Reducing Discretion in the Administration of Prison Leave: In Search of Legitimacy

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.

The Eye of a Needle: Temporary Prison Leave in Ukraine

“…For example, drawing on the study in a large men's prison in Greece, Cheliotis (2005) reports an average 6.06% failure to return to prison 6 amongst almost a thousand prisoners released annually on a temporary leave in 2000-2001. Other studies also report a low level of breaches: less than 5% in Finland; 0.04% of failures to return in Spain; and 2.1% and 4.7% of revocation of education-related and work-related temporary leave respectively in the Canadian province of Ontario (Fox 1971;Larrauri 2019;Moran and Keinänen 2012).…”

“…Thus, as prisoners start demonstrating signs of being 'rehabilitated' ('corrected'), they receive more incentives and rights, ultimately progressing towards release (Barry 1958). In fact, in some countries, temporary leave constitutes testing of prisoner readiness for parole (Larrauri 2019;Toch 1967). Temporary leave also serves to humanise sentences and offset the adverse effects of incarceration, not least what Goffman (1961) terms mortification, i.e.…”

“…Amongst the most common grounds for temporary release from custody are family visits, work, education, medical, including substance abuse, treatment, as well as arrangement of housing, employment, and other matters important for ultimate release (Cheliotis 2009;Shichor and Allen 1978;Toch 1967;Turner and Petersilia 1996). The power to grant temporary leave depends on the jurisdiction and is usually vested in prison authorities or judges (Cheliotis 2009;Larrauri 2019). Whereas in some countries, temporary leave constitutes a logical step in sentence progression and thus operates in a semi-automatic fashion once the required conditions are satisfied, in others, it involves concerted decision-making and (inevitably flawed) risk assessment (see Shammas 2014; Turner 2011).…”

“…1 To break with its Gulag past, and in order to receive financial, technical, and political support from the 'West', Ukraine has acceded to the Council of Europe and all major human rights instruments. It has abolished the death penalty, outlawed torture, recognised the case law of the European Court of Human Rights (ECtHR) as a part of its national legislation, and opened its custodial institutions to inspections by national and supranational human rights monitoring bodies (see Symkovych, 2018c). The country has liberalised its penal policies, decriminalising some offences, reducing sentences, or allowing non-custodial punishment for others, and expanding prisoner rights and entitlements.…”

“…Despite the major transformations in the post-Soviet countries following the collapse of the USSR, we know little about the interplay of penal policies and practices in this part of the world (although see Slade 2016;Symkovych 2018cSymkovych , 2018d. Through the analysis of the legal provisions regulating temporary prison leave and official statistics in Ukraine, my objective is to highlight the apparent disjuncture between the official policies and practice.…”