The issue of parole has long been controversial. We’ve also seen one of the core underpinings of our justice system become a manipulated by its political opponents, regardless of what the policy arguments are. In this article from the Listener at the begining of the year we gain some insight into parole – and why it is too important to dismiss:
A young woman in a crisp white shirt and tight ponytail rises nervously to her feet. She has come all the way from Northland to Christchurch Prison to say a few words to the Parole Board about her brother, who has spent 12 years inside for a brutal and premeditated murder and is today being considered for release.
She tells the board she wants him to come and live with her and her partner up north, in a household without drugs and alcohol, where he can better himself. She knows he has much to do before he is allowed out, but the invitation, she says tearfully, is there for life.
It’s a moving and unconditional expression of support. Judge David Carruthers, Parole Board chairman and one of the seven members who make up today’s ‘extended’ panel, thanks her. He tells the prisoner, ‘You are a lucky man.’
Lucky, but not yet free to leave.
The support of the prisoner’s sister is useful information for the board decent accommodation and companionship are essential elements in any successful prisoner release but not decisive. He has not done well in prison. By his own assessment, he is an alcoholic and a drug addict. He has twice been kicked off the prison’s drug treatment programme, and is onto his third go.
‘I don’t find things easy,’ he tells the board. ‘I am hopeful. I want to progress. I want better quality of life. I understand my victims.’
At this, board member June Jackson bores into him: ‘I don’t know that you do, because they suffer something terrible, and they are still hurting.’
The prisoner has made some progress, however. In the past, he has been ambivalent about his cultural identity, but a prison officer tells the board he has completed a tikanga programme, and recently delivered a presentation in te reo. ‘It was a great achievement. I didn’t ever think he would be able to do that,’ says the officer. ‘That’s a start to finding out who he is.’
‘That’s very good to hear,’ says Carruthers. ‘But we can’t possibly release you on parole today.’ There will be no release until the prisoner has kicked his drug and alcohol problem. He needs to reconnect with a psychologist, and there is talk of a violence prevention programme down the track. But the board is concerned about his motivation for change: he is warned that a relapse could mean he could face a postponement order where the right to appear annually before the board for consideration for release is frozen for up to three years. Postponement would, at least, relieve the victims of having to recycle their grief every year.
‘So, we will see you next year,’ says Carruthers. No one, least of all the prisoner, seems surprised that parole is declined.
This prisoner, like the eight other murderers who file through the Parole Board’s hearing room at Christchurch Prison on this November day, will in all likelihood have several appearances before a decision is made, if ever, to release him. It’s exceptionally rare for an offender to get out at the first hearing.
Parole is a journey, not an event, says Carruthers. Each time a prisoner appears, more information is gathered and further insight gained. Even if a prisoner is entitled to be considered for parole (currently, after serving a third of the sentence, or after 10 years of a life sentence, unless a longer non-parole period is set by the sentencing judge), the board can’t approve release until it is satisfied the prisoner does not present an ‘undue risk’ to public safety.
Conversely, if the evidence shows that, no matter how awful the crime or how traumatised the victims, the offender is no longer a risk, the board must not deny parole. General deterrence or a community desire for retribution doesn’t come into it.
Parole the discretionary release of offenders from prison, enabling them to serve the remainder of their sentence in the community under supervision has been around for a century in most Western jurisdictions. New Zealand’s first parole legislation was contained in the Crimes Amendment Act 1910, according to a potted history prepared by the Howard League for Penal Reform.
But it remains shrouded in mystery, in part because, in this country, at least, hearings are held in the bowels of the prisons, and are closed to the media. Carruthers wants to change that. Last year, the Listener and reporters from two newspapers were allowed to attend parole hearings, although the prisoners could not be named or identified.
It’s a small step towards what he hopes will be an open media policy, but not every-one agrees. ‘There are respectable arguments against it,’ says Carruthers. ‘One is that anything that dilutes honest and robust discussion is counterproductive But I would prefer on balance for everyone to see what we did and know what we did, than not. Because unless we have public support and the public are behind it, we are doomed to fail.’
