PRISON BLOG 7

The Truth of Truth-In-Sentencing

I’ve just been listening to the government’s new truth-in-sentencing/justice reform plans on T.V. Sounds great doesn’t it? – make them serve 2/3rds of their sentence before parole. Make a “sentencing council(?)” to “guide” judges. There are just so many problems with what they are proposing – even if some of the suggestions are made with the right intentions. We’ll forget Labour’s hypocrisy after having criticised it for a decade and get down to it:

Firstly, from my experience so far, the sentencing system at the moment works like this:

-Judges know exactly what all the various tariffs and release rules are and eligibility for parole and home detention etc and sentence accordingly – they know perfectly well that if they give someone 3 years their first parole hearing is at one year – they already know and take into consideration the “truth” in that sentence when they make it. This doesn’t stop them from ordering minimum non-parole periods or denying Home Detention as they see fit to make each sentence fit the crime and the offender, the victims etc.

-Parole being granted on the first hearing (usually at 1/3rd of sentence) is not usually granted – the offender would have to have an unblemished conduct history in prison, have pleaded guilty at an early date, have completed satisfactorily all courses, have a job and family to go back to, have no outstanding drug or personal issues, have had no previous convictions and demonstrate full and total remorse and the victim(s) have no problem with it – then, maybe, they might be released on parole conditions. There are psychiatric reports, victim reports, sentencing judge’s comments etc etc. and then, by many accounts of those who have been before the board, they grill the offender and try to provoke them into antagonism, to bait them, so any (natural and normal) hostility to the questioning in return is ever at hand to deny parole.

-Offering the carrot of parole at 1/3 and then a half and then 2/3 keeps many offenders from offending in prison – esp. drugs.

-All offenders sentenced to 2 years and under are released automatically after doing half, they have to fuck up in a major way to do their whole sentence. Basically everything under 2 years is not considered too major and many courses that these offenders could have gone on to help rehabilitate them (do they still even use that word?) are too long to complete and so there isn’t really anything for them to do.

-Offenders over 2 years get a parole hearing at 1/3, half and 2/3. Release is automatic at 2/3 unless they have fucked up (esp. drug test positive) and end up doing all of it. I think the board can alter when they want to see someone again – I’m not sure.

-Parole conditions vary. Breach of parole can mean going back to complete the sentence in prison – but I’m pretty sure that would need to go to a judicial hearing.

-“Back-end” Home D. is available for the last 3 months of a sentence I think. But like all Home D. it has to be approved and in an area where there are the monitoring facilities ie. probably not in rural areas.

-Home Detention means wearing a tracking anklet and being confined to an approved home except for pre-arranged excursions and employment.

Secondly the potential problems with making parole eligible only at 2/3:

-The use of drugs and misconducts will soar as the incentives for behaving oneself are reduced. It is already difficult for “normal” non-addicts not to find themselves wanting to lash-out in a prison environment designed to heighten frustration. Given many offenders are impulsive risk-takers with little self-control the “truth” will mean higher offending in prison and risks and danger to guards and other prisoners as that tension is manifested.

-It does little to differentiate the vast difference between a first-time, well-balanced, remorseful, “rehabilitated” prisoner and an out-of-control, violent, evil, unremorseful, recidivist offender who threatens to hunt down and kill the Parole Board. Ohhhh – you’ll have to do the remaining third – so what?

-It does not acknowledge that Prison is an undesirable place that breeds criminality – the longer an otherwise “normal” person is in contact with criminals the more susceptible and likely it will be to either pick up some very bad habits and/or further their criminal education and/or make all the wrong sort of friends that will follow them to the outside and/or plan crimes with these new chums.

-Possible unfairness between offenders sentenced under the new law and the old system. And if the system is fair and no-one serves a greater of lesser sentence than before – then why change it? Is unfairness inevitable?

