Presumptive Gradual Release

For submission to the

Parole Board of Canada Academic Think Tank on Community Corrections 2019

An Opinion

Graham Stewart

With this paper it is my intention to encourage discussion about the potential benefits of parole decision-making based on a model of presumptive gradual release. I will also discuss what I consider to be the current problems with the parole legislation and what I see as the suppressive impact that legislation has on the use of parole in Canada.

Premises

There are two notions on which this opinion piece is predicated. Should they be incorrect then nothing that follows will be a useful contribution to the discussion about the future of parole in Canada.

1. Gradual supervised release with support for those leaving prison reduces reoffending for all risk classifications of prisoners when those programs are properly developed and implemented.
2. The contribution of parole to gradual release programs has been unnecessarily low for many years.

Gradual release and effective corrections

It is beyond the scope of this short paper to review the literature on the effectiveness of gradual release. Hopefully it will suffice to refer to the report from the Research Branch of the Correctional Service of Canada in which it is stated:

Of all the factors that influence public safety, the Correctional Service of Canada, in collaboration with the National Parole Board, can only influence the safe release of offenders into the community. There is solid evidence to support the premise that the gradual and structured release of offenders is the safest strategy for the protection of society against new offences by released offenders.

For example, recidivism studies have found that the percentage of safe returns to the community is higher for supervised offenders than for those released with no supervision.¹

Research by Dr. James Bonta and others has shown that not all forms and practices relating to the implementation of gradual release are equally effective. Dr. Bonta and his colleagues have been very persuasive in identifying the factors that make gradual release effective.²

For the purpose of this paper it is given that so long as gradual release is intended to reduce recidivism our correctional agencies must be committed to an open, continuous and rigorous research process. Surely no reform initiatives for parole in Canada can be justified or sustained without a robust body of evidence to support it. On this same point, government agencies must become open to, and engaged with, researchers from academic centers and universities.

In 1971 The Hugessen report proposed many broad-ranging changes to Parole in Canada but also argued strongly for an independent “Parole Institute” that would become an active center for research.³

We propose the development of a National Parole Institute which would report to the National Commissioner for Parole and also to the general public. This would be an information-gathering agency with responsibility, among other things:

1. To monitor the operations of all parole boards in Canada in order to assess the extent to which objectives have been achieved and to feed this information back to the parole authorities;

2. To contract or undertake, in collaboration with other agencies or individuals, fundamental research into general aspects of parole;

Those recommendations are at least as relevant today as they were in 1971.

How much does parole currently contribute to corrections?

The Parole Board controls access to gradual release between the one-sixth and two-thirds points of the sentence while the last third, with some exceptions, is directed through statutory release provisions of the Corrections and Conditional Release Act (CCRA). One might expect therefore, that the Board would usher into gradual release the bulk of those who find themselves under community supervision. In fact 64.4% of releases from federal prison in 2016-17 were to statutory release. ⁴ Further, for those who are released on parole most of the time they actually spend under supervision falls during the statutory release portion of their sentence when they would have been under community release anyway.

Over the years a number of studies have confirmed that the overall contribution of parole to gradual release programming in Canada is very small when measured by the days of incarceration that would otherwise be served in prison.⁵ Doob et al. have calculated and documented the impact of parole on incarceration in 2012-13 and concluded that if all full parole were abolished for fixed-sentence prisoners, the prison population would have been only 2.7% higher than it was in that year. They concluded:

Said differently, if the purpose of parole is to facilitate the safe and peaceful reintegration of prisoners into society, it is failing.⁶

As far back as 1976, this same point was made by Peter Macnaughton-Smith after his research led him to conclude that parole might be justified as a “pilot project” rather than a substantial major correctional program.⁷ In 2001 and again in 2007 the John Howard Society of Canada submitted briefs to the Federal government that identified the overly modest contribution that parole had made to corrections in Canada and proposed a model of parole decision-making based on presumptive release.⁸

While few would suggest that the reduction of time spent in prison should be the primary basis for parole decision-making, it is difficult to make the argument that parole is making a substantial contribution to effective corrections if it is not being used. Surely measuring the degree to which prisoners are exposed to parole is a useful proxy for the potential contribution of parole to effective corrections.

Why is parole underused?

