Conditional release in Belgium: how reforms have impacted recall

TL;DR: In this article, the consequences of these reforms for two of these parties: the justice assistants, who struggle to keep their professional discretion in the decision to recall, and prisoners, who increasingly turn away from conditional release, thus avoiding recall to prison altogether.

Abstract: Following the Dutroux case in 1996, the Belgian parole system was thoroughly reformed in 1998 and 2006. Decision-making was transferred from the Minister of Justice to multidisciplinary “Sentence Implementation Courts”, supervision and follow up of conditionally released prisoners was tightened and the proportion of recalls increased. Recall of conditional release hence results from the interaction between three main parties: the offender, the supervising probation officer (“justice assistant” in Belgium) and the Sentence Implementation Court who takes the final decision. This paper looks into the consequences of these reforms for two of these parties: the justice assistants, who struggle to keep their professional discretion in the decision to recall, and prisoners, who increasingly turn away from conditional release, thus avoiding recall to prison altogether.

Summary

Introduction

• Since its enactment in 1888, conditional release has been the object of much debate, discussion and even disarray in Belgium also among prisoners.
• The functioning of the police services and the whole judiciary, even the legitimacy of the entire Belgian political system, became the subject of intense societal debate and prolonged media attention.
• As a result, two legislative reforms (1998 and 2006) transferred decisionmaking on conditional release first from the executive to administrative Parole C Sentence Implementation C February 2007).
• Both the transfer of decision-making and the enhanced emphasis on risks had important consequences for the actors directly involved in conditional release practice: the justice assistants 4 and the offenders/prisoners.
• The authors will now look into some of these consequences.

Conditional release: cur rent Belgian legislation

• These two Acts are linked: the first regulates the establishment of a new court responsible for decision-making and follow-up related to the execution of penal sanctions, i.e. the Sentence Implementation Courts.
• This reorganisation has to be understood within a broader political attempt to regain legitimacy by taking the para-judicial agencies out of the often alienating court buildings and bringing them closer to the public.
• According to the 2006 legislation, conditional release must be granted when the minimum term has been served (one-third of the sentence, two-thirds of the sentence for legal recidivists), provided there are no counter-indications which might entail a serious risk for the community or could reasonably be thought to hinder the social reintegration of the offenders.

T he recall process in practice

• The authors then describe the National Standards for offender supervision of the Houses of Justice and their implications for the use of professional discretion of justice assistants, and end by discussing the resulting tensions between justice assistants and Sentence Implementation Courts, including in matters of recall.
• The period that exceeds the eligibility date increased from four to five months in 1990 to about eight months in 1999 (Rihoux, 2000) .
• She explained that of the 42,4% of the offenders who were given a conditional release order and who were breached last year, 86% had been referred back to the Sentence Implementation Courts for violating one or more conditions of release compared to 5,5% who were breached for committing a new offence (Devos, 2011) .

National Standards on offender supervision of the Houses of Justice

• They cover all aspects of ensuring offender compliance during a conditional release order and of the breach process.
• The Standards require the justice assistant to order, and to provide the offender with advice, guidance and assistance in order to help the offender to comply with his/her conditions.
• Furthermore, official Belgian policy documents explicitly refer to the necessary use of professional discretion, as standards and guidelines do not always provide ready or instant solutions to the dilemmas practitioners face on a daily basis.
• It should be emphasised that the information and communication tool that is currently in use in the Houses of Justice does not have an automatic system of warnings in place for the justice assistants in case of breaches.
• The Sentence Implementation Courts can then decide that the offender must appear in court, which can result in their deciding to warn the offender to encourage compliance; to suspend a condition; or to impose a new condition 8 .

Tensions between justice assistants and the Sentence Implementation Courts

• Recent research by one of the authors (Bauwens, 2011) has shown that there are increasing tensions between the daily working of the Courts and the daily working of the practitioners supervising an offender on conditional release.
• Bearing in mind that many judges find current offender supervision practitioners to overemphasize the guidance aspect to the detriment of the controlling side of their work (Vermeiren, 2011: 61) , these justice assistants feared that an exceedingly direct involvement of the Courts in their work might result in overemphasizing control and downplaying the importance of care/guidance in achieving compliance.
• While responding to a specific demand, one senior justice assistant, for instance, drew attention to the fact that a complete progress report would be sent to the Court in three weeks' time in accordance with the time lines indicated in the National Standards.
• More specifically, they emphasised issues of professional status and legitimacy.
• In addition, several justice assistants also mentioned that they were not sure whether their manager or director would defend their decisions and stand up for them in Court should this be necessary.

