Reducing Discretion in the Administration of Prison Leave: In Search of Legitimacy
01 Jun 2020-European Journal on Criminal Policy and Research (Springer Netherlands)-Vol. 26, Iss: 2, pp 141-156
TL;DR: In this paper, the authors explain the criteria used in order to determine if a leave is granted, the wide discretion that psychologists in particular enjoy, and why this procedure might be experienced by the prisoner as unfair.
Abstract: This paper explains the institution of prison leave in Spain. Firstly, I will briefly describe the regulations governing prison leave and provide data on its use in Spain. I will point out that although half the prison population benefits from a prison leave, a main problem is that it is granted at a very late stage of the sentence, and that immigrants have a very low probability of obtaing it. Secondly, I will explain the criteria used in order to determine if a leave is granted, the wide discretion that psychologists in particular enjoy, and why this procedure might be experienced by the prisoner as unfair. Thirdly, I will describe the mixed system that allows both Prison Boards and Judges to make decisions about leave and how this often produces confusing results for prisoners. For instance, a positive prison report being followed by a negative judicial response due to the wide discretion that judicial authorities also enjoy. Finally, I draw some tentative conclusions about how a lack of clear criteria and procedure in relation to prison leave might also affect legitimacy in prison.
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TL;DR: A traves de una investigación cualitativa that combina analisis de expedientes judiciales and de entrevistas, the authors analyzes the influencia of los informes expertos sobre las decisiones judicial.
Abstract: Resumen A traves de una investigacion cualitativa que combina analisis de expedientes judiciales y de entrevistas, este articulo analiza la influencia de los informes expertos sobre las decisiones judiciales. Se estudia la receptividad de estas piezas discursivas en los Juzgados de Adolescentes de Montevideo, dando cuenta de la influencia de la descripcion de las biografias adolescentes como si las trayectorias de vida de los sujetos explicaran los motivos de la conducta trasgresora a la ley penal, prediciendo su futuro, en una suerte de pronostico contrafactico de riesgos, imposible de verificacion empirica, inextricablemente asociado a la concepcion de peligrosidad.
8 citations
Cites background from "Reducing Discretion in the Administ..."
...En su análisis de las cárceles españolas, Elena Larrauri (2019) describe la psicologización del proceso de reeducación mediante una concepción teórico-metodológica cognitivo conductual sustentada en premios y castigos por actitudes y conductas en contextos de encierro que parecerían estar señalando un poder similar al de los informes técnicos sobre la justicia penal juvenil uruguaya....
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...Larrauri, Elena....
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...En su análisis de las cárceles españolas, Elena Larrauri (2019) describe la psicologización del proceso de reeducación mediante una concepción teórico-metodológica cognitivo conductual sustentada en premios y castigos por actitudes y conductas en contextos de encierro que parecerían estar señalando…...
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TL;DR: In this article, the authors argue that for Ukraine to reconcile the official rhetoric of rehabilitation and social reintegration of offenders and actual implementation of penal policies, the country must reverse the underlying requirements governing temporary prison leave and expand its use.
Abstract: Although temporary prison leave humanises custodial punishment, offsets its negative effects, and prepares prisoners for (re)integration into wider society, its use proves to be controversial and uneven across jurisdictions. Since the collapse of the USSR, the former Soviet countries have been pursuing different criminal justice policies, liberalising some penal practices whilst retaining many punitive Soviet legacies. Through analysis of the legal provisions regulating temporary prison leave and official statistics in Ukraine, I demonstrate the apparent strain between the official policies and practice. Whilst legally available, temporary leave for prisoners in closed prisons is almost never granted in this Eastern European country. I argue that for Ukraine to reconcile the official rhetoric of rehabilitation and social reintegration of offenders and actual implementation of penal policies, the country must reverse the underlying requirements governing temporary prison leave and expand its use.
7 citations
TL;DR: In this paper, the authors draw upon a number of previous research studies conducted by the author on the following topics: the legal theorisation of a sentence's implementation (Author 1994, 2017a); a quantitative-qualitative study of JAPs' practices, hearings and rulings (Author 2014); and a mixed method study of a so-called swift release procedure.