In my view the weak contribution of parole to effective corrections over six decades is primarily the result of the inability of the Parole Board, Parliament and others to adequately defend parole in the face of public criticism. The relevant legislation contained within the CCRA has, therefore, become largely incoherent at best and, in my view, serves to undermine the intended purpose of parole.

The Purpose and Principles of Conditional Release appears to give the Parole Board enormous scope and power to release very large numbers of prisoners to gradual release programs.⁹

Purpose of conditional release

100  The purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.[CCRA]

The Purpose seems to view parole as positive and, therefore, something one might expect to see as a major player in Canadian corrections. However, this Purpose becomes increasingly proscribed as one reads further into the Act.

Paramount consideration for the Parole Board

100.1  The protection of society is the paramount consideration for the Board and the provincial parole boards in the determination of all cases.

Is there anyone who thinks that the sentiment behind the “paramount consideration” reflects the view that public safety is best achieved through measures that maximize the reintegration of prisoners into the community as law-abiding citizens? Does it imply that the Board would need to carefully justify those few cases where parole was not granted? Such an interpretation of this clause might be coherent, but it would also be wrong. Any observer of the Parliamentary process that led to this clause becoming the “paramount consideration” would have no doubt that it was intended to convey the notion that a decision to release should only be made when there was little risk that the prisoner might reoffend. The benefits of parole are limited by the need to avoid blame should things go wrong. This clause makes it entirely clear that when things do go wrong the locus of responsibly falls onto the shoulders of Parole Board members who made the decision to release rather than with the law that enabled it.

Principles guiding parole boards

101 The principles that guide the Board and the provincial parole boards in achieving the purpose of conditional release are as follows:

(c) parole boards make decisions that are consistent with the protection of society and that are limited to only what is necessary and proportionate to the purpose of conditional release;

Given that the Purpose of conditional release is the “reintegration into the community as law-abiding citizens”, it is not clear how terms like “necessary and proportionate” would apply. Is the “reintegration into the community as law-abiding citizens” not always “necessary”? To what would reintegration be “proportionate“? Surely this Principle would raise doubts about the true intentions articulated in the Purpose. These doubts are only further exacerbated by the first Criteria for granting parole.

Criteria for granting parole

102  The Board or a provincial parole board may grant parole to an offender if, in its opinion,

(a) the offender will not, by reoffending, present an undue risk to society before the expiration according to law of the sentence the offender is serving;

It appears that the focus of the Board is being directed exclusively to the period ending with warrant expiry. In my view this clause fundamentally undermines the justification for parole’s existence in the first place. Those who developed the notion of gradual release clearly thought that its value was derived from the notion that the potential increased risk in the short term was justified by risk reduction over the long term. The Ouimet Commission clearly justified parole through the recognition of its potential to reduce long-term risks:

At the same time, for the offender, parole is an opportunity and a test of his self-control and ability to get along in the community. For society, it offers immediate protection through a degree of surveillance and control over the offender’s behaviour, and long-term protection through a reduced likelihood of recidivism.¹⁰

Frank Millar, considered by many to be the father of Parole in Canada, put it this way in 1960:

The purposes of parole, like the purposes of the sentence in the first instance-are the protection of society and the rehabilitation of the offender. Ideally, these two purposes are inseparable. While society can be protected temporarily by the detention of the criminal, if he is not reformed, society is no longer protected when he is released. As a democratic people, we desire the rehabilitation of the offender for his own worth as an individual, and in our effort to help him in his rehabilitation, we find our only ultimate defence against him.¹¹

Surely it is the tradeoff between short and long-term risks that justifies any form of gradual release in the first place. The Parole Board can achieve the goal of minimizing reoffending during the sentence with 100% certainty by releasing no one at all. Every release exposes the Board to the potential consequences of failure.

The unpleasant implications of the first Criteria becomes all the more salient when one considers that in the political sphere today failures of those on release matters far more than successes. It also becomes clear that decisions to deny release of those who go on to be successful are virtually never the subject of criticism. The only time that a parole board can make a mistake is when it chooses to grant parole. The degree of unnecessary imprisonment for the thousands who might have succeeded on parole appears to be inconsequential in spite of the enormous human and financial costs these decisions generate.

