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TO COMMIT IS JUST THE BEGINNING: APPLYING THERAPEUTIC JURISPRUDENCE TO REFORM PAROLE IN AUSTRALIA
MAX HENSHAW,[1]* LORANA BARTELS[1]** AND ANTHONY HOPKINS[1]***
Recidivism represents the failure of the criminal justice system to adequately respond to cycles of crime and dysfunction. With increasing reoffending rates, Australia is demonstrably failing to reduce recidivism and facilitate desistance from crime. Therapeutic jurisprudence (‘TJ’) seeks to understand how law and legal process operate therapeutically. This article considers TJ insights and principles to examine the extent to which Australian parole laws and processes promote desistance. We argue that applying a TJ analysis provides a valuable perspective to understanding how these laws can operate to break the cycle of recidivism in Australia. We then examine the Compliance Management or Incarceration in the Territory (‘COMMIT’) program recently implemented in the Northern Territory, drawing on legislative and policy frameworks and comments from key stakeholders. We find that COMMIT appears to be a promising, TJ-informed, reform, which may represent a shift towards a more therapeutic, and effective, approach to parole compliance.
‘Parole is a form of conditional release of offenders sentenced to a term of imprisonment, which allows an offender to serve the whole or part of their sentence in the community, subject to conditions’.[1] Entering the conversation surrounding parole, recidivism and desistance is a complex exercise, as these matters are intrinsically tied to other sensitive considerations such as public safety, retribution and rehabilitation. Publicly,[2] these discussions stir reference to horrific incidents, such as the death of Jill Meagher, who was raped and murdered by parolee Adrian Bayley in Melbourne in September 2012[3] and, more recently, the killing of a Melbourne man by parolee Yacqub Khayre in June 2017.[4] These cases illustrate the high stakes involved in discussing and successfully managing those on parole.
Australia’s prison population has rapidly increased in recent decades. In the June 2019 quarter, there were 43,306 people in full-time custody in Australia,[5] while the imprisonment rate rose from 66 per 100,000 in 1985 to 219.6 in June 2019.[6] There were 17,744 people on parole in Australia in June 2019, the highest number on record.[7] Meanwhile, according to the most recent Productivity Commission Report on Government Services, in 2017–18, the proportion of adults released from prison who returned to prison with a new sentence within two years was 45.6%,[8] compared with 40.3% in 2012–13.[9]
While the reasons for these developments are far from simple, research indicates that current approaches to prisoner re-entry are not effective.[10] In recent years, there has been a tendency across Australia to reduce access to parole and/or increase and tighten conditions of parole,[11] part of a broader ‘tough on crime’ campaign,[12] which generally has done little to resolve – or even seek to resolve – the underlying causes of offending.[13] This approach was arguably entrenched as the norm following the review of the Victorian parole system conducted by former High Court Justice Ian Callinan AC QC, which was initiated following the aforementioned murder of Jill Meagher. Not surprisingly, the primary thrust of this report and, to a lesser extent, others of its kind,[14] was to advocate for public safety, risk aversion and the rights of victims. Yet, with release into the community inevitable for most offenders, finding a way to promote desistance and reduce recidivism through an effective parole compliance regime is essential.
This article considers the insights therapeutic jurisprudence (‘TJ’) can offer in reshaping laws and legal processes relating to parole compliance. TJ is an approach to the law that explicitly considers the therapeutic and anti-therapeutic impact of legal structures and legal actors on the wellbeing of individuals.[15] From this analytical grounding, TJ promotes law reform that supports therapeutic and solution-focused outcomes.[16] Adopting the TJ approach, this article offers two primary arguments. First, that applying a TJ analysis to parole offers a valuable perspective to understanding how parole laws can operate to break the cycle of recidivism in Australia. Second, that the Compliance Management or Incarceration in the Territory (‘COMMIT’) program recently implemented in the Northern Territory (‘NT’ or ‘Territory’) is an imperfect, but promising, TJ-oriented reform, which may represent a shift towards a more therapeutic approach to parole management. These two claims will be pursued as follows. Part II considers parole compliance generally and its relationship with desistance and recidivism. Next, Part III provides a more detailed explanation of TJ and canvasses two associated principles that are particularly relevant to this discussion, namely, procedural justice and the effective integration of support services. Part IV examines COMMIT and evaluates its alignment with these core TJ principles, drawing on the legislative framework, policy documents and comments from key stakeholders, including legal practitioners and members of the NT Parole Board (‘NTPB’). As an exemplar of these principles, comparison is made in this analysis to the program on which COMMIT is significantly based, Hawaii’s Opportunity Probation with Enforcement (‘HOPE’).[17] The article concludes by arguing that COMMIT should represent merely the beginning of a shift towards TJ-informed reform of parole laws in Australia.
Before outlining the key arguments, it is first necessary to clarify the definitions and relationships between, parole compliance, recidivism and desistance in Australia. Parole conditions in Australia generally include requirements such as:
• being of good behaviour;
• not committing any offence;
• reporting to the supervising officer;
• residing at a particular address;
• entering approved employment or training;
• refraining from drug use;
• avoiding certain people and locations; and
• complying with curfew times.[18]
Non-compliance with these conditions can trigger consequences ranging from warnings to parole suspension and cancellation, causing a return to custody.