Thirdly, this “sentencing council”. At present the judges are free to pretty much do anything they want. They seem to pay little heed to any submissions put forward by the Probation Officer in their Pre-Sentence Reports that’s for sure. If a judge “has it in for you” – then you are fucked. They will make up any argument, they will find any ill-fitting and irrelevant case – no matter how implausible – to fuck you over. There seems to be absolutely no consequences whatsoever for a judge who’s sentencing is criticised at appeal. They do as they please.

Sometimes as part of the plea-bargain deal a defendant may seek an “indicative sentence”. This is not binding I think but will be the basis for the likely sentence if they plead guilty. The system is designed to resolve in favour of a guilty plea at all stages – that is probably why there are so many stages in the first place – it gives the defendant and prosecutor many chances to deal. Maybe they might drop a few lesser charges for one heavy charge, maybe consolidate many smaller charges into one so it looks better (this sounds ridiculous but it’s true), or any combination. Now all of this takes place between lawyers – the victim and especially the defendant have almost nothing to do with any of this – just as in Court – all the talking is done by the lawyers. Apart from glancing up at the very beginning to see if a body is present in the right spot a judge may not even look at a defendant let alone hear from them. This puts the lawyers into a very powerful position. But what of their motives? How much can they be trusted? Despite being paid for trial it seems all lawyers are programmed to agree with the prosecution to at least one charge as guilty. The system also means that the only guaranteed mitigating factor that a judge must and will take into consideration to reduce a sentence is a guilty plea – and the earlier the better.

Tariffs for various offences have been sent in many areas in a defacto fashion by the Court of Appeal over the years. Most lawyers will know the relevant cases. These cases will form part of the sentencing submissions. Fraud for example will not incur a term of imprisonment unless it is over $15,000. But the individual circumstances are almost always unique. Does a previous conviction have weight if it is for something else? Does reparation mean much? – when the victim doesn’t accept it? This is the major problem with a hard-and-fast tariff table and why the Court of Appeal has it’s hands full. It needs a complete calculation, equation or algarithym rather than a basic set of “3-strikes” slogans.

The other problem is the appeal process often takes so long that the appellant may be out or almost out of prison anyway by the time it’s heard – so what value does the entire appeal system have if in practice its function is undermined by its actual use? Justice denial wouldn’t you say?

I agree that something needs to be done about widely varying sentences. But it is the sentences between different crimes that alarms me even more than the usual examples of gross discrepancy within the same sort of offences. It appalls most of us, I think, that a death caused by vehicle drivers are so lightly treated – sometimes, perhaps even usually, without a jail sentence – and yet a procession of cannibas offences can land you in jail. If the prosecution can’t even find a victim of an offence (eg. drugs) then how can imprisonment be appropriate? This is largely parliament’s fault of course.

So, what are the solutions given we know we have an imperfect system? I would like to think that Judges who keep making mistakes (ie. having their decisions reversed or substantially amended on Appeal) should be sanctioned in some way. We can’t keep pretending that all Judges are perfect. We can’t keep pretending that a jury will be prejudiced if they know the criminal background of a defendant but a Judge will not. I am telling you that they must certainly are! Of course they are! How can they not be? Should they not also be excused from hearing the case if they have had previous dealings with the defendant? Although that isn’t relevant to sentencing it really has to be said.

As usual I’m not sure what the best solution would be. To undo the injustices of poor sentencing, of harsh “deterrent” sentences that obviously don’t deter, of celebrity and wealth seemingly an overwhelming mitigating factor…to establish some sensible code AND make it workable is daunting. A group to draw up a systematic and fair set of tariffs still needs an appeal procedure that gets results promptly. To ask those questions and acknowledge the deficiencies is a good start. The use of more Home D and equitable sentences will fix some major problems, but others remain. The massive cost blow-outs on the three new prisons built under this Labour government and the lack of any corresponding expenditure or programmes for prisoners being just one.

Tim Selwyn
Prison Blogger