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Human Rights In Community Corrections

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CHAPTER 3: COMPARATIVE COUNTRY ANALYSIS

The Working Group will conduct a review of the best practices in community corrections by comparing the Canadian conditional release system to its counterparts in the United States, Europe and Australia.

Consistent with our previous study, the Group requested information from eight countries (the United States, Denmark, Norway, Sweden, France, the United Kingdom, the Netherlands and Australia). Each was provided with a copy of the Working Group's Terms of Reference and asked to provide documentation relating to:

· the overall premises and structure of the community corrections regime;

· how and by whom conditional release decisions are made;

· what safeguards and mechanisms exist to monitor the rights of offenders as they pass through the regime; and

· how the dignity and privacy concerns of other parties are preserved.

We were interested in how rights-related concerns are dealt with elsewhere, and what Canada may learn from or contribute to the development of community corrections. The following describes, on the basis of written material received from their correctional authorities, the main features and variations in each country's treatment of adult offenders who are released into the community under some form of supervision. It bears noting that philosophical and practical interpretations of community corrections vary across jurisdictions.5 In consequence, the degree to which rights are recognized and protected in the community correctional setting can also vary considerably.

It would further appear from the documentation supplied that no jurisdiction has undertaken a systematic review of the rights-related dimensions of community corrections. This may reflect a more general finding that even those correctional authorities that are firmly committed to enhancing the community component of their program do not seem to commit a corresponding proportion of their financial and human resources to that objective. As a result, resource imbalances between community and institutional corrections are common.

Where possible and appropriate, the information provided has been supplemented from published studies. Although cross-national comparisons of conditional release systems are rare in the literature, one or two proved particularly helpful, and these are noted in Annex E. Some of the observations that follow may be based in part on those sources.

COMMON FEATURES

The Legislative Basis

Our review of official documentation indicates agreement with the general principles of the Tokyo Rules that:

  1. imprisonment should be imposed only when there is no alternative;
  2. the criminal justice system should also provide and promote a range of
    • alternatives to imprisonment;
  3. these measures should be applied in accordance with the principle of
    • minimum intervention; and
  4. offenders should be eligible for conditional release at the earliest possible stage in their court-awarded sentence.

Virtually all the countries surveyed expressed some interest in increasing the use of non-custodial measures either as an alternative to imprisonment or part of a supervised conditional release program. In the United States the practical significance of such interest varies considerably from state to state: in most instances, however, the current emphasis remains heavily on incarceration.

As regards the aims of parole supervision, three general goals are also held in common: the protection of the public; social reintegration of the offender; and the prevention of re-offending. In most jurisdictions, community corrections is also seen, at least partially, as serving the objectives of punishment and deterrence. However, all parole systems describe their primary statutory purpose as either crime prevention or public protection. Conditional release programs are usually legislated to serve the rehabilitative needs of the offender while taking due account of the concerns of victims and the safety of the community at large.

In all jurisdictions, there is broad recognition of the need to help offenders reintegrate into the community after a period of incarceration, as well as the value of non-custodial measures in reducing reliance on imprisonment. In many European countries imprisonment is perceived as being detrimental to reintegration, and this skepticism encourages exploration of non-custodial sanctions as an alternative to, or in conjunction with, incarceration. In other jurisdictions, the United States in particular, to the extent that greater use of community programs is an objective of correctional policy, it seems to be driven more by such pragmatic concerns as alleviating prison overcrowding and reducing costs.

Such different purposes and orientations naturally lead to important differences in practice. For instance, there may be considerable variation in the relative intrusiveness, intensity and duration of community-based supervision. A wide range of dispensations can be observed, from the more onerous, control-oriented home detention (with electronic monitoring) practised in Australia, the United Kingdom and the United States to the considerably more relaxed supervision regimes found in Denmark, Sweden and Norway.

Approaches to conditional release also differ with respect to:

  1. how and by whom release decisions are made;
  2. eligibility qualifications for conditional release;
  3. at what point in the sentence and under what range of restrictions offenders are released to the supervising authority; and
  4. the circumstances under which an offender can be returned to prison for failure to comply with parole conditions.

