A flawed Compass: a human Rights Analysis of the Roadmap to Strengthening Public Safety

Earned Parole

The Panel proposes that Statutory Release and Accelerated Day Parole be abolished and replaced with a system they call “earned parole” where an offender’s release prior to the warrant expiry date (WED) would only be possible through a parole decision by the National Parole Board.²⁰⁶ In the following section we will consider the historical record and the research evidence relevant to the Panel’s recommendations and discuss why we think they are ill-conceived and inimical to public safety.

We have identified what appears to be several crucial assumptions on which the Panel has based its recommendations:

• 
  the abolition of statutory release would encourage individuals to pursue their correctional plan to avoid extending their time in prison,
  
• 
  having pursued their correctional plan more vigorously, the National Parole Board will be willing to release these individuals on parole,
  
• 
  the increase in newly motivated prisoners “earning’ their parole will compensate for the abolition of statutory release and
  
• 
  the paramount consideration of public safety would be achieved better in a situation where the remaining “unmotivated” offenders were in jail longer and spent less, if any, time under gradual release in community-based supervision.
  

If any of these assumptions are incorrect, the changes that the Panel proposes will be costly financially while undermining, not advancing, public safety. It is a far-reaching change that the Panel proposes to the reintegration process and we would therefore expect that it would be based on careful analysis of the nature and purpose of statutory release and accelerated parole review and the record of their success in relation to those purposes. We should also expect that the recommendations would be based on documented experience and research that identifies inadequacies with the existing system that would make the abolition of such reintegration programs necessary. As we will show, the Panel here as elsewhere in their report, is oblivious to the history and disregards the available research generated by CSC’s own Research Branch. In fact, little is offered to justify this radical change other than the opinion of the Panel supported by a few carefully selected and spun statistics.

Our analysis raises serious doubts about the assumptions on which the Panel’s recommendations are based and demonstrate the potential for a sharp increase in the period of incarceration for most offenders while reducing post release supervision and support. We argue that an objective review demonstrates that the radical change proposed by the Panel is neither necessary nor likely to contribute to greater public safety.

1. The Promise and Purpose of Statutory Release

The Panel provides virtually no historical context to explain the purpose of statutory release or why it was included in our federal correctional law. In our view it is essential to understand this context to determine whether those purposes are still valid and to assess the degree to which they have been met. We will then turn our minds to the implications of the Panel’s recommendations for the federal prison population.

Beginning in 1868 a system of remission was introduced into federal corrections through which prisoners could shorten their time in custody as a reward for good behaviour. Prisoners could obtain early release by up to one-third of a determinate sentence. (Those serving life or indeterminate sentences did not earn remission.) Once the prisoner reached his remission date he was released without condition. The practice of earning remission continues to this day in all provincial prisons where prisoners serve sentences of less than two years.

The Canadian parole system has its roots in reforms introduced at the very end of the nineteenth century.²⁰⁷ Initially and appropriately called “ticket-of-leave”, this form of release was subject to the discretion of officials in the Department of Justice.²⁰⁸ This evolved into our modern concept of parole with the passage of the Parole Act in 1958 that transferred authority for release to the newly created National Parole Board and for the first time set out in legislative form the criteria for release. Later the Parole Act was integrated into Part II of the CCRA in 1992. The modern concept of an independent paroling authority therefore has been with us for the last 50 years.

In 1969 the Report of the Canadian Committee on Corrections reviewed Canada’s experience after the first decade of the Parole Act.²⁰⁹ The Committee noted that while the lowest risk offenders were being released through parole under community based supervision, those who had not been granted parole were being released directly to the street with neither supervision nor assistance. In other words, those for whom the transition to the community was likely to be the most difficult were being ignored and left to their own devices.

In considering the purpose and value of parole, the Committee recognized that any form of gradual release implied some risk:

“... there are risks in any form of treatment of the offender. The short-term risks of parole are calculated risks and in the opinion of the Committee are less than the risks in the alternative of sudden and dramatic contrast between incarceration and total freedom” ²¹⁰

They went on to elaborate:

“One cannot learn to live in freedom without experiencing freedom and even the most open institution provides a restricted, protective environment. The offender who is to succeed in becoming a law-abiding and, hopefully, contributing citizen, must do so in the outside community. It is here that he has previously failed, and he returns to the community usually feeling more isolated from whatever possible personal and social relationships he previously had when he went into prison.”

The Ouimet Committee took pains to note that while ticket-of-leave was originally developed as a form of clemency, this was no longer the case. The Committee had little difficulty recognizing the ability of parole to achieve public safety through successful reintegration of offenders into the community. The apparent success of parole only served to raise the question as to whether gradual supervised release would also reduce the rate of re-offending by those who had not been selected for parole.