In the information vacuum, law and order hardliners have open slather. Act MP David Garrett, who is pushing the party’s ‘three strikes and you’re out’ bill, says of the Parole Board’s decision-making process: ‘They toss a coin, don’t they?’ (Garrett immediately tried to retract that comment, telling the Listener he was joking.)
Like his ally Garth McVicar of the Sensible Sentencing Trust, he thinks the entire judge-given sentence should be served in prison. For instance, the eight-year sentence handed down to former policeman Bob Schollum for his part in the gang rape of a Mt Maunganui woman in 1989 ought to mean eight years behind bars, with supervision in the community at the end of that time. Instead, Schollum, like his co-offenders, was out after serving a fraction of his sentence in prison.
‘[Parole] is a disaster. It assumes that everyone is capable of rehabilitation,’ says Garrett.
McVicar: ‘It’s a corrupt ideology. There is no doubt in our opinion that parole has been solely implemented to unload the prison population.’
Ideology seems far from the minds of the seven Parole Board members as they address the perpetrator of one particularly terrible crime, which the Listener can’t describe without identifying the offender. The board is considering a postponement order, a move that the prisoner’s lawyer is opposing. The offender is handsome, lean and fit-looking, but seems stripped of emotion.
Board member Phil Brinded, a psychiatrist, tells him the victims continue to be ‘extraordinarily distressed’. The prisoner says he spends nights thinking of them, and of his crime. Then it is Jackson’s turn to speak: she says she is waiting for him to express sorrow and regret, that she is looking for him to reveal some humility: ‘I have to be honest with you. My vote for your release will never be. Never be.’
Another prisoner, who raped and murdered a woman, is up for parole for the first time. He tells the board how he has been helping with the Scared Straight programme, giving talks to youngsters who have had scrapes with the law and advising them ‘jail is no place for no one’. He has finished the drug treatment programme, but ‘to be honest, I have dealt with a lot of my drug issues I have addressed a lot of my stuff’.
Board member Richard Lewis, a former probation officer, pushes him to reflect on his crime. ‘I am embarrassed about it. It was a heinous act,’ says the prisoner. ‘I have remorse and empathy. I don’t like the person that did that crime.’
He was ‘angry and resentful’ when he first came to prison, but ‘one day the penny just dropped’.
Jackson, who is chief executive of Auckland’s Nga Whare Waatea marae and its prisoner reintegration programme, tells him she’s heard it all before from people who get out then revert to their old ways. ‘While you present well, I’m thinking, maybe deep down it’s still the same and maybe you are in the best place.’
Parole is declined. ‘There are slow, steady steps to be taken,’ says Carruthers. ‘We need to see that there is action, not just fine words.’
Fine words, or genuine change? The ability to judge the difference lies at the heart of a successful parole system. How does the Parole Board know when a prisoner is ready to be let out into the community?
Contrary to Garrett’s suggestion, no coins are tossed.
Instead, there are screeds of reports on each prisoner, held electronically by board members on a laptop that sits before them during the hearing. Among them is a statistical assessment of the prisoner’s risk of reoffending, as measured on the so-called RoC*RoI (Risk of re-Conviction, Risk of re-Imprisonment) scale. RoC*RoI is a population-based model developed by the Corrections Department in the 1990s and gives a risk classification derived from a raft of factors including age and gender, frequency of convictions, time spent in prison, maximum sentence and seriousness of offending. It has been validated against more than 133,000 offenders, and found to be 82% accurate.
The board sees every prisoner’s RoC*RoI rating, but it’s just a starting point in assessing suitability for release. In addition, there are reports from the prison about the offender’s behaviour and the programmes he or she has completed as well as psychological assessments and, where relevant, psychiatric and medical assessments.
There are reports on what support is available in the community for the prisoner, submissions from the prisoner and the victims and intelligence reports from the police and the Corrections Department. There is often information about educational programmes completed, and assessments from special units such as the Kia Marama or Te Piriti sex offender programmes. The judge’s sentencing notes and summary of facts from the original trial are reread.
And there is the information gleaned from the prisoner under questioning from the board.
