture. What comes out of this comparative exercise is that virtually all the previously defined systems are present in Europe; many jurisdictions displaying a mix of several of them. For instance, Germany and Finland both have a full judicial and full discretionary early release system. Italy also has a judicial and discretionary system, with sentence implementation by the judge. However, it uses collective pardon to a rather large extent, which can be considered similar to constituting an automatic release system. Only Ireland has a purely executive early release system. In some jurisdictions it may be difficult to label which system is in place. How can one characterise the Dutch method whereby prosecutors are in charge of parole? Is it judicial as prosecutors belong to the judiciary or is it semi-executive given the nature of prosecution in continental Europe? Spain presents an equally complex picture: a sentence implementation judge 9
SETTING THE STAGE. DEFINING CONCEPTS makes early release decisions, but he can only do so when the executive has made the decision to transfer a prisoner to an open-regime prison. Many jurisdictions have a mixed system. Such is the case of England and Wales with their combination of Parole Board, and executive Home Detention Curfew (see Nicola Padfield, chapter n° 3), and its few problem-solving courts (see Fox and Bowens, chapter n° 19). This is also the case of Belgium, where sentence implementation courts release offenders sentenced to three years or more imprisonment, whereas the prison services release offenders serving shorter sentences – with some never actually serving their sentences (see Scheirs et al., chapter n° 7). In Spain, there is an automatic release system which is led by the executive mixed with a discretionary system, befalling to the sentence implementation judge (Padfield et al., 2010). In Scotland, a non-judicial body, the Parole Board, makes some decisions, as in England and Wales. In both jurisdictions, it is an independent body which does not take orders nor follows governmental guidelines, and the procedure that is followed in such circumstances is semi-judicial – which does not mean the Parole Board is independent. As Nicola Padfield reveals in her chapter in this volume (n° 3), there, however, is pressure on England and Wales' Parole Board to embrace more fully fair trial principles. Such progress may be limited to lifers since these decisive changes were made following European court cases which only concerned this category of offenders (EHRCt 2 March 1987, Weeks v. United Kingdom, n° 9787/82 and EHRCt 24 July 2001, Hirst v. United Kingdom, n° 40787/98). In the United-States, it is in most cases a Parole Board that releases prisoners early. However, as Kevin Reitz shows in this volume (chapter n° 4), procedures vary greatly, some being very close to court equitable trials, whereas others are purely administrative and written dossier based. Another striking feature is that in most jurisdictions, release systems are constantly under scrutiny, as contrasting logics alternate; at times pressing them to release more offenders to solve the overcrowding issue, and at others, to release less offenders as public opinion objects to early release. Since courts are not easily swayed by governments through virtue of the principle of separation of power, other than by enacting evermore constraining laws as can happen in written law jurisdictions, states may be making what may appear to be sharp U-turns. For instance, whereas Belgium had a purely executive release system in the past, it opted for a discretionary court release system in 2006, but never fully implemented it as it needed to contain prison overcrowding. Conversely, as public opinion seemed to increasingly reject early release, the Netherlands has forsaken their previous automatic parole system. In France, since 2000, there has been a frantic succession of law reforms which have tried to influence or put pressure on sentence implementation judges so that they release faster and more frequently low and medium risk offenders, but do not release high risk offenders. In order to obtain such results, law-reformers –that is mainly the government, as the French constitution does not allow Parliament to have much say – have changed the law in order to constrain judges more tightly, whilst trying to bypass them altogether with parallel executive or semi-executive procedures. The history of American Parole as described by Kevin Reitz (chapter n° 4), is even more telling. In many jurisdictions, particularly in Europe, there is an increasing bifurcation approach to offenders. Those at the lower to the medium end of the penal spectrum are processed in and out of the system in an ever more frantic fashion – which has often 10
