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Since the beginning of the history of prisons, early release and parole have been a major issue of concern. While at first being in the hands of the king or other sovereigns, in the nineteenth and early twentieth centuries early release and parole evolved into a judicial measure. The aim of early release has always been to improve the chances of rehabilitation. The idea of granting a favor was replaced by the idea of an evidence-based form of rehabilitation. The traditional mode of early release in the Anglo-Saxon world is parole after a (relatively) indeterminate prison sentence, while in the continental European world conditional or unconditional early release is provided after a specific part of the (determinate) sentence has been served (regularly two thirds or half). Both forms are optionally or often mandatorily linked to supervision by the probation service or similar services. Since the early nineteenth century, the voluntary (third) sector has traditionally played a role (e.g., charities, the church, and others). The purpose of this research paper is to identify the extent to which a coherent and fair policy on release from prison is developing within the European Union and in the USA, and what can be seen as “good” or “best practice” in this field. Therefore, evaluation on recidivism and desistance from crime is also included.
Conceptual clarity has not been easy not least because the fine line between imprisonment and liberty is not always clear. Definitional challenges abound when it comes to comparing different forms of release. Only limited statistics are available.
Common themes include the need to clarify the purposes of conditional release, and the need to identify appropriate conditions and requirements. This research paper urges for a greater use of early release to achieve the basic aims of punishment, especially the reintegration of offenders.
This research paper is devoted to the release of sentenced prisoners before they have served their sentence in full, but also to offenders released conditionally from psychiatric or other institutions that deal with offenders who are not criminally responsible. There are similar and overarching themes in all jurisdictions. The most basic of these is that early release has been a feature of penal practice for as long as sentences of imprisonment have been a primary form of punishment. What has characterized early release in Europe and elsewhere over the past one and a half centuries is the search for a fair and justifiable form of early release, which does not depend on the whims of a sovereign ruler but instead forms part of a coherent penal policy. Since the early nineteenth century, we can find regulations for early release by an act of grace of the sovereign (1813 in Bavaria, 1830s in Australia and the USA, 1847 in France, and 1853 in England, see Dunkel in Dunkel and Spieß 1983, p. 400 f.). “Juridification” began in the late nineteenth century with legal regulations for probation laws (famously the Probation of Offenders Act in England 1907), and for early release in Germany (1871) and Austria (1912). However, in continental Europe it took another half century to introduce the probation service (e.g., 1953 in Germany). Only in the second half of the twentieth century, a differentiated system of early release combined with supervision by the probation service and in cooperation with the prison service emerged when prison reform laws provided measures such as prison leaves and open regimes for the preparation of release. The Scandinavian prison reforms (e.g., Sweden in 1964) and reform laws in other countries (Germany in 1977) introduced the idea of transition and continuous care through prison leaves, open prisons (promoted by the UN Standard Minimum Rules for the Treatment of Prisoners in 1955), work release programs, and halfway houses. But the idea of rehabilitation somehow declined in the late 1970s in some countries and a more repressive understanding of what prisons should aim at prevailed in the Anglo-Saxon world (deterrence and incapacitation). Continental Europe somehow resisted the punitive turn and kept the rehabilitative philosophy of imprisonment. Although some scholars tend to interpret the emergence of risk assessment and managerialism as an expression of the punitive turn (Garland 2001; Tonry 2004), it must be recognized that the modern welfare philosophy at least in continental Europe has survived (see Snacken and Dumortier 2012) and is currently even expanding toward a coherent system of integrated services of the prison and probation/ aftercare services. Evidently that has also to do with social control, in particular when more and more systems also rely on electronic devices and GPS-based control systems, but that is the truth only in those countries which do not provide the support of the probation services in these electronically supervised cases.
The traditional mechanism for releasing offenders early was – as mentioned above – the royal pardon or amnesty. In theory, an amnesty sets aside the conviction and sentence, while the pardon does not do so but merely allows immediate release of the prisoner or class of prisoners to whom it was granted. Notionally they are often both granted to a class of prisoners to celebrate some anniversary or other great national occasion, but in fact they are used as devices to reduce the prison population to a more manageable level. General pardons and amnesties have long fallen into disuse in countries such as the UK and Germany. In France and Belgium they were used regularly until fairly recently but there too the state, more specifically the former and the current president and king, respectively, were and are currently reluctant to use them, because they are seen as an unjustifiable use of executive power. Only in Italy, where there is a much higher level of skepticism about the use of state power to punish than in most other European countries (Nelken 2009), they are still an important element of penal policy.
While the constitutional objections against the use of pardons and amnesties may be well founded, the question remains whether other mechanisms for early release are performing the function of controlling the size of the prison population as effectively as they could or should. The evidence is mixed: In Finland, a well-designed system met the requirements of due process and was a key factor in reducing the prison population (see Lappi-Sepp€al€a 2007; Dunkel et al. 2010a, b). The reform in Austria of 2008 has also contributed to a decrease of the prison population and at the same time has emphasized rehabilitation more strongly by excluding general deterrence as a consideration when deciding on early release after having served two thirds of the sentence. On the other hand, policy changes can also go in the opposite direction, as in Spain where the abolition of “good time” in 1996 has contributed to the increase of the prison population rate. In Germany, psychiatric hospitals experienced serious problems of overcrowding when in 1998 the legal criteria for early release were formulated more restrictively.
