Ferrara: Last Class Mitigation at Sentencing: Role of Remorse Relationship between sentencing and parole Role of the Victim at Sentencing and Parole Final Case for Discussion: Smith

Remorse The most common, most effective and most controversial mitigating factor

Remorse Unrelated to crime seriousness or culpability – so why is it considered? Reduced risk of re-offending? (preventive purpose of sentencing? Important element of many submissions in mitigation; Step Two factor in the English guidelines; Some advocates suggest a reduction in personal mitigation and especially remorse as a result of introduction of guidelines;

Findings regarding Remorse Most common mitigating factor in all offence categories except robbery and sexual offences; Remorse cited as affecting sentence in approximately 40% of offences involving death; assault and arson. More powerful predictor of sentence length than plea and other factors; Application across courts: Weight assigned remorse consistent across courts.

Finally, note many other challenging appeals in mitigation.. Immigration status: if offender sentenced to more than X years in prison, he is deported. Should a court take this into account? Immanent punishment (arising from the offence); Third party impact: what do you say to the dependents when the offender is imprisoned and they lose support? (Note the Smith case which we discuss later today); Is the subjective experience of the sentence a legitimate factor (see work by Adam Kolber) – sometimes conceptualised as ‘disproportionate impact’. We adjust for fines, why not other sanctions like imprisonment?

Role of Victim and Sentencing in Common Law Jurisdictions Traditionally only a witness All changed with Victim Impact Statement (US; Canada; Australia); Victim Personal Statement (England and Wales); Purpose and Effects of VIS

Victim Personal Statements Some Findings Minority of victims submit a Victim Personal Statement Less than half are offered the opportunity (range: 29-63%) 55% of those asked will complete a VPS Victims of serious crimes of violence are more likely to submit a VPS. The desire to communicate a message to the court and the offender is the most frequent reason given; however, some victims wish to influence the severity of the sentence imposed There is evidence of some confusion on the part of victims as to the purpose of VPS schemes, the use made of the VPS by criminal justice agencies and the courts; and the difference between the VPS and other documents submitted to the police or the court. VPS seldom contain prejudicial material such as recommendations for sentence

Satisfaction rates Victims who submit a VPS appear more satisfied with the sentencing process than those who do not. The vast majority who submit a VPS report that they would do so again if victimised in the future. Although legal professionals such as prosecutors and judges may have been initially ambivalent towards the use of victim statements, the most recent research reveals a more positive attitude. Judges (research in other jurisdictions) find VPS useful for the purposes of sentencing. Research from other jurisdictions suggests that victims appreciate judicial recognition of the harm they suffered - courts often acknowledge the contents of the statement in reasons for sentence.

Parole and Sentencing

Overview Distinguish different forms of early release in England & Wales; Contrast discretionary release on parole with statutory release programs; Distinguish between the Worlds of Sentencing and Parole; Discuss several issues including the effectiveness of parole and the role of the victim.

Parole Purpose Criteria for release (generally common to all jurisdictions) Parole Board of England and Wales: Independent Executive Non-Departmental Public body (NDPB) Some Critical Issues: impact on sentencing, re-offending and public confidence; role of the victim.

Parole (and other early release mechanisms exist to… Facilitate prisoner reintegration through graduated, supervised, conditional release; Provide an incentive for good behavior; Provide an incentive for inmates’ efforts at rehabilitation and therefore reduce re- offending; Minimise impact of custody on third parties – families, partners of prisoners; Ease prison over-crowding and reduce costs of imprisonment.

Conditional Release in Other Common Law countries US: parole abolished in many states; “flat-time” (“truth in sentencing”?) statutes. Canada: discretionary release on parole. at one-third mark; statutory release at two-thirds. Prison authorities have power to detain until Warrant Expiry Date (W.E.D.). Example: An offender sentenced to 9 years custody may be living in the community (on day parole) after 18 months.

Criteria for Release in England and Wales (Secretary of State’s directions to the Parole Board, “In deciding whether or not to recommend release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prison would otherwise be in prison and whether any such risk is acceptable. This must be balanced against the benefit, both to the public and the offender, of early release back into the community under a degree of supervision, which might help rehabilitation and so lessen the risk of re-offending in the future. The Board shall take into account that safeguarding the public may often outweigh the benefits to the offender of early release. “

Similar Provisions in other Common Law countries: Canadian Parole Statute (Corrections and Conditional Release Act) 102. The Board or a provincial parole board may grant parole to an offender if, in its opinion, (a) the offender will not, by re- offending, present an undue risk to society before the expiration according to law of the sentence the offender is serving; and (b) the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen.

Potential problems of early release May distort sentencing process: proportionality established at sentencing may be undermined by shift to consideration of risk factors at parole: Two cases of murder with comparable minimum terms, one is release on parole much earlier than the other Undermines public confidence? a four year sentence in England and Wales is dismissed as “really only two years”; Discretionary release may be unfair – research on prisoner resentment of parole process; Makes the duration of a sentence of imprisonment hard to predict. Prisoners have no clear idea when they will be released.

‘Sentencing World’ Sentencers guided by statutory objectives and principles; Proportionality all important: nature and quantum of sentence must be proportional to: crime seriousness (harm inflicted or threatened) and offender culpability (e.g., intentionality vs recklessness). Professional Judges or Lay Magistrates guided by legal professionals; Decision-making takes place in a public forum; Disclosure, sworn testimony, and other due process requirements

‘Parole World’ Proportionality between crime and punishment not important: purpose is to prevent re-offending through reintegration of offender. Parole Board members appointed for sensitivity to victims – not disinterested adjudicators; Decision-making takes place in the shadows Fewer due process requirements, particularly in the US.

Effect of Parole on re-offending Tricky research question – need to control for all a priori, pre-release risk factors (parole boards select cases least likely to re-offend); Predictions of rare events (violent re- offending) highly unreliable: problems of false positives and false negatives; Recall rates low: 1% of determinate prisoners recalled; 6% of life licence prisoners – 111 of 1,800 Conclusion: parole release has a modest preventive effect on re-offending.

Role of victim Former Chief Executive of Parole Board in England and Wales: “We hear the voice of prisoners, of the members and most importantly of the victim”…. “We always place the victim at the heart of our decisions”. Victim awareness/ sensitivity is a core competency for new Parole Board appointments Most parole boards in other jurisdictions include one or more victims’ advocates.

Victims at Parole in North America Canada: (National Parole Board): “Victims play a key role in the NPB risk assessment”; “Information about the harm victims have suffered is important in cases where the NPB must decide whether to detain or release an offender” US: victims encouraged to submit a statement saying “how you, as the victim feel about the impending release of the offender.” Victim submissions to parole boards not disclosed to parole applicant.

Victims and Parole Relevance of victim input at Sentencing is clear: Victims provide impact evidence to help a court determine crime seriousness, offender culpability and to clarify the role of reparation. “Victim Personal Statements (VPS) provide an opportunity for victims to have a voice in criminal justice processes.  They enable you to tell the court or the Parole Board how the offence has affected you or your family.” (Parole Board directions to victims). Relevance at Parole? Recall criteria for release: likely risk to community and likely benefit to the offender Effect of victim input on parole outcomes (findings from North American research): what happens when the victim shows up?

Some Conclusions: Early release and Parole…. Remain controversial from the perspective of the public and victims; Create problems for the sentencing process; Bring a number of benefits to the prison system and is generally regarded as being preferable to the alternative (flat time sentencing).