It is worth acknowledging that the consequence for decisions to release someone who subsequently reoffends often has a deep and personal impact on those involved. Having to defend that decision at inquests, to superiors, Parliamentary committees, not to mention the victim’s family, must be traumatic. No one ever built their career by performing well under such circumstances. The corrosive effect of these incessant stresses is described in agonizing detail in the History of Parole In Canada.¹² The fact that this history is published prominently on the website of the Parole Board speaks to the importance the Board places on this unrelenting pressure and appears to be intended to explain many of the limits placed on parole decision-making over the years.

Based on all of the above, perhaps it should not be surprising that when it comes to the Mission Statement of the Parole Board any clear relationship to the original Purpose of Conditional Release has disappeared.

Mission Statement of the Parole Board of Canada

The Parole Board of Canada, as part of the criminal justice system, makes independent, quality conditional release and record suspension decisions and clemency recommendations, in an open and accountable manner, while respecting the rights and dignity of both offenders and victims, in accordance with its statutory responsibilities and authorities.

What more vacuous “mission” could one imagine for any organization than to make “quality” decisions? This is especially the case when there are no indications of what a quality decision would look like.

As Ivan Zinger has pointed out:

Despite the positive outcomes associated with conditional release, every legislative initiative since the enactment of the CCRA has resulted in an increased reliance on custody; in raising periods of parole ineligibility or in limiting or eliminating access to conditional release.¹³

If virtually all of the pressure on a decision-making body is to move in one particular direction we should not be surprised to see that after seven decades of this unrelenting pressure the body has moved in that same direction.

Options for Parole

It is worth considering what options might exist if the Board is to address the often hostile climate in which it lives while simultaneously maximizing its ability to return offenders to the community as law abiding citizens

One solution would be for the Board to make no mistakes. In theory, the implication for this “no mistakes” scheme would be that everyone released on parole would be successful and everyone released on statutory release would fail. In that scenario the great majority of releases would shift to parole while potentially insulating the Board from public criticism. While achieving this outcome is obviously fanciful, it appears to be the only option that the Board actually has available to it.

The primary concern for the public and the Board is with violent crime. We seek to separate those who will be violent from the rest who will not be violent. But outcome data show that reoffending rates with violent offences is very low.¹⁴ Identifying the very few who will be violent while on gradual release is very difficult simply because there are so few of them and they are mixed in with many other prisoners who seem to have similar or worse profiles.

The data often presented to demonstrate the ability of the Parole Board to identify those who will reoffend often takes the form of comparing violent recidivism between those on parole with those on statutory release. The difference is frequently presented as the relative difference rather than the absolute difference.

• Over the last five years, the revocation with violent offence rates were, on average, ten and a half times higher for offenders on statutory release than for offenders on federal day parole, and three times higher than for offenders on federal full parole.
• The rate of revocation with a violent offence for statutory release has been declining in the last five years, averaging 1.6%.¹⁵

While the relative rate of violence incidents for statutory release that is “three times higher” than the corresponding rate for parole is at first sight alarming, we need to pay attention to the fact that the absolute rates of revocation with a violent offence over this period were 0.5% for parole and 1.6% for those on statutory release.¹⁶ While relative rate of violence for those released on statutory release is “three times” that for parole (1.6% vs. 0.5) we need to ask whether we should be alarmed at the absolute difference of 1.1%. Is this difference of 1.1% between those carefully selected by the Board as good risks and those considered poor risks too great to tolerate? Might it justify shutting down a program of gradual release that is currently responsible for 64% of releases from federal prisons?¹⁷

Given that the public, and probably most politicians, exaggerate in their minds the level of recidivism committed by those on parole¹⁸, the notion that those on statutory release commit crimes at rates that far exceed those on parole is alarming and has lead to calls for the abolition of statutory release altogether. For instance, the Roadmap to Community Safety released in 2006 proposed the abolition of statutory release and justified that in part with the recitation of only the relative difference in offending rates between parole and statutory release:

… offenders that completed their sentences on statutory release are between 2 and 2½
times more likely to be re-admitted on a federal sentence than offenders that
completed their sentences on full parole.¹⁹

We should not lose sight of the fact that statutory release (previously mandatory supervision) effectively extended the sentence of all those released under this mechanism by 50% in order to provide for a period subject to supervision. This was done by effectively abolishing remission. While it was intended to be a program of gradual release, it was never intended to be a program of early release. The risk to the public was, and remains, zero.

The uncertainty of not knowing with reasonable certainty who will commit a violent offence is likely a primary reason why the Board denies parole to so many. But, surely it is wrong to deny parole to so many in order to potentially delay the release for so few – all of whom will be released eventually anyway.