The New South Wales (‘NSW’) Law Reform Commission recently stated that ‘the key objective of parole is to reduce reoffending by providing for an offender’s supervised reintegration into the community’.[19] This principle is evident in some,[20] but not all,[21] of Australia’s relevant legislation, though the weight placed on reintegration appears to have been somewhat eroded. In the United States (‘US’), Feeley and Simon observed that a ‘new penology’ emerged in the 1970s and 1980s, which saw an increased use of imprisonment and a reliance on custody to manage large numbers of dangerous persons.[22] Problematically, this approach is less concerned with addressing the social problems contributing to deviance than simply classifying and regulating it,[23] and is focused on managing ‘risky’ individuals, rather than reforming them. As Freiberg et al have highlighted,[24] Australia has also experienced this shift, becoming dominated by the kind of managerialism and ‘penalism’ described by Feeley and Simon.
As noted above, the Australian prison population is steadily increasing and 45.6% of adults released from prison will return there on a new sentence within two years.[25] This means a rising number of offenders are being released from, and returning to, prison. It also means that more people will inevitably be exposed to the parole process.[26] Meanwhile, $4.4 billion was spent nationally in 2017–18 on corrective services funding, a 7.8% increase from 2016–17.[27] These statistics highlight a system that is struggling to respond effectively to the challenges it is tasked with managing.
This assessment is supported by research from the NSW Bureau of Crime Statistics and Research (‘BOCSAR’) indicating that offenders who received a prison sentence were at least as likely to reoffend as comparable offenders who received a non-custodial penalty.[28] Notwithstanding this evidence on the poor performance of prison, BOCSAR also found that reoffending on parole is less common than previous studies had suggested.[29] Significantly, only 28.4% of offenders reoffended on parole, while 10.8% were reimprisoned without having reoffended.[30] The majority of offenders (61%) successfully completed their parole without reoffending or being reimprisoned.[31]
What these data do not illustrate, however, are the kinds of social issues that trigger reoffending and parole non-compliance. The failure of the criminal justice system to stem recidivism rates is intertwined with issues such as poverty, institutionalisation, and intergenerational contact with the justice system.[32] This situation serves to entrench an already deeply engrained criminal underclass[33] that is debilitated by severe economic and social marginalisation.[34] In the context of Indigenous peoples, this experience is often felt even more acutely, due to the traumas of exclusion, separation and abuse resulting from a history of colonisation and racially discriminatory policies.[35] Too often, recidivism is seen as a failing of the ‘individual’ offender,[36] rather than a ‘collective event’,[37] involving a complex ‘interplay between individual choices, and a range of social forces, institutional and societal practices which are beyond the control of the individual’.[38]
While there are a range of explanations and models for how and why desistance occurs,[39] it is generally conceived as a process ‘by which people cease and refrain from offending’.[40] This is an incredibly challenging process,[41] one where success rarely occurs without some failures along the way.[42] Accordingly, recidivism is best understood in a way that accounts for the desistance process, and engages with the challenges of that process, rather than as simply instances of reoffending. This brings the focus to compliance with parole conditions. Halsey, Armstrong and Wright have observed that reoffending and breaches of parole frequently take the form of ‘fuck it moments’.[43] They explained this as the phenomenon ‘where people subjected to criminal justice supervision reach a critical limit and simply decide, “fuck it”’.[44] Once considered in this context, such a response is unsurprising. When released, offenders are often financially vulnerable, lacking in job opportunities and subjected to unpredictable, often unstable, social support.[45] Matza observed that the impact of these bleak conditions creates a ‘mood of fatalism’,[46] reinforcing the notion that parolees are extremely and uniquely fragile.[47] Armstrong and Durnescu have noted that the inevitable feelings of ‘isolation, frustration and a lack of control’ that define this mood ‘can bolster the emotional attraction of offending through providing a momentary and fleeting sense of empowerment’.[48] Consequently, rather than being an emancipating mechanism, parole is often viewed as setting up offenders for failure.[49] Indeed, an aversion to such failure leads many offenders to decline the option of parole when the choice is offered,[50] a phenomenon that has received recent media comment in the Victorian context.[51] As Halsey remarked, ‘[i]t is an indictment on the parole system that someone should get to the stage where they actively choose incarceration over being in the general community’.[52]
In the current correctional climate, where pure compliance is preferred over therapeutic assistance,[53] conditional breaches are generally responded to strictly.[54] The individuals studied by Halsey, Armstrong and Wright were all trying to desist from crime. They all nonetheless reoffended or breached their parole conditions. Properly understood, such ‘fuck it moments’ arise due to a ‘lack of effective channels for resolving difficulties in the struggle to desist’.[55] To this end, desistance is best understood as a collaborative process,[56] one that requires good faith efforts from both offenders and the state. Arguably, parole non-compliance should be understood in terms of the extent to which criminal justice systems facilitate desistance. As will be demonstrated below, the TJ perspective provides critical insights for understanding the reality of ‘fuck it moments’ and thus enables more effective responses within a parole compliance regime.
A TJ perspective will be applied in the remaining sections of this article. First, we outline precisely what TJ is and why it is relevant to the present discussion. We also consider two core principles that are regularly associated with TJ, procedural justice and integration of support services, although we acknowledge that these principles are not exclusive to TJ.
TJ is a legal approach that directs attention to the impact of the law on wellbeing, particularly, though not isolated to, its psychological impact.[57] Unlike many other legal approaches, it embraces the tools of the behavioural sciences[58] and turns on the idea that law is a ‘social force’ that can produce either therapeutic or anti-therapeutic behaviours and consequences.[59] Wexler and Winick conceived TJ in the 1980s,[60] noting that the law had not profited from a ‘truly interdisciplinary cooperation and interchange ... [to] help shape the law, the legal system, and the behaviour of legal actors’.[61] TJ asks its audience to explicitly ‘look at law as it actually impacts people’s lives’.[62] Such an inquiry stems from the notion that the law is about people, their interactions with each other and the community more generally.[63] Few who are actively engaged in the administration of justice in Australia would likely disagree with the assertion of Victorian Magistrate Pauline Spencer that ‘the law sometimes does not meet the needs of people and, at times, may even cause further harm’.[64] TJ seeks to identify and respond to these needs and construes the law and legal process as a ‘therapeutic agent’,[65] with the capacity to promote wellbeing to varying degrees. It is through this process, consisting of both multidisciplinary academic inquiry and responsive practical action, which makes this jurisprudence an explicitly therapeutic endeavour.
