Release from Prison

European Policy and Practice

Nicola Padfield, Dirk Van Zyl Smit, Frieder Dünkel

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781134029266
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Release from prison is matter of increasing interest throughout Europe. On the one hand, arguments about the need to reduce prison numbers, as well the consistent findings that prisoners can be integrated into society more effectively if they are subject to a period of supervision in the community, have made early release policies attractive to governments and to academic commentators. On the other hand, there are concerns that early release may not be applied fairly to all prisoners.

This book aims to meet the need for comparative information on release from prison across Europe and explores some of the key themes and issues. The body of the book focuses on country perspectives, providing an invaluable survey of the situation in a number of European countries.

The introductory and concluding chapters place the comparative material in a broader perspective. They explain how release policy is related to wider questions about justice and fairness in prison-related decision-making and the changing place of imprisonment in European society.

Part I

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Chapter 1

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Introduction

Nicola Padfield, Dirk van Zyl Smit and Frieder Dünkel

The release of sentenced prisoners is of great significance, not only to the prisoners concerned but also for what it tells us about how society deals with those who have lost their liberty and are dependent on others to regain it. In practice, few prisoners are told that they will never be released from prison. All legal systems have rules, some more and some less formal, for deciding who comes out, when, and under what conditions. The application of these rules is closely watched by the prisoners themselves. However, as they are relatively powerless, it is of great importance that both the rules and wider principles that underlie them are clearly understood by criminal justice practitioners and the wider public. This book aims to contribute to such understanding by concentrating on the release of prisoners in countries of Europe, where, notwithstanding major procedural differences, there are fundamental shared values about liberty and the rule of law against which evolving systems can be critically evaluated.

1. Scope of the present research

The main focus of the book is on the rules on release from prison applicable in 13 different European Union countries. The chapters dealing with individual countries are preceded by a chapter that considers the roles of the Council of Europe and the European Union in developing law and policy that impact on the release of prisoners. A final chapter places the national accounts in a wider context and draws some overall conclusions about the processes for making decisions to release sentenced prisoners in the various countries

The importance of understanding the different approaches taken in these countries is underlined by the recent decision of the Council of Ministers of the European Union to adopt a Framework Decision for the mutual recognition of judgments in criminal matters that lead to imprisonment so that they can be enforced throughout the Union.¹ Member States are obliged to implement this Framework Decision by 5 December 2011. Soon prisoners may find themselves returned to their home jurisdictions to serve their sentences, whether or not they agree. Clearly this will give rise to many potential difficulties, not least of which will be the application of different release rules. The information on the individual countries included in this volume will be useful in unravelling these complexities.

2. Comparing early release in a wider context

The national chapters go further, and provide a clear basis for contextually-informed comparisons, not only about the rules but also about the evolutionary processes that are taking place in individual countries. Moreover, as the chapter on the pan-European dimension makes clear, policies relating to release are also being developed on a regional level. Collectively, the wider ‘Europe’ is having an increasing influence at the national level, but this influence too must be understood in comparative perspective, for national criminal justice systems are not equally amenable to regional policy guidance.

In many ways this collection is breaking new ground. In most countries, sentencing law has been less studied than substantive criminal law. And within the area of sentencing law, there has been more emphasis on the rules for imposing imprisonment than on those for release from prison. Even comparative studies of sentencing law have often focused more on the ‘law in books’ than the ‘law in practice’ (though for a more practical comparative analysis, see Delmas-Marty 2003). When we come to look at release and recall to prison (which can be considered ‘backdoor’ sentencing) both law and practice are clearly particularly important, and we recognize the importance of considering and comparing both.

We are proud to present a European perspective. Too often comparative law written in English focuses on the ‘common law’, English-speaking countries. But this narrow approach is blinkered. Therefore we attempt to present a wider analysis, exploring release across some very different penal systems, all of which face similar challenges, and purport to uphold similar values, even as they come under increasing pressure to be tough on crime.

3. Law reform

It is hoped that this book will be of value to law reformers, for when we seek to reform our own systems, we can of course usefully learn from the practice elsewhere. Nevertheless, it is astonishing how many domestic policy documents or national reports fail to refer to work carried out in other jurisdictions. Currently, reform endeavours are often driven by concern about large prison populations. This arises from both a humanitarian and resource perspective, as the traditional, security-oriented prison does not seem to be effective in reducing re-offending, and it is very expensive. By adding to the literature on release we can contribute to the important debate on how prisoners should be better prepared for release in order to improve their chances of re-integration into mainstream society.

When considering reform in this area, it is important to remind ourselves that release reinstates the basic liberty of the sentenced prisoner. It should be implemented fairly and as expeditiously as possible. That imprisonment should be used as a last resort and then only to the minimum extent possible, is a well-established principle of European prison policy and, increasingly, of European prison law (van Zyl Smit and Snacken 2009). What should release be about? Is discretionary or automatic release ‘better’, both from a theoretical and a practical point of view? By bringing together analyses of different approaches in different countries and highlighting the current reforms in different jurisdictions, we hope we can contribute to discussion both at national and European levels.

