Justice Action

Remission: Earning Release

Punishment for The Past

Training for The Future

Draft Paper 16/03/2012

Prisoners expressed that they felt helpless awaiting the end of their sentence, suggesting remission as an incentive for self-improvement and to successfully re-enter the community.

Download the PDF of the Remission paper here

Contents

1.  Introduction

2.  What is Remission?

3.  Psychology of Remission

4.  History

5.  Other forms of Remission

6.  Benefits

7.  Problems

8.  Australia

9.  Intenatinal Examples

     -  Canada

     -  United States

     -  United Kingdom

     -  Northern Ireland

     -  Republic of Ireland

10.  Conclusion

 

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1. Introduction

At a recent consultation by Justice Action, prisoners of the Alexander Maconochie Centre (AMC) said that, “they felt helpless and hopeless as they awaited the expiration of their jail-terms.” The consultation revealed that for many prisoners the only means of escape was through the effects of drugs. As such, remission was suggested to provide prisoners with an incentive for good behaviour and self-improvement, and to prepare them to contribute to society upon re-entry.

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2. What is Remission?

Remission is the reduction of the term of a prison sentence, usually due to good behaviour or conduct. It refers to a structured system with criteria for prisoners to meet in order to encourage good behaviour, rehabilitation and self-improvement, with the ultimate benefit being the release of the prisoner.

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3. Psychology of Remission

The underlying principle of a penal system involving remission arises from the belief that a prisoner’s desire for self-improvement will increase significantly if their conduct directly affects their jail-term, essentially placing their fate into their own hands. 

Such a system allows prisoners to take charge of their own lives to develope a sense of responsiblity, as well as providing an incentive to serve one's time productively, and with a mindset of moving forwrd.

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4. History: Maconochie's 'Marks System'

Captain Alexander Maconochie, a notable Norfolk Island Prison Governor and penal reformer, first proposed a system of remission in the nineteenth century based on the principle that prisoners’ liberation should be dependent on their own efforts, not solely upon the lapse of time,[1] and that prison sentences should be reformative in order to prepare prisoners to re-enter and adapt into society.[2]    

When prisoners are made aware of the fact that their daily or even hourly conduct may have an influence on their ultimate liberation, they are in a much more improvable state – they have a stronger motive to resist temptation, and stronger inducements to regular exertion.[3] 

Maconochie’s system was tremendously successful with less than 2% of the 920 prisoners discharged under his supervision found to recidivate,[4] The revolutionary principles developed by Maconochie are now the cornerstones of Canberra’s newest prison, aptly named the Alexander Maconochie Centre. Built to reform rather than punish, the Centre has been praised as Australia’s first prison to meet the standard of human rights. 

Maconochie introduced a ‘mark system’ where prisoners’ respective sentences, conduct, and character were factored in to award, fine or deny marks. A surplus of one’s marks could be traded for indulgences and ultimately, one’s release. Prisoners also formed themselves into messes of six where they were responsible for each other’s conduct, with the group gaining or losing marks according to the behaviour of each.[5] 

Through Maconochie’s remission system, punishment for crime became less vindictive, and greater emphasis was placed on strengthening a prisoner’s desire and capacity to observe social constraints.[6] The system of earning marks and trading them for indulgences and ultimately a prisoner’s release also encouraged the development of good practices, such as nurturing industrious habits and frugality.[7] Thus, Maconochie’s system was tailored to ensure that prisoners were ‘trained for the future[8], so that they would be able to contribute to society in a positive way upon release. 

The uniqueness of Maconochie’s system has been summarised into five distinct characteristics as it: 

• Placed the individual reform of prisoners over deterrent or retributive objectives.
• Advocated task sentences rather than time sentences.
• Introduced a marks system where prisoners were awarded for achievements, fined for misconduct, and rations know as indulgences could be purchased.

• Encompassed a two stage sentence: punitive stage and reformative or 'moral training' stage.

• Introduced a new object and spirit to the whole penal system.

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5. Other forms of Remission

Remission has been granted for external factors in the past, such as strikes by prison wardens or royal visits. Strikes by prison wardens saw prisoners neglected and mistreated, and as such, their sentences were shortened in compensation. Prisoners were also granted remissions by monarchs who could exercise the Royal prerogative of mercy. This was seen as a symbol and exampled by the State of mercy and generosity. Prisoners were granted remissions as a result of visits by Her Majesty the Queen to New South Wales in 1970, 1973 and 1977.[9]

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6. Benefits with Remission

A Remission system gives prisoners hope, as well as an opportunity to change and to rebuild their family.[10] Such a system encourages prisoners to take on co-operative behaviour.[11] From a societal perspective, remission can help reduce overcrowding in prison and break down the cycle of recidivism in the long-term.[12] It also provides prison management with an additional tool. By using a reduction in sentences as an incentive for more socially appropriate forms of behaviour, prison management are not only developing more harmonious relations between inmates, but more importantly, they are also fostering forms of behaviour among prisoners that benefit society as a whole upon their release.