TJ quickly proved popular in both legal and social science circles[66] and has since expanded to the point where TJ is now adopted worldwide,[67] with an ever-increasing range of initiatives attempting to bring TJ principles into practice across family, coronial, health, criminal and civil law areas.[68] The TJ approach can be adapted to a broad range of legal circumstances, notably taking a particularly significant role in mental health law[69] and specialty courts, such as drug courts.[70] It is also a mode of analysis in civil law matters (eg, education, guardianship, and much more).[71]
However, TJ has also received its fair share of criticism. For example, Christopher Slobogin identified what he termed five ‘conundrums confronting’ TJ, as follows:
Is therapeutic jurisprudence distinguishable from other jurisprudences that share its goal of using the law to improve the well-being of others (the identity dilemma)? Can the term therapeutic be defined in a meaningful way (the definitional dilemma)? Will the vagaries of empirical research, on which therapeutic jurisprudence heavily relies, doom its proposals (the dilemma of empirical indeterminacy)? How will a therapeutic jurisprudence proposal that benefits only a subgroup of those it affects be implemented (the rule of law dilemma)? When and how should a therapeutic jurisprudence proposal be balanced against countervailing constitutional and social policies (the balancing dilemma)?[72]
In a searing review of Wexler and Winick’s Essays in Therapeutic Jurisprudence,[73] Petrila[74] described TJ as paternalistic, while Oriel recently opined in The Australian that:
One gains the impression that many TJ advocates are engaged in a kind of virtuesignalling where the efficacy of courts is measured not by the faithful application of legislation and just punishment for crime but the degree to which criminals emote and judges manage their emotions.[75]
There have also been critiques of the appropriateness of TJ for Indigenous peoples. For example, Larsen and Milnes have sounded a ‘cautionary note’,[76] pointing to instances of culturally inappropriate practices, while Blagg,[77] echoing Petrila, has described TJ as paternalistic in this context. On the other hand, Toki has asserted that TJ has strong parallels with Indigenous culture.[78] These are clearly pertinent issues in the present context, given the high Indigenous population in the NT.
Critics of TJ have also decried its ‘offender orientation’,[79] to the perceived detriment to victims (including Indigenous women)[80] and the wider public. It would be dishonest to fail to recognise the offender-oriented ground that TJ has covered, with robust judicial supervision and integrated support services also falling into this category. However, to deride TJ as being applicable only to offenders ignores the literature directing TJ attention towards victims’ interests, including family and sexual violence victims.[81]
TJ proponents also regularly stress that therapeutic interests should not conflict with due process and other key justice principles. Indeed, TJ maintains that therapeutic advances are not designed to inappropriately or recklessly undermine these principles and does not assume that promoting wellbeing should be the law’s highest calling.[82] Rather than replacing fundamental values of the legal system, the implementation of TJ serves to add ‘another layer’,[83] namely, to entrench a therapeutic concern, in which the legal system can better ‘restore and heal people who have been harmed, provide opportunities for people to improve their health and wellbeing, and minimise further harm’.[84]
Against this backdrop, it is important to understand that TJ proponents generally conceptualise ‘the law’ in three categories: substantive rules, legal procedures and legal actors.[85] Each category can then be subject to separate and/or intersecting analysis, with respect to the extent to which their operation conforms with TJ principles. Wexler recently presented the following metaphor of ‘wine’ (or ‘liquid’) and ‘bottles’ to assist in this process: ‘A useful heuristic is to think of TJ professional practices and techniques as “liquid” or “wine,” and to think of the governing legal rules and legal procedures – the pertinent legal landscape – as “bottles”.[86]
In this framework, both the wine and the bottles within a given jurisdiction are examined in relation to their ‘TJ-[friendliness]’,[87] with consideration given to discerning how much TJ wine can fit into a given bottle.[88] That is, to what extent can particular legal rules or procedures incorporate TJ-friendly practices and processes? It is worth noting that this analysis involves evaluation of both the ‘therapeutic design of the law’ (eg, legal frameworks) and its ‘therapeutic application’[89] (eg, judicial practices that implement such a framework). This metaphor has increasingly become regarded as a useful methodology within TJ discourse[90] and has already been applied in the Australian context,[91] as well as in relation to the HOPE program on which COMMIT is based.[92] The following sections of this article seek to apply the metaphor to Australia’s parole system. Before doing so, however, we will explore two key concepts associated with TJ.
Procedural justice requires fairness in dispute resolution processes and is closely associated with TJ practice.[93] This article considers procedural justice in relation firstly to the need for robust engagement between parole decision-maker(s) and the offender, and secondly, the fairness of outcomes in response to breaches.
Although procedural justice refers to a broad range of ideas and practices, its advocacy for the presence of voice, validation, respect,[94] and self-determination[95] in the courtroom are particularly relevant to our focus on parole compliance. To clarify, voice refers to ensuring that the court provides a forum for people to tell their story to an attentive court.[96] Validation concerns the extent to which a person has been subject to a process that ‘[allows] them to present their case to and have it taken into account by a respectful legal authority’.[97] Closely related is respect, which King defined as
the manner in which the judicial officer interacts with the [participant], whether the judicial officer takes time to listen to the [participant], the tone of voice and language used and the body language of the judicial officer in interacting with the participant.[98]
Finally, self-determination means that offenders are allowed an active role in both the court process and working towards desistance;[99] that is, instead of simply having justice ‘done’ to them, they are given the opportunity to participate in the processes that profoundly impact them. There is substantial evidence for the benefits of self-determination and agency on empowerment, motivation and positive change.[100] Promoting self-determination is also of particular importance to Indigenous peoples.[101]
Taken together, the foregoing values and associated practices suggest that procedural justice has considerable relevance to parole compliance. Two further aspects of procedural justice are relevant to the present discussion.
