STRATEGIES TO DEAL WITH PRISON OVERCROWDING- THE ROLE OF PAROLE

Introduction and overview
Parole is perhaps the least understood process in our criminal justice systems. Its name suggeststhat it focuses on the prisoner and allowing him or her a ticket out of prison before serving the full
sentence meted out by the court. Little wonder that it is distrusted by many politicians, reviled by
the press and disrespected by the public. Yet, as part of a multi- agency approach to public protection
and prisoner rehabilitation, it can - and does - serve an invaluable purpose. I hope this short paper will
cast some light on a process that was once described to me by a victim as one of the black arts - hechanged his view once he had seen and understood the real parole.
I start with a deﬁnition. What I mean by parole here is the managed release of a prisoner on set
conditions before the expiry of the sentence. If released on parole, the prisoner will be on licence forthe unserved part of the sentence and will be eligible to be returned to prison if he or she re-oﬀends or
breaches the conditions of the licence. A prisoner sentenced to life imprisonment will be on licence if
granted parole for life and will be eligible for return to prison in the same way.
The parole decision is based on a risk assessment of the prisonerʼs suitability to be safely managed
in the community. I will discuss risk assessment and risk management later in this paper. At its
heart is public protection as the decision is about balancing the rehabilitation of the prisoner and his
reintegration back into the community against the risk to the public that this would cause. In thisbalancing act, the scales always fall on the side of public protection.
The role of parole has become increasingly under the scrutiny of the courts in the context of
Human Rights in the United Kingdom. I will develop this further later in this paper. The ensuing
media coverage has contributed to a now common misconception that parole boards consider only
the rights of the prisoner, that they put a prisonerʼs human rights ﬁrst before public safety and thatparole is a prisonerʼs right, especially if they have behaved well in prison. It is considered a soft
option and parole boards are often accused of not taking into account the rights of the victims. A
linked misconception is that parole is mainly about saving money and releasing prisoners early so that
prisons are not overcrowded. I aim to show that this is not the case. However, by freeing up prison
places and prison resources by releasing some low risk oﬀenders, I contend that this enables bettersupervision and control over those released on conditional licence as well as ensuring that prisons areless overcrowded and therefore able to respond better to the needs of those incarcerated.

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Risk assessment
Oﬀender management in the United Kingdom has at its heart the concept of risk. Risk is a familiar
concept in everyday life and translates well into the ﬁeld of criminal justice. The model below shows
the importance of ﬁnding the right balance in making risk assessments.

A risk assessment is a judgement about a negative (usually) event or behaviour based on likelihood(probability) and impact (the outcome). The risk will be the risk of reoffending, the risk of doing
serious harm to others or the risk of doing serious harm to him/herself.
Imminence is a judgement as to how soon an oﬀender is likely to commit his/her act. In making thisjudgement - some questions which are useful are:
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Is he/she more likely to do it than not
Is he/she likely to do it as soon as an opportunity or victim presents
Is he/she actively grooming an opportunity or a victim
Will he/she act as soon as the risk management plan breaks down
Is he/she already failing to attend or comply with conditions of release
Are past circumstances and conditions repeating

The last question is particularly pertinent as past behaviour is said to be the best predictor of future
conduct. These considerations can be seen on the diagram below. This can be useful to those making
risk assessments in this context.

Likelihood

How then is risk identiﬁed? A starting point is to determine the main risk indicators of an individual.
These will usually include
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Past behaviour and convictions
Motivation for and attitude towards oﬀending
Access and proximity to victims (including grooming)
Preparedness to use weapons
Disinhibitors (alcohol and drugs)
Situational triggers
Conditions and circumstances227

To these must be added risk factors and oﬀending behaviour. The diagram below shows that thisprocess is a complex one and that factors will overlap as they contribute to oﬀending behaviour. It will
be necessary to assess and manage the risks both individually and collectively as factors may impact oneach other and increase risk. For example, ﬁnancial problems may lead to the loss of accommodation,
relationship diﬃculties and aﬀect emotional wellbeing. The analysis of risk factors requires detailed
consideration.