Early Release from Prison, Table 1 Recidivism of those released in Germany in 1994 and 2004 or sentenced to suspended sentences after 3 years
The combination of information from various sources reveals that there is provision for early release in all European countries. It is, however, organized very differently in respect of who the decision makers are, the minimum period to be served, the extent of the remainder of the sentence during which the offender remains subject to some form of restriction, the question of whether release is (predominantly) automatic or subject to an individual prognosis/assessment, the possibility of combining the decision on early release with a requirement specifying what the offender may or may not do during a period of conditional release, and finally the question relating to the recall of conditionally released offenders and the imposition of sanctions for infringements of the conditions on which the release may have been granted. Dunkel et al. (2010b, p. 409 ff, Table 1) provide a synoptic overview of the legal requirements of early release which are summarized in this research paper.
Legal Concepts And Basic Philosophies Of Early Release
The aim of early release has always been rehabilitation and reintegration of the offender into society. This was well expressed by the German Federal Constitutional Court when it stated with regard to the principle of “resocialization” (rehabilitation): “From the point of view of the offender, this interest in resocialization grows out of his constitutional rights in terms of article 2 (1) in conjunction with article 1 of the Basic Law (that is, the right to develop one’s personality freely in conjunction with the protection of human dignity). Viewed from the perspective of the community, the principle of the social state requires public care and assistance for those groups in the community who, because of personal weakness or fault, incapacity or social disadvantage, were retarded in their social development” (BVerfGE, Bundesverfassungs-gerichtsentscheidungen 35, pp. 202, 235–236). Prisoners and (released) ex-prisoners belong to this group. So since the early 1970s, the idea of granting a favor by early release was replaced by the idea of rehabilitation as a constitutional right.
Spain (Art. 25(2)) and Italy (Art. 27(3)) have explicitly introduced rehabilitation as constitutional rights. In recent days, rehabilitation by a system of graduated liberty with early release and aftercare is also seen as an evidence-based strategy for preventing reoffending (Andrews et al. 1990; Dunkel 2013; Lo¨ sel 2012).
Other legal aims such as general prevention (deterrence) or “just deserts” should not be of relevance. Retribution (referring to the guilt of the offender), too, should be considered only in the sentencing stage and has no impact on the question of early release (see Dunkel 2013; Dunkel et al. 2010b, p. 404 f). The same applies to the role of the victim. The welcomed improvements of the position of the victim in criminal procedures should not go so far that the opinion of the victim determines the early release decision. Therefore, “victim impact statements” are not conforming to the rehabilitative idea of providing the reentry of prisoners into society depending on his development and resocialization.
Perhaps the simplest justification for early release is to reduce the prison population and cope with prison overcrowding. Ultimately, the importance of this aspect cannot be overlooked. Even in England and Wales, where there has been a significant increase in the prison population as a whole, an increasing number of steps were taken to release some categories of “less serious” offenders early in order to make room for the burgeoning overall prison population. The result of this bifurcation is a growing distortion between the actual implementation of sentences for different types of offenses depending on whether those that commit them are regarded as a category, as “dangerous” or are otherwise in disfavor with the authorities. The same pattern seems to be playing itself out in practice in Belgium where the new law governing the release of prisoners serving sentences of under 3 years has not been brought into effect, inter alia because a system administered by the prison authorities is able to keep a cap on a growing prison population by releasing these relatively short-term prisoners earlier than a more formal process is likely to do.
Looking at the modes of early release, two major systems have been developed. The traditional way of early release in the Anglo-Saxon world is parole after a (relatively) indeterminate prison sentence (see Allen et al. 1985; Petersilia 2003). This system came under pressure in the 1980s and was abolished in many US states. The somehow justified criticism against indeterminate sentences and an arbitrary system of release increased; however, the length of stay in prison as in the same time deterrence oriented policies and truth-in-sentencing-laws emerged which contributed to the American growth in the prison population (“mass incarceration”, see for a summary Petersilia 2003, p. 221 ff).
In the continental European world, conditional or unconditional early release after having served a specific part of a determinate sentence (regularly two thirds or half) is provided. Both forms are optionally or often mandatorily combined with the supervision of the probation or similar services. The voluntary (third) sector has traditionally played a role since the early nineteenth century, for example, charities, the church, and others. There is one other important difference between the parole system and the continental European early release system. Parole boards are not necessarily composed of judges – the psychological and psychiatric or social pedagogic experts are also involved in the decision-making itself, whereas in the continental European law the decision is made by judges (however regularly after an expertise has been presented, in the more serious cases a forensic-psychiatric examination). This holds, however, only where the law endows the court with discretionary power as to release or not to release. Therefore, one has to differentiate automatic (or quasi-automatic) early release from systems relying to discretionary decisions, primarily based on prognostic examinations.
The Decision-Making Process Of Early Release: Who Decides? The Role Of Courts, Parole Boards, Expert Knowledge, Victims, And The Public
Different decision-making bodies are responsible for early release in various countries. It is not universally the case that, as required by the German Constitution (Art. 104(2) GG), an independent court must decide about early release. The German Constitution requires that any imposition as well as the termination of prison sentences as well as any other form of deprivation of liberty (e.g., remand prison and safety measures for psychiatric delinquents) by early release must be ordered by a judge. Therefore, a system of parole boards outside the judiciary would be unconstitutional. The question of transferring the competence of deciding on early release to the prison or other administrative authorities has never been an issue in Germany.