In all cases, the nature and degree of the correctional authority's control over a conditionally released offender's life would seem to depend crucially on its assessment of the risk that a further offence will be committed. Across all jurisdictions, it appears to be accepted that a parole officer's main responsibility is to predict and manage criminal risk.

Assistance and Control

At the same time, there is considerable variation in how countries interpret and balance the assistance and control functions implicit in community corrections. The tensions intrinsic in this dual mandate are sometimes seen as a source of confusion. Some national probation/parole services (e.g. Denmark and the United Kingdom) have recently adopted measures to more closely align their crime prevention activities with other components of the criminal justice system, including police, judicial, and other prosecuting agencies. The view that the supervising authority is not a welfare agency and that any extension of its activities beyond prevention and enforcement is inappropriate also finds favour in several jurisdictions.

In the United Kingdom, while it is recognized that community sentences play a critical role in resettlement, there are also considerable pressures to "modernize" a longstanding directive to probation officers to "advise, assist and befriend" offenders. According to a 1998 consultation document released by the Home Secretary, this would involve acknowledging that the core function of the Probation Service is less "befriending of" and more "protection from" offenders. It is suggested that parole officers be given more statutory authority to "confront, challenge and change offending behaviour and to recognize punishment as a central part of that process." Despite endorsement of a public protection and crime prevention mandate, in many jurisdictions surveyed it is still normal practice for parole officers to explain to offenders at the beginning of their conditional release how assistance and control are to work together.

In varying degrees, all countries also confront a widespread public perception that imprisonment is the only meaningful sentence and that time served in the community, while perhaps more conducive to rehabilitation, is unduly lenient on the punishment scale. There is considerable public pressure for community corrections to deliver effective and credible "penal value" as a way of eliciting greater public confidence in non-custodial sanctions. Such pressure appears to induce paroling and supervising authorities alike to increase both the restrictiveness and severity of release conditions.

Changes in public attitudes also seem to have brought about an organizational shift toward community corrections models that emphasize penal enforcement and crime prevention. A number of intensive supervision programs, as well as other so-called "intermediate sanctions" (situated somewhere between prison and parole, e.g. fines, community service orders and restitution payments) have been introduced in the United States, the United Kingdom and Australia. Designed primarily to detect breaches of, and enforce compliance with, the terms and conditions of parole, intensive supervision measures tend to be control rather than assistance oriented. The idea that more intrusive and restrictive parole conditions remain preferable to imprisonment also adds legitimacy to such intensive supervision programs as mandatory residential placement, electronic monitoring, home detention, compulsory drug testing, surprise visits, and more frequent contacts with parole officers. Suffice it to say that the near universal adoption of tighter supervision of higher need offenders does not claim to have treatment and rehabilitation foremost in mind.

This shift toward more targeted crime prevention and more structured supervision of conditionally released offenders, although less perceptible in the Scandinavian countries, appears to be part of a more general trend to encourage wider use of non-custodial sanctions while allowing for somewhat disparate punishment, deterrence and rehabilitative orientations. Activities are also underway in a number of jurisdictions to impose tighter conditions on certain classes of offenders; to limit or end the automatic use of statutory release (Norway); and to introduce new mandatory parole periods for all offenders, regardless of criminal history or relative risk to reoffend.

General and Specific Release Conditions

Although the terminology differs, all countries make use of both general and specific conditions of release. The most commonly imposed general conditions include a requirement to obey the law, report to a parole officer and give notification of change of residence or employment. At the same time, there is broad discretion both in the setting of conditions and in their interpretation and enforcement in the field. For instance, in Norway, the decision to impose conditions above and beyond statutory provisions is at the discretion of the prison governor. In France, the juge de l'application des peines, in addition to monitoring an offender's progress through the prison regime, takes an active role in establishing, reviewing and revising the conditions of his release plan. In most cases, however, release decisions and conditions are imposed at the point of sentencing or by the paroling authority. The latter may or may not be independent of the national prison service.