It is very relevant to consider the evidence that appropriate programs targeted towards those who are higher risk produce the best recidivism benefits. ²⁰ The potential net benefit of reducing offending amongst those already seen as low risk is much less than the benefit that comes from reducing reoffending amongst those who are considered high risk. We should also consider the lost opportunities for improved public safety if the costs of imprisoning so many could be directed to community reintegration. It would appear that we really gain very little, if anything, from excluding these large numbers of people from parole. Leaving so many to be released through statutory release in order to minimize failures on parole is surely both overkill and self-defeating.

When significantly improving predictions of violence is unlikely, attempts to minimize the frequency of serious incidents by parolees necessarily justifies very conservative parole-granting practices. In this context the objectives of effective reintegration come into conflict with those of public safety. Instead of the two objectives being complementary they become mutually exclusive. With public safety being the “paramount consideration” we should not expect that the granting of parole will be sustainably or substantially expanded in the foreseeable future.

Presumptive gradual release

Our current model of decision making for parole presumes a denial of parole (presumptive denial of release) unless the applicant can satisfy the Board that they are an acceptable risk. However, under a presumptive release model the applicant will be released unless the board can demonstrate that serious factors exist that would make a decision to release untenable. With this latter decision-making model the burden shifts from the prisoner to show their worthiness to parole the Board to show that even with community based resource and extensive supervision there in no prospect that an individual’s risk can be reduced.

Presumptive release is not new to gradual release in Canada. It has been the basis for release on statutory release and its predecessor mandatory supervision since it was introduced in 1969. Accelerated Parole Review was also based on presumptive release although only to a select subset of the population.

Changing decision-making from presumptive denial to presumptive release shifts the locus of responsibility from the decision maker to the law – where it belongs. The presumptive release principles belong in the legislation in order to confirm the position of Parliament that gradual release, when implemented properly, reduces recidivism over the longer term.

The presumptive release model is justified by the fact that a parole board should not be expected to reliably pick out those who are good bets from the bad bets for the purpose of either providing reintegration services or leaving them in custodial settings. The prediction of an individual’s future behavior is fraught with difficulties but when analyses of risks and needs are applied in order to provide appropriate services to those who will benefit from them, we can reduce reoffending for that group of people.²¹

All people need to be reintegrated regardless of the labels that might be attached to them. When gradual supervised release has the effect of reducing reoffending overall, it is the limitation of this program that needs to be justified rather than the converse. Because we do not know with certainty which specific individuals might reoffend we should place all individuals into a gradual release program with particular focus on those with high risks and needs.

Viewing release decisions through this lens allows us to see gradual release and public safety as mutually dependant objectives. One cannot be achieved without the other. This interdependence of objectives should be consistently acknowledged in the enabling legislation.

Primary role of the Board under a presumptive release model

In a presumptive release model the role of the board would shift from being the gatekeeper for gradual release to being the planner and manager of gradual release. We need to recognize, however, that while the decision to release would be presumptive the decisions regarding the circumstances of the release would be prescriptive and unique to each individual. The Board would need to shift its focus from whether a person is released or remain in the community to what services and structures are to be provided to maximize the potential for the individual’s successful reintegration. Resources relating to the risks and needs of ex-prisoners need to be targeted and adjusted in order to address the initial and ongoing concerns regarding an individual’s reintegration.

Greatest exposure to reintegration programs is currently focused primarily on those considered low-risk individuals. The greater the risk an individual is thought to pose the less exposure they will have to reintegration structures and services. Those detained to warrant expiry are usually released with nothing that assists with their reintegration. Those thought to be the lowest risk are often subjected to an extensive series of supervision structures and programs – particularly available through residential programs. In the end we pester the ones who seem likely to succeed and ignore the ones thought likely to fail.

A parole board that is focused on the planning and allocation of community resources on an ongoing basis would surely make a greater contribution to public safety through reintegration than one that is focused primarily on the long term prediction of success – especially when the link between prediction and engagement in community reintegration services have an inverse relationship.

The law should acknowledge that because a comprehensive system of gradual release reduces the risk of recidivism, all prisoners should be released into such a system except in the most exceptional circumstances. Government must also acknowledge that a proper system of gradual release needs resources in the community that will be available to address risks and needs of the individual as they arise. While it should be the role of the Board to specify and allocate resources according to the needs and risks of the individual, the Board would also need to plan for and allocate resources wisely for the whole population.