In Belgium, the prison administration makes the decision in all cases of imprisonment of up to 3 years; in other cases, the decision is made by Sentence Implementation Courts composed of three persons: a judge, an expert in social reintegration, and an expert in prison matters. Also in Denmark, England and Wales, Finland, Sweden, and Switzerland, some decisions are made by the prison administration or by a section of the Ministry of Justice. In England and Wales, as in many jurisdictions of the USA, the Parole Board, which decides cases of life and other indeterminate sentences, has an interdisciplinary composition like the Belgian Sentence Implementation Courts, and the Italian and Slovenian commissions (in the case of Slovenia, however, composed only of members of the judiciary). Elsewhere, the idea of a specialized judge or tribunal with experience of the implementation of sentences has been accepted (e.g., Croatia, France, Germany, Hungary, Italy, Poland, and Spain). Only in a few countries is the court of first instance, which is not a specialist in this regard, also responsible for this decision (the Czech Republic, Estonia, Greece, Lithuania, and the Netherlands). The Netherlands is a rather exceptional case – there, since the recent reform of 2008, the public prosecutor has been responsible (see Dunkel et al. 2010b, p. 409 ff, Table 1). Parole boards and other mixed bodies deciding on early release in theory guarantee a broader consideration of scientific prognostic evidence and examination. However, the influence of experts who are involved in preparing the judicial decision by a prognostic expertise (psychologists, psychiatrists, and also social workers) should not been underestimated if the decision is restricted to the judiciary. Research by Dunkel and Ganz (1985) in Germany demonstrated the major impact of negative prognoses from these experts, showing that in such cases a positive decision is almost never made in favor of early release for example. On the other hand, a positive recommendation by a prognostic expertise does not always result in early release being granted as the prosecutors are also consulted and they sometimes express serious reservations (because of the legal history of the offender, the crimes committed, etc.).
Therefore, one should not be blinded by legal formalism. In some European countries, conditional release is still sometimes decided directly by the prison authorities. This is true in Belgium for sentences of less than 3 years and in England and Wales when early release that goes beyond the statutory automatic period is considered. However, even where de jure this is not the case, the de facto influence of the prison authorities may be very significant. For example, temporary release may be used, as in Ireland, as a more permanent form of conditional release. Temporary release elsewhere is normally, but not necessarily, a preparation for conditional release. There is an important interplay between temporary and more permanent forms of early release (however categorized). Temporary release may in some jurisdictions be granted by the prison administration, and whether or not this can be achieved may have an important impact on subsequent decisions by parole boards or judges. The interaction of administrative, judicial, and quasi-judicial bodies is clearly a vital area for further research. The decisions that are “vital” to conditional release may in reality not be made by the formal body that is charged with making the final decisions. In England and Wales, where this has always been recognized by the courts, the practice is also of fundamental importance. For example, where the English Parole Board formally makes the all-important decision on the release of lifers, the reality is that if the prison authorities have not moved the lifer to an open prison and if the probation service have not completed a satisfactory release plan, the Parole Board is highly unlikely to recommend release (Padfield 2002). Thus the true gatekeepers are not only the formal Parole Boards, but also the administrative players who supervise the progress of the prisoner through the system. Yet the prisoner’s rights (e.g., to legal advice and to full disclosure of documentation) may be significantly less for these so-called administrative decisions.
Significant in this regard is also whether the decision-making body is automatically involved or whether it only makes a decision when called upon to do so. While in Germany the chamber responsible for the implementation of punishment may be called upon to make a decision by the prisoner when he is about to complete two thirds of his sentence, in many other countries the prison administration or the prosecuting authority may also make applications. There are also examples of other persons or institutions having the right to make applications (see Tubex and Tournier 2003, p. 18 f).
Prisoners’ procedural rights in respect of these applications are fairly similar. In most countries (Cyprus and Luxembourg are exceptions) the prisoner is heard, and mostly he takes part in the proceedings (a hearing or an oral procedure). The right of access to documentation (in some cases via a lawyer) is recognized in most countries, however, not in Bulgaria, Croatia, Cyprus, Latvia, Lithuania, Malta, Poland, Portugal, Slovakia, and Turkey. Practically without exception prisoners are told of the outcome (Tubex and Tournier 2003, p. 19 f), although the question, in what form, naturally remains.
A scientific risk assessment in respect of the risk of offenders committing further crimes in the future takes place in only a few countries (e.g., Denmark, in part in England and Wales, Germany, Italy, Norway, Poland, and Scotland) and certainly not in those countries where there is quasi-automatic release (e.g., Finland). Often such risk assessment is used only for particular classes of prisoners who are regarded as dangerous or those who are serving life sentences or safety measures.
Legal Preconditions Of Early Release: Prognosis And Time Expired
The fundamental distinctions that are drawn in the requirements for prognoses underpin the wide penal policy implications of early release. In Europe, there are two fundamental types of early release, namely, the discretionary release system and the mandatory or automatic release system. Both are explicitly recognized by the 2003 Recommendation of the Committee of Ministers of the Council of Europe concerning Conditional Release. Discretionary release based on a positive individual prognosis is found particularly in Austria, Croatia, Germany, Estonia, Hungary, Poland, Russia, Slovenia, Spain, and the Czech Republic. More or less automatic release dispenses to a great extent with individual prognoses. These forms of release are gaining increasing importance in Europe. Thus, England and Wales, Finland, Greece, Sweden, and Turkey (where good conduct in prison is required) have introduced a generally mandatory form of early release. In England and Wales, one has, in addition to automatic release in the case of determinate sentences, the “classical” release decision-making process on the basis of prognostic evaluation by the Parole Board in the case of indeterminate sentences (life imprisonment and so-called extended sentences). The position in Scotland is similar, with early (i.e., at the two-thirds point) release of all prisoners serving 4 years or more, and of all life prisoners, being based wholly upon assessment of risk by the Parole Board.
