Sentencing and Release from Prison: the End of ‘Automatic Early Release’?

In the first of three posts on current issues in sentencing in Scotland, Cyrus Tata considers the radical new arrangements governing the release of prisoners in Scotland that have just come into force. What are they and what impact will they have? Is there a better way forward?

Dr Cyrus Tata is Professor of Law and Criminal Justice, Centre for Law, Crime and Justice, Strathclyde University Law School.

Currently, all sentenced prisoners, (except those on indeterminate sentences such as lifers), must be released conditionally before the expiration of their sentence to serve the remainder of that time under supervision in the community.[1] The release is conditional meaning that if during the remaining period of his/her sentence the person fails to comply with conditions they are subject to recall to prison.[2] The rationale is simple: it is to reduce reoffending. Rather than simply releasing people ‘cold’ from incarceration where they may struggle to cope with liberation in the community (and so be more likely to offend), there is a mandatory period of supervision and support to help the person find their feet and so be more likely to go straight.[3]

In Scotland, short-term prisoners, (i.e. those sentenced to less than four years), are released conditionally at the half way point of their sentence. A long-term prisoner, (i.e. someone sentenced to four years or more), may apply for discretionary release from prison (parole) from the halfway point in their sentence. If his/her application is not granted by the Parole Board (or decides not to apply), and s/he was sentenced before February 2016, s/he must be released at the two-thirds point of their sentence so as to be subject to mandatory supervision in the community until the sentence end date.

This means that by enabling the reintegration of long-term prisoners the chances of serious reoffending is reduced. In practice, much more effort tends to go into the supervision and support of long-term prisoners than short-term prisoners. To the extent that one might be sceptical about conditional release in practice as a surreptitious way of reducing the prison population, it is easier to make that argument about short-term prisoner release (which tends to be less conditional and less closely supervised and supported) than long-term prisoners whose release tends to be more genuinely conditional as well as more rigorously monitored.

It is, therefore, ironic that new legislation will attack the very part of the system which is most defensible.

When a Label is Fatal

Unfortunately, these release arrangements have come to be mis-labelled as ‘automatic early release’, sometimes even ‘unconditional automatic early release’. Such labels are as misleading as they are damaging. First, they omit mention of the very purpose of such release: managed, supervised and conditional release so as to reduce reoffending. Secondly, where such a label becomes the accepted political and media standard, the attempt to explain the system is already fatally prejudiced. ‘Surely’, the argument goes, ‘any idiot can see that just letting prisoners out before the end of their sentence is dishonest and dangerous?’ Where governments and parliaments themselves come to use a term like ‘automatic early release’ as an accepted label to describe the reality of a mandatory period of conditional, supervised release then it becomes politically self-evident that a seemingly dishonest and dangerous system should be abolished.[4]

So What’s Changed?

The Prisoners Control of Release (Scotland) Act 2015 means that long term prisoners (ie those sentenced to four years or more) sentenced on or after 1st February 2016 will no longer have to be conditionally released under supervision at the two thirds point of the sentence. Instead, a long-term prisoner who has not been granted release under discretionary parole, will not be subject to conditional supervised release until the final six months of his/her sentence.[5] So for instance, someone who has been sentenced to 12 years and would currently be released under mandatory conditional supervision for three years will now be under such mandatory conditional supervision for only the final six months of his/her sentence (in this case after 11 and a half years’ imprisonment).[6]

The End of ‘Automatic Early Release’… Or is it?

Hawk-eyed readers will have spotted that while the 2014 Act drastically reduces the mandatory period of conditional supervised release, it does not, in fact, abolish it. In response to criticism which identified the problem of releasing people ‘cold’ from a long sentence, the Scottish Government amended the Bill at Stage 2 to include a blanket period of six months. To put it another way, so-called ‘Automatic Early Release’ for long-term prisoners has been cut, but not been ended. This may sound strange. Google ‘Automatic Early Release in Scotland’ and all the media headlines report the Scottish Government’s news release that ‘automatic early release’ has been ‘ended’.