MARTINE HERZOG-EVANS little to do with criminological efficiency and individualisation – whilst high risk offenders are subjected to stricter rules, stricter supervision, and stricter release conditions and decision-makers are increasingly constrained by legislators. Indeed, as Padfield et al. (2010) clearly showed, the temptation to solve overcrowding by way of instrumentalising release is also increasingly present in Europe. Thus, judicial and discretionary release systems may be perceived as being too slow, too independent, and not sufficiently focused on these institutional and financial considerations, in some cases at the expense of fair trial or efficient reentry. Even the risk of prisoners coming in and out of the prison’s revolving door (Padfield and Maruna, 2006) may be accepted so far as a cell is freed for a short period of time. In Padfield et al. (2010), the introductory chapter showed that the European Human Rights Court refused to choose between one system and another. European jurisprudence may often lead the way to important improvements in European legal systems; however, and in particular with procedural issues, it only does so when it senses that European jurisdictions are ready for such changes. This only appears to be the case when a sufficient number of such jurisdictions opt for a new method, approach or system. With early release, as we have seen, there is not yet a clear enough image of the big picture for the court to pave the way for progress, whatever progress might be. Precisely, a second reason why the Human Rights Court may be timorous is that one does not know for sure what an ideal early release system would be. It is with this in mind, and largely influenced by Padfield et al.'s European overview, that I commented on France’s chronic law reforming in sentence implementation and release, with its contradictory and schizophrenic U-turns (e.g. Herzog-Evans, 2011a and b and 2012-2013: chap 04). When I presented my PhD in 1994 (Herzog-Evans, 1994; 1998), sentence implementation judges (juges de l'application des peines - J.A.P.) were in charge of the release of short sentences up to three years and the Ministry of Justice for longer sentences. At the time, the responsibility for longer sentences was deemed too serious for a one judge court and the executive wanted to control decision-making over higher risk profiles. Even though the J.A.P. were seen as real judges, they were not considered to be Courts of law until a very important reform occurred in 2000 – and was completed in 2004. In 2000 and 2004 such decisions were 'judicialised', that is J.A.P. were acknowledged as being courts of law, and from then on, had to make their decisions as a court would, i.e. abiding fair trial principles, to explain their rulings in writing, and these rulings could be appealed. In 2000, the then French Minister of Justice, who at first had been opposed to the reform, changed her point of view overnight when she realised she would no longer bear the rather delicate responsibility of releasing long term offenders. However, by as soon as 2004 a partial attempt to fast track release outside the fair trial system was made. Ultimately, this attempt failed because offenders preferred their case to be heard in court, and probation services, in charge of these procedures, chose to focus on the core of their mission, i.e. supervision. A second attempt was made in 2009, which failed partly for the same reasons – even though a lot of pressure was put on probation services by their headquarters to comply. A third attempt has been made with an August 2014 with yet another parallel fast-tract early release system. With each reform, a variety of considerations have been at play. In the past, J.A.P. had been accused of releasing too easily; currently, they are accused of not releasing enough offenders. Strikingly, law 11
SETTING THE STAGE. DEFINING CONCEPTS reformers never seem to think in terms of outcome pertaining to reoffending and rehabilitation. Commenting on French law reforms going one way, then another, then back again, throughout the years, I inevitably wondered whether one approach could be deemed more human, fairer, but also more efficient in terms of reoffending, rehabilitation, reentry, and desistance. I started wondering whether asking the question in those terms made any sense at all or whether it depended, for instance, on the level of support offenders might receive in their jurisdictions, on the expectations of prisoners, and particularly on their perception of fairness, on the state of public opinion, and so on.
4.
Can we reasonably ask which system is ‘best’?
Nobody has apparently addressed this issue systematically and empirically in those terms, but, for a part, for Solomon et al. (reproduced this volume – chapter 10) and Kuziemko (2007, 2012). Solomon and colleagues’ study suggests that there is not much difference between automatic and discretionary release; Kuziemko, an economist, on the other hand, found that automatic release cost more money in terms of reoffending. To my knowledge, nobody has compared the outcomes of executive versus discretionary release and the methodology around these questions would probably be exceptionally difficult, if even possible. Nonetheless, there appears to be on first impression a series of arguments in favour of both systems. Some arguments, however, are heavily dependent on context, the legal system, and many other circumstantial factors.
