In 1987, the federal government of Canada, reacting to public outcry over a series of heinous parole violations committed by repeat offenders, reviewed the parole system and recommended the abolishment of parole.(1) This conclusion, while not endorsed by other inquiries,(2) reflected a waxing public mood, vocalized by election-minded political representatives, that “sentences should be real”, meaning that prisoners should be forced to spend more time behind bars.
Joining this trajectory was the then B.C. Attorney General Brian Smith, who declared that Parliament should override the Charter of Rights if need be, to prevent the release of “dangerous” prisoners under the mandatory supervision program. Statements of this ilk were followed by the release of a discussion paper on Parole by the Ministry of the Attorney General in April, 1988. That paper, entitled Parole—Earning the Privilege: A Discussion Paper on Improving the Parole Process, contained several suggestions for parole innovations in British Columbia, some of which prompted concern amongst civil libertarians and other human rights groups about insensitivity to established norms of procedural and substantive fairness. It should be noted that the actual record of the B.C. parole system was not one to cause widespread consternation; indeed, parole, as a means of reintegrating the offender back into the community and hence, protecting society from further victimization, is judged to be almost 90% effective. During the 1980 to 1987 period that the Board has been operating under its current mandate, there has been a total of 7,067 paroles granted, of which only 831 were revoked, an annual revocation rate of 11.8%.(3) Moreover, B.C. parole administrators have resisted a ‘just desserts’ emphasis, arguing that such an approach focuses exclusively on the element of punishment, whereas the accent on justice “…requires a resolution to crime and criminal behaviour which goes beyond punishment of the specific criminal act.”(4)
This latter emphasis is not absent in the Attorney General’s 1988 discussion paper, which does acknowledge the general efficacy of parole. But in seeking to mollify public opinion over a justice system ostensibly indifferent to victims of crime, Smith proposed changes in order to “…tighten up the parole process and emphasize it as a privilege that must be earned.”(5)Specifically, he urged the following adjustments:
1. That the eligibility period for day parole be raised from one-sixth to one-third of the overall sentence.(6)
2. That imprisoned offenders should take the initiative to apply for parole rather than be reviewed automatically.(7)
3. That Parole Boards should be granted the authority to order parolees, under certain defined circumstances, to perform community service or to make compensation payments to their victims as a condition of parole, even though the Court may not have imposed such conditions as part of the sentence.(8)
4. That both the impact of the crime on the victim, as well as the possible implications of the parole for the victim, be considered as an integral part of the parole decision-making process.(9)
Other related suggestions were made in the Green Paper, but the four noted above are of more immediate concern to the B.C. Civil Liberties Association.
Eligibility for parole
Tightening the day parole eligibility period from one-sixth to one-third of the overall sentence resonates with the new parole eligibility criteria announced for federal prisoners by Solicitor General James Kelleher in June, 1988, but even Kelleher soon conceded that the new restrictions ought apply only to prisoners who were convicted for “violent” offences. Moreover, since the provincial Parole Board has jurisdiction over offenders convicted of statutory offences for which the penalty is a maximum of two years imprisonment, day parole, as the Green Paper indicates, is “very rarely used by the Provincial Board” (p. 4). Dwelling on stricter parole eligibility criteria is, therefore, a largely irrelevant issue, though it contributes to the “straw man” argument that there is something seriously amiss with the parole system. In fact, one-sixth day parole has been retained by the B.C. Parole Board, although, given the relatively short sentences and the fact that it takes approximately six weeks to process an application, only a small number apply.
In 1988, 15 inmates applied at the one-sixth mark of their sentence, and about half of those received day parole. The bulk of the applicants are “full parole” candidates. In 1988, 77 persons who received sentences of less than three months applied for full parole at the one-third mark of their sentences, and 432 inmates who received sentences of three to six months applied for full parole at the one-third mark (out of 1,000 inmates who received sentences of that length). So while the number applying for day parole is relatively small, the number of applicants for full parole is quite large, and a significant number of the latter parole applications are granted. In order to increase the opportunity for full parole status after passing the one-third mark of their sentence, day parole is now being extended so that it can be granted to inmates who have served one-third of their sentence but would still be required to reside in an approved community correctional facility. This policy indicates an expansion of the parole option, rather than its contraction.