The next step in the risk assessment, having looked at the individualʼs main risk indicators and risk
factors is to look at the current situation - what are the main indicators now and what are they likely
to be in the future? Risk factors may be static - things that may not be changed such as the oﬀenderʼsage and the previous oﬀending record - or dynamic - things that may be susceptible to change such as
substance abuse. All must be fully analysed, taken into account and balanced.
There are a number of tools to assist those charged with making these risk assessments. These
include actuarial risk assessment tools as well as structured clinical risk assessments, usually by
forensic psychologists. The recommended best practice is a combines approach using both static anddynamic factors. Research suggests that clinical judgement is inherently unreliable (see Campbell,
2004 for a summary) and that considering level of ʻdynamic riskʼ alongside actuarial instruments canimprove accuracy beyond that of current actuarial instruments alone (Thornton, 2002; Beech et al2002).
Static risk assessment includes
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Static/actuarial historical factors which are unchangeable and predict risk, normally combined
into an equation or scale.
Involves researching the behaviour of offenders in order to establish significant differences
between those who oﬀend at high rates and those who oﬀend at low rates
Characteristics identiﬁed by research use thousands of subjects
Trying to identify the characteristics associated with higher risks of reoﬀending
Thorntonʼs Risk Matrix 2000 (for sex offenders) has been found to identify correctly 71%
repeat oﬀenders
RM2000 includes: age; previous criminal history (sexual and general); male victims;

relationship status; stranger victims; non-contact oﬀence
If static risk assessment is so powerful, why then use dynamic factors at all? Actuarial risk
assessments deal only with groups of offenders and not individuals. Static risk assessments canbe artificially low or artificially high. Static factors cannot be changed and actuarial procedures
are insufficiently inclusive of risk and protective considerations (Doren, 2002). In contrast,
psychological factors shown by research to be associated with risk include dynamic factors that canbe changed. Identifying these correctly enables treatment targets to be set therefore promoting
risk management. Structured consideration of dynamic factors improves accuracy of static
instruments and give the most accurate and thorough method of risk assessment - static plus
dynamic. Meaningful risk factors••••

Tell you what things make it more likely that the individual will reoﬀend
Tell you what the person needs to do to change
Therefore give you an indication of which programmes might be helpful.
Help you to assess if change has occurred

Examples of these are a sexual interest in children, attitudes promoting violence, angry
rumination and wanting revenge, believing that women deserve to be raped/children are interested
in sex, a need to work on improving problem solving skills and thinking of consequences, a chaotic
and criminal lifestyle and a tendency to be inﬂuenced by others.
In addition to risk factors must also be considered protective factors when making a risk
assessment. Protective factors, as the term suggests are:•
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Opposites of risk factors.
Meaningful, fulﬁlling and pro-social life goals
Coherent, organised and meaningful daily activity.
Learning something in treatment that will clearly work i.e. he understands the procedure andcan explain what he will do.
Robust, respectful, loving and non-collusive social/statutory support.
Belief in oneʼs capacity to change

What is crucial in all risk assessment is the need for it to be evidence based. The analysis of
the case must be directed at ﬁnding and weighing evidence - both positive and negative - and thenbalancing the factors. Where the balance is even, the scales must always fall on the side of public
protection. The Parole Board must always consider• Nature and circumstances of the original oﬀence• Previous oﬀending, plus any additional measures of risk including age of oﬀender• Attitude and behaviour in custody and whether this indicates a willingness to addressoﬀending behaviour and to understand its causes and consequences for victims• Progress in addressing oﬀending behaviour• Likely compliance with licence, including previous behaviour on licence, bail etc• Resettlement and risk management plans
Having considered the risk factors and the protective factors, the next stage in a risk assessment
will be the consideration of whether there is any evidence of behavioural change. Insight(responsibility, empathy, honesty, and understanding) is good, and is a treatment target of mostOffending Behaviour Programmes but it is not the same as change: insight is the vehicle whichenables change to occur. Change in attitudes, behaviours, skills must be observed in addition to
insight.

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Examples of such change are
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Behaviour during treatment
Attendance at sessions and level of active participation
Completion of between session assignments
Evidence of application of skills
Seeking advice and support from staﬀ
Going the extra mile
Recognising when a risk factor is present

Having considered all these factors, the acid question is How robust are the skills for managing
future risk and will his strategies work? The risk assessment will depend greatly on the plan which is
to be put in place to manage the individualʼs risk. The Parole Board can put in place conditions as partof the risk management plan, for example restrictions on contact with victims and other individuals
or groups of people, curfews, and restrictions on going to particular places. These conditions must be
both necessary and proportionate to manage the risk.
Accurate risk assessment will require all agencies involved to provide good information. This will
start even pre-sentence with reports to the judge, will continue with good sentence planning andassessments in the prison and by the probation service.

Risk management
No individual will be risk free. The risk assessment will serve to inform the risk management
plan which in turn will take into account protective factors. The plan will need to be monitored andsupervised eﬀectively and a multi-agency approach may well be necessary here for some oﬀenders.
A good risk management plan will take account of both external and internal factors and include
strategies to deal with both.