Imposition of specific conditions is also virtually universal, provided that the additional sanction serves a declared statutory purpose. Thus, in most countries, treatment conditions - for drug or alcohol addiction, therapy or psychiatric counseling - can be required as a strictly rehabilitative measure in cases where there is a clear connection between the offence and the medical or psychological problem. The treatment itself is usually an administrative matter, subject to the discretion of medical authorities and the consent of the offender. (A few countries, e.g. Sweden, still permit the "civil committal" of an offender to a mandatory treatment program as a preventive or security measure).

In all other cases, the declared aim of the special condition - be it a residency requirement, drug testing, or avoiding certain persons or places - normally focuses on community protection, rehabilitation, preventing relapses, or some combination thereof. International instruments, such as the Tokyo Rules, specify that the conditions "should take into account both the needs of society and the needs and rights of the offender and the victim."6

Legal Safeguards

Given that any intervention, no matter how intrusive, may be considered preferable to incarceration, it is not surprising that legal challenges to the implementation of parole conditions are uncommon. A review of Canadian and U.S. case law shows that even when such challenges are launched, they almost always fail, most probably because the courts have accepted an extremely broad approach to the reasonableness of sanctions, for either public safety or rehabilitative purposes. Those purposes, in effect, validate restrictions that would otherwise violate rights to privacy, mobility and association that are usually recognized and protected in all jurisdictions.

For that reason, important legal safeguards have been established to prevent the restriction of rights beyond what is inherent in the imposition of the condition itself. In all jurisdictions, the supervising authority is required to inform the offender of the parole conditions being imposed on his release, their rationale and the possible consequences of non-compliance with them. In keeping with international instruments, those conditions must also be precise and practical, as few as possible, and involve the least restrictive measures. In most countries, the sanction itself is subject to review (and possible revision or removal) at the offender's request. Although there are also procedural differences in how and by what authority an offender may be returned to prison when an alleged breach of parole occurs, the offender normally retains the right to be heard before revocation procedures can be initiated. In most cases, the agency responsible for supervision in the community has a duty to report a breach of parole conditions and may make a recommendation to revoke parole. However, the responsibility to act on such recommendations normally rests with the courts. The Norwegian regime is unusual in permitting an offender "to express his opinion regarding conditions." Moreover, "supervision is not often applied against his wishes [which] makes parole supervision, in many cases, a form of voluntary aftercare." 7

Community Support

It is generally recognized that community involvement and well-developed community support systems are crucial ingredients in safely reintegrating offenders. Every system surveyed acknowledges the importance of engaging such support, utilizing local resources and creating a more positive and less stigmatizing environment for offenders, while simultaneously reassuring the public that their safety will not be compromised.

Our analysis suggests that a country's orientation with respect to parole supervision is as much a matter of societal attitudes and appropriate professional training as it is of resources. While a common core of supervisory activities can be found across all jurisdictions (encompassing, for instance, unannounced home visits, employment verifications, and drug and alcohol screening), there are marked differences in the extent to which parole officers are expected to combine these activities with counseling, assistance, advocacy and service functions. European countries, with some exceptions, generally appear more accepting of the principle that supervision and reintegration of offenders ought to be carried out by, for and in the community.

It appears that the more formally organized British, American and Australian probation/parole services make comparatively less use of community volunteers, or resources. These systems tend to rely more frequently on residency requirements, up to and including home confinement, as part of a more control-oriented approach to offender supervision. By contrast, parole officers in the Scandinavian countries are required to coordinate contacts between the offender and different social assistance and community support agencies, including health, labour markets, education and housing.

The Scandinavian experience is instructive in another regard: released offenders in Denmark, Norway and Sweden may request to be supervised by a volunteer selected from the offender's community. Lay supervisors are nominally independent of the probation service, although they may receive compensation for expenses. The function of the community supervisor varies between the two poles of traditional probation/parole work - befriending and controlling - but at no time is the national probation service relieved of its ultimate responsibility for offender supervision. The volunteer is expected to report to the probation authority regularly, especially if the offender fails to maintain contact, where criminal activity is suspected, or where there is some other cause for concern.