4. Theoretical approach

A book of this kind raises complex theoretical issues. Comparisons are fraught with difficulty. Similar legal terms may have meanings that vary from one jurisdiction to another, a problem highlighted by the linguistic difficulties inherent in translation. Moreover, as Fairchild and Dammer (2006: 9) say:

The fact is that a nation's way of administering justice often reflects deep-seated cultural, religious, economic, political, and historical realities. Learning about the reasons for these different practices can give us insights into the values, traditions, and cultures of other systems.

In order to avoid premature closure we have not sought to categorise the countries. We simply list them alphabetically, as any classification would neither advance our project nor aid our analysis. An alternative would have been to follow the approach adopted by Cavadino and Dignan (2006) in their book Penal Systems: A Comparative Approach. Cavadino and Dignan would look at our list and distinguish England and Wales as ‘neo-liberal’, Germany, the Netherlands, Italy and France as ‘conservative corporatist’, and Finland as ‘social democratic corporatist’. Such classifications would have limited explanatory value for our purposes, certainly within a Europe where, politically, fluidity leads to unexpected turns in penal policy. Moreover, as Nelken (2009) has pointed out, local legal cultures and other factors may be more influential than types of political economy. In times of recession, governments are likely to be more pragmatic, to seek to save money and, in some jurisdictions, to hope that solutions lie in privatization.

Sensitivity to these complexities is clearly important, but it holds the danger of a slide into relativism where all comparison becomes impossible. We recognize that for successful comparative research a sound basis is needed. What point of departure is adopted will depend on the methods used and their appropriateness to subject matter that one wishes to research (Roberts 2002).

In this instance, a partial solution was found by focusing on a specific theme, in our case early release, and on statistical information about it, which appears to provide a basis for comparison. However, statistics, even on such a specific subject as early release from prison, are gathered differently across different jurisdictions. This makes comparison difficult, although not impossible, if it is subject to adequate qualifications. In order to provide the necessary contextual qualifications, we decided not to seek to present these materials in a uniform way. By highlighting the inconsistent ways that data might be presented nationally, the statistical categories and the methods of collecting statistics became a potential subject for comparison, too.

In all, we have tried to avoid ambiguity, but to recognize ambiguity when faced with it. This is an area in which linguistic and statistical comparisons are fraught with dangers, and this book seeks to highlight the difficulties in making meaningful comparisons. In so doing we are building on the important work of others, most notably of Tubex and Tournier (2003) and Tournier (2004) who, in a questionnaire-based study and a critical overview respectively, identified similar difficulties but, nevertheless, pointed out what could be learnt by comparing the process of releasing of prisoners in different jurisdictions.

5. Framework for the national chapters

The majority of the book is written by subject specialists on the rules applicable to release from prisons in their own jurisdiction and on the practical operation of those rules. We asked our colleagues to write from a national perspective. We have sought to present the law and practice of early release through the eyes of specialists in the various countries involved, and not to iron out important differences prematurely.

The brief to the authors was that they should seek to shape their individual country reports in the following way:

• Summary.

• History. Is this an area of change? Include a review of empirical and other published research.

• Legal criteria. What guarantees exist that the prisoner will be released? Aims and objectives of release systems. Is early release mandatory or discretionary?

• Categories. Determinate and indeterminate sentences; short term/long term? Are there special rules for foreign prisoners?

• Statistical data (on coming out and coming in). Comment on their limitations.

• Types of decision-making: judicial and executive. Description of decision-makers; indirect and direct influences on release decisions.

• Recall procedures.

• Practical challenges. Explore budgetary issues; management of prisoners before and after release.

• Theoretical and other conclusions, including possible future changes.

• Bibliography.

Readers will see that contributors have adapted this proposed shape in their own way. We have not attempted to re-write the chapters submitted, except to try and clarify, and to impose some internal consistency.

Unlike Tubex and Tournier, we did not ask the authors of national chapters to complete a questionnaire but instead asked them to present their own analyses of release. This makes direct comparisons harder but we hope that this method has revealed many of the more subtle distinctions at play. We will return to these issues in the final chapter.

6. Limitations and general conclusions

The book does not purport to be a comprehensive overview of release in Europe, as we do not have national reports on every European country; even the countries of the European Union are not all included. While concentrating on selected countries for illustrative purposes can be justified, perhaps more focus on the countries that have joined the EU more recently would have been helpful. At our initial meeting we did have a useful contribution from Romania — where conditional release is common, but with just one c...

Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• Contents
• List of figures and tables
• List of abbreviations
• Acknowledgements
• Notes on contributors
• Part I
• Part II Country perspectives
• Part III Converging themes
• Index