Ian O'Donnell says the Macarthur case highlights the problem of who should make the decision.
There are 184 men and five women serving life sentences in Irish prisons.
Without exception they have been convicted of heinous crimes, usually murder. In due course all will have their cases considered by the Parole Board. Some will be released; others will remain in custody, perhaps in less restrictive conditions. In every case a balance will have to be struck between punishment, rehabilitation, and public protection.
There is understandable anxiety about the consequences of releasing murderers. This has been brought to a head by the news that, even after 22 years, Malcolm Macarthur's incarceration will continue. This raises important questions about how to determine when a person has been punished enough and where the responsibility for this decision should reside. Should it be with the trial judge, an elected representative, or an independent tribunal? To some extent what is at stake here is who can afford to get it wrong.
The early release of life sentence prisoners is about the management, rather than the elimination, of risk. In any system that holds out the prospect of discretionary release, mistakes will inevitably be made.
Politicians are most vulnerable to public sentiment and the aftershock of a bad decision. For these reasons they are most likely to be risk-averse. However they continue to play the decisive role.
After seven years a life sentence prisoner is eligible to have his situation reviewed. Members of the Parole Board visit the prison and interview the prisoner. These meetings are conducted in an informal manner, without legal representation. The prisoner is given an opportunity to state his position, describe his plans for the future, and raise any particular concerns.
Every case is considered on its merits but the following factors are generally taken into account:
- Seriousness of offence and previous convictions.
- Conduct during time in custody.
- Potential threat to the public should release be allowed.
- Degree of engagement with therapeutic services.
The board then makes a recommendation to the Minister for Justice, Equality and Law Reform about the "administration" of the sentence. This might be to transfer the individual to an open prison; to initiate a programme of short-term release, leading in due course to full release; or to participate in a course of education, training or therapy.
In all cases the board's role is purely advisory. The final say is with the Minister. Release is always conditional and subject to supervision on licence, without limit of time. There may be a requirement to report regularly at a Garda station or to live at a specified address. If a released lifer is thought to pose a risk they can be arrested and taken back into custody without the need to initiate fresh proceedings. This is a powerful incentive for them to remain law-abiding.
It is not clear whether this process enjoys the confidence of prisoners and the lack of certainty about the timing of eventual release militates against effective sentence planning.
The Parole Board published its first annual report in 2003. This showed that of 79 recommendations made to the Minister the previous year, 74 were accepted in full and three in part. One was not accepted and another was referred back to the board for further consideration.
It is difficult to know what to make of these figures without more detailed information about the nature of the recommendations made. A cautious board, which recommends little change, is likely to meet with a high degree of "success".
One thing that seems clear is that the custodial element of a life sentence has increased substantially.
A survey found that the average length of time served prior to release on licence was 13 years in the late 1990s compared with less than eight years in the late 1970s. This is likely to rise further.
The Minister for Justice, Equality and Law Reform and the chairman of the Parole Board have each made it clear that even in the absence of aggravating factors, killers will serve a term of at least 12 to 14 years before conditional release is considered.
This is setting the threshold high and has the unfortunate consequence of exacerbating a situation where prison terms that would have been unconscionable a generation ago are becoming the norm.
Like any kind of decision-making the parole process is fallible.
Assessing future dangerousness is notoriously difficult. There is always a chance that someone will be kept in custody too long or released too early. A system of parole can also introduce a measure of unfairness in that individuals who receive identical sentences end up serving different periods in captivity.
It is debatable whether the interests of justice are best served by allowing politicians to remain so centrally involved in determining the release dates for long-term prisoners.
In England the Home Secretary's power to deny lifers their liberty has been the subject of a series of successful legal challenges both domestically and in Europe. The determinations of trial judges and the Parole Board have become more significant as a result.
Rather than waiting for prisoners to test the legal limits of our current arrangements it would be preferable to address without delay the underlying question about how to weigh the harm of pointless detention against the benefit of crime prevention and the need for adequate retribution.
Dr Ian O'Donnell is deputy director, Institute of Criminology, Law Faculty, UCD.