A voiding recall

• A second and rather unconventional way of looking at recall to prison relates to the even before early release is granted.
• In March 2011, approximately 16 months after having left Andenne, a limited follow-up was undertaken.
• First, this means that the supervision period can last much longer than the remainder of the original sentence, depending on the date of conditional release.

Conclusion

• As a result, the parole system was reformed in order to enhance public protection while also reinforcing its legitimacy through transferring decision-making first to multidisciplinary Parole Commissions and eventually to Sentence Implementation Courts.
• Both aspects of the reform had severe implications for the two main actors involved in parole supervision and recall: the justice assistants and the offenders/prisoners.
• On the other hand, the scarce available statistical data indicate a decrease in admissions rates for conditional release since the reforms started, an increased delay in granting conditional release compared to the date of eligibility, an increase in the conditions imposed upon the offender and an increase in reporting cases back to the commissions/Courts, thus enhancing the risk of recall.
• This has influenced the perceptions of the parole system and the risks of recall by the prisoners.

Figures

Table 1: Reasons for ending conditional release (1 January - 31 December 2010)

Full text

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European Journal of Probation
University of Bucharest
www. ejprob. ro
Vol. 4, No1, 2012, pp 19
±
33
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SS
N: 2006
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2203
Conditional release in Belgium: how reforms have impacted recall
Aline BAUWENS
1
Luc ROBERT
2
Sonja SNACKEN
3
Abstract
Following the Dutroux case in 1996, the Belgian parole system was thoroughly
reformed in 1998 and 2006. Decision-making was transferred from the Minister of
-XVWLFH WR PXOWLGLVFLSOLQDU\ ³6HQWHQFH ,PSOHPHQWDWLRQ &RXUWV´ VXSHUYLVLRQ DQG
follow up of conditionally released prisoners was tightened and the proportion of
recalls increased. Recall of conditional release hence results from the interaction
EHWZHHQ WKUHHPDLQSDUWLHV WKH RIIHQGHU WKH VXSHUYLVLQJ SUREDWLRQ RIILFHU ³MXVWLFH
DVVLVWDQW´ LQ %HOJLXP DQG WKH 6HQWHQFH ,PSOHPHQWDWLRQ &RXUW ZKR WDNHV WKH ILQDO
decision. This paper looks into the consequences of these reforms for two of these
parties: the justice assistants, who struggle to keep their professional discretion in the
decision to recall, and prisoners, who increasingly turn away from conditional release,
thus avoiding recall to prison altogether.
K eywords: Conditional release ± Recall ± Professional discretion ± µ0D[LQJRXW¶
Introduction
Since its enactment in 1888, conditional release has been the object of much debate,
discussion and even disarray in Belgium ± also among prisoners. In the 1970s, a
famous Belgian prison revoOWUHODWHGWR WKHSULVRQDGPLQLVWUDWLRQ¶VRSDTXHGHFLVLRQ-
making in granting and refusing conditional release (e.g. Mary, 1988). One long-
standing topic of concern and debate relates to the principled and practical issue of
who
should grant conditional release. The increased discretionary powers of the
prison administration and Ministry of Justice to grant different forms of prison leave
RUHDUO\UHOHDVHZHUHVHHQDVFRQIOLFWLQJZLWKWKHMXGLFLDU\¶VH[FOXVLYHFRPSHWHQFHWR
decide on personal freedom matters (see Matthijs, 1974-75; Eliaerts and Rozie, 1978;
Verdussen, 1994; for an overview of these discussions, see Maes, 2009a). The main
UHIRUP KRZHYHU RFFXUUHG DIWHU WKH ³'XWURX[ DIIDLU¶ EURNH RXW LQ $XJXVW 
1
Postdoctoral Researcher, Department of Criminology at the Vrije Universiteit Brussel; Contact:
Aline.Bauwens@vub.ac.be
2
Researcher at the National Institute of Criminalistics and Criminology (NICC), and affiliated
researcher at the Leuven Institute of Criminology (LINC), K.U.Leuven.; Contact:
Luc.Robert@just.fgov.be or Luc.Robert@law.kuleuven.be
3
Professor, Department of Criminology at the Vrije Universiteit Brussel; Contact:
Sonja.Snacken@vub.ac.be