Some countries do not dispense with prognostic evaluations entirely but in the face of practical problems with such evaluations reduce the requirements in cases of uncertainty to the absence of a negative prognosis. This means that early release occurs as the norm unless there is a clear negative prognosis that speaks against doing so. This form of regulation is found, for example, in Belgium, Denmark, and Switzerland (as well as in the Netherlands for cases dealt with under the old law until 2013). In Sweden, early release follows routinely after two thirds of the sentence, unless particular grounds militate against it. Since 1 January 2007, these grounds include the breach of a conditional sentence that results in it being revoked.
One can also include Belgium in the countries that – except for a particular group of sex offenders – have developed an automatic release system. In particular, prison sentences of up to 1 year are reduced to a period of 15 days to 3 months.
French criminal procedure has some noteworthy characteristics (see Art. 729 ff CPP). The reforms of 2000 expanded the grounds on which early release can be granted. Instead of a prisoner having to produce strong evidence of his resocialization, he now has to produce only evidence that he has attempted to reform, which appears more realistic. Conditional release is possible after half the sentence or in the case of recidivists after two thirds of the sentence. A significant expansion is also contained in the rule that a parent whose child was aged under 10 and living with him or her prior to sentence shall be given extra consideration for release. This is designed to strengthen family relationships and reduce the negative effects of imprisonment. In such cases, the minimum period that otherwise should be served falls away so that it is possible for someone to be released after a very short period. However, this form of early release appears to be used very rarely in practice. A similar family-oriented regulation is provided in Italy.
Features of the temporal requirements for conditional release are the absolute minimum time that has to be served on the one hand, and the relative part of the sentence that has to be served on the other. Most countries have very flexible requirements that sometimes vary in respect of particular groups of offenders. The US-parole system is probably one of the most flexible systems, as the proportion of the sentence to be served or the minimum time period can be very low compared to the sentence imposed by the court (see Petersilia 2003).
In Europe, the variation is considerable. Thus, for example, in Belgium at least a third has to be served, in the case of recidivists at least two thirds; in France, Poland, and the Czech Republic first offenders must serve half (also in Italy) and recidivists must serve two thirds (in Italy, three quarters). In Estonia and Russia, the minimum is half to two thirds depending on the seriousness of the offense. In Finland, prisoners are regularly released after half of the sentence, recidivists having served a prison sentence during the preceding 3 years after two thirds.
It is noteworthy that release after a third, which in Germany is only possible in juvenile criminal law, is possible routinely or at least by way of exception in Belgium, Denmark, Greece (one fifth or two fifths), Croatia, Lithuania, and Slovenia. Austria, Belgium, Croatia, England and Wales, Estonia, Finland (for those under the age of 21 years at the time of the offense), France, Greece, Hungary (in the case of sentences to more than 3 years), Italy, Lithuania, Poland, Russia, Scotland, Slovenia, the Czech Republic, and Turkeys, all allow release after half the sentence to a greater extent than in Germany, where release after half of the sentence remains exceptional (see s. 57(2) Criminal Law). The requirement of wider possibilities for release is apparent and predictable in countries with a priori harsher punishment and longer average sentences than Germany (e.g., Russia: see Dunkel 2013). While the 50 % requirement is rare, cases in which two thirds have to have been served are even rarer. It is the regular form of procedure in Denmark, Germany, Malta, the Netherlands (for more than 2 years of imprisonment), Romania, Scotland (this being the maximum term when release does not take place after half the sentence), and Switzerland (see Dunkel et al. 2010b, p. 409 ff, Table 1).
Longer shares that have to have been served before release, like three quarters or even four fifths, are only found exceptionally and even then only for particular groups of offenders, for example, in Armenia, Hungary (where a distinction is drawn between those serving sentences in prisons (three quarters) and penitentiaries (four fifths)), Romania, Slovenia, and Turkey. In Spain, as a rule, three quarters have to have been served, but exceptionally release is possible after two thirds or even half of the sentence.
In a few countries, there is no provision for absolute minimum periods at all. Otherwise they are mostly, as in Germany, from 2 to 6 months. Exceptions are Finland with only 14 days, Sweden with 1 month, and the Netherlands and Poland with – in certain cases – 1 year.
One special scenario is release from life imprisonment. Most countries that have life sentences provide a certain minimum term to be served: It is 10 years in Belgium (for recidivists 14 years); 12 years in Denmark and Finland; 15 years in Austria, Germany, and Switzerland (exceptionally 10 years); 18 years in France (for recidivists 22 years); 20 years in the Czech Republic, Greece (with a possible remission to 16 years), and Romania; 25 years in Poland, Russia, and Slovenia; 26 years in Italy; and 30 years in Estonia and in certain cases in Hungary (Dunkel 2013, } 38, notes 46 ff with further references). In England and Wales, and in Scotland, the judge who sentences someone to life imprisonment, whether the sentence is discretionary or mandatory, may and usually does set a minimum period (the “tariff”) and usually does set a period to be served. In Scotland, the judge must set a “punishment part,” which must be served in full before release on parole can be considered. In a small number of very serious cases, no minimum is set. For these cases, as for all cases of life imprisonment, in Lithuania, the Netherlands, and Sweden early release is an act of grace and therefore no regulations containing legal criteria exist. In Ireland, the minimum sentence to be served in case of aggravated murder may be 40 years, in case of attempted aggravated murder 20 years. But the prisoner regularly receives a remission of one quarter (related to the minimum term) and further remission and parole can be awarded. Therefore, the time spent may be between 12 and 20 years.
Only Croatia, Norway, Portugal, and Spain have no provision for life sentences. However, the range of determinate sentences in Spain is up to 20, in exceptional cases up to 40 years. In Croatia, certain (recidivist) offenders and serious crimes also attract up to 40 years imprisonment, which in practice is likely to result in about the same periods actually being served compared to those served by prisoners sentenced to life imprisonment in countries that provide for this penalty.