In fact the Government’s case that it has ‘ended’ AER is based on having ended AER in respect of the relatively small number of prisoners who are subject to an Extended Sentence.[7] Yet, by definition, those subject to an Extended Sentence are required to undergo a mandatory period of conditional, supervised release as part of their sentence anyway.

Nonetheless, for the time being at least, politicians may feel that at least for the coming general election they can claim to have dealt with so-called ‘automatic early release’.

The political problem is less short-term: the thorny issue of release from prison will re-emerge.

Will Cutting the Mandatory Period of Conditional, Supervised Release to Six Months Improve Public Safety?

Currently, long-term prisoners are currently subject to (in many cases very demanding) conditions on release and can be recalled to custody at any point during this period. Will the cut of this period of supervised conditional release to just six months be sufficient?

Reintegration of Long-Term Prisoners, including those considered a high risk, takes time.

Rehabilitation and reintegration take time, especially where someone has been incarcerated for many years. Released prisoners need to be settled into a community (e.g. securing accommodation and benefits) before supervisors can work with them on longer term issues (such as reducing reoffending and finding employment). Six months may be too short a time in which to supervise in the community and progress reintegration, not least when some released prisoners are placed in temporary hostel or bed and breakfast accommodation for periods often up to a year or more[8].

A briefing document submitted by academics, Social Work Scotland and Third Sector Agencies to MSPs during the passage of the Bill observed:

“Shortening the mandatory period of support and supervision and seeing its main function as merely technical compliance is likely to be counterproductive. For example, even where prisoners develop ‘narratives of transformation’ in prison, they can struggle to fulfil and realise their aspirations post-release, partly because of a lack of support and lack of acceptance in the community[9]. Similarly, ongoing research[10] suggests that ex-prisoners commonly perceive supervision on licence as counterproductive in terms of resettlement where it is felt to be merely a mechanistic monitoring exercise. Unfortunately, the proposals to reduce supervised release to just six months for all long-term prisoners are likely to make it appear even more mechanistic.”[emphasis added]

This issue is all the more acute when we recall that we are talking about prisoners whom the Parole Board has decided not to release. By definition, those considered by the Parole Board to pose the greatest risk to public safety will not be released until six months before their sentence end date. The 2015 Act has the effect of reducing the mandatory period of conditional supervision and support to the very people who seem to need it most.

It is difficult to understand the logic of the legislation, at least on the grounds of public safety, unless one chooses to abandon the widely-acknowledged need to resettle long term prisoners while on licence because it helps to reduce the chances of reoffending.

Costs and Priorities

The Scottish Government estimates that the current system of automatic early release for all long term prisoners will escalate from £4.6m in 2019/20 to £16.7m in 2030/31. To put it in context: this equates to more than half of the Scottish Government’s current budget for community justice (£31.8m in 2015/16).

In response to concerns about the cost at a time of public spending cuts, the Justice Secretary sought to assure the Scottish Parliament Justice Committee that this planned extra cost would be more than off-set by a radical plan to make changes to short-term sentencing “such as a presumption against short sentences, greater use of alternatives to custody, changes in sentencing practice…and alternatives to the traditional custodial estate”.

Politically speaking, reducing the period of mandatory, conditional supervised release (and so claim to have ‘ended AER’) has been the easy bit. Whether and just how the radical reduction in the use of short-term imprisonment will prove far more challenging.

If the 2015 Act has not solved the problem of release from prison, is there a long-term solution?

What is to be Done?

A regime of mandatory conditional supervision and support of prisoners upon release has long been shown to be necessary. This can only be part of the overall determinate sentence.[11]

Combining Clarity with the Public Safety?

On the face of it, there are two competing virtues in determinate sentence cases: clarity in sentencing, (i.e. sentences mean what they say), as opposed to public safety (prisoners are supervised on licence to rebuild their lives and so minimise risk to public safety).

Is there a way resolve this conundrum?

The justifiable complaint that sentences do not mean what they say is a consequence of describing determinate long-term custodial sentences only as custodial when in fact they are always a combination of a custodial element and a mandatory element of conditional supervised release. The fatal error is to allow the latter to be mis-described as ‘Automatic Early Release’, which only gives the impression that prisoners are released without good reason. Instead, all determinate long term custodial sentences should be described as sentences of ‘custody and conditional community supervision’ (or similar).[12] This has the benefit of both being transparent (sentences are what they say) and public safety. It also means that prisoners will no longer be seen to be released ‘early’ – they will be released timeously, conditionally and under supervision.