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7. Problems with Remission

The principle of ‘Truth in Sentencing’ was raised in 1989 in NSW as the main concern regarding a system of remission, as it could be seen as deceptive to the layperson. Most people would assume that when a judge sentenced an individual to a term of imprisonment that would be the amount of time they would serve. However, with remission, some prisoners understood the reduced sentence to be their maximum sentence, as any loss of remission would only result from disciplinary action and extra punishment. Therefore, the ‘Truth in Sentencing’ laws sought to ensure prisoners served the full amount of time they were sentenced to, rather than a reduced portion, and then being released on parole or remission.[13] 

A remission system also raised issues of favoritism and inconsistency in individual approaches as prison officers would be heavily relied upon for reports and feedback on the behaviour and performance of prisoners.

Finally, there is the issue of corruption regarding remission. In 1987, NSW Minister for Corrective Services Rex Jackson was sentenced for taking bribes to secure the early-release of prisoners.[14] He was sentenced to seven and a half years in prison, and served 3 years until being released early.

 

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8. Australia 

In 2006, the Law Council of Australia expressed its support for a system of earned remission in its submission to the Australian Law Reform Commission discussion paper[15] stating that where a prisoner behaved particularly well in prison and demonstrated real rehabilitation, then there should be a mechanism available to reduce the non-parole period.[16] 

A 2006 report by the Australian Law Reform Commission[17] supported in principle a system of earned remissions, but conceded that it would be difficult to implement on a federal level due to differing state laws. The report quoted a federal offender as saying:

Remissions must be re-implemented to assist the rehabilitative process and to encourage good behaviour. It also allows the offender to be released without being imprisoned for longer than absolutely necessary. One must consider the point in time in an offender’s sentence where the sentence stops being rehabilitative and starts to become detrimental to a person’s psychological well-being. It would be in interest of society to release a rehabilitated offender from prison rather than an offender who has been profoundly affected by an excessively long sentence.[18] 

The Nagle Royal Commission conducted in 1976-1978 recommended that NSW adopt a remission system where all remissions should be earned, and any remissions should be taken off both head sentence and the non-parole period.[19] This recommendation was adopted and provided prisoners proper incentive to work hard, behave well, and strive towards self-improvement, until it was repealed in 1989.[20]

 

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9. International Examples

Although Australia does not currently have its own remissions system, they are widespread throughout the world. Under labels such as earned remission, early release, supervised release or reduction credits, similar schemes have been implemented in common law countries including Canada, the United Sates and the United Kingdom.

Canada

Earned Remission is available to all provincial offenders in Canada. Essentially, prisoners may ‘earn’ early release at a rate of up to 15 days each month of good behaviour.[21] Emphasis is placed on community reintegration as the Prisons and Reformatories Act defines good behaviour as ‘obeying prison rules and conditions governing temporary absence and by actively participating in programs…designed to promote prisoners’ rehabilitation and reintegration.’[22] This was shaped by the Corrections Planning Committee’s classification system, which significantly influence hierarchical standards, depending on security threat in statutory remissions and earned remissions.[23]

Canada has one of the most effective remissions programs in the world. It strikes a considerable balance between the need to encourage better behaviour for prisoners while at the same time ensuring protection where needed for members in society. For example, courts ensured that forfeiture of remissions would depend on civil and criminal misconduct, especially when repeating offences. This includes lack of adherence to internal prison rules. This is in contrast to merely disobeying external regulations. In R v Casserly, the Ontario Province Court stated that unless the Prisons and Reformatories Act does not explicitly indicate that failure to comply with external fines while serving sentence will suspend eligibility for remissions, one is still entitled if well behaved or better, reformed.[24] It follows that whoever is able to comply with standards set forth in legislation while in prison; they are able to earn remissions.

