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The parole system in England and Wales has been subjected to repeated waves of reviews, with four having been commissioned in as many years. Particular high profile cases such as the decision to release serial sex offender John Worboys in 2018, have amplified an increasingly febrile issue.
A recurring dynamic of crisis, review and reform seen in this area over recent years reflects a basic underlying tension between the competing claims of penal policy and penal politics. Parole reflects the normative limits placed on the (liberal democratic) penal state and the necessity of well-functioning pathways to release, both of which control prison overcrowding and runaway public expenditure. Prison release is central to sentence progression and is closely associated with voluntary rule compliance in prison.
And yet, successive governments have seized upon the symbolic power of parole to demonstrate ‘toughness’ with respect to violent and sexual offending, to express solidarity with the victims of crime and reaffirm a populist credo that purportedly stands in opposition to an unaccountable and out of touch penal elite.
The Ministry of Justice’s Root and Branch Review of the Parole System (March 2022) arguably goes further than ever before. What do the politics of parole embodied in it reveal about the shifting contours of a creeping authoritarian conservatism premised upon nostalgia, nationalism and the projection of a strong, centralised state?
The Root and Branch Review
The review is highly critical of how the statutory release test for parole is currently applied and concludes that judicial interpretivism has subverted the original intention of Parliament. Based upon this dubious re-telling of history, it argues for radical reform; an authoritarian policy ‘solution’ that ignores the government's own complicity in undermining the legitimacy of the parole system.
The proposal for greater ministerial oversight in cases concerning prisoners who have committed the most serious offences would see the Secretary of State acting as judge in certain parole hearings, while also remaining a party to them.
The review goes on to dismiss the principled arguments for reconstituting the Parole Board as an independent court or tribunal. (We now know that the previous Justice Secretary who commissioned the Root and Branch review was in favour of the tribunal option). It also recommends changes to the Victims’ Charter intended to strengthen participation in Parole Board hearings. How this will work in practice is unclear given the longstanding difficulties of reconciling the views of forgiving and punitive victims, the prisoners’ account of personal change, and a decision-making process that balances the risk of serious further offending.
Myriad issues are also kicked into the political long grass: there is virtually no reference of how to deal with those on the discredited indeterminate sentence for public protection, or how to deal with the administrative implications of unprecedented sentencing inflation or systematic under-investment. No reference is made to sentence progression, a lack of access to rehabilitative programmes, the incoherence of the recall system, or race disproportionality.
The Parole Board’s status as a non-executive or arm's length body has always been precarious and examples of executive interference have been apparent since its creation. It has become a more ‘court-like body’ in recent decades. Yet attempts to reassert executive command and control are longstanding, and typically justified on populist grounds that play upon public fears, express impatience with penal expertise and posit simple, common-sense solutions to the crime question. A creeping parole populism is also evident in the United States and Australia.
Parole and the new conservatism(s)
The Root and Branch Review draws heavily upon well-rehearsed populist tropes to justify punitive measures. There are clear parallels with other recent attempts to remodel the BBC's Royal Charter and rescind the Human Rights Act.
Increasingly, the new politics of parole blends elements of populism and authoritarian conservatism. It promotes the traditional moral content of the criminal law and rejects even a notional balancing of the human rights of the individual prisoner against the responsibility of the state to protect the public. Through its willingness to grant wide-ranging discretionary powers to the Secretary of State, it intensifies a ‘wedge issue’ that seeks confrontation with the legal profession and is designed to create clear blue water between the government and opposition parties.
Originally, parole was justified on the basis of a ‘recognisable peak’ in an individual's rehabilitation and only later became associated with actuarial risk management strategies. Now, there are signs that the aims and techniques of parole may be evolving once again, drawing explicitly upon the punitive logics of fear, blame, vengeance and incapacitation.
The review has been criticised on the grounds of legality, efficacy and cost. If, as seems likely, primary legislation is required to introduce these measures, they will be subject to intense scrutiny in Parliament and challenged in the courts as incompatible with the European Convention of Human Rights.
An alternative vision of parole reform, the recent JUSTICE report A Parole System Fit for Purpose, represents a legal liberalism that is attentive to the dynamic relationship between citizen and state, and seeks to constrain political action within the parameters set by the rule of law.
It is difficult to see a swift resolution to these intense normative debates. However, a renewed focus on practical wisdom, prudence and the art of good government could galvanise cross-party support by drawing out the shortcomings of a policy framework that is likely to erode public trust, make management of the parole system even more difficult and thus to fail even on its own terms.
Current government policy appears vulnerable to a conservative critique that it has prioritised ideological radicalism over practical wisdom: that a reforming zeal has undermined established institutions which have stood the test of time.
More generally, the review prioritises a soundbite-friendly, public protection narrative over the slow and difficult work of nurturing the people, systems and cultures that are required to deliver substantive public safety and strengthen public confidence in the penal system.