Conditional release and human rights in Canada: a commentary.

• Author: Zinger, Ivan
• Position: Report

Introduction

The best approach to ensuring that the rule of law is upheld in corrections is to conceptualize the business of corrections as a human rights business (Sapers and Zinger 2010; Zinger 2006). The same can also be said about the business of conditional release. There is no doubt that liberty interests and human rights are at stake when granting, denying, suspending, or revoking conditional releases. In 1959, the federal Parole Act was enacted in response to systemic human rights abuse (Department of Justice Canada 1956; Standing Senate Committee on Legal and Constitutional Affairs 1974). Prior to 1959, and pursuant to the Ticket of Leave Act, prisoners could be granted early leave from a penitentiary before the end of their sentence at the discretion of the Governor General of Canada. In practice, the wardens of penitentiaries had the authority to make parole decisions, and this left the system of early release open to abuses of discretion and arbitrariness. The Parole Act transferred the authority to grant conditional release to a board, with members appointed by the Governor in Council. Since 1959, the National Parole Board, now Parole Board Canada (PBC), has operated as an independent administrative tribunal that is not accountable to any department or minister for its decisions.

Conditional release in the federal context includes various forms of gradual release granted by either the correctional authority (e.g., specific escorted or unescorted temporary absences) or PBC (e.g., day parole, full parole). Gradual release implies that a step-by-step "decompression" of prisoners is preferable to a sudden and unsupervised release (MacPhail 1987; Needham 1981). It also implies that, for many prisoners who do not pose a risk to society and who have satisfied the minimum requirements of the sentence (such as having served one-third of their sentence), their continued incarceration has a destructive effect and is an inappropriate option (MacPhail 1987; Needham 1981). Incarceration is also very expensive. The annual average cost of keeping an inmate in a federal penitentiary is $109,699, while the average cost of maintaining an offender in the community is $29,476 (Public Safety Canada 2010). In the current economic context, continued incarceration should be used wisely, especially if less costly and safer alternatives can be as effective.

The fundamental assumption of conditional release is that timely and appropriate conditional release decisions contribute to the protection of the public though the controlled and supervised release of prisoners into the community. It also permits the criminal justice system to carry out the sentence under the "least restrictive" conditions that are consistent with sufficient denunciation of their crime and public safety. Research has consistently demonstrated that gradual, supervised release promotes a safer return of prisoners to the community (Waller 1974; Hann and Harman 1992; Motiuk and Cousineau 2006; Andrews and Bonta 2010). Public safety can be best ensured when case management and the supervision of offenders on parole relies upon evidence-based interventions (Bonta, Rugge, Scott, Bourgon, and Yessine 2008).

If well managed, a program of gradual conditional release is also considered the best way of reducing recidivism, and a failure to involve offenders in these programs can place the community at a greater risk (John Howard Society of Canada 2007; Sub-Committee on Corrections and Conditional Release Act 2000). Moreover, greater benefits are achieved when gradual-release resources are targeted toward moderate-and high-risk individuals (Andrews 1996; Andrews and Bonta 2010).

PBC also supports the evidence-based concept of gradual, controlled, and supported release, It states publicly that "rehabilitative efforts, leading to a gradual and controlled release, in most cases, provide a more effective way of protecting the public than would a more sudden release of offenders, at sentence expiry, without assistance and supervision" (National Parole Board 2009a: 6).

The majority of offenders on conditional release complete their sentence in the community without reoffending and without technical violations of conditions (Parole Board Canada 2010; Public Safety Canada 2010). Very few violently reoffend and most revocations are for technical breaches of conditions (Parole Board Canada 2010). Notwithstanding the strong evidence supporting the benefits associated with conditional release, Canada is moving away from its commitment to evidence-based policy in this key public safety area.

Conditional release and punishment

After a broad-based government review process of the criminal justice system, involving intensive study, consultation, and planning (i.e., the Correctional Law Review, 1984, consisting of 11 projects), the Corrections and Conditional Release Act (CCRA) came into force on November 1, 1992. One of the most significant aspects of the CCRA was an articulation, for the first time in Canadian legislation, of the purpose and principles of corrections and conditional release (Correctional Service of Canada 1998). Pursuant to the CCRA, the legislative purpose of the correctional system is twofold: (1) to carry out the sentence imposed by the courts through the safe and humane custody and supervision of offenders; and (2) to assist the rehabilitation of offenders (CCRA 1992, s. 3). The CCRA also stipulates that 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 (CCRA 1992, s. 100).

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. With one exception, which has now been repealed,2 no legislative initiative has been enacted to specifically facilitate the rehabilitation of offenders--one of the key legislative purposes of both the Correctional Service of Canada and PBC. The rehabilitation of offenders has just not been the subject of any legislative effort by Parliamentarians since 1992.

The nature of legislative initiatives since the enactment of the CCRA reveals a commitment to pursue punishment at the expense of crime prevention and rehabilitation. The "get tough" approach to crime is reflected in laws with mandatory minimum penalties, longer prison sentences, fewer opportunities for conditional releases, and other efforts to make sanctions more unpleasant (Andrews and Bonta 2010). As the "get tough" approach gains momentum, the erosion of conditional release is not surprising. Proponents of the law-and-order agenda consider the conditional release of prisoners as mitigating the full punishment implied in the sentence (MacPhail 1987). There is a public perception that parole somehow diminishes what the judge intended by the sentence and that prisoners thereby receive less than the deserved or proper punishment (MacPhail 1987). Parole is then seen as an administrative means of reducing punishment, and statutory eligibility dates serve as a kind of barometer of the minimum punishment required from the sentence (Needham 1981).

Parole was never intended to be a method of sentence-correcting and in no way was it aimed at reviewing the sentence of the court (Canadian Committee on Corrections 1969). Parole was designed as a logical step in the total correctional process and was designed to assist the reintegration of offenders into the community as law-abiding citizens. Parole results in benefits to society as "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" (Canadian Committee on Corrections 1969: 330).

There is little evidence that "get tough" on crime interventions or "truth-in-sentencing" laws deter crime (Tonry 2008). In fact, the literature on the impact of imprisonment on recidivism...