20
involving the alleged abduction, rape, and murder of several children and young girls
while the offender was under conditional release. The functioning of the police
services and the whole judiciary, even the legitimacy of the entire Belgian political
system, became the subject of intense societal debate and prolonged media attention.
Pressure was placed on politicians to act and to reform what was perceived as the
failing Belgian justice system, and more particularly the police services and the parole
system. As a result, two legislative reforms (1998 and 2006) transferred decision-
making on conditional release first from the executive to administrative
PXOWLGLVFLSOLQDU\ ³Parole CRPPLVVLRQV´ LQVWDOOHG LQ  DQG HYHQWXDOO\ WR
PXOWLGLVFLSOLQDU\ ³Sentence Implementation CRXUWV´ SXW LQ SUDFWLFH DV RI February
2007). With this last reform, most release modalities, such as semi-detention,
electronic monitoring, conditional release, are now granted ± and revoked ± by these
courts. The failure of the supervision in the Dutroux case, however, also emphasized
the risks presented by some parolees and the need for more professional risk
assessments before release (leading to the introduction of 120 psychologists for 32
prisons) (Snacken et.al. 2010: 83) and a more stringent control and follow up of the
released prisoners by the probation service (Ministère de la Justice, 1997). Particular
attention was paid to sex offenders, who could be released on parole only if they
agreed to enter treatment upon release in a specialized centre. Both the transfer of
decision-making and the enhanced emphasis on risks had important consequences for
the actors directly involved in conditional release practice: the justice assistants
4
and
the offenders/prisoners. We will now look into some of these consequences.
Conditional release : current Belgian legislation
In 2006, two new Acts of 17 May 2006 were enacted, which came into force on 1
February 2007. These two Acts are linked: the first regulates the establishment of a
new court responsible for decision-making and follow-up related to the execution of
penal sanctions, i.e. the Sentence Implementation Courts. The second deals with the
µH[WHUQDOOHJDOSRVLWLRQRISHUVRQVFRQYLFWHGWRGHSULYDWLRQRIIUHHGRPDQGWKHULJKWV
accorded to the victim in the framework of the modalities of the execution of
SXQLVKPHQW¶6LQFH)HEUXDU\QLQHPXOWLGLVFLSOLQDU\6HQWHQFH,PSOHPHQWDWLRQ
Courts, presided by a judge, with two assessors, one specialised in social
reintegration, the other specialised in prison matters, have replaced the former ³Parole
Commissions´ (established by the Acts of 5 and 18 March 1998). The Sentence
Implementation Courts were established to increase their OHJLWLPDF\ E\ µIRVWHULQJ
their LQGHSHQGHQFH SURIHVVLRQDOLVP DQG WUDQVSDUHQF\¶ 6QDFNHQ HW al., 2010: 99).
Although the Act was supposed to be applicable to all prisoners considered for
conditional release, its application has for practical reasons temporarily been limited
to prisoners serving sentences of more than three years. Prisoners serving less than
three years imprisonment are eligible to
provisional release,
which is still decided by
the prison administration (for more detailed information about early release from
prison in Belgium, see Snacken et al., 2010). In this paper, we will only focus on
4
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JOREDO UHRUJDQLVDWLRQ RI WKH SUREDWLRQ DJHQFLHVDQGWKH HVWDEOLVKPHQW RI µ+RXVHV RI -XVWLFH¶ LQ HDFK
jurisdiction. This reorganisation has to be understood within a broader political attempt to regain
legitimacy by taking the para-judicial agencies out of the often alienating court buildings and bringing
them closer to the public. After having been part of the Directorate General of the Judicial Order and
then the Directorate General of the Prison and Probation Administration, they became a separate
Directorate General of the Houses of Justice within the Ministry of Justice on 1 January 2007 in order
to enhance their professional status and organisational legitimacy.