There are other possibilities of shortening the time spent in prison which are connected to early release mechanisms, but should not be mixed: the so-called good time schemes, that is, the remission of a sentence for good behavior, particularly working efforts of the prisoner. In Greece, 1 day worked counts as 1.5 days of imprisonment, which in the case of working prisoners means a reduction of the prison sentence by more than half (if the prisoner performs well also in other areas, further reductions are possible). If one adds to this that prisoners are normally released from prison after having served two fifths of their sentences, the actual time served could in some cases be as low as one fifth of the original sentence.
In France as well, wide-reaching reductions for good behavior are possible: up to 7 days per month or 3 months per year (see Dunkel et al. 2010b, p. 409 ff, Table 1). Also in Ireland, regular remission can amount to 25 % of the sentence. In Spain, in contrast, reduction of a sentence for good behavior or labor was abolished in the 1990s, while in Italy the so-called liberazione anticipata that had been introduced in 1975 has remained in force. Here, the supervisory court can guarantee that a prisoner will be given a reduction of imprisonment of 45 days per 6 months, if the prisoner shows that he has participated in resocialization programs. What is problematic about good time regulations linked to prison work is that, in the light of the high rate of unemployment in prison (particularly in Central and Eastern European countries, see van Zyl Smit and Dunkel 2001), equality of opportunity cannot be guaranteed. The prison system should provide for full employment of prisoners so that the opportunity to reduce their sentences can be given to all prisoners. If the system fails to do so, prisoners who want to work but cannot do so should be compensated in other ways, which may be linked to early release.
Continuous Care And Aftercare Of Released Inmates: The Role Of The Probation And Aftercare Services
Most European countries have mechanisms that support offenders while they are serving part of their sentences in the community. In this regard, the requirements that are set for such persons in Germany are common in other countries, too, although without the doctrinal distinction between directives and obligations that German law draws in this regard. In some countries, such as Estonia, they are compulsory, while in others, such as Denmark, France, and Switzerland, they are used routinely. It is interesting that in some countries probationary supervision is compulsory, for example, in Belgium, Lithuania, Poland (for specific classes of recidivists), and Russia. It is not yet clear whether the supervision in Eastern European countries will be full-scale supervision by probation officers as we know it in the West or simply a form of reporting regularly to the authorities (i.e., the police). However, there are signs that a system of parole comparable to that in Western Europe is beginning to emerge in countries such as the Czech Republic, Estonia, Poland, and Slovenia (see van Kalmthout and Durnescu 2008).
The Netherlands until recently was an exception in this regard, as early release was not followed by probation supervision or the imposition of any directives or obligations. The reform of 2008 brought new opportunities to impose probationary supervision and directives to participate in training and treatment programs.
In some countries, early release is combined with electronic monitoring, for example, in the Netherlands, England and Wales, France, Spain, Sweden, and Switzerland. In as far as electronically monitored house arrest is not a community sanction imposed directly as an alternative to imprisonment, it may be used to reduce the term of imprisonment by a maximum of 2 months (Sweden), 4½ months (England and Wales), 6 months (Finland, the Netherlands, and Switzerland), or even 12 months (France). In Germany, this strategy has not been promoted as a policy option, as most prisoners that would qualify for it are sufficiently supported by regular parole (the probation service). Another reason is that it does not have the potential for reducing the prison population significantly.
The period of conditional release is usually the remainder of the sentence. However, often, as in Germany, there are also absolute minimum and maximum periods. In Finland, the maximum period is 3 years, and minimum terms have been abolished. In other countries (Austria, Hungary, Sweden, Switzerland, and the Czech Republic), the minimum period is shorter (1 year) than in Germany or in Poland (2 years). This is important in the case of short periods of conditional release in particular, as otherwise this could widen the net of social control disproportionately. It could also mean that prisoners simply refuse conditional release. Providing assistance and supervision in the first year after release should usually be sufficient, as most recidivism occurs then.
One of the major problems of reintegrating prisoners is the gap between the end of the prison sentence and the start of aftercare. Traditionally the prison services try to prepare prisoners somehow for release, but very often their efforts fail even as regards “simple” things like finding accommodation or employment. The additional psychosocial problems to cope with the stigma being released from prison, having lost social bonds and sometimes even family support contribute to high recidivism and revocation rates (see Petersilia 2003, pp. 105 ff, 139 ff). However, in the last 20 years increased efforts for integrating offenders into the labor market (Wirth 2009) or involving the probation service in release preparations and thus guaranteeing a continuity of care have been visible in some European countries (England and Wales, Germany, France). The English National Offender Management System (although sometimes criticized concerning its implementation and mixed outcomes, see Robinson 2005; Raynor 2012, see also Moore et al. 2006) has been a model for restructuring the probation service in order to warrant continuous care (for Germany, see D€unkel et al. 2008 with further references). The problem is that the probation services are only competent if the offender has been released early or conditionally. If he fully serves the sentence, there will be no compulsory supervision except in cases of dangerous offenders, where national law provides for intensive supervision as is the case in Germany and France.
This gap of taking care of ex-offenders in some countries is only partly filled by private nonprofit organizations of aftercare. The third sector has its roots in the early nineteenth-century charity organizations and is still active in many countries (e.g., Germany), although it is not a nationwide movement that has a quantitatively important impact.