“increasingly, however, it has been pointed out that the practice of paroling only the better risks means that those inmates who are potentially the most dangerous to society are still, as a rule, being released directly into full freedom in the community without the intermediate step represented by parole.” ²¹¹

To address this shortcoming the Committee proposed that a system be developed “under which almost everyone would be released under some form of supervision.” Recognizing that “there will be many who will not qualify for parole” they proposed “making the period of statutory remission a period of supervision in the community subject to the same procedures that apply to parole.”²¹² By recommending that community supervision occur during the remitted portion of the sentence, the Committee ensured that the community supervision period would be added, not subtracted, to the time that would otherwise be served in prison. The Committee’s recommendations were implemented in 1970 through amendments to the Parole Act.

It is important to understand the consequences for corrections of the introduction of what from 1970 until 1992 was called “mandatory supervision”.²¹³ Prior to 1970 a prisoner who was not granted parole and who had not lost remission through bad behaviour would be entitled to be released at the end of two-thirds of their sentence. At that point the prisoner became a free person, subject to no further restraint by the state. As a result of the implementation of the recommendations of the Ouimet Committee in 1970, those prisoners not granted parole remained entitled to be released at the two thirds point in their sentence, but instead of being free they were now subject to mandatory supervision by a parole officer- in effect a compulsory form of parole. During this period of supervision they could be returned to prison to serve the rest of their sentence for breach of the conditions of their supervision even though they committed no new crime. Quite clearly the changes in 1970 amounted to a substantial tightening of the correctional screws. The period of time under sentence was increased by fifty percent²¹⁴ through the addition of the period under mandatory supervision. This change was justified by the correctional theory that it would help those who were considered too high risk for parole to safely reintegrate into the community.

The introduction of mandatory supervision was controversial from its inception as it meant that time spent under sentence was being significantly increased. Given that those subject to mandatory supervision were considered those most likely to reoffend, the potential impact on incarceration levels was substantial, particularly when one considers the power of the National Parole Board to revoke the community supervision and return the offender to prison at any time for “technical” breaches of the conditions of release such as, drinking alcohol, returning late to a halfway house, traveling beyond a designated radius or anything parole authorities think might reflect an adverse change in risk such as a deteriorating attitude. Obviously, mandatory supervision was not popular with prisoners. Equally obvious, popularity with prisoners was not an important consideration of the Ouimet Committee. Mandatory supervision was introduced because it was considered the most effective form of re-integration while avoiding any short term risk associated with “early release” from prison.

One of the other reasons why the Ouimet Committee made their recommendation was in recognition of the fact that “only 60%” of prisoners were applying for parole. The Committee believed that the rate of parole application was so low because for some prisoners release with complete freedom after two-thirds of the sentence was more attractive. To be released on parole meant that prisoners, while often saving only a few months of incarceration if granted parole, had to remain under supervision until the completion of their full sentence, including their remission period. Furthermore, until 1977 if returned to prison on a revocation they received no credit for time served while on parole and would have to serve the entire period already served on parole in prison - a form of doing double time. In order to maximize the potential benefits of parole, the Ouimet Committee wanted to encourage more people to apply, and failing this result, subject prisoners who still did not apply or who were rejected as bad risks to mandatory supervision.

Over the following years after its implementation, mandatory supervision – renamed “statutory release” - became associated with early release rather than extended supervision in the minds of the public and many politicians. It became increasingly difficult for either to reconcile the concept of early release with high risk. In an attempt to address fears associated with the release on statutory release of very high-risk prisoners, changes to the legislation were enacted in 1987 that gave authority to the National Parole Board to refuse release on statutory release of particularly high risk prisoners. With these changes CSC began reviewing every offender prior to their statutory release date and makes recommendations to the National Parole Board regarding release of detention during the statutory release period. The Board can impose a residency requirement at a halfway house as a condition of the release, and where it believes the offender is likely, before warrant expiry, to commit an offence involving death or serious harm, a sexual offence involving a child or a serious drug offence, may detain the offender in prison until warrant expiry.

In 1992 The CCRA was amended to abolish the concept of earned remission largely because it had become a nightmare to administer and because the failure to earn remission would conflict with the goal of ensuring that all but the highest risk prisoners would be released through community supervision. Henceforth most prisoners who had not previously been paroled became entitled to release on “statutory release” at the two third point in their sentence.

In surely what is the ultimate case of correctional irony, the Panel, 40 years after the Ouimet report was tabled, recommends the abolition of statutory release citing “public safety” as the reason: the very rationale used by Ouimet to recommend it in the first place and relied upon ever since by CSC and successive governments to justify its continuance. The Panel does so in apparent ignorance of the history of statutory release and the reasons for its implementation. The Panel’s lack of historical context for its recommendation is a major public policy shortfall. Had the Panel reviewed that history and the underlying justification for the introduction of statutory release it might have recognized that abolition would conflict with its own observation “that public safety is best served through a period of supervised and supported release for offenders prior to the end of the sentence”.²¹⁵

2.