4.1. Discussing automatic versus discretionary release On first impression, automatic release seems to be a more equitable system than a system whereby an authority will make an assessment on the merit of each individual case. Every prisoner thus knows when he or she shall be released and the same rules apply to all of them – albeit in many cases with differences between categories of offenders, legal status, type of offence, or length of sentence. It must, however, be pointed out that equality does not necessarily mean strict identity as is precisely shown with the increasing tendency to differentiate between categories of offenders as to the precise point of release. Equality is generally defined in legal terms as meaning those people who are placed in identical situations and in all aspects must be treated in the same fashion. With offenders, however, it may be argued that each individual is an entity to his own, who cannot be assimilated to another. Therefore, the correct approach is individualisation rather than categorising as Saleilles so brilliantly argued (1898). Here, we are touching upon a fundamental penological dichotomy separating those who want to better limit judicial or other decision-making by bounding it with clear guidelines and those who favour an individualised approach. Several chapters in this volume touch upon these varying approaches and in particular Dünkel (n° 8), Morgenstern (n° 5) and Reitz (n° 4). Behind this central dichotomy there is a legitimate fear of discrimination and inconsistency – which incidentally led to the Consistency in sentencing European Recommendation. Interestingly, in written law jurisdictions, where judicial decisions are bound by a great number of rules, the need for guidelines is less – if at all – felt. 12
MARTINE HERZOG-EVANS Another argument in favour or automatic release is that since the day of release is usually known from the start of the sentence, there paradoxically is a 'truth in sentencing' predictability effect which is rather similar to instances where the person serves his or her sentence to the full, but for the important caveat that in many instances – but not all – the person is supervised upon release. Things then also appear to be clearer both for prisoners and for the public. It can, however, be objected that a strict release date is irrespective of the prisoner's actual readiness for release. He or she may need more – and in some cases less – time to be psychologically ready to face the outside world, may not yet have found housing or revenue, may still need to work on his addiction or mental health issues, or complete a curriculum. His/her release plan may not be fully ready at that exact point in time and it then makes more sense to release him/her when he/she is fully ready and supported. This preparedness heavily depends on the support he may receive from the probation service or the other reentry related agencies. In jurisdictions where these agencies are poorly organised, understaffed, poorly funded, or have an administrative approach to release, prisoners receive little support and automatic release may well be no more than pushing them out of prison in order to save prison space, rather than actually preparing them for a decent and successful life outside prison. Precisely, the automatic processing of all or most prisoners out of prison at one point in time favours managerialist preoccupations with prison space. It makes it easier to plan cell occupation. In financial terms, it can be expected to save precious finances as cell occupation is maximised or at least reduced. However, it is to be expected in many cases that penal courts do adapt to the shortened length of time that prisoners spend behind bars and that they determine prison sentences accordingly, thus often cancelling the aforementioned managerial and financial gains. One may argue that automatic release is not exclusively intended for the benefit of prison managers and public finances, but that it also is more generous to prisoners. It does not take merit into consideration, and therefore treats in the exact same way those who actively prepare for their release and make resocialisation efforts, and those who stay in their cell waiting for their release date. One might, however, wonder whether the early release of all prisoners without any consideration for merit is a sound approach and, in particular, is acceptable to public opinion. Moreover, automatic release can also actually be more punitive. Let us compare for instance a legal system where automatic release occurs at two thirds of the sentence compared to the discretionary French system whereby an offender can ask for parole at mid-point, minus remission, which will typically correspond to one third of his sentence, and can actually be released one year before this date on semi-freedom or electronic monitoring, conditional to parole (Prison Law, 2009). With a four year sentence this in practice means he can ask for parole after just a few months. Additionally, in a punitive legal context, automatic early release can be a means to impose supervision to offenders, some of whom would have preferred to serve their full sentence and be left in peace (see e.g. May and Wood, 2010). With risk-averse mandatory supervision systems for high risk offenders (: ‘safety measures’ – see van der Wolf and Herzog-Evans, chapter 9) automatic release, far from being generous, is actually coercive and can heavily impact on offenders' civil rights.