Conditions Of Supervision After Release: Obligations For Behavior, Paying Restitution, And Electronic Monitoring
With the exception of a few countries that provide mandatory unconditional release, release can be conditioned on the fulfillment of prohibitions and obligations. One (more or less obviously) is the obligation not to reoffend. Other conditions aim to prevent “criminogenic” lifestyles or situations that are associated with an increased risk of reoffending, for instance, the prohibition to drink alcohol, the prohibition to visit certain places (red-light districts or in the case of pedophile offenders kindergartens, etc.), or the restriction not to meet certain people. Yet other conditions may require the released person to report to and to maintain contact with a supervisor, to reside at a particular place, to undertake psychiatric/psychological/medical treatment, to undergo regular testing for illegal drugs, or finally to pay a fine or to make different forms of reparation to the victim. However, conditions may be disproportionately or unnecessarily burdensome, and the more conditions that are imposed, the more likely it is that a prisoner will breach. Conditions may be imposed that are either incompatible or unenforceable – an offender overburdened with such conditions is less likely to respect the conditions as a whole (this is a conclusion of the English Inspector of Probation investigating high-profile supervision failures).
In some jurisdictions, supervision by a probation officer is obligatory (in particular in juvenile justice systems, see e.g., Germany), whereas in other jurisdictions it is at the discretion of the court. In these cases, referrals to the probation service are made if doing so will improve an otherwise negative or neutral prognosis. In many countries, certain offender groups (recidivist, sexual, and violent offenders) are regularly or mandatorily supervised by the probation service upon release. In the case of “dangerous” offenders, some countries such as France and Germany provide for offender supervision by the probation service even if the offender has fully served his sentence, sometimes combined with electronic monitoring.
Breach Of Rules, Amendment Of Supervision Rules, And Revocation
All systems that provide conditional early release also provide mechanisms for dealing with breaches or noncompliance. It is often the case that serious infractions (like severe reoffending) result in a revocation of the remainder of the sentence. Revocation for breaching conditions (e.g., not having regular contact with the probation officer, not paying reparation to the victim, not fulfilling community service) without however having reoffended is a problematic issue in this context. Many countries restrict revocation to cases of serious and repeated noncompliance and provide statutory rules that explicitly make revocation a measure of last resort (e.g., Scandinavian countries, Austria, Germany), instead of providing courts with powers to amend conditions or extend periods of supervision. In Finland and Sweden, revocation is only possible if the offender has committed a new crime leading to an unconditional prison sentence. It should also be noted that in the case of revocation in some cases only the remainder of the suspended rest of a sentence may to be served in prison, whereas in other countries the total suspended period of the sentence is to be served (e.g., Germany). This is contrary to the European Rules for Juvenile Offenders Subject to Sanctions or Measures of 2008 (ERJOSSM), which stipulate that where a revocation or modification of a community sanction is being considered, due account shall be taken of the extent to which the offender has already fulfilled the requirements of the initial sanction (Rule 48.4, see Council of Europe 2009).
International standards of the Council of Europe require that breaches in themselves should not constitute an offense (Council of Europe Rec. (92)16 on Community Sanctions and Measures, CSM, Rule 84) or at least “not automatically” constitute an offense (Rule 30.2 ERJOSSM). And the decision to revoke a community sanction shall not necessarily lead to imprisonment (Rule 86 of the CSM 1992). Where possible, modified or new community sanctions shall replace the previous ones (Rule 30.1 ERJOSSM). Furthermore, the offender and his family should not be charged with the costs of the supervision, for example, to pay for “renting” electronic devices (as it is the case in the USA).
The situation in the USA seems to be different from Europe as concerns revocation. Petersilia describes the alarming fact that in 1999 parole violators constituted 35 % of prison admissions (in absolute numbers about 200,000 offenders). She also expressed deep concern about the regional variations. In California, 66 % of offenders admitted to prisons were parole violators, whereas in Florida they counted only for 7 % (Petersilia 2003, p. 239 f). This is another argument to get involved courts better and to restrict “the nearly unfettered discretion to revoke” of parole officers.
Statistics And Evaluation Research: Recidivism And Reintegration Into Society
While at first glance it seems to be a rather easy task to count the numbers of those who are released early and those who fully serve their sentence, the database in Europe is rather limited. Many national statistics exhibit serious problems, which limit their validity and comparability. So, for example, German data sources indicate that around 30 % of prisoners are released early. However, the absolute numbers also contain fine defaulters who are not eligible for early release. The real figure therefore is more than twice as high (around 65 %, with large regional variations, see Dunkel 2013). Therefore, the numbers reported by the Council of Europe deserve particular reservation. They demonstrate, however, large variations in a comparative view, which in some cases are due to the legal conditions. The high proportion of early release in the Scandinavian countries (1999: 93 % in Denmark, 99 % in Finland, and 100 % in Sweden) is the result of quasi-automatic early release in these countries. On the other hand, in France the proportion of early release was only between 8 % and 14 % (see Tubex and Tournier 2003, 8 f). As in Scandinavia, Slovakia (83 %), Latvia (84 %), and Romania (86 %) have high early release rates, while the numbers given for Portugal (28 %), Scotland (29 %), Lithuania (51 %), and Spain (57 %) indicate a much more restrictive practice, which might partly explain the high prison population rates in these countries (see Dunkel 2013, } 38 notes 58 ff; Dunkel et al. 2010b; Dunkel 2013). In Austria, before the reform law of 2008 about 20 % of prisoners were released early. Since then, the proportion has increased to around 60 %. More recent data can be found in Padfield et al. (2010), which indicate further positive, but also negative developments. In Spain, from 1996 to 2008 early release rate declined to 22 % on average, and so was cut down to less than half compared to the 1990s. Also in Slovenia, a reduction from 46 % to only 32 % could be observed since the year 2000. In 2007, in Belgium, 94 % of prisoners were granted early release (a result of the quasi-automatic strategy), in Finland as in earlier years 99 %.