21
conditional release
for prisoners with a sentence over three years imprisonment
(based on the sentence-related difference between both release modalities, we will call
them long-term prisoners).
According to the 2006 legislation, conditional release
m
ust
be granted when the
minimum term has been served (one-third of the sentence, two-thirds of the sentence
for legal recidivists), provided there are no counter-indications which might entail a
serious risk for the community or could reasonably be thought to hinder the social
reintegration of the offenders. These counter-indications relate to: (1) the absence of
opportunities for social reintegration of the offender, (2) a risk of new serious
offences, (3) a risk that the offender would cause further distress to the victim, and (4)
the attitude of the convicted person towards the victim(s) of the crime(s) that have led
to his/her conviction. Every offender admissible to conditional release has to present a
µUHLQWHJUDWLRQSODQ¶VKRZLQJKLVKHUZLOOLQJQHVVWRUHLQWHJUDWHLQWKH community and
outlining the efforts already produced in this regard (Art 48; Art. 56 of the Act of 17
May 2006).
While the Sentence Implementation Courts have to release a prisoner who has served
the minimum term and who presents no counter-indication, thus transforming parole
in theory into a
subjective right
(Snacken, 2004: 56-57; Pieters, 2010), the
requirements of presenting a credible reintegration plan and the absence of counter-
indications are so wide ranging and require so much interpretation that the system can
still be described as a
discretionary
one (Snacken et al, 2010: 74). The disadvantages
of this µGLVFUHWLRQDU\PRGHO¶ FRPSDUHG WR PRUHµDXWRPDWLF¶V\VWHPV ZHUH GLVFXVVHG
during the preparation of the draft legislation: uncertainty for both the prisoners and
the social services involved in preparation for release, inequality between prisoners
serving similar sentences for similar offences, uncertainties in assessing risks of
possible future behaviour. However, the possibilities for µLQGLYLGXDOLVDWLRQ¶ RU
µSHUVRQDOLVDWLRQ¶ RI the decision-making were deemed more important than those
disadvantages, both in order to cover individual risks as to allow an earlier release in
individual cases than an automatic system would permit (Snacken, 2004: 64-65).
Conditional release may be revoked by the Sentence Implementation Court, upon
request by the public prosecutor, when the person concerned is sentenced for a new
offence, when (s)he seriously jeopardizes the physical or psychic integrity of others,
in case of failure to comply with the imposed conditions, or when (s)he does not
UHVSRQGWRDSSRLQWPHQWVZLWKWKHµMXVWLFHDVVLVWDQW¶RUGRHVQRWLQIRUPKLPRUher of
any change of address. In all these cases, however, the court may also decide to make
the previously imposed conditions stricter instead of revoking the release on parole.
Except for information about sentences for a new offence or police reports, all other
indicators for recall will usually involve reporting by the justice assistant involved in
the supervision, thus making them an important actor in recall procedures.
The recall process in practice
In order to understand recall in Belgium, it is important to place the current
developments in their context. We begin by providing some statistics on conditional
release and recall in Belgium. We then describe the National Standards for offender
supervision of the Houses of Justice and their implications for the use of professional
discretion of justice assistants, and end by discussing the resulting tensions between
justice assistants and Sentence Implementation Courts, including in matters of recall.

22
S
o
m
e statistics on conditional release and recall in Belgiu
m
While the number of long term prisoners steadily increased in Belgium, the number of
persons released under FRQGLWLRQDO UHOHDVH GHFOLQHG XQGHU WKH ³SDUROH FRPPLVVLRQV´
from 892 prisoners in 1997 to 678 in 2000 and 598 in 2006. The admission rate before
WKH ³SDUROH FRPPLVVLRQV´ HTXDOO\ ZHQW GRZQ IURP  RI WKH FDVHV LQ  WR
59.7% in 2004 (Snacken et al, 2004: 89-90; Maes, 2010). As a result, conditional
release occurred increasingly late compared to the date of eligibility (Rihoux, 2000;
Tubex and Strypstein, 2003/2005). The period that exceeds the eligibility date
increased from four to five months in 1990 to about eight months in 1999 (Rihoux,
2000). In 2007, the first year decisions were taken by the Sentence Implementation
Courts, prisoners serving a sentence of more than three years served on average 14.5
months more than they should serve following the law (Deltenre, 2008: 50; Maes,
2009b). As a result, figures for 2003-2007 show that on average, prisoners were
released conditionally after serving 62% of their terms, while they were eligible for
parole after 45.7% of their sentence (Deltenre, 2008: 52, table 15). The conditional
release figures went slightly up again after the introduction of the Sentence
Implementation Courts (2007: 753, 2008: 742, 2009: 711; Justitie in cijfers, 2010:
60), but stay below the 1997 level (892).
This decrease is also clear from the figures concerning persons supervised under a
conditional release order by the Houses of Justice, which declined over the period
2000-2010 from 795 new cases in 2000 to 695 new cases in 2010, contrary to other
forms of offender supervision which have steadily increased since 1999. In the area of
offender supervision WKHKLJKHVWWRWDOV LQFDQEHIRXQGIRUµDXWRQRPRXVZRUN
SHQDOW\¶QHZFDVHVSUREDWLRQRUGHUVQHZFDVHVSURYLVLRQDOUHOHDVH
(4,439 new cases), and electronic monitoring (3,482 new cases). At the end of last
year, the total charge of conditional release orders was 2162 cases, which represents
only 3% of the total caseload of offender supervision (Devos, 2011).
No detailed official information is currently available on recall data under the
Sentence Implementation Courts. +RZHYHU HDUOLHU UHVHDUFK RQ WKH ³SDUROH
FRPPLVVLRQV´ VKRZHG D VWHDG\ LQFUHDVH LQ FDVHV EHLQJ UHIHUUHG EDFN WR WKH
commissions for a new decision, hence increasing the risk of recall. In 2001, recall
occurred in 46.3% of these cases in the Flemish commissions and in 64.2% of the
cases in the French commissions (Maes, 2003: 415, table 10, 420, table 14).
As table 1 shows, official figures of the Houses of Justice reveal that in 2010 57,6%
of conditional release orders were successfully completed while 42,4% were in breach
of their release conditions.
Table 1: Reasons for ending conditional release (1 January - 31 December 2010)
Reasons for ending conditional release
Conditional release order not feasible or
not continued
9
Order completed
388
Breach of the order
302
Deceased offender
14
Total
713
Source: Activiteitenrapport Directoraat-Generaal Justitiehuizen 2010 (2011: 256)