Canada has recently pushed to emphasise public safety, while at the same time stressing the need for earned remissions rather than statutory remissions in the Corrections and Conditional Release Act.[25] Earned remissions have been found to ensure greater public safety, by reforming and reintegrating prisoners back into society, and in doing so, maintains rights of the individual. In order to stimulate greater success in reintegration, in its report: ‘A Roadmap to Strengthening Public Safety,’ it recommended improving physical infrastructure to ensure a more sensitive, nurturing prison environment, and developing employability, employment skills through social skills training, improve problem solving and comprehension.[26] 

This is to be supplemented by adequate safeguards such as increasing the monitoring of prisoners in their progress, raising their accountability, and providing more communication with the victim. Such an Earned Remissions approach not only ensures relatively greater public safety by encouraging the perpetrator to participate in reintegration, it involves the victim and enhances the individual’s right to liberty and life.

United States    

A system based on reduction credit points operates in the United States. Federal prisoners sentenced to more than one year of imprisonment (excluding those with terms of life imprisonment) can receive credit of up to 54 days for each year served.[27] Credits are awarded on the basis of fulfilling desired behaviour including work attendance, program participation, cooperation, personal hygiene and education/vocational training. 

The Residential Drug Abuse Program (RDAP) allowed all eligible inmates to receive up to a twelve months sentence reduction and 6 months Re-entry Centre, Half-Way House or Community Corrections Centre (CCC) Placement.[28]

On April 9 2008, an amendment was made to the Chance Act 2007 which related the Omnibus’s Crime Control and Street Safety Act 1968. While this amendment does not refer directly to a system of remission, it suggested that providing an opportunity for prisoners to learn and use their time productively could actually help to reduce recidivism and act as a long-term solution to ever growing prison populations. A system of remission would be ideal for encouraging such productive use of time, while simultaneously reducing prison populations through the early release of reformed prisoners.

A reason for adopting a program of remission set under the California and Washington Early Release Programs is to reduce problems of overcrowding and budget constraints. However remission systems that are based on meeting a quota of prisoner releases as a means of reducing prisoner populations are extremely controversial. It can be argued systems that are based on number of prisoner releases may fail to actually encourage behavioural reform. The California Penal Code s 4019[29] and Washington Senate Bill 5990[30] indicates that working in prisons enables one to pay off fines and as part of the credit reduction scheme, reducing sentences. Such schemes ensure that the early release of prisoners is based on rewarding favourable behaviour rather simply meeting the need for a decrease in prison populations.

Earned Release Programs (ERP) on the other hand, enable much greater flexibility for the prisoners to enhance themselves and become less socially isolated. Alcohol, drug treatment, dependency, addiction, relapse prevention, rational behaviour training, responsible decision making and restorative justice concepts are all catered for as part of earned release training.[31] These programs have recently been introduced in Wisconsin and Mississippi, whereby the Bureau of Offender Classification and Movement select potential candidates. Excluded offenders include: those sentenced to life imprisonment, habitual sexual offenders, escapees or attempted escapees; and those that have not served their mandatory time in prison.[32] Even though these schemes do not incorporate all prisoners, it nonetheless serves as a developed means to improving the outlook for prisoners and crime reduction. 

United Kingdom

'Earned Early release' has replaced the more traditional remissions scheme in the UK. Those serving sentences of more than one year may be released eraly on license, where an offender is able to serve the remainder of their sentence while living in the community and adhering to specific guidelines. Eearly release is capped at 20% of the original sentence and is earned through cooperation and positive good behaviours in prison.[33]

The Early Prisoner Release scheme in the UK is subject to intense public scrutiny. The scheme' operability may be susceptible to political manipulation, under the discretion of the Justice Secretary. In months before the 2011 election, the Early Prisoner Shceme was stopped. Political adherence to public confidence has been one obstacle.[34]

Politicians have not independently expressed any humanitarian prospect or remissions. Implementation of the scheme is adversely effected by the fluctuating demande for a reduction in the prison populations. so reliant is the UK prison system on early release upon lack of capacity that two men convicted of terrorism were released earlier in 2008 to help ease prison overcrowding.[35] However, when 2500 spare beds were present in February 2010, prisoners lost entitlement to the scheme. Such a demand based approach lacks incentives for better behaviour, and could explain the relatively greater rates of recidivism in the UK.[36]

Northern Ireland

Prisoners in Northern Ireland are entitled to remission at a rate of 50%. Remission is accessed based on principles of good behaviour, and is in fact attained by the vast majority. Current Security Minister Paul Goggins did however suggest a tightening of rules regarding those released earlier, in making releases conditional.[37]

Even though under the Criminal Justice Order 2008, the 50% requirement still exists, those serving sentences of 12 months or more, as well as 'violent', 'dangerous' or sexual offences are treated differently. If released earlier, under s 23(1) of the order, the court is able to make recommendations of conditional release, subject to treatment, restrictions and supervision for those sentenced greater than 12 months or greater for any offence in prison.[38]