Abstract: In France, prison leave (permission) is awarded to prisoners by a reentry judge (juge de l’application des peines, JAP) as part of a multi-agency commission, a process that takes place in prison and comprises the governor, prison and probation officers, and the prosecutor. Numerous rules govern this measure. This paper draws upon a number of previous research studies conducted by the author on the following topics: the legal theorisation of a sentence’s implementation (Author 1994 , 2017a); a quantitative-qualitative study of JAPs’ practices, hearings and rulings (Author 2014); and a mixed method study of a so-called swift release procedure (Author 2017b). Consequently, two series of issues are identified: The first issue pertains to the lack of due process principles governing the decision-making process. Prisoners who apply for permissions have no ‘voice’, according to Tyler’s (2012) definition of the term. The second issue is connected to the very rationale behind permissions. Before an Act of 26 March 2019, permissions were primarily concerned with ensuring that prisoners’ reentry process was prepared, that prisoners could complete the steps required to prepare for their release and that they could maintain contact with their loved ones and support systems. They also represented a form of test, used by JAPs to ensure that prisoners could be trusted in the outside world. In other words, they were focused on resettlement and rehabilitation. However, the 2019 Act transferred most of the decision-making process to prison governors. There is now a fear that because their main interest is on maintaining order, permission allocation will shift from an emphasis on reentry-rehabilitation to behavioural criteria and the local situation regarding overcrowding.
5 citations
DOI•
30 Jun 2020
TL;DR: In this article, the authors konzentrieren wir uns auf Fragen, die sich im Zusammenhang with einer Analyse des Hafturlaubs in acht Landern Europas ergeben haben.
Abstract: In diesem Artikel gehen wir naher auf den Hafturlaub ein, eine Lockerungsmasnahme, die die Wissenschaft grostenteils vernachlassigt. Uber den Hafturlaub in Europa (und anderswo) ist sehr wenig bekannt. In diesem Artikel konzentrieren wir uns auf Fragen, die sich im Zusammenhang mit einer Analyse des Hafturlaubs in acht Landern Europas ergeben haben. Wissenschaftler*innen aus Belgien, Danemark, Finnland, Frankreich, Italien, Rumanien, Spanien und der Ukraine legten uns detaillierte Berichte uber den Hafturlaub in ihrem jeweiligen Land vor. In diesem Beitrag greifen wir auf dieses Wissen zuruck, um allgemeine Fragen zu den Zwecken und Funktionen des Hafturlaubs, den Kriterien fur dessen Gewahrung, der Befugnis fur seine Gewahrung, dem Zusammenhang zwischen Hafturlaub und Gefangnisleben und dem Zusammenhang zwischen Hafturlaub und Ruckfallen aufzuwerfen. Wir schliesen diesen Artikel, indem wir die Aufmerksamkeit auf eine zugrunde liegende Spannung lenken: Ist Hafturlaub ein Privileg oder ein Recht? Daruber hinaus schlagen wir zusatzliche Fragen vor und hoffen, andere Wissenschaftler zur Analyse des Hafturlaubs in ihren jeweiligen Landern zu motivieren.
5 citations
Journal Article•
4 citations
Cites background from "Reducing Discretion in the Administ..."
...Despite its postulated importance in offender rehabilitation (‘correction’), in practice, and often in law, temporary leave usually constitutes an incentive that must be earned—with the attendant moral, behavioural, and managerial consequences (see Cheliotis 2014; Larrauri 2019)....
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...work-related temporary leave respectively in the Canadian province of Ontario (Fox 1971; Larrauri 2019; Moran and Keinänen 2012)....
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...The threshold at considering non-return as a breach of licence seemed to be around 24–48 h after the scheduled time. work-related temporary leave respectively in the Canadian province of Ontario (Fox 1971; Larrauri 2019; Moran and Keinänen 2012)....
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...…criteria of the factors that may result in denial of temporary leave must be codified and explained to prisoners and relatives because the vague policy on temporary leave may contribute to the already problematic situation with legitimacy in Ukraine (see Larrauri 2019; Symkovych 2018a; Toch 1967)....
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...The nature of offence may disqualify some prisoners, whilst others usually must serve a minimum tariff before qualifying or there is a maximum annual cap on the number of periods of leave (Larrauri 2019; Moran and Keinänen 2012; Shichor and Allen 1978; Toch 1967; van Zyl Smit 1988; cf. Fox 1971)....
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References
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Book•
01 Jan 1990TL;DR: This paper found that people obey the law if they believe it's legitimate, not because they fear punishment, which is the conclusion of Tom Tyler's classic study, "People obey law primarily because they believe in respecting legitimate authority".
Abstract: People obey the law if they believe it's legitimate, not because they fear punishment--this is the startling conclusion of Tom Tyler's classic study. Tyler suggests that lawmakers and law enforcers would do much better to make legal systems worthy of respect than to try to instill fear of punishment. He finds that people obey law primarily because they believe in respecting legitimate authority. In his fascinating new afterword, Tyler brings his book up to date by reporting on new research into the relative importance of legal legitimacy and deterrence, and reflects on changes in his own thinking since his book was first published.
3,783 citations
"Reducing Discretion in the Administ..." refers background in this paper
...Legitimacy has been studied in relation to courts and police (Tyler 1990)....