Carruthers: ‘Sometimes questions are asked to which the answers are already known, just to see what the prisoner will say, because insight is a very important thing. How much do you understand about your own behaviour and how much has changed? Sometimes there are robust challenges to see how they handle that. â€˜You are a liar and a thief and you should rot there.’ How do you take a bit of confrontation, because that’s what you will get in the community.
‘A lot of prisoners become Christians. Is it real or is it feigned, or does it mean they have real pro-social support? What sort of accommodation will they have? What will they live on? That’s an important question because a lot of prisoners come out with very few skills and just have a benefit to survive on. Prisons are places of no responsibility only for your own survival, and you don’t have to worry about budgeting or relationships.
‘What sort of company are you going to keep? Who are the significant people in your life and will they be a good influence or are they gangs or whatever? Do you have a serious drug and alcohol problem and 83% of prisoners do and, if so, what have you done about it? What will you do with your time? It’s ancient wisdom if you’re idle, are you going to get into trouble?’
At the same time, it’s important not to waste time on factors that have been shown in research not to be relevant. Grief and low self-esteem, for instance, are not ‘criminogenic’, although they can lead to drug use, which is. ‘Everything is connected to everything else,’ says Carruthers.
All this information is weighed up using a ‘structured decision-making’ model, called the RPF15, which has been used by the board since it was established in its current form in 2002.
It looks and sounds like an exhaustive, risk-averse approach, which is reflected in the data of 4261 parole hearings in the 2007/08 year, 70% were declined.
Yet the infamous Graeme Burton case showed just how fraught with risk the process is. Burton was released on parole in July 2006 after serving 14 years of a life sentence for murder. He went on to relapse into methamphetamine use and assault, to extort money from drug dealers and to breach his parole terms, before eventually murdering Karl Kuchenbecker and injuring four mountain bikers in the Wainuiomata hills in January 2007.
In retrospect, it seems obvious Burton should not have been released. After his murderous rampage, the Parole Board appointed internationally renowned risk-assessment expert Jim Ogloff, professor of clinical forensic psychology at Melbourne’s Monash University, to review the release decision.
Ogloff’s report prepared in conjunction with Chief District Court Judge Russell Johnson shows Burton was described in prison reports as compliant, motivated and, in the years before his release, trouble-free. Yet his file also contained psychological reports assessing him as at high risk of violent reoffending. He also had a high score on a psycho-pathy screening test, and had a ‘pattern of grandiosity’ and lack of empathy and remorse.
There was also reference in a psychologist’s report to unsubstantiated allegations that Burton had assaulted other prisoners.
However, psychiatric reports said his risk of reoffending had moderated, and that by May 2006 there was a ‘window of opportunity’ to release him before the benefits of his time in the violence -prevention unit were ‘eroded by more prolonged incarceration’.
In March 2006, the board told Burton he would be released in July that year, subject to a satisfactory psychological report.
‘There was a sense over time that the board had an expectation that Mr Burton should be released,’ the Ogloff/Johnson report said. ‘The possible reasons for such expectations are unclear but may be linked to a sense that, with the passage of time and the rehabilitative efforts that Mr Burton was undertaking, he deserved to be released.’
Burton had a high rating on the RoC*RoI scale. ‘The higher the score, the higher the risk,’ Ogloff told the Listener from Melbourne. ‘If you have a high score, you need good evidence of sustained change over a long time before you think that is going to be reduced.’
Since the Ogloff/Johnson report, however, the report of Wellington coroner Garry Evans has revealed that the Parole Board unknowingly made its decision to release Burton based on incomplete information.
Rimutaka Prison’s glowing report on Burton said he was drug-free and had had no misconduct reports since his previous board appearance. It failed to mention he had been moved to a medium-high security unit because of the assault allegations, or that the allegations had been the subject of an internal inquiry. Internal reports recommended that a crime prevention officer appear at Burton’s June 2006 parole hearing to enable the board to gain an informed opinion about the allegations, but this did not happen.
The board was essentially left to make its own sense of a passing reference to the ‘unsubstantiated’ allegations, and decided they should not be taken into account.
Once he was released, failures in Burton’s management by the Probation Service and police meant he roamed ‘on a long lead’ until, eventually, he killed again.