Footnotes

[1] Indeterminate sentence prisoners (eg those sentenced to a life term) are subject to quite different arrangements from determinate sentence prisoners which mean, importantly, that they are subject to recall to prison for their rest of their lives.

[2] Rates of recall to prison have rocketed in recent years. See for example: Weaver, Tata, Munro, Barry (2012) ‘The Failure of Recall to Prison: Early Release, Front-Door and Back-Door Sentencing and the Revolving Prison Door in Scotland’ The European Journal of Probation Vol 4(1)

[3] A regime of mandatory conditional release with supervision and support has long been shown to be necessary For example: Report of the (Kincraig) Review Committee Parole and Related Issues in Scotland, March 1989; Report of the (Maclean) Committee on Serious Violent and Sexual Offenders June 2000; Hutton and Levy (2002) Parole Decisions and Release Outcomes (Scottish Executive Central Research Unit); The Scottish Prisons (McLeish) Commission, Scotland’s Choice, 2008

[4] It was widely asserted that the abolition of so-called AER was an SNP manifesto commitment. In fact, its manifesto was more cautious than that committing to abolition only once the terms of the McLeish Prison Commission had been fulfilled. In other words, a radical reduction in the prison population would first have had to be achieved.

[5] Those long-term prisoners sentenced before 1 February 2016 will be subject to the pre-existing rules provided for in the Prisoners and Criminal Proceedings (Scotland) Act 1993

[6] The rules provided for in section 1 apply to all long-term prisoners sentenced on or after 1 February 2016. Any long-term prisoners sentenced before 1 February 2016 will be subject to the pre-existing rules relating to automatic early release as provided for in the Prisoners and Criminal Proceedings (Scotland) Act 1993.

[7] Section 86 of the Crime and Disorder Act 1998 allows a court to impose mandatory post-release supervision on certain offenders so as to protect the public from serious harm. An extended sentence may be imposed in indictment cases on: those convicted of a sexual offence who would have received a determinate custodial sentence of any length; or those convicted a violent offence who would have received a determinate custodial sentence of 4 years or more. In 2012/13, 165 Extended Sentences were passed. The Scottish Government’s Stage 1 Policy Memorandum appeared to harbour the hope that judges will recognise the deficiency of its 2014 Act in protecting public safety and so as consequence seek to impose more Extended Sentences instead. The seems to be a circuitous policy approach, which could also have an inflationary effect.

[8] Barry et al, ‘Regulating Justice: The dynamics of compliance and breach in criminal justice social work in Scotland’, ESRC grant reference ES/J02340X/1.

[9] Schinkel, M. (2014) Being Imprisoned: Punishment, Adaptation and Desistance, Palgrave MacMillan: Basingstoke.

[10] Barry et al, ‘Regulating Justice: The dynamics of compliance and breach in criminal justice social work in Scotland’, ESRC grant reference ES/J02340X/1.

[11] For example: Report of the (Kincraig) Review Committee Parole and Related Issues in Scotland, March 1989; Report of the (Maclean) Committee on Serious Violent and Sexual Offenders June 2000; Hutton and Levy (2002) Parole Decisions and Release Outcomes (Scottish Executive Central Research Unit); The Scottish Prisons (McLeish) Commission, Scotland’s Choice, 2008.

[12] This parallels the proposals made by the Sentencing Commission report later botched by the unimplemented 2007 Custodial Sentences and Weapons (S) Act. See D Thomson and C Tata (2011) ‘Sentencing and Prison Release’ SCOLAG 57-59.

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2 comments on “Sentencing and Release from Prison: the End of ‘Automatic Early Release’?
  1. Julia says:

    And what hope is there for the person who is convicted and still protest their innocence?

  2. No name says:

    Prison is make worse for prisoner
    Prison foods are horrible &
    Prison never improve and it should abit early releases for prisoner it wil help for prisoners

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