Traditionally, judicial officers have been expected to possess a good understanding of the law, close familiarity with the rules of evidence and sound organisation and communication skills.[102] In the TJ context, these expectations remain, but are accompanied by the notion that a judicial officer is uniquely placed to help resolve the underlying problems that contribute to criminal behaviour.[103] Hueston and Burke have suggested that the ‘positive impact that one caring judge can have upon defendants under his or her supervision is remarkable’.[104] This is supported by evidence that intensive judicial supervision and the development of a close relationship between the judicial officer and participants in the NSW Drug Court are associated with reductions in drug use.[105] However, as Cannon noted, this revised approach has constitutional implications, particularly for Australia’s separation of powers doctrine, with supervision of this kind being a formal function of the executive.[106] Locating an appropriate balance on this issue is thus critical and remains an unsettled point.[107]
Offenders’ ability to comply with the conditions of community supervision has been theorised to be more successful when it is based on intrinsic motivation,[108] which is greatly facilitated by the perceived fairness of both procedures and outcomes.[109] The pivotal role of fairness here has caused Herzog-Evans to describe it as a ‘powerful criminological tool’.[110] Indeed, Boldt has contended that ‘when a judge responds ... with a proportional sanction, he or she is helping to provide treatment’.[111] Accordingly, this article also considers procedural justice in terms of the extent to which management of parole non-compliance is ‘fair’. The importance of notions such as fairness and proportionality has received considerable examination in the procedural justice literature and indicates that ‘people are more likely to obey the law when they see it as fair’.[112]
Fairness, a fundamentally vague notion, will be assessed by reference to evidence of practice that effectively facilitates compliance and desistance. Initiatives such as the HOPE program are instructive in this regard. HOPE commenced in 2004 and has generated encouraging results with respect to probation compliance and recidivism.[113] The program was designed by Judge Steven Alm in Hawaii to better facilitate behavioural change by, among other interrelated strategies, delivering immediate, pre-determined sanctions, including short terms imprisonment (eg, two days), for breaches of probation.[114] That is, HOPE provides ‘swift, certain and fair’ sanctions for detected breaches of probation.[115] Through this approach, the HOPE model delivers proportionate sanctions in response to breaches that can be best understood as ‘fuck it moments’.[116] Though this strategy is not exclusively TJ-based, observations of HOPE confirm its therapeutic components.[117] It should be noted that the common focus on HOPE’s ‘swift, certain and fair’ components is a very partial understanding of the model, which is about much more than its sanctions and is akin to a drug court for probationers, with multidisciplinary teams, regular engagement between the offender and the court, an interventionist judge and a range of community-based treatment programs.[118]
In addition to procedural justice, TJ refers to other practices that are intended to improve offenders’ wellbeing. The provision of support services and treatment when an offender is released on parole has been highlighted in this context.[119] This is unsurprising, given the fragility of parolees returning to the community, both in terms of facing the challenges inherent in the process of desistance and the precarious circumstances to which they often return.[120] The consequences of incarceration include loss of employment, housing, relationships and social supports.[121] Consequently, services and resources that support desistance and rehabilitation are essential. As Weinstein and Perlin have noted, ‘successful re-entry programs – programs that are collaborative as between the criminal justice system and the behavioural health system – must be a “primary focus of correctional mental health care, [and] not an afterthought”’.[122] Services of this nature are the domain of the executive governments and community agencies,[123] but ideally also with the judiciary or parole decision-making body.
Interestingly, the TJ literature rarely discusses support services in relation to correctional supervising officers, despite their inherent potential to assist in reducing reoffending and supporting desistance. Indeed, their articulated function is to supervise parolees and assist with the facilitation of rehabilitative treatments and support services.[124] Though this gap may appear surprising, TJ is still an emerging legal perspective and is inherently open to new applications and issues.[125] The role of correctional supervising officers thus represents a subject that would benefit from further TJ analysis. Importantly, research indicates that ‘active’ parole supervision can reduce parolee recidivism, but only if it is ‘rehabilitation focused’,[126] defined as ‘supervision conducted by Community Offender Services, where the purpose of the supervision is to address the offender’s criminogenic needs and risk factors’.[127] This is contrasted with ‘[c]ompliance-focused’ supervision, where contact is ‘simply to ensure that the offender is complying with the conditions of their parole order’.[128] Hence, the effective integration of support services should also consider the role of supervising officers.
Reforming a system as complex and politically charged as parole is not a simple proposition. Australia’s current penal climate, TJ-unfriendly in its treatment of offenders and blunt in its orientation, only compounds this difficulty. However, the recent introduction of COMMIT suggests that therapeutically-motivated reform is not impossible. Notably, it was the NT – the jurisdiction with the worst incarceration and recidivism rates in Australia[129] and a particularly controversial recent corrections history[130] – which introduced this model.
In this part, section A outlines the background and purpose of COMMIT. Section B tests whether COMMIT should be considered a genuine TJ-friendly reform, in order to determine whether equivalent programs should be implemented across Australia. Section C presents observations about COMMIT from recent interviews with members of the NTPB. Section D then argues that COMMIT, though a critical development, must be accompanied by further reform. To this end, some suggestions are offered.