23
A little more detail was provided by Ms. A. Devos, the director general of the Houses
of Justice, in a recent newspaper article. She explained that of the 42,4% of the
offenders who were given a conditional release order and who were breached last
year, 86% had been referred back to the Sentence Implementation Courts for violating
one or more conditions of release compared to 5,5% who were breached for
committing a new offence (Devos, 2011). This illustrates the importance of technical
violations under conditional release orders. These figures are in line with figures of,
for instance, England and Wales were the most common reason for recall was also
breaching conditions while less than 6% were recalled for committing a further
offence (Padfield & Maruna, 2006).
National
S
tandards on offender supervision of the Houses of Justice
The National Standards of the Houses of Justice on offender supervision offer
guidance to justice assistants, who are in charge of supervising offenders, including
on the recall process
5
. They cover all aspects of ensuring offender compliance during
a conditional release order and of the breach process. This involves setting guidelines
with respect to: induction, initial and follow-up appointments, following up non-
attendance, warning letters, recording practices, a detailed breach section, and a
section on completion of the order. The Standards require the justice assistant to
VXSHUYLVHWKHRIIHQGHU¶VFRPSOLDQFHZLWKWKHUHTXLUHPHQWVRIWKHFRQGLWLRQDOUHOHDVH
order, and to provide the offender with advice, guidance and assistance in order to
help the offender to comply with his/her conditions.
It could be argued that because of the increasingly detailed procedural guidelines, the
areas of discretionary decision-making by practitioners are much more circumscribed
than they used to be. However, the Standards are essentially procedural documents,
aimed at raising
m
ini
m
u
m
guidelines
of practice. They do not, in themselves, provide
detailed guidance on the methods and approaches that might be adopted in offender
supervision. Furthermore, official Belgian policy documents explicitly refer to the
necessary use of professional discretion, as standards and guidelines do not always
provide ready or instant solutions to the dilemmas practitioners face on a daily basis.
Professional discretion of the justice assistant
One of the tasks of a justice assistant is to supervise compliance with the requirements
of the sentence or release modality given to the offender. In approaching the task of
enforcement, which includes the initiation of breach proceedings, justice assistants
should use their professional judgement to decide on the seriousness of non-
compliance in any particular case
6
. 7KH6WDQGDUGVLQGLFDWHWKDWµWKHMXVWLFHDVVLVWDQW
should make his/her judgement by placing the difficulties of compliance in the
RIIHQGHUV VRFLDO DQG SHUVRQDO FRQWH[W¶
7
. Exceptions are made for convictions for a
further offence, which automatically lead to breach proceedings. There is hence room
for the exercise of professional discretion in the case of failure to comply with one or
more requirements. However, any failure to comply with a requirement in the order
must be followed up, and wherever possible, the offender should be questioned about
5
Reference: National Standards, section 2.1, edition 2.2, 1 June 2007 for conditional release orders.
These National Standards are currently only accessible for employees of the Houses of Justice through
their secured Intranet. The National Standards for probation and conditional release orders were
provided to one of the authors, A. Bauwens, in a printed version.
6
Reference: National Standards, section 2.1.12, edition 2.2, 1 June 2007 for conditional release orders.
7
Ibid.