To summarise:
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Does he acknowledge the existence of the risk factor and does he understand how it connects
to his oﬀending?
Can he articulate a strategy for managing the risk factor?
Is he able to recognise when the risk factor manifests itself in the present?
Is there evidence of behavioural change? Or is there continuing evidence of the risk factor
being present? Or is there no evidence either way?
Is there any evidence that he has developed and is using healthy alternative behaviours?

•Is the risk management plan realistic and robust and will it be properly managed?

Impact of Human Rights
The Human Rights Convention has become increasingly important in the work and decision making
of many Parole Boards including the Boards in England and Wales and to the Parole Commissioners inNorthern Ireland.
Article 5(4) of the Human Rights Convention states that everyone who is deprived of his liberty byarrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shallbe decided by a court and his release ordered if the detention is not lawful .
The case of Staﬀord -v- UK (2002) 35 EHRR 32 decided in 2002 by the European Court of Human
Rights began the journey of the Parole Board from an advisory body to Ministers on the early releaseof prisoners (in that case of prisoners sentenced to a mandatory life sentence) to the court or court-likebody required to oversee and decide on the lawfulness of detention in such cases under Article 5(4).
This case was followed in 2005 by a House of Lords ruling in the cases of Smith and West -vSecretary of State (2005) UKHL 51 that prisoners recalled to prison allegedly in breach of theirlicences should be granted an oral hearing in order to comply with Article 5(4) of the Human Rights
Convention - prior to this, the Parole Board had handled these types of cases by considering themon paper. Subsequent cases such as Girling -v- Secretary of State (2006) EWCA Civ 1779 andmore recently Brooke -v- Parole Board (2008) EWCA Civ 79 have underlined this principle and theoverarching need for the Parole Board to be completely independent from government when making
these decisions.
This line of cases has resulted in the Parole Board moving from being an advisory body, governed
by Directions from the Secretary of State, to being described as a court by the higher courts and being
responsible for making the decisions rather than oﬀering advice to Ministers. This move was welcomedby the Parole Board for England and Wales and by many stakeholders. The media coverage of thechange was however sometimes unhelpful and even some senior politicians commented unhelpfully
about the role of human rights in the decision making process of the Board. In fact, the legal changes
did not impact on the way the Board performed its risk assessment task in terms of balancing theevidence as required. They did lead to the Board holding more oral hearings with the prisoner present- and it is perhaps telling that the Boardʼs release ﬁgures have decreased over the last three years.
There are other factors here, including a diﬀerent case proﬁle, but it may be that hearing in personfrom the prisoner in these cases has also contributed to these statistics.
The other important Article for Parole Boards is Article 8, the qualiﬁed right to family and private
life. This generally concerns ensuring that any conditions attached to a prisonerʼs licence on release
are both necessary and proportionate.

Measuring and recognising successAt the risk of stating the obvious, there is no release decision that is free of risk - the only safe
decision in terms of re-oﬀending and risk of harm to the public is a refusal. This is a problem for Parole
Boards where oﬀenders do re-oﬀend after conditional release with the inevitable media and politicalpressure that these incidents will bring. However, it must be considered that automatic release
after serving a proportion of a prison sentence can mean that a prisoner has had no motivation toaddress his oﬀending behaviour while in custody and that he may be released without eﬀective licenceconditions or sanctions back into the community. The parole option, while it does carry risk, does
allow a structured condition re-entry for a prisoner who will have had to take some responsibility andownership of his risks and make eﬀorts to address them during his sentence.
The re-oﬀending statistics in England and Wales show around 67% of oﬀenders re-oﬀend within two
years. For those paroled, only 6% oﬀend during the parole period which is typically around one year.

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The ﬁgure is the same for those released on life licence - with only 1% of the re-oﬀending being forserious sexual or violent oﬀending. In an Annual Report, Judge David Carruthers, the Chairman of the
New Zealand Parole Board refers to parole being around twice as eﬀective in terms of re-oﬀending ascommunity penalties.
There is little in the way of global research here but a factor may be that prisoners have alreadybeen in custody and know what to expect on return. They will have taken active steps in trying totackle the causes of their oﬀending and will have had support in their re-entry into their communities.
With evidence-based risk assessment by well-trained Parole Boards, bases on robust information and arisk management plan backed up by eﬀective
Supervision in the community, parole is an effective tool in managing overcrowding and incontributing to rehabilitation.

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