To date, COMMIT has received limited academic attention.[131] Consequently, it is worth providing a basic explanation of its background, purpose, and legislative scheme.
COMMIT was first trialled in the NT for 12 months from 27 June 2016 for offenders subject to a suspended sentence.[132] The Steering Committee for the implementation of COMMIT considered the trial a success and, for this reason, extended the program for a further two years to enable a full evaluation to occur[133] and broadened the model to cover parolee compliance. The legislation underpinning the COMMIT parole program was passed in August 2017,[134] came into effect in September 2017 and the first parolees were released under the program in November 2017.[135]
COMMIT took direct inspiration from HOPE.[136] Like HOPE, COMMIT includes the principles of swift, certain and fair justice,[137] which is exercised where an offender does not comply with the conditions of their parole order. The swift aspect of this approach refers to the speed with which the court addresses a breach of condition. Once detected, the offender is directed to attend court within 72 hours and will likely incur a short sanction.[138] The certain component refers to the predictable and known outcome or sanction[139] that will be imposed, depending on the nature of the breach. This certainty is generated through the court-adopted ‘sanctions matrix’,[140] which provides pre-determined sanctions (1–30 days’ imprisonment) that correspond to a variety of parole breaches. Finally, fairness is promoted through the notion that the sanctions for non-compliance are more reasonable than other statutory alternatives for breach:[141] at one extreme, the revocation of parole[142] and, at the other, no sanction at all.[143]
The intended effect is to produce sanctions that are ‘short, reflect the severity and level of responsibility demonstrated for the breach, while not negatively impacting on [an] offender’s ability and motivation to participate in behavioural change processes’.[144] To aid this objective, the sanctions matrix imposes lighter sanctions where a parolee admits or takes responsibility for breaching behaviour.[145] In addition, the NTPB Chairperson can exercise other powers apart from the sanctions to facilitate an appropriate response.
The reason for this change in approach to parole was simple: the previous arrangement was ineffective. Previously, the NTPB could only deal with non-compliance by issuing a warning letter or revoking parole.[146] In her media release accompanying the introduction of the legislation underpinning COMMIT to Parliament, the Attorney-General and Minister for Justice, Natalie Fyles, referred to the previous system as an ‘“all or nothing” approach’ to non-compliance.[147] The NTPB noted that warning letters ‘were often too lenient and failed to achieve behavioural change’.[148] Meanwhile, revocation or cancellation of parole was often disproportionately severe, given that most breaches relate to conditions,[149] as opposed to reoffending. By its own admission, the NTPB described revocation as ‘[defeating] the purpose of parole which is the successful reintegration of parolees in the community’.[150] Consequently, the procedures in place did not offer sufficient options for the management of parolees who had breached their conditions.
Furthermore, time spent on parole (commonly known as ‘street time’) was not credited towards an offender’s time to serve where they had their order revoked. This had entrenched a culture in which many offenders eligible for parole chose not to apply, the rationale being they believed they would likely break their conditions once released and thus have to return to prison to serve the entire parole period,[151] with the prospect of paying back ‘street time’ acting as a disincentive to pursuing parole. While street time remains uncredited where an order is revoked, the COMMIT amendments were introduced to provide ‘more options for the Chairperson and more support for individuals on parole’.[152] Anecdotally, encouraging more people to apply for parole was also one of the reasons that NT Corrective Services supported COMMIT,[153] and the NTPB’s 2017 annual report suggests that the program may already be achieving this result.[154]
As set out there, COMMIT aims to:
• reduce prison numbers by increasing the number of community-based offenders;
• reduce the time offenders spend in prison and in the corrections system;
• reduce the rate of reoffending;
• change the offenders’ behaviour so they are capable of making appropriate life choices and leading a lawful life;
• help community-based offenders complete their orders, rather than see a revocation of parole and the loss of street time;
• improve offender compliance; and
• reduce drug and alcohol misuse.[155]
As with HOPE,[156] COMMIT is offered to medium-to-high risk offenders and focuses particularly on offenders who would otherwise normally have difficulties complying with parole, such as those with a history of drug or alcohol-related offending or history of non-compliance.[157] The program involves:
• the probation and parole officer (‘PPO’) assessing the offender’s suitability for COMMIT;
• a decision by the NTPB to release the offender on COMMIT;
• a warning to the parolee about the nature of COMMIT and the consequences of violations;
• rigorous and active supervision of the parolee in the community;
• swift detection and mandatory reporting of all parole violations to the NTPB Secretariat;
• swift and consistent imposition of the relevant sanction in accordance with the sanctions matrix;
• the issue of a sanction instrument by the NTPB Chairperson for all proven parole violations;
• instructing prosecutors to appear in the Local Court on behalf of Corrections;
• directing the parolee who has violated their conditions to attend court;
• swiftly committing the parolee to prison in accordance with the sanction imposed by the Chairperson;
• a further warning by the judge in the Local Court;
• the parolee serving the sanction in prison with no loss of street time;
• another warning of the parolee before the parolee is released from prison at the end of a sanction; and
• continuation of the original COMMIT parole order upon release from prison.[158]
The main legislative feature of COMMIT is the ‘sanctions regime’, which is defined as the ‘application of the sanctions matrix to an instance of non-compliance with a condition of a person’s parole order’.[159] In recognition of the complexity of this system, a person subject to the sanctions regime must receive a copy of the sanctions matrix and an explanation of how it works.[160] Under section 5E(2)(c) of the Parole Act 1971 (NT) (‘Parole Act’), persons subject to such an order must acknowledge that they have been given a copy of the sanctions matrix and have had the consequences of non-compliance explained to them.