13
SETTING THE STAGE. DEFINING CONCEPTS This is where a fourth argument in favour of automatic release can be brandished: mandatory supervision attached to early release is more conducive of desistance and rehabilitation as it provides offenders with support and control. However, this approach is too simplistic and ignores vast individual differences between offenders and, as already mentioned supra, vast differences in institutional approaches to re-entry. In a supportive and collaborative context as seems to be the case in Denmark (see A. Storgaard, chapter n° 6), this is probably a quasi-ideal configuration. In a purely administrative approach, which often includes a huge caseload for probation officers, and a non-collaborative approach, as is currently the case in France, quasi-automatic release has little chance of being anything more than maxing out… earlier. Additionally, desistance literature has made clear that agency is an essential component of the desistance process (King, 2012) and motivation and fairness are essential component of compliance (Robinson and McNeill, 2008 and 2010; Bottoms, 2001). It is doubtful that in a less perfect system than Denmark, agency and substantive compliance will be fully mobilised by a one size-fits-all automatic approach. Precisely, a discretionary approach seems to be more conducive of offender empowerment and agency. It is indeed prisoners’ release plans that are presented to the decision-making body. It thus is to be hoped that their compliance will be more substantive than instrumental. However, this system conversely leaves out of the equation the offenders who have little agency and in particular, vulnerable prisoners, addicts, people with mental health issues and personality disorders, or with impaired intelligence; in other words, it is at serious risk of leaving out a great number of prisoners. It can be argued though, that discretionary release is probably more acceptable to the general public (see Hough, chapter n° 11), which may have a hard time accepting that offenders as a principle do not serve a significant proportion of their sentence. At least it is the offender's merit that allows him to leave the prison gates earlier when and if he is ready to make the resocialisation efforts that are likely to best prepare him for his return to society. Moreover, it can be hoped that the decision-making body can be expected to rule based on a host of relevant factors and to carefully examine all the factors at stake. If a new offence is committed, it is thus easier to explain to the public that everything was methodically put in place in order to prevent it. Such an assertion cannot be made with automatic release. It is also easier for the executive to then blame the decision-making body. But then who should make this decision?
4.2. Discussing executive versus judicial release Executive decision-making can be defended on the basis of constitutional arguments. In many jurisdictions, once the sentence is passed, the judicial system's competence ceases and only the executive, in charge of executing the decision, is competent. However, an equally convincing argument can be raised in favour of judicial release. In particular, it can be argued that release decisions affect the person's fundamental liberties and are therefore of equal importance in terms of human rights, as was the original sentencing decision (Herzog-Evans, 1994; Padfield et al., 2012). It can be added that such a decision impacting on the length of the sentence is equal in nature to the sentencing decision: only a court should be allowed to undo what another court has done. 14
MARTINE HERZOG-EVANS Unfortunately, court decision-making may be accused of being inefficient in quickly processing offenders out of prison and of being thus less capable of solving the overcrowding issue that many jurisdictions face. It is indeed true that some judicial procedures may be slow. However, this is a matter of organisation and level of procedural formality. In Finland, the Court of Appeal manages to release early 99% of its offenders (Padfield et al., 2010). Formalities can indeed be considerably reduced as the French example of juge de l'application des peines shows. Conversely, some Parole Boards may be just as formal and slow. Nonetheless, an executive body usually takes orders from its headquarters or hierarchy and, eventually, from the government itself, and can thus be expected to implement whichever policy it sees fits, which can at times include quickly releasing offenders and at other times opposing it. The French history of parole is a telling illustration. When the ministry of justice was in charge, there were times where it had rather cold feet. Now that overcrowding has become an issue in dire economic times, it resents judges continuing to have a say in such matters and would like to be in control of release decisions all over again. One might also wonder whether release should aim mainly at solving overcrowding issues. Should it not rather aim at successful re-entry, rehabilitation and desistance? Likewise, should not overcrowding be solved by way of courageous policy decisions such as decriminalisation, lowering tariffs or sentence maxima and prohibiting imprisonment for petty or non-violent offences? Is it not because politicians shy away from making these unpopular decisions that they then turn to ‘back door’ measures – here the expression's double entendre is perfectly to the point – i.e. out of the eyes of the public automatic release pronounced or merely enacted by the executive? On the other hand, the courts’ decision-making may raise an issue of competence, which is crucial. Judges can be accused of being less competent at assessing risk and understanding desistance and re-entry, than say, probation officers or health practitioners. This argument, however, is not entirely convincing. In most cases, and in most matters, judges are never specialists. For this reason, they usually hear the testimony of experts, ask them to write written reports, may be required to hear the point of view of the prison services, and to read the probation service’s report, and so forth. They seldom decide based on their isolated evaluation of the case, but on a conjunction of often contradictory facts, opinions and truths. Moreover, there are specialist judges such as juvenile judges or, as in France (Herzog-Evans, 2014) and Belgium (Scheirs, 2013), Italy, Spain and Latin America, sentence implementation judges, and there are problem-solving courts in many Anglophone jurisdictions. Lastly, in some cases, probation officers may have a risk-averse culture that limits their capacity to support desistance (Herzog-Evans, 2011). As we have seen with most arguments raised so far, things are highly contextual and it may be very difficult to draw general conclusions. As a matter of fact, the main question may be how to recruit good decision-makers, whoever they may be; and in particular, good judges, good parole board members, good probation officers and good prison governors. This is not a new question. Therapeutic jurisprudence has explored this issue before with some interesting insights (Wexler, 2013). If some courts, such as problem-solving courts (Berman and Feinblatt, 2005) or French juges de l'application des peines (Herzog-Evans, 2014) are undoubtedly ‘good’ courts, then the main issue is what is the recipe for success and how can it be 15
SETTING THE STAGE. DEFINING CONCEPTS mainstreamed and, this is an even more complex question (Nolan, 2009) is this transferrable? Similar questions pertaining to probation officers (Andrews and Kiessling, 1980), receive equally different solutions (van Kalmthout and Durnescu, 2008), and are not entirely solved today. Another issue is that of human rights and rights to fair trial. The right to fair trial is more likely to be associated to a court or judicial body, but can also be attached to a Parole Board. The key question here is: should release decisions be made in a due process context? Some jurisdictions clearly think so. Others do not seem to see the point. Legitimacy of justice literature (Tyler, 2006, 2007 and 2012; De Mesmaecker, 2014) certainly gives us food for thought. It has confirmed that fairness is immensely important in terms of compliance and public perception of justice. If it is important in terms of compliance, then it may be said that it may be considered as being a powerful criminological tool. However, no legitimacy of justice empirical research has ever actually investigated this point in the release phase of the criminal justice process. There is, however, a growing body of literature focusing on the links between fairness and recall (Liebling, 2007; Arnott, 2007), but none has touched upon the entry point of recall, that is release. The legitimacy of justice literature nonetheless confirms that ideal procedural justice is a universal aspiration. De Mesmaecker (2014), using for the first time a qualitative design and focusing on a continental European jurisdiction (Belgium), did confirm that people do expect decision-makers to make decisions based on the exact facts of their case, to let them have a say in the decision-making process, to be respected and treated with care, and to be objective and independent. On the face of it, as suggested above, executive decision-makers can hardly claim to be fully independent (Elliott, 2007; Ellis, 2007). However, this overview of general considerations does not lead to a firm conclusion in favour of one system or another. There lies the core reason for this book. In the absence of generalisable empirical decisive studies, I have decided to approach this subject from a variety of angles, disciplines and practices.
5.
Answering the questions. Book content
I first chose to focus on legal analysis starting with the presentation of a still unstable system with the international criminal tribunals and court by Róisín Mulgrew (chapter n° 2). I then wanted to present at least one example for each opposed component: • A dominant executive decision-making system with a mix of automatic and discretionary releasing method with England and Wales, presented by Nicola Padfield (chapter n° 3); • A Parole Board discretionary system with the United-States, presented by Kevin Reitz (chapter 4); • A Dominant court and discretionary system with Germany, presented by Christine Morgenstern (Chapter. 5); • A dominant automatic and executive system with Denmark, presented by Anette Storgaard (chapter 6); • A mixed legal system with Belgium presented by Veerle Scheirs, Kristel Beyens and Sonja Snacken (chapter n° 7);
16