Applying for parole
To some extent, we should expect that early release and more frequent day parole dispositions would be hindered by the requirement that inmates take the initiative in applying for parole (rather than be subject to automatic review). In British Columbia, provincial inmates must apply for both day parole and full parole; this has always been the case. This requirement, however, does not appear to dissuade prisoners from applying for parole, as nearly 100% of those with sentences of ever six months did apply for parole in 1988. Parole timetables and application procedures are explained to inmates as soon as they enter the institution. A small number of inmates decide against applying for parole, usually because they do not want to be required to abide by parole conditions until warrant expiry, and because earned remission entitles them to release at the two-thirds mark of their sentence, “free and clear”. Undoubtedly, there are some instances where inmates are not well-informed or reminded of parole application requirements, and institutional officers cannot necessarily be depended upon to issue timely reminders. Even where the prisoner is formally advised, illiteracy and other language obstacles may nullify the intent to apply for parole. The current situation, however, does not appear to weigh against the inmate’s probability of obtaining parole, though procedural slippage, whether accidental or deliberate, could inhibit interest in applying for parole.
Court versus Parole Board powers
The proposal that the B.C. Parole Board require parole applicants, in certain cases, to compensate victims or perform community service, is controversial, as well as being doubtful in terms of its legality. The Court sentence is the ultimate authority, and the Parole Board is not a Court and should not attempt to increase the penalty imposed on an offender beyond the permissible technical restrictions that can be imposed on a parolee (e.g., abstinence clauses, travel restrictions, etc.). Not only would doing so contribute to an offender’s uncertainty about what needs to be done in order to obtain release—since such a discretionary power could be applied unevenly in the parole process—but the Parole Board would then be functioning with the powers of the Court, yet without the same legal guarantees and avenues for the accused, given the nonpublic and non-accountable nature of Parole Board hearings. Conditions set by the Parole Board can, of course, reinforce court ordered restitution and allow for any voluntary attempt by the offender to make amends for his or her crime. But this is different from the Parole Board usurping the sentencing powers of the Court. Obviously, legislative authority does not belong to and should not be exercised by an appointed, non-accountable body.
Community dervice orders
Community service orders, provided that they are issued by the Courts, are a desirable alternative to incarceration, given both the relative cost-effectiveness of community service over incarceration, and the reassuring success rate of parolees. Tacking on community service orders at the parole hearings, however, is a dubious procedure, and may encourage the community service alternative as a form of cheap labour. It must be kept in mind that community service will not have long-term rehabilitative effects unless effectively integrated with training programmes and employment opportunities. This calls for a level of funding that may not be envisioned in the Attorney General’s insistence that parole should be “earned”.
Restitution orders, like community work orders, pose the threat of double-jeopardy if issued by the Parole Board. Restitution must be either court-ordered or voluntary. It is a possible sanction for most provincial offenders (i.e., where offences involve vandalism, shoplifting and the like), but not very applicable to federal inmates (where charges involve more serious personal crimes such as rape, murder, drug offences, etc.). But restitution has limited value, especially since most criminals are indigent, and is also of plainly limited relevance in cases where violence is the issue. Moreover, programs for earning the wherewithal to provide monetary restitution are not readily available. In sum, it is best to leave restitution/service orders to the Courts, and financial compensation remedies to existing victims’ programs and to the Criminal Justice Injuries Compensation program.
More adequate funding of these programs would be preferable to a shifting of the reparational burden onto offenders, who may then need to steal (even larger sums) in order to make restitution.