OTHER ISSUES

Disclosure of Information

All the countries consulted have adopted explicit and detailed protocols concerning disclosure of confidential documents held or prepared by the paroling authority. In most countries, offenders have the right to see most, if not all, case-record documentation (the general exception being medical, psychiatric or psychological reports), to be informed of decisions affecting their release, and to be given the opportunity to make representations before the paroling authority. As a general rule, no information is to be passed on to private individuals or organizations without the express consent of the offender.

Our survey further indicates that there are no independent agencies exclusively designed to monitor, investigate or correct alleged violations of offenders' rights while under supervision in the community. Most systems do provide a grievance procedure, however, and offenders are, in principle, informed of their right to complain. Only the UK allows for an Inspectorate of Probation, whose functions include investigating high profile cases, accrediting community programs, and auditing national supervision standards.

Electronic Monitoring (EM)

Several countries, including Sweden, Britain and Australia, have experimented with the electronic monitoring of offenders since it was first introduced in the United States in the early eighties. The programs differ significantly in the technologies deployed, the target populations and the declared correctional purpose. In the UK, for instance, electronic monitoring is imposed on offenders as a condition of a curfew order, and is thought to provide a regulated and controlled transition from custody to liberty. Other jurisdictions, while recognizing that electronic surveillance necessarily restricts an offender's liberty, justify the technology as an effective way to detect breaches of court orders, reduce recidivism, save money, alleviate prison crowding, and reintegrate more offenders safely into the community.

On the other hand, electronic monitoring continues to raise legal and ethical questions concerning the privacy and dignity of those involved. Skeptics claim that surveillance of this kind effectively widens the net of penal control, extending the control measures of the prison to the community. And concerns are expressed that electronic monitoring does not always represent the least restrictive measure. Furthermore, once introduced, it is believed that it may be difficult to resist the temptation to use EM primarily for control and enforcement rather than rehabilitation purposes. Although there are relatively few reported legal challenges to electronic monitoring, American case law suggests that its use would likely be held constitutionally valid, saved by the belief that offenders have diminished rights while under sentence and parole supervision.

Victims Concerns

Many jurisdictions increasingly acknowledge the concerns of victims, and some, like Canada,8 are attempting to give them a greater voice in, and access to, the criminal justice system. Measures range from allowing victim impact statements at sentencing to proposals in the United States to adopt a Victims' Bill of Rights. Reparations for criminal harm in the form of community service orders are also considered by some countries to be a valuable way to help reconcile offenders and their communities. Most systems, in one way or another, encourage offenders to take responsibility for their crimes and the harm they have caused. On the other hand, efforts to grant victims rights, in the narrower legal sense, are still relatively new, and it remains to be seen exactly how the supervision of offenders in the community will change in international practice to respond to victims' needs and concerns.

Overview

While some form of gradual supervised release is a standard feature of all jurisdictions surveyed, there are wide variations both of policy and practice among (and even within) countries. In summary, the uses of "community corrections" may vary along any or all of the following major dimensions:

  1. the availability of probation or parole as a component of sentencing;
  2. the points within a sentence at which an offender may become eligible for gradual release;
  3. the types of supervisory restrictions or conditions that may be imposed at any given point, by what specific authority, and subject to what sanctions;
  4. the overall balance of control and assistance in bringing about effective reintegration;
  5. the relative allocation of resources to the different correctional situations and activities; and
  6. the nature and extent of genuine community involvement in either supervising or assisting offenders.

5 The terms `parole', `community corrections' and `conditional release' are not universal. It is thus difficult to know whether the term `parole' has exactly the same meaning for two different countries. This ambiguity is further compounded by use of the term `probation' to include parole in several countries. Based on the information supplied, however, we have adopted the following definition of 'parole': "the conditional release of an offender from a correctional institution to serve part of the unexpired sentence in the community under the custody of the state and the supervision of a designated officer."

6 Tokyo Rules: 12.1 Conditions.

7 The Norwegian Probation Service and its place in the Criminal Justice System (1998). The Royal Ministry of Justice and Police.

8 At the time of writing, a Bill outlining new provisions to reinforce the dignity and respect of victims has just been introduced in the Parliament of Canada.