Saturday, 20 June 2009

The White Paper on Restorative Justice

A major development in penal justice


On February 20, 2009, the Ministry for Justice & Home Affairs published a long-awaited White Paper (WP) on restorative justice. The document probably announces one of the major developments in penal justice since the reforms made in 1994/95. This development has been long in coming. However, it will almost certainly start to give us a new perspective in crime and punishment.

The WP deals with a number of inter-related themes. First, it provides for the introduction of the parole system to Malta. It also proposes some touches to the current remission system used within the prisons. It gives indications how the prison’s educational system may be improved. It seeks to enhance the standing of victims of crime within part of the penal process. It recommends a change of procedure with presidential petitions made by prisoners. It additionally suggests some alternations in a few sentencing practices.

As regards parole, which is the main issue of the WP, the document proposes that this mechanism would become accessible to a prisoner if he or she opts for it at the beginning of his or her sentence. When a prisoner’s eligibility for parole would be drawing near, a newly-established Parole Board would first examine the prisoner’s dossier prepared by a board within the probation office. Then, it would analyse the prisoner’s track record in custody, and weigh up his or her risk factor. Finally, the board will decide whether to grant parole. It this is done, it will be subject to number of conditions. If not, the board will defer the decision for a later date.

Parole is a community sentence. It rests on pronounced psychological foundations. What this means is that its success relies on the great value that every person gives to his or her freedom. Thus each person presumably endeavours to retain his or her freedom as much as possible. To society’s benefit, it is scientifically proved that this inhibits recidivism.

With regard to the published WP, on the whole it can be said that it makes satisfactory reading. Of course, it is not a Bill and much less an Act. It still remains to be seen what the final legal instrument that will be put before parliament will look like. This may contain significant variations. However, as things stand at the moment it seems that the general thrust is a reasonable one. This does not mean that all is well. Some matters beg the question.

In the first place one may note the very procedure used in drawing up the WP itself. One would expect that, in a truly democratic society, the process with which such a document is prepared should adhere to such democratic values as participation and partaking. But actually the whole process was kept warily concealed. Speaking for ourselves, Mid-Dlam għad-Dawl had been proficiently lobbying for the introduction of the parole system to Malta at least for the last five years, also involving both sides of parliament. It stands to reason that a modicum of involvement should have been warranted. In fact, more than this had been vouched last May by the Minister responsible for the WP. And yet, nothing ensued.

As regards the WP itself, perhaps its main flaw is why foreign prisoners were written off from the possibility of being granted parole. The WP mentions foreign prisoners just once. It is a reference that probably involves a logical fallacy, for it presents a statement devoid of evidence other than the statement itself. In fact, in #2.9 the WP simply states that “parole should not be applicable [...] to foreign nationals who are to be deported at the end of their sentence”. That’s all. Practically speaking, all foreign prisoners generally have a removal order incorporated in their sentence, and these include EU citizens, citizens of EU applicant countries and citizens within the Schengen zone. The WP does not substantiate such a sweeping exclusion. Besides, this proscription implicitly excludes from the process victims of foreign felons. Moreover, it most probably violates Article 14 of the European Convention Act, which declares that no discrimination is legally permissible on the ground of national status.

Another contentious issue may be that of eligibility. The WP cannily fails to state in any explicit way how much time into their sentence prisoners have to go before becoming eligible for parole. The WP (#2.6) merely hints that this may be half, two-thirds or even three-fourths. This tactic of using implication rather than coming clean is not an intelligent one. Neither is it kind. For by leaving its essential point in suspense, the WP has plunged into a state of bewilderment the prison’s administration, victims of crime, prisoners’ families, NGOs, and the prisoners themselves. The reason being that, in terms of eligibility and possible release, nobody can make any relevant calculation or plans at least until the final Bill is published many months from now.

Having said this, it must be plain as a pikestaff that placing eligibility at three-fourths, two-thirds or even at half a sentence-term makes the parole exercise futile. A prisoner would evidently opt for the remission system. And this would once more bring us to square one. As criminal justice experts understand it, the essence of parole consists in the significant shift in liability emphasis that it brings about. It makes a prisoner or ex-prisoner responsible for his or her own freedom. Remission does not do this. This is perhaps why remission, unlike parole, fosters relapsing.

One final point pertinent to our discussion here is that concerning prisoners with a life sentence. The WP states that, “in exceptional circumstances, [...] an application [for parole by a lifer] may be considered after a petition to the President of the Republic” (#2.9; see also #2.6). The WP does not state what these “exceptional circumstances” could be, and neither how computation for eligibility would be made once eligibility is secured.

Though, as I said, the WP basically moves in the right direction, it does not seem to put all the cards on the table. One might suspect that the ones who have been part of its designing process (and will perhaps be also drafting the final Bill) probably already formed an opinion―if not even a decision―on certain sensitive issues that in the WP appear to be left up for discussion. This is unfair.

Prudence is a virtue, but feigning is certainly not.

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