This is to the exclusion of those who are serving life sentences or who have been convicted for sex offences.[39] Under the Criminal Justice Order 2008, s14 (3), a sex offender aged above 21 is to be kept in prison throughout their sentence or equivalent and may be subject to an extended sentence well.[40] For those serving an indeterminate period or an extended period, as per section 18(1), the parole commission is unable to consider remission, unless the secretary of state has made a recommendation after the prisoner has served the required minimum sentence under s13.[41]

Paul Goggins, the Northern Ireland Security Minister stipulated that the provisions are mainly intended for violent, dangerous and/or sexual offenders. In an interview with BBC, he stated that those who commit minor offences, although would likely have conditioned releases, will largely be free, except to serve re-integrative roles in the community: “Viable alternatives such as unpaid work.”[42]

Such conditional releases proportional to the number and nature of offences is a reflection of Northern Ireland being a small, close-knit community. In the journal ‘Remission Revision’, Northern Ireland legal researcher Rosemary Craig highlights how the numbers of prisons are declining from 5 in the 1970s with Northern Ireland’s population being under 1.5 million people to three with 1.75 million people, implying this is unsustainable.[43] However, Craig failed to consider the fact that crime rates have declined since then, a period in which remissions, as a recidivism-reducing tool, has arguably played a significant role. 

Craig used two examples in which sex offenders had been released earlier. One isn’t noted to have repeated an offence, while the other went on to commit murder. This produced a massive public outcry, which reflected the subsequent amendments made under Criminal Justice Order 2008. However, these examples appear to be exceptions and as indicated above, provisions have been made for serious offenders to have more restrictions and monitoring imposed on them. The Journal does not refute the correlation between remissions and lower recidivism. Notwithstanding, it conveys the most fundamental barrier to greater remissions, concern for public morale. Combining this with the views of Paul Goggins, it highlights the link between mass public pressure or 'moral panic' and political servitude.

Republic of Ireland    

In Ireland remission is viewed as a right accessible to all prisoners, to the exclusion of those with sentences of life or of less than one month. A sentence may be reduced by as much as a quarter, depending on ‘good conduct’ whilst in prison. In certain circumstances, where a prisoner has undergone specially approved activities that are seen to have the effect of reducing the prisoner’s likelihood of re-offending, the remission rate may be increased to one third. Alternatively, remission may be cancelled in part as disciplinary punishment. [44]

Remissions in Ireland serve an economic purpose. They provide jobs for many teachers, security officers and researchers, while alleviating excess prison crowding. Researchers are especially able to observe the general trend of training practices and rules and their success in reforming prisoners. Barrister Paul Anthony McDermott conveyed that prisoners’ remissions entitlement is an economic decision built upon addressing the need to reduce prison crowding. He expressed criticism on the issue that lack of funding is occurring in rehabilitative practices.[45] This means that many offenders, such as sex offenders, who may still be subject to remission by good behaviour, may be released earlier without access to rehabilitative practices.

Promising signs have been shown for further reform to incorporate such rehabilitative practices. A significant need is expressed that for or both prisoners and social members, there is to be greater assurance made for public safety via application of re-integrative practices. Minister for Justice and Law Reform Dermot Ahern displayed willingness for a follow up report that thoroughly addresses the need to stimulate funding in rehabilitation programs for the sake of ensuring public safety. Hence, public safety and Individual rights are integrated.[46]

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Conclusion

It is inhuman to remove all control from an individual over their own life. By allowing prisoners a chance at affecting their own fates, remission brings hope, encouraging behaviour and activities that will assist prisoners to adapt more effectively when they are released. The option of remission encourages building the skills require for such adaptation, progress and prosperity in life;, all core factors that will enable a free and just life to be lived. 

The legacy of Alexander of Maconochie can only be built upon by transforming remission systems locally, state wide, nationally, and internationally. The concept of revenge via retribution in society may perhaps be changed in its very nature into being more nurturing, rehabilitative, and understanding of the root causes of why prisoners are the way they are. 

Significant recognition has been given by the Law Council of Australia to the importance of remissions as a tool to reform prisoners’ lives. This has been preceded by the Nagle Royal Commission that illustrates the need to encourage productivity among prisoners. Fostering such attitudes acts as an incentive for prisoners to work towards goals rather than merely enduring their sentence without effort to reform. 

In implementing a wide ranging remissions system in nationally, Australia will be accompanied by similar movements among fellow Anglophone nations including Canada, Ireland, Northern Ireland and the United States. This will help to ensure Australia is amongst the leading and influential nations in the field of human rights and penal reforms.

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