The NTPB, led by the Chairperson,[161] is empowered under the Parole Act to release offenders on parole.[162] This is done via written parole order[163] and must include two conditions: that the person is subject to supervision by a PPO[164] and must comply with all reasonable directions of the PPO.[165] So far, this would appear to be standard parole practice.[166] However, the NTPB may add other conditions to the parole order, including ‘that the sanctions regime applies in relation to instances of non-compliance with the conditions of the order’.[167]
Section 5F sets out how the sanction regime operates. It requires a PPO who ‘believes on reasonable grounds that an instance of non-compliance with a condition of the person’s parole order has occurred’ to give a written report about the matter to the Chairperson.[168] This must be done ‘as soon as practicable after the instance of non-compliance’.[169] Assuming the Chairperson is satisfied that an instance of non-compliance has occurred, they may do any of the following:
(a) issue a written warning;
(b) impose the applicable sanction under the sanctions matrix;
(c) revoke the person’s parole order; or
(d) take no action.[170]
The section then provides two important qualifications. First, the sanction imposed must not have the effect of extending the term of imprisonment imposed at sentence.[171] Second, where the Chairperson decides that sanctions are to be imposed in relation to multiple instances of non-compliance, ‘the total sanction imposed must not be greater than the longest of the individual sanctions that apply in relation to the instances of non-compliance’.[172] This currently equates to a maximum of 30 days.[173]
The remaining material in section 5F addresses the consequences of the Chairperson imposing a sanction.[174] First, the Chairperson must publish a ‘written order’ that provides notice of the sanction being imposed[175] and specifies the nature of both the non-compliance and the imposed sanction.[176] This order is authority for a police officer to arrest the person and bring them before the Local Court.[177] The Local Court must then issue a ‘warrant of commitment’ of the person into the custody of the Commissioner of Correctional Services to serve the period of the sanction imposed,[178] which momentarily suspends the effect of the person’s parole order.[179] Upon completion of the sanction, the person is once again released on parole and subject to the original parole order.[180]
There are also a number of provisions that address the effect of serving sanctions on an offender’s sentence. For instance, the expiration date of the parole order is not affected by the imposition of a sanction.[181] As such, a person on COMMIT receives credit towards the completion of their sentence for time spent in the community under a parole order, as well as time served in custody in respect of the sanction.[182] Further, any custodial time served due to the application of a sanction is not considered part of the parole period.[183] This means that if the parole order is ultimately revoked or cancelled, time spent in custody pursuant to a sanction will be counted as having been served. However, in this circumstance, no credit will be given for time spent in the community.[184] Expressed another way, only time spent in custody, either before release on parole or due to sanction, will be considered in the event of revocation or cancellation.[185] This drafting seems designed to discourage reoffending on parole and to preserve the overriding approach taken to street time in the NT, distinguishing between breaches of conditions leading to sanction, on the one hand, and more serious or ongoing breaches of conditions or reoffending leading to revocation, on the other.[186]
In Part III, two core TJ principles relevant to parole were examined, namely, procedural justice and the effective integration of support services. These principles will now be used as criteria to determine the TJ-friendliness of COMMIT. As HOPE was COMMIT’s highly TJ-friendly[187] forebear, this analysis also considers the extent to which COMMIT aligns with HOPE.[188]
It is at the NTPB Chairperson’s discretion whether to require the attendance of a prisoner in relation to any matter, including parole applications.[189] There is similarly no obligation for the NTPB to make COMMIT decisions in a parolee’s presence.[190] Accordingly, it seems that the NTPB can complete much of the process without actually seeing the parolee. In addition, there is no requirement for the PPO to advise the parolee that they are notifying the Chairperson of a potential instance of non-compliance.[191] Though the expectations of the sanctions regime under COMMIT are communicated to the parolee before the order takes effect,[192] this arrangement could still facilitate the perception that the justice system is disengaged from those subject to its orders. The NTPB does not seem legislatively compelled to integrate the procedural justice precepts of voice, validation, respect and self-determination into their decision-making process. In fact, Russell Goldflam, an experienced lawyer with the NT Legal Aid Commission, advised that the parolee’s lawyer would rarely be invited to appear before the NTPB for a COMMIT breach or even be notified that their clients have breached their parole.[193] By contrast, in HOPE, a public defender is present at HOPE breach hearings or probationers may choose to engage a private lawyer to represent them. Greater involvement by the NTPB with COMMIT participants and/or their lawyers would promote procedural justice and thereby enhance COMMIT’s TJ components.
One of the earliest stages in HOPE involves all offenders attending court, usually in groups of 10 to 12, for a ‘warning hearing’, where important information and guidance is provided in relation to their participation in HOPE, including details of the sanctions framework.[194] Unlike the equivalent arrangement in COMMIT,[195] this interaction occurs before a judge.[196] Further, it is standard practice for the judge to directly converse with offenders to develop rapport, ascertain the last time they used drugs or alcohol[197] and reinforce the importance of personal responsibility.[198] On a particularly TJ-friendly note, offenders are told that ‘everyone wants them to succeed’ on the program[199] and this is reinforced by frequent reference to those that have been previously successful under the program.[200] For instance, Alm has been observed telling ‘new probationers that one former HOPE probationer had recently written to him from law school’.[201] This kind of tactic is emblematic of the approach that the HOPE court takes in the warning hearing. A similar approach is taken when non-compliance occurs, with Alm generally providing words of encouragement and guidance to offenders in relation to their path to desistance.[202] Acknowledgment of the considerable difficulty in desisting from drug use and crime is also often expressed.[203]
As set out above, the warning has been incorporated into COMMIT prior to release from custody (presumably delivered by the PPO). In the event of breach, a further warning is issued in the Local Court and a third warning is provided (presumably again by the PPO). The content of the warning is set out in the NTPB’s annual report and appears to emulate the HOPE warning, including such statements as ‘everyone wants the prisoner to succeed’, ‘no-one is going to give up on the prisoner for the duration of the parole period’ and ‘[e]veryone wants the prisoner to stay in the community’.[204] Given the role of the NTPB, however, it may be appropriate for a representative of the NTPB to deliver this message directly to participants.[205]
In adopting HOPE’s swift, certain and fair approach to compliance, COMMIT has directly implemented sanction practices which reduce parole breaches[206] and encourage desistance.[207] COMMIT’s sanctions component is therefore at least theoretically fair. However, a problematic outcome might arise when a parolee breaches one of the conditions on the sanctions matrix, either mistakenly or unconsciously. Here, they will only become aware of a sanction being imposed when a police officer arrests them.[208] While the length of a given sanction cannot exceed 30 days, the lack of direct communication and procedural justice in a situation like this may contribute to perceptions of unfairness and should be reviewed.