Relationship between the Board and community supervision

Priority for community resources would be directed to those who need them most rather than those who appear to be low risk. Consideration should be given to the relationship between community supervisors and the Board to allow for a fluid and highly responsive exchange where changes occur in the circumstances of the individual. Perhaps a change of roles like this would justify reconsidering the operational and administrative separation between the Board and CSC community corrections.

Respect for the indivual and their human rights

A presumptive model reflects our notions of least restrictive measures, retained rights and fundamental justice. Throughout our criminal justice system we apply limits to when individual freedoms are limited. Police and prison guards are permitted to use no more force than necessary to carry out their legal responsibilities. Sentencing provisions of the Criminal Code require that the judge sentence within the principles of least restrictive options. The CCRA expresses similar principles where it states:

Principles that guide the Service

4. (c) the Service uses measures that are consistent with the protection of society, staff members and offenders and that are limited to only what is necessary and proportionate to attain the purposes of this Act;

(d) offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted; ²²

It is not reasonable or necessary that the principles articulated for other aspects of our criminal justice system should not also apply to parole decision-making. Presumptive release is consistent with the respect for human rights that lay already in the Charter, Criminal Code and CCRA.

One implication of the presumptive release model would be that in an environment where human rights are respected hearings would necessarily need to occur before the individual’s eligibility date. Waivers and delays would become rare as completion of a correctional plan would not be relevant to the release decision although it might be relevant to the services and conditions of release.

Structure for presumptive gradual release

The structure of this model could take many forms and still be true to the principles of presumptive release. We could look to the Youth Criminal Justice Act (YCJA) for a model that ensures access to community reintegration that is virtually automatically built right into the sentence and where no parole board, as we have it now for adults, is even needed. ²³

In 1999 and again in 2007, the John Howard Society of Canada proposed a much more modest model than that adopted in the YCJA. It was intended to be reflective of the structure of eligibility dates for gradual release that existed at the time.²⁴ At the various eligibility dates a presumptive release would apply but the basis for refusing release would become more substantial at each subsequent eligibility date. At the two-third point in the sentence denying release would be very exceptional – limited to those who refuse to cooperate with community supervision.

Simpler structures based on fewer or even a single point of eligibility might be preferable and would reflect my current thinking. There might be a single eligibility point, such as the one-third point in the sentence, for admission to gradual release. Rather than a hearing to address whether a person would be released, it would be a gradual release planning hearing at which the initial conditions and circumstances of release were decided.The presumption of release would result in only exceptional cases being delayed entrance to gradual release where no reasonable plan to address the risks and needs of the individual was possible. The person who is denied release would be given access to special programs while they remain in custody and would be reviewed regularly thereafter to ensure access to gradual release at the earliest point possible.

Terminology

In my view, the terms “day parole”, “parole”, and “statutory release” could all be dropped as would the related eligibility dates. Those terms and their eligibility dates would be replaced with “gradual release” that would take effect at a specified date such as one-third of the sentence. The Parole Board might be referred to as the Gradual Release Board. Parole Supervisors would become Gradual Release Supervisors. It would seem plausible that the consistent use of more easily understood terms that reflect the purpose of gradual release might help to reduce confusion about what it is intended to do..

Subject to the least restrictive principle, residence requirements and participation in programs or particular supervision requirements would be applied and withdrawn subject to the least restrictive principle, whenever appropriate throughout the remainder of the sentence rather than be paired to different release mechanisms and eligibility dates.

Sentencing

To further reinforce in our laws the central role that gradual release was intended to play, the Criminal Code should be amended to require that when sentencing a person to custody the judge be required to acknowledge that the time specified in the sentence reflects only it’s duration and that time to be spent in custody or community supervision would be subject to the application of the laws relating to gradual release. Provisions similar to this already exist in the YCJA.

Conclusion

There are few proposals in this paper that have not been tried or, to some extent, are still in use today. What is new is that our system of gradual release might become more expansive, coherent, evidence based, efficient and respectful of human rights. It proposes a system that would be more able to demonstrate how reintegration-based corrections can reduce both the use of imprisonment and incidence of recidivism.

Finally, it is my suggestion that we set in law and policy a system of gradual presumed release that reconciles the objectives of effective reintegration and public safety.