MARTINE HERZOG-EVANS I then asked Frieder Dünkel to problematise and synthetise this legal comparative overview (chapter n° 8). Lastly, Michiel van der Wolf and I (chapter n° 9) focused on mandatory post release supervision and detention in The Netherlands and France. As we have seen, the issues at stake also raise legitimacy of justice questions which needed to be addressed further. In spite of a dearth of empirical research into what French legal scholars consider as being the last phase of the penal process, Mike Hough makes a valiant effort at theoretically bridging release and legitimacy of justice (chapter 11) Empirical literature is just as limited with regard to criminological outcomes. Amy L. Solomon, Vera Kachnowski and Aninash Bhati are thus a welcomed exception and I want to thank the Urban Institute for having allowed us to reprint their 2005 study (chapter 10). However, this rather unique study, which can hardly be considered as being generalisable to drastically different contexts such as European jurisdictions, suggests that a purely quantitative approach is not sufficient. Hence, the request was made to Leon Digard (chapter n° 12) to investigate the greater number of qualitative studies on compliance and desistance. Following this qualitative line of reasoning, I wanted the aforementioned key issue of decision-maker competence to be analysed and asked Mario Paparozzi and Roger Guy (chapter n° 13) to present the results of their previous studies and thoughts on this matter. If decision-makers, whatever their institutional nature, are essential to good justice, then another issue is how to ensure good people are recruited. I try and address this issue by way of illustration, with French juges de l'application des peines (Chapter 14). Other similar experiences exist in other jurisdictions such as Hawai’i with their restorative and therapeutic reentry rituals, as presented by Lorenn Walker and Lesley Kobayashi (chapter n° 15). Best practices are then addressed with an introductory chapter on problem-solving courts by Michael Rempel (chapter n° 16). Michael Jones and Elizabeth Johnson go further and present the international therapeutic jurisprudence movement and its application (chapter n° 17). I then wondered whether the French J.A.P. qualified as a problemsolving court (chapter n° 18), which, beyond a theoretical exercise, gave me the opportunity to reflect on the main issue of how to mainstream and make good justice sustainable. Inevitably, this volume had to end with my conclusion (chapter 20); but before I made this final move, I wanted Aubrey Fox and Phil Bowens (chapter 19) to reflect on good justice transferability and the obstacles it might face. I hope the reader will enjoy, as I did, this tentative exploration into comparative criminal justice and make his/her profit of all that can be learnt from it. He/she may close this volume, as I did, with more questions than answers. It is my hope that it will generate further empirical avenues of research.
17
SETTING THE STAGE. DEFINING CONCEPTS
References Andrews D.A. and Kiessling, J.J. (1980), ‘Program Structure and Effective Correctional Practices: a summary of the CaVic research’, in R.R. Ross et P. Gendreau (eds.), Effective Correctional Treatment, Toronto, Butterworth: 441-463. Berman G. and Feinblatt J. (2005), Good Courts, New York, New Press. Bottoms A.E. (2001) ‘Compliance and Community Penalties’, in A. Bottoms, L. Gelsthorpe and S. Rex (eds) Community Penalties: Change and Challenges, Cullompton, Willan Publishing: 87-116. De Mesmaecker V. (2014), Perceptions of Criminal Justice, Abingdon, Routledge. Drenkhahn K., Morgenstern C. and van Zyl Smit D. (2012), ‘What is in a name? Preventive Detention in Germany in the Shadow of European Human Rights Law’: Crim. L. R. n° 3: 167-187. Elliott M. (2007), ‘The Parole Board and the changing face of public law’, in Padfield N. (ed.), Who to Release? Parole, fairness and criminal justice, Cullompton, Willan Publishing: 43-62. Ellis T. (2007), ‘The New Zealand Parole Board, its independence and some domestic and international legal challenges’, Padfield N. (ed.), Who to Release? Parole, fairness and criminal justice, Cullompton, Willan Publishing: 72-84. Herzog-Evans M. (1994), La gestion du comportement du détenu. L'apparence légaliste du droit pénitentiaire, PhD Thesis in criminal law, University of Poitiers (later published as La gestion du comportement du détenu. Essai de droit pénitentiaire, Paris, l'Harmattan). Herzog-Evans M. (2011 a), 'Nouveaux enjeux dans l'application des peines. Les leçons du droit et de la criminologie appliquée', Actualité Juridique Pénal, April: 177-180 Herzog-Evans M. (2011 b), 'Les décrets de la partie application des peines de la loi pénitentiaire: déjuridictionnalisation forcenée et maquis processuel', Actualité juridique pénal, April: 160-166. Herzog-Evans M. (2012-2013), Droit de l'exécution des peines, Paris, Dalloz. Herzog-Evans M. (2014), French reentry courts and rehabilitation: Mister Jourdain of desistance, Paris, l'Harmattan. Keyzer P. (2013) (ed.), Preventive Detention: Asking the Fundamental Questions, Cambridge, Intersentia. King S. (2012), ‘Transformative agency and desistance from crime’, Criminology and Criminal Justice, n° 13(3): 317-335. Kuziemko I. (2007), Going Off Parole: How the Elimination of Discretionary Prison Release Affects the Social Cost of Crime, PhD thesis, Harvard University. Kuziemko I. (2013), ‘How Should Inmates Be Released from Prison? An Assessment of Parole Versus Fixed-Sentence Regimes’, The Quaterly Journal of Economics, 128(1): 371-424. Liebling A. (2007), ‘Why fairness matters in criminal justice’, in Padfield N. (ed.), Who to Release? Parole, fairness and criminal justice, Cullompton, Willan Publishing: 63-71. May D.C. and Wood P. B. (2010), Ranking Correctional Punishments. Views from Offenders, Practitioners, and the Public, Carolina Academic Press. McSherry M. (2013), Managing Fear. The Law and Ethics of Preventive Detention and Risk Assessment, Abingdon, Routledge. Nolan J. L. Jr (2009), Legal Accents, Legal Borrowing. The International Problem-Solving Court Movement, Princeton, NJ, Princeton University Press.