In addition, the sanctions regime also maintains the NT’s general policy position to not credit street time where a parole order is revoked or cancelled.[209] We argue that, in order to encourage greater parole engagement, this approach needs to be amended. This is particularly important in light of the NT’s high Indigenous population and would be consistent with the Australian Law Reform Commission’s recent recommendation:
To maximise the number of eligible Aboriginal and Torres Strait Islander prisoners released on parole, state and territory governments should ... abolish parole revocation schemes that require the time spent on parole to be served again in prison if parole is revoked.[210]
HOPE clearly and robustly integrates TJ-friendly practice into its support services. For instance, probation officers have the expressly defined function of being ‘change agents’,[211] in addition to a compliance-monitoring role.[212] According to the State of the Art of HOPE Probation, co-authored by Alm and described by Bartels as the ‘most comprehensive document on HOPE’,[213] the change agent role is framed to actively reduce recidivism.[214] Alm has observed that all probation officers in the jurisdiction (ie, also those working with probationers not subject to the HOPE model) are college-trained social workers, while around half have Master’s degrees in social work or criminal justice.[215] Probation officers also have training in areas such as ‘effective case planning, motivational interviewing, cognitive behavioral therapy, and evidence-based practices in recidivism reduction’.[216] Finally, those who need or ask for substance abuse treatment receive it and probation officers collaborate with treatment providers to ensure that the appropriate level of treatment is being administered.[217]
The extent to which this aspect of HOPE has been adopted in COMMIT is not entirely clear. The NT Government has indicated that parolees are supported by their PPOs and ‘undertake therapeutic programs to maintain good decision making’.[218] Mention is also made of PPOs’ use of a ‘participative case management model’ to affect behaviour and ‘[enforce] the principles of personal responsibility and honesty’.[219] However, none of the PPOs’ statutory functions[220] are obviously TJ-friendly or suggest a desistance-focused mandate.
Thomas Quayle, the Throughcare Manager of the North Australian Aboriginal Justice Agency (NAAJA), has observed that the therapeutic value of COMMIT depends to a large extent on
conversations driven by the [community corrections officers, who have] traditionally taken a supervisory approach to their work, so case management/therapeutically motivated discussions may be challenging for some [in the absence of training, supervision and some change management].[221]
According to the NTPB annual report, all PPOs have now received training on COMMIT.[222] The report also states that COMMIT is ‘solution focussed ... [and] involves the cooperation of the parolee, Community Corrections, Throughcare workers, the Police, the Legal Aid Agencies, Prosecutions and the Local Court’,[223] with PPOs ‘developing a sound relationship with the parolee; and actively encouraging [them] to pursue rehabilitation, education and employment’.[224] Furthermore, parole conditions are ‘designed to address the parolee’s criminogenic needs, assist in their rehabilitation, and support them in the community so they can develop the capacity to make good decisions’.[225] Quayle has indicated that he is ‘aware Community Corrections are making attempts to introduce a more therapeutic approach when a COMMIT client has a sanction imposed’.[226]
This is promising, but research is required to better understand the role played by PPOs, as well as the range and availability of services. The extent of collaboration across these services is also not yet apparent. It is therefore difficult to confidently assert that COMMIT provides for the effective integration of support services and supervision. As set out below, the NTPB members provided mixed responses on this issue. In addition, Goldflam indicated that his COMMIT clients do not appear to have been provided with any greater or different support services than non-COMMIT clients on supervision. He contrasted this with ‘previous TJ programs that have operated in the NT courts (eg, SMART Court), which entailed intensive supervision by a court-based clinician who provided specifically therapeutic support’, adding that although correctional officers working with COMMIT clients might have a smaller caseload, ‘I doubt that in reality there are any COMMIT support services’.[227] However, advice from NAAJA suggests there is reason to be hopeful that this will change, as Community Corrections have
recently funded several services across the NT to provide [Alcohol and Other Drug] service provision which preferences people serving COMMIT orders. NAAJA understands there will be a range of service provision available, including residential and non-residential options.[228]
In November 2017, one of the authors undertook interviews with eight members of the NTPB (‘PBM’) for a separate research project on public opinion on parole.[229] In this context, several interviewees noted that there had not been any significant high-profile breaches of parole in the Northern Territory. As part of these interviews, respondents were asked to comment on COMMIT. It is acknowledged that the value of these responses is limited, as they presented a discursion from the main focus of the interviews and there was no explicit reference to TJ. Nevertheless, the following comments provide crucial insights into the early operation of COMMIT.