Changes have since been made: the board has been given new powers to summons witnesses to give evidence to hearings, and police can apply for confidentiality orders covering information given to the board that it wants kept secret, ensuring that sources are not exposed.
Carruthers says the Burton tragedy has also reinforced to board members that they must not be ‘captured’ by the expectations of a prisoner who thinks he is on a path to release.
The board’s structured decision-making model, the RPF15, is also being updated by Ogloff, who says the new model under development establishes the RoC*RoI as baseline information and includes a wide range of other relevant factors affecting the likelihood of reoffending, such as how the prisoner has dealt with past releases.
‘Although it’s pretty simple, it just requires the board to really systematically look at the variables relevant to the -outcome, so they move away from the gut-instinct mentality,’ Ogloff says.
‘It’s just like if you went to the bank to get a loan they have a bunch of questions. They have a special formula to decide whether you get a loan.’
Flawed decision making can cut both ways. ‘In that case it went in [Burton’s] favour. I’ve never met the man in my life, but reading a lot about him now and hearing about him and looking at the reports, he was quite a psychopathic guy, quite manipulative, brighter than average, so there is little doubt he was able to manipulate a whole range of people.
‘But just as often, in fact more often, it works against them. They are usually inarticulate thugs who couldn’t make a case if their lives depended on it, and they are the ones often denied parole. They may be more in your face, or more likely to say things that are inappropriate. So, structure in decision-making protects society by alerting the board to factors that we sometimes neglect.’
But if we can’t predict with absolute certainty whether a prisoner released on parole will reoffend, why don’t we, as McVicar advocates, simply keep them in jail for their entire sentence? Why bother with parole at all?
Because the Burton tragedy notwithstanding the evidence is that it works.
RenÃ©e Collette, executive vice-chairwoman of Canada’s National Parole Board, which is regarded as world-leading, explains it this way: ‘Someone who is part of the community and commits a crime, and is convicted and sentenced, will at some point come back into society. So, can we bridge that release in a controlled way, by helping and controlling and at the same time supervising that person in order that they will not commit a new crime. It is about the safe, gradual reintegration of offenders.’
In Canada, which has a highly developed system of halfway houses to bridge the gap between prison and the community, 90% of releases on parole do not result in a new offence, and 99% do not result in a new violent offence, says Collette. In the past 10 years, annual convictions for violent offences by parolees have fallen 65%. And over the past decade, the crime rate in Canada, including violent crimes, has steadily declined.
Ogloff says the evidence is ‘crystal clear’ ‘people on parole are less likely to reoffend than those released from prison without the benefit of parole’. Offenders’ social and economic supports often unravel extremely rapidly when they are sent to prison, he says girlfriends disappear, landlords seize property to defray unpaid rents, families are often estranged. A good parole system helps re-establish social supports.
He says the international research also shows the benefits of supervised release on parole hold up over the long term, with lower rates of reoffending among those who have been through the system.
Carruthers says because sentencing and parole laws were changed in 2002, there is not yet a good long-term picture of the success of the New Zealand parole system. ‘But we think on fairly rough figures that we are between two and three times more effective in preventing reoffending than [if prisoners are automatically released]. That’s based on the number of releases we have, and the number of people we recall as a result of further offending during the term of parole.’
He says another strong argument for a parole system is that it provides an incentive for prisoners to engage in rehabilitation programmes. ‘I have been in countries were there is no parole for sex offenders, and they have set up these wonderful programmes and nobody does them. Why should they when there is no advantage?’
A further reason is cost: ‘If we are intelligent about our decisions so they are safe, we are saving the country $76,000 [per year] per prisoner, which can be spent in other areas. If we can save money sensibly and without any jeopardy to the safety of people, then that’s obviously a huge advantage.
‘A further reason that is important for New Zealand is 51% of our prisoners are Maori, and we know from very good research what the prognosis is for the children of prisoners. So, if we can make a contribution in a safe way to that awful statistic, we are also making a contribution to a safer New Zealand.’
And although he believes some people are incapable of rehabilitation, many are. Indeed, he notes that 241 ‘lifers’ are living successfully in the community.
January 31-February 6 2009 Vol 217 No 3586
by Rebecca Macfie