The situation in the USA is not clear as the number of releases on parole is not given in percentages of total releases. The sourcebook of criminal justice statistics gives longitudinal data of the population in jails and prisons and of persons under probation and parole (see http://www. albany.edu/sourcebook/pdf/t612010.pdf). The absolute numbers of the total correctional population since 1980 increased from 1.8 million to 7.1 million persons in 2010. The number of those in jail or prison increased from about 502,000 to 2,266,832 in 2010. In the same time span, the number of parolees increased from 220,000 to almost 841,000. In 2010, almost 709,000 sentenced prisoners were released from state and federal prisons, that is, about 44 % related to the daily prison population of 1.6 million prisoners in these prisons. (Another approximately nine million persons were released from jails; daily population there was about 749,000 in 2010). As stated by Petersilia (1999, 2003), the flow of entries and releases is remarkable and demonstrates the challenges for the probation service.
Recidivism rates are rather high: 47 % of prisoners released in 1983 and the same proportion of those released in 1994 were reconvicted within 3 years; however, only 25 % returned to prison (see http://www.albany.edu/sourcebook/toc_6. html). On the other hand, data from Petersilia (1999, 2003) indicate that about half of parolees fail to complete parole successfully and that their return to prisons at the end of the 1990s represented about one third of incoming prisoners (see above). It is also evident that the conditions imposed are more and more of a repressive nature, which makes failure almost inevitable. The probation services and aftercare services of the voluntary sector are often unable to deliver the necessary support, which contributes to the high failure rate (see the contributions in Hucklesby and Hagley-Dickinson 2007).
In Germany, statistical data about the recidivism of probationers are available with regard to two large statistical studies organized by the Federal Ministry of Justice. They cover all offenders sentenced or released in 1994 (n = 947,000) and in 2004 (n = 1,045,000; see Jehle et al. 2003, 2010).
The comparison of recidivism rates according to different sanctions does not allow the effectiveness of these sanctions to be assessed (selection problem).
However, within the same sentence category the 10-year follow-up gives an indication for the improved effectiveness of probation and parole (as well as of the treatment within prison, see Table 1).
Those sentenced or released, who have been put under supervision of the probation service, show remarkably low reoffending rates compared to those who (fully) served their prison sentence: The reincarceration rate of probationers was only 12 % compared to 21 % of the exprisoners group without supervision by the probation service. Looking at the groups of offenders released early with supervision by a probation officer, the reincarceration rate was only 14 % (own calculations according to Jehle et al. 2010, p. 186), although this group is deemed to be more at risk of reoffending than the group without supervision (see s. 57(3) German Criminal Law).
Again an estimation of “success” is difficult, but it can be shown that revocation rates of those under supervision have considerably decreased since 1970: The revocation rate dropped from 55 % in 1970 to 30 % in 2008, the revocation rate for probationers in the field of juvenile justice (14–21-year-old offenders) dropped from 43 % (1970) to 25 % in 2008 (see Statistisches Bundesamt, 2011, p. 17).
There is another “success-story” of the probation service in Germany: Originally, the probation service had been dedicated to deal with low-risk and first-time offenders. However, practice has changed and more and more high-risk offenders are being dealt by the probation service: The proportion of probationers who had already been under the supervision of the probation service increased from 59 % in 1963 to 85 % in 1990. Against the expectation that high-risk offenders would contribute to a decrease of the success rates, the opposite was the case! Success rates (no revocation) increased from 1963 to 1990 particularly for recidivist offenders (see Table 2).
Early Release from Prison, Table 2 Success rates (no revocation) of different groups of probationers in Germany
The interesting fact from Table 2 is that the groups with an a priori higher risk (those with prior convictions and with prior supervision by the probation service) profited the most by the liberalization of the scope of probation and early release: Their success rates improved by 24 and 26 % points compared to “only” 14 % for the group of first-time offenders. Excluding this problematic group from probation and parole would have resulted in an increase of the prison population (which has been successfully avoided in Germany since the late 1960s, see Dunkel and Morgenstern, in Dunkel et al. 2010a) and of the general recidivism rates.
The question whether early release reduces reoffending compared to fully serving the sentence remains a major methodological problem. There are a few empirical findings that underline the positive potential of early release (see for France Kensey 2004, 2007, p. 213 ff). Methodologically the problem is that those prisoners, who are released early, in contrast to those who serve their sentences in full, are a positively selected group and there is no immediate comparator. However, a point of comparison can be found in regional and temporal variations in approach. Thus in some Federal States or local districts prisoners are released, whereas in neighboring states or districts similar prisoners are not released, but, because of the application of more restrictive standards or traditions, they have to serve their terms in full. Also, over a period of time the criteria for release may change, so that one can – insofar as other conditions remain constant – make comparisons.
To this extent, studies in which there are control groups of some kind are more significant. The investigation by Dunkel in Berlin-Tegel examined for the first time the legal and social biographical characteristics (previous convictions, type of offense, age) of offenders in order to identify comparable groups, which in one case were released early and in the other served their full prison terms. The study showed that the former had a 13 % lower recidivism rate in the sense of a further sentence of imprisonment (see, in summary, Dunkel 2013, } 57 side notes 131 ff). Additional, albeit minor, differences were also apparent, depending on whether the released offenders were placed under the supervision of a probation officer or not. This research is confirmed by other German, sample-based studies. The German studies, notwithstanding their methodological shortcomings, are confirmed by research findings in other European countries that show the advantages of conditional release in terms of special prevention on the one hand, while not finding, on the other hand, any identifiable loss of security to the public as a result of extensive early release practices.