18
MARTINE HERZOG-EVANS Padfield N. (ed.) (2007), Who to Release? Parole, fairness and criminal justice, Cullompton, Willan Publishing Padfield N. (ed.) (2007), Who to Release? Parole, fairness and criminal justice, Cullompton, Willan Publishing Padfield, N. and S. 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. Padfield N., van Zyl Smit D. and Dünkel F. (eds.) (2010), Release from Prison. European Policy and Practice, Collumpton, Willan Publishing. Padfield N., Morgan R., Maguire M. (2012), ‘Out of court, out of sight? Criminal sanctions and non-judicial decision-making, in Maguire M., Morgan R. and Reiner R. (eds.), The Oxford Handbook of Criminology, Oxford, Oxford University Press: 955985. Pratt J. (2002), Punishment and Civilisation, London, Sage. Robinson G. and McNeill F. (2008), ‘Exploring the Dynamics of Compliance with Community Penalties’, Theoretical Criminology, vol. 12: 431-449 Robinson G. and McNeill F. (2010), ‘The dynamics of compliance with offender supervision’, in F. McNeill, P. Raynor and C. Trotter, Offender Supervision. New Directions in theory, research and practice, Cullompton, Willan Publishing: 367-383. Salleilles R. (1898), L'individualisation de la peine. Étude de criminalité sociale, Paris, Germer Baillière et Cie, Félix Alcan (in English The Individualization of Punishment, Bibliobazaar, reed. 2009). Scheirs, V. (2013), De straftoemetingsrechtbank aan het werk. Een etnografisch onderzoek naar haar interacties, beslissingsprocessen en –praktijken. The sentence implementation court at work. An ethnographic research into their interaction, decision-making practices and processes, Unpublished PhD thesis in Criminology, Vrije Universiteit Brussel. Solomon A. L., Kachnowski V. et Bhati A., (2005), Does parole work? Analyzing the Impact of Postprison Supervision on Rearrest Outcomes, Urban institute, March (this volume chapter 3.1) Tyler T.R. (2006), Why People Obey the Law, New Haven, CT, Yale University Press, 2nd ed. Tyler T.R. (2007), Legitimacy and Criminal Justice. International Pespectives, New York, Sage Foundation,. Tyler T.R. (2012), ‘The virtues of self-regulation’, in A. Crawford and A. Hucklesby (eds..), Legitimacy and compliance in criminal justice, London, Routledge: 8-28. van Zyl Smit, D. and Spencer J.R. (2010), ‘The European Dimension to the Release of Sentenced Prisoners’, In Padfield N., van Zyl Smit D., and Dünkel F. (eds.), Release from Prison: European Policy and Practice. Cullompton, Willan Publishing: 9-46. Van Kalmthout A. and Durnescu I. (2008), Probation in Europe, Nijmegen, Wolf Legal Publishers. Wexler D. (2013), ‘New Wine in New Bottles: The Need to Sketch a Therapeutic Jurisprudence ‘Code’ of Proposed Criminal Processes and Practice’, Arizona Summit Law Review, n° 7(3): 463-479.
19
20