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...…where order is not only achieved through force, incentives, and dull compulsion (Carrabine 2005) but also through normative reasons (Sparks and Bottoms, 2008).33 According to Tyler (1990), legitimacy is enhanced when people feel treated in a ‘procedurally just manner’ (Beijesbergen et al. 2015)....
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TL;DR: This review analyzes research and theory pertaining to the psychology of injustice, using as its organizing theme the role that the perception of disrespect plays in the experience of injustice.
Abstract: This review analyzes research and theory pertaining to the psychology of injustice, using as its organizing theme the role that the perception of disrespect plays in the experience of injustice. The analysis focuses primarily on the links between disrespect and anger, disrespect and injustice, and anger and injustice. Determinants of the intensity of people's reactions to injustices are also reviewed. In addition, the review examines the goals of retaliation as well as the forms that retaliation can take. Parallels between justice reactions to those acts of disrespect directed toward the self and those directed toward others are noted. Finally, the review discusses the implications of justice research for understanding the specific and general entitlements that people believe are their due.
713 citations
Book•
07 Dec 2000
TL;DR: Punishment, Communication, and Community as discussed by the authors is an original account of criminal punishment as a mode of moral communication aimed at inducing repentance, reform, and reconciliation through reparation, an account that undercuts the traditional controversies between consequentialist and retributivist penal theories.
Abstract: The question "What can justify criminal punishment ?" becomes especially insistent at times, like our own, of penal crisis, when serious doubts are raised not only about the justice or efficacy of particular modes of punishment, but about the very legitimacy of the whole penal system. Recent theorizing about punishment offers a variety of answers to that question-answers that try to make plausible sense of the idea that punishment is justified as being deserved for past crimes; answers that try to identify some beneficial consequences in terms of which punishment might be justified; as well as abolitionist answers telling us that we should seek to abolish, rather than to justify, criminal punishment. This book begins with a critical survey of recent trends in penal theory, but goes on to develop an original account (based on Duff's earlier Trials and Punishments) of criminal punishment as a mode of moral communication, aimed at inducing repentance, reform, and reconciliation through reparation-an account that undercuts the traditional controversies between consequentialist and retributivist penal theories, and that shows how abolitionist concerns can properly be met by a system of communicative punishments. In developing this account, Duff articulates the "liberal communitarian" conception of political society (and of the role of the criminal law) on which it depends; he discusses the meaning and role of different modes of punishment, showing how they can constitute appropriate modes of moral communication between political community and its citizens; and he identifies the essential preconditions for the justice of punishment as thus conceived-preconditions whose non-satisfaction makes our own system of criminal punishment morally problematic. Punishment, Communication, and Community offers no easy answers, but provides a rich and ambitious ideal of what criminal punishment could be-an ideal of what criminal punishment cold be-and ideal that challenges existing penal theories as well as our existing penal theories as well as our existing penal practices.
600 citations
TL;DR: Neutralization theory, though a popular framework for understanding deviant behavior, remains badly underdeveloped as mentioned in this paper, and few attempts have been made to connect it to narrative and sociocognitive research in psychology and related fields.
Abstract: Neutralization theory, though a popular framework for understanding deviant behavior, remains badly underdeveloped. Few attempts have been made to connect it to narrative and sociocognitive research in psychology and related fields. From this wider perspective, one reason neutralization theory has received only mixed empirical support is that it has been understood as a theory of criminal etiology. This makes little sense (how can one neutralize something before they have done it?) and makes the theory difficult to test. Neutralization should instead be seen as playing a role in persistence in or desistance from criminal behavior. The theory's central premises need to be substantially complicated. The notions that all excuses or justifications are "bad" and that reform involves "accepting complete responsibility" for one's actions are not tenable.
587 citations
Book•
05 Aug 2004
TL;DR: In this article, the authors discuss the role of the late modern Prison and the Question of Values in the development of modern modern prisons and their performance in terms of security, order, safety, well-being, personal development, family contact and decency.
Abstract: PART 1: INTRODUCTION: PENAL VALUES AND PRISON EVALUATION 1. The Late Modern Prison and The Question of Values 2. The Measurement and Evaluation of Prison Regimes 3. Identifying 'What Matters' in Prison 4. Particular Prisons and Their Qualities PART 2: THE MEANING AND MEASUREMENT OF KEY DIMENSIONS OF PRISON LIFE 5. Relationship Dimensions: Respect, Humanity, Trust, Relationships, and Support 6. Regime Dimensions: Fairness, Order, Safety, Well-Being, Personal Development, Family Contact, and Decency 7. Social Structure and Other Dimensions: Power, Prisoner Social Life, Meaning, and Quality of Life PART 3: PENAL VALUES AND PRISON MANAGEMENT 8. Managing Modern Prisons and their Performance 9. Security, Harmony, and 'What Matters' in Prison Life 10. Legitimacy, Decency, and the Moral Performance of Prisons
532 citations