Kensey and Tournier in France showed lower rates of recidivism among those released conditionally compared to those who served their whole sentence in prison ( 13 %, see Kensey and Tournier 2005). This applies in particular to first offenders imprisoned for the first time, of which 44 %, as compared to 77 % in the case of those serving their full sentences, were reconvicted.
Kensey found in another study that of those who were released conditionally, 23 % were sentenced to an unsuspended term of imprisonment again, while of those who served their full sentences, the share was 40 % (a difference of 17 %). Keeping the factors of age, type of offense, and previous convictions constant revealed a difference of 8 % in favor of the conditionally released group (see Kensey 2007, pp. 213 ff, 218). If further differentiation was made in terms of type of offense, the ratios in favor of early release were as follows: 11 % difference for theft, 25 % for robbery, 26 % for assault, and 22 % for rape. Overall the studies conducted by Kensey, like the study by D€unkel mentioned above, make it clear that the likelihood that those who are conditionally released will remain within the law is to some extent an effect of selection. Nevertheless, it remains the case that conditional release combined with subsequent assistance for and control of the offender by the probation service has a noteworthy net effect. The secondary Anglo-American metaanalyses confirm this trend (MacKenzie in Sherman et al. 1998; Petersilia 2003, p. 246 f; Harper and Chitty 2004). This is plausible insofar as offenders released early receive more support from the probation service, whereas the others sometimes lack any support and help by aftercare services. Raynor (2012), in summarizing the results of the end-to-end offender management support schemes, comes to the conclusion that these are more efficient than traditional, divided resettlement programs.
Finally it is worth noting that criminological research has made aware that early release may in practice be refused on grounds which are not necessarily justified by “objective” risk assessments. Thus, for example, foreigners may be refused early release not because of the risk they pose but because their early release is considered impracticable. Within the European Union, this may eventually be resolved to some extent by the new Framework Directive on mutual recognition in relation to “judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions,” which should allow conditional release that begun in one country to be continued in another. However, this Directive will only address a small share of the problems faced by foreigners in European prison systems. Foreigners also often face additional procedural hurdles and exclusion from certain reintegration activities and language or cultural problems when preparing for release. The same issues arise in several other European countries, too. Also, ethnic minorities, even when they are not foreign citizens, may face similar issues. The detailed European provisions on nondiscrimination, which are specifically applied to all aspects of imprisonment by the European Prison Rules, should be followed strictly in respect of early release and the process lending up to it, to ensure that shortcomings are avoided.
Outlook: Extension Of The Use Of Early Release To Reduce Overcrowding, Increase Security, And Increase Reintegration Of Offenders
The common problem of prison overcrowding that is found in many countries compels to consider penal policy initiatives to limit or reduce rates of imprisonment. Such initiatives can adopt either “front door” or “back door” strategies, in which either the number of sentenced prisoners is reduced (by increasing the use of alternatives such as fines, community service, or probation (or in terms of continental European systems, suspended sentences)) or the number of early releases is increased (see Dunkel 2013, } 38 side note 66 for further references). Regarding early release, in the light of both international practice and empirical criminological research, one could recommend that practice of releasing prisoners after they have served half the sentence should be expanded, and that “neutral” prognoses should be reduced by making release the rule, rather than an exception requiring justification. Nevertheless, in cases of very serious offenses against life or limb or sexual autonomy, one would, even where the recidivism rate was a priori relatively low, require an individual prognosis – notwithstanding its relative unreliability.
Allowing more or less automatic release after half or two thirds of the sentence seems to be more appropriate and has been followed in several countries. In this context, step-by-step strategies should be tried, as they systematically introduce relaxations of the prison regime (such as open prisons and temporary release) which make correct prognoses more likely and create a social space into which the offender is more likely to be received and integrated successfully.
Restrictions on purely general preventive grounds are not justified by international comparisons and standards. Criteria for conditional release (insofar as the system does not operate automatically in favor of the prisoner) should be determined solely on grounds of special prevention (rehabilitation).
In summary, it can be concluded that, in the light of the current state of empirical research on the effectiveness of sentences and of the prognoses of future behavior, it would be appropriate to extend the use of automatic, or almost automatic, early release instead of conditional release which relies on individual prognoses. Such quasiautomatic release has the additional advantage that the supportive measures taken by the probation service and the positive obligation placed on the offender can create a special preventive framework that is conducive to reintegration. In this regard, the pressure of overcrowding that can be found in so many countries can be seen as an opportunity for a rational and humane penal policy. A European “model” with release at the halfway point for those receiving determinate sentences, subject to supervision, would be a realistic option, although many obstacles of trends toward more punitiveness in some countries have to be faced.
Once it has been accepted that the “legitimate requirements of the sentence” entail reintegration, questions may be asked as to whether a term of imprisonment that jeopardizes that aim (by not providing for the possibility of release) is not in itself capable of constituting inhuman and degrading treatment. Therefore, from a (European) human rights perspective “life without parole” would be seen as an inhuman punishment violating human dignity.
This emphasis on reintegration as an element of European human rights law may stimulate further forms of release that are designed to better achieve this goal.
In their 2003 Recommendation concerning Conditional Release, the Committee of Ministers of the Council of Europe provided in some detail not only for better statistics on conditional release but also for wider research designed to “obtain more knowledge about the appropriateness of existing conditional release systems and their further development” (} 40). What is urgently needed is a more enlightened policy-making on early release across Europe and other continents suffering from the same problems of prison overcrowding and a lack of a systematic and evidence-based resettlement policy.
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