Although only a small percentage of the overall number of victims of crime wish to give or receive information at the time of sentencing or parole, there is now a strong effort, at both federal and provincial levels, to project victims’ concerns into the public domain. Victims’ needs are being addressed principally through restitution orders that involve victim reparation, programs of victim-offender reconciliation, and the introduction of victim-impact statements (either those which have been entered at the time of sentencing, or those which are incorporated into Community Ammments for parole). Such statements are helpful where special conditions need to be imposed on the parolee (e.g., residential restrictions), and in cases of violent offenders (e.g., potential ’detainees’ at the federal level). There is limited utility for victim-impact statements at the provincial level, where custody of inmates is usually restricted to two years. Certainly, the presence of victims at the parole hearing can encourage vindictiveness and again raise the spectre of double jeopardy. In California, for example, victims do appear at the parole hearings, though in B.C. the practice is for the inmate’s case management team to obtain a victim-impact statement as part of the community assessment. The parole applicant controls who attends the hearing in terms of visitors, so victims are not present unless they are requested to attend by the offender and are supporting the parole application. Victims and police officers may submit statements for inclusion in pre-sentence reports, at the time of sentencing, and at the parole hearing deliberations, but they cannot be physically present at the parole hearing under ordinary circumstances, and their statements must be available to the offender. In any case, the judgment of the offender’s readiness for parole should be independent of the victim’s circumstances, and in cases requiring prohibition of contact between named parties, the Court, not the Parole Board, is the proper source of such edicts.
In 1989, the 34th Parliament of the Legislative Assembly of British Columbia passed Bill 53 (still not proclaimed), which established provincial legislative authority for implementation of the provincial Parole Act. (Formerly, the authority was derived from the Parole Act, Canada.) Brian Smith had, by this time, left the legislature, and was replaced in his capacity as Solicitor-General by Angus Ree. No features of Bill 53 empowered the Parole Board to enact any of the newly recommended strictures urged in the Green Paper. Inmates continue to be eligible for day parole at the one-sixth mark of the sentence, and the Parole Board has not assimilated the Court’s authority to stipulate restitution and community work orders. Federally, Bill C-89, which amends the Criminal Code to provide restitution for victims of crime, was passed by the House of Commons in May, 1988. The bill would allow the use of victim impact statements in court, as well as the levying of victim fine surcharges on offenders during sentencing. On the heels of this federal legislation, the British Columbia Victims’ Rights and Services Act was assented to in June, 1988 (though not yet proclaimed).(10) The Act legislates the right of victims to have information about the release of an offender, to have communications with the police and Crown, and to make a written submission of victim impact statements for inclusion in presentence reports, at the time of sentencing, and for review at Parole Board hearings. At this time, victim-impact statements do not appear to be used in ways that curtail the parole option, nor does the Parole Board treat victim restitution as a requisite Parole condition, unless the Court has so ordered.
In sum, current developments at the provincial level of parole administration do not endorse what may be characterized as the “reactionary” Green Paper recommendations. Those toiling within the system on a daily basis recognize that “law and order” directives do not usually help to achieve the expressed philosophy of the National Parole Board to “…facilitate the re-integration of offenders so as to contribute to the protection of society”(11). Practitioners (and their supervisors) understand that fulfilment of this objective requires that prisoners be released into the community in a gradual and transitional way, and that public resistance to providing services for offenders on parole must be met by unwavering insistence on the “rightness” of community corrections. Resources must be mobilized to enable quality assessments of inmate functioning within the institution and the community, and politicians must be inundated with intelligent information so that they do not capitulate to public reaction which then puts the Parole Board and Service at further risk. Mistakes will be made, but total intolerance of human error is an unrealistic criterion.
The concept of parole hangs in the balance, along with the concrete possibilities of minimizing the crimes occurring in the community through “correcting” individuals outside the criminogenic prison milieu. For now, the Green Paper recommendations are generally dormant and do not contradict the standing objectives of the B.C. Parole Board. As concerns the purpose, then, of this report, it is no less important to keep watch when sleeping dogs lie.
2. For example, see Taking Responsibility, Report of the Standing Committee on Justice and Solicitor General on its Review of Sentencing, Conditional Release, and Related Aspects of Canadian Corrections, David Daubney, 1988, pp. 185-196.