Making life prisoners wait longer for parole a retrograde step

The Parole Act 2019 came into force last week, placing the Parole Board on a statutory footing for the first time in the history of the State and promising increased transparency in parole processes.

The Parole Board reviews and makes decisions about the those serving life sentences. Hitherto its role had been advisory, with the Minister making the final ultimate decisions including whether a prisoner should be released. In practice, ministers have largely tended to follow the advice of the Parole Board, but the formal lack of independence and the potential for political interference had been the subject of long-standing critique. The introduction of the legislation which establishes the independence of the Parole Board and potentially paves the way for wider transparency in its operation is therefore welcome.

The new Act outlines the powers and functions of the board, including its composition and funding arrangements. The board will comprise 12-15 members and include a senior member of the judiciary, a practising barrister and solicitor, psychiatrists, psychologists, nominees of the Irish Prison Service, the Probation Service and An Garda Síochána, as well as other appointees with sufficient expertise. In a change to current practice, it will also include a representative of a non-governmental organisation that specialises in advocating for the rights of people in prisons. The ministerial announcement heralding the passage of the Act also notes that some of the newly appointed board members have expertise in working with victims.

The framework through which we establish the point at which a prisoner should be released is inextricably bound up in fundamental issues of rights. However, the precise role of prisoners’ and/or victims’ rights advocates on a board making decisions about when prisoners should be released needs to be carefully thought through. The Parole Board should make its decisions based on professional assessments of risk, not on advocacy from any particular point of view.

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Maximum penalty

In Ireland, a life sentence is mandatory for murder, and it may be imposed as a maximum penalty for certain other crimes. Because of the mandatory nature of the sentence and the broad legal definition of murder, Ireland has quite a high proportion of life-sentenced prisoners (362 in June 2021, which accounts for more than 10 per cent of the sentenced prison population). Ireland’s regime for life-sentenced prisoners stands in contrast to many other countries, where the time served in prison is typically shorter and where there are much clearer processes in place regarding eligibility for release. In a change to current practice, the new Act extends the length of time before a life-sentenced prisoner will be referred to the Parole Board – and therefore be considered eligible for release – from seven to 12 years.

The average length of time served in custody prior to release by a life-sentenced prisoner is 20 years, and this period has increased markedly over time. For instance, between 2004 and 2010 the average length of time served in prison for a life sentence was 17 years. If we look even further back to the period between 1975 and 1984, it was 7½ years.

Concerns have been raised about the extent to which life-sentenced prisoners are afforded rehabilitative opportunities within the prison system

Increasing the eligibility period before life-sentenced prisoners are considered by the Parole Board therefore reflects the reality of the current situation. However, closing the door to possible earlier release for some prisoners based on a careful assessment by the Parole Board of the circumstances of individual cases is a retrograde step. Furthermore, even if a person is highly unlikely to be released at this point, a referral to the Parole Board represents a significant step on the road towards eventual release. For instance, it can be a point at which the progress of a person in prison is assessed, providing a much-needed form of external scrutiny.

‘Own devices’

One of the concerns about pushing the can down the road, so to speak, is that this scrutiny is delayed. As part of the Parole Board process, reports are prepared from relevant services (eg the prison authorities, the Probation Service and psychologists) and members of the board meet the prisoner to explore their progress on their sentence and engagement with services. Concerns have been raised about the extent to which life-sentenced prisoners are afforded rehabilitative opportunities within the prison system. A report on life-sentenced prisoners published in 2017 notes persistent problems with sentence management, including the absence of appropriate planning at the early stage of a person’s sentence.

Research has noted that prior to engagement with the Parole Board, life-sentenced prisoners reported being “left to their own devices”. This lack of clarity about the expectations about what prisoners are supposed to do to engage in rehabilitation and to meet the eventual requirements is unsatisfactory.

In response to this report, a new sentence management system that aims to engage life-sentence prisoners earlier in their sentence has been introduced, and is currently the subject of an ongoing evaluation, the results of which will be reported in 2022.

While the introduction of the new parole legislation promises increased transparency for all involved in the system – including prisoners, victims and the wider public – it is important to see how this manifests in practice. We should also be attentive to whether the extension of the time periods before life-sentenced prisoners will be considered by the Parole Board will lead to even longer periods spent in custody. While some people may be unsympathetic to these concerns, ensuring a rights-compliant system where prisoners have access to meaningful rehabilitation means a safer society for all.