The NTPB members’ views on COMMIT were generally positive, although some had limited familiarity with the program. For example, PBM34 was not very involved with the program and said ‘it’s all right ... I mean, I haven’t really looked too much into it’. PBM37 stated: ‘I like the COMMIT program ... in theory I think it’s wonderful, because it’s not a [case of] ‘that’s it’. It’s giving someone an opportunity to prove themselves, and they’re not losing [street] time. That’s one of the biggest sell points I think’. She acknowledged, however, that she had not seen any data on it and ‘can’t really get a feel for it’.
PBM39 admitted that he ‘wasn’t sort of keen’ on COMMIT initially, ‘because it was new, and it seemed to be taking some of the authority out of the parole board’ and also removed PPOs’ discretion in determining whether an offender had a good reason for their breach and the broader context in which it occurred. However, he was now ‘comfortable’ with the program and felt that in ‘99% of the cases, you know, it’s a sensible decision, rather than revoking parole. ... and it seems to have been, in some cases, quite successful’, although he acknowledged that this was just a ‘gut feeling’ and he did not have any data to support this. By contrast, PBM38 referred to
anecdotal stuff, the figures we’re seeing coming through, have a lot lower rate of recidivism, particularly with re-offending ... I'm just waiting to see what the figures look like now, we still haven't had the complete two-year period, which is the standard period to see how people have gone, but it looks very, very promising.
According to PBM16, ‘it’s fantastic. I think it’s a good fit to the Territory’, although he recognised the need for local adaptation of the program:
I’ve always said, we can't just pull it out of Hawaii and the States and plunk it in in its current form. We had to work around and get a work around with it and make sure it fitted the Territory. And then it might take another three or four years before ... and it’ll always be evolving, [but] I think it [is] going to be successful.
PBM36 felt that COMMIT was ‘to be commended’, suggesting that it provided the ‘opportunity now to really address [issues]’ with challenging parolees. He added that the program ‘has been a great asset for us’ and was working well with Indigenous offenders. According to PBM35, it has ‘been effective with the right people ... the ones who simply need the odd push to stay on the straight and narrow’ and indicated that he ‘[hopes] it will become so convincing that the government will be able to see it [as] worth investing in further’. He observed that ‘we had to deal with the minor breaches before just by warning them ... now we can warn them, and give them a sanction’. He was of the view that COMMIT participants receive more support than under the standard parole model. He also noted that they
get their street time, so it’s a more encouraging process for them. And I think what happens now is, the parole officers are a bit more inclined towards providing that extra support. Before they saw them getting a warning letter, and they thought nothing much was happening, and it took time for the warning letter to get to them. And this whole process is a lot faster.
The sanctions model was also seen as positive by PBM16, who appreciated that
it doesn’t mean that you’re automatically revoking somebody’s parole because they made a mistake. You give them a short penalty and they can come back out and ... And they know that that’s going to be either a penalty that way or they’re going to get revoked. So, I think it’s very good.
PBM38 also felt that one of the ‘big advantages’ of COMMIT is that ‘there’s no loss of street time unless you’re revoked’, although
the court would revoke you if you reoffended and went before the court even under COMMIT. And we revoke in circumstances where there’s a clear abdication of the position that they’re expected to take. I mean everybody is expected to violate a number of times, because of the conditions. You know if you’re a chronic alcoholic, and you get back out ... a chronic drug taker, you’re going to relapse from time to time. So, we’ll revoke where there’s just a complete walk away, where they make no attempt to stick with the program at all is fundamentally where we’ll revoke.
On the other hand, PBM37 felt ‘offenders might say it’s too hard’, while PBM40 had
positive and negative thoughts on that. In a way the processing is a little bit too easy ... before when you were released on parole it was street time. So if you were out for six months, you lost that six months in ... Now if you have a positive [drug test], you’d be back inside for two days, come back out, have another chance. I worry sometimes that the penalties are not strong enough to send a message that you can’t keep doing this. On the other hand, there are positives to it, in that we have to expect that it’s hard to come out, especially if you’ve been institutionalised. And so therefore it gives them a chance to make a few mistakes, before they find their feet. So, therefore, I’m of mixed mind and so I'm really waiting to see how it goes.
PBM38 spoke of the
huge fear of failure amongst Aboriginal prisoners ... because they just don’t feel they’ll get enough support in their community, whether it be a town camp such as Alice Springs or a more remote community. ... because so many communities sadly are dysfunctional. So, it’s all very well being taught how to resist alcohol, if [abstinence from] alcohol is a ... condition, then going to a big drinking group where really enormous pressure put on you. Or going to a funeral, well that’s traditionally part and parcel of the wake aspect, I suppose, of a funeral these days.
Several respondents expressed concern about the inconsistent availability of the program. For example, PBM37 noted that the program ‘has limitations because ... it’s only in Darwin now ... only somewhere there’s a watch house’. It appears the spread of the program may in fact be greater than this, but still beset with issues of location, as PBM38 explained:
the other issue we’ve had is we had hoped to spread it across the Territory. Now that really meant remote police stations being prepared to keep parolees who had violated overnight in their police cells, because otherwise it’s unworkable, given the distances. But the police just don’t feel adequately resourced, so that’s meant it’s been largely confined to the bigger, regional centres, like Darwin, Alice Springs, Katherine to a degree, and then also Nhulunbuy in Arnhem Land. So, there we’ve been able to do it, but it’s still meant the numbers haven’t been anywhere nearly as big as we’d hoped they would be.
PBM40 also commented on the location issue, noting that the program was therefore
not helping us very much in the Indigenous communities ... because there may not be police stations there and therefore they cannot be put in jail for two days, as their penalty ... So if, normally if a person is paroled to an Aboriginal community, they do not have COMMIT conditions, because of the fact that it cannot be implemented ... we put other things in place, I guess, but it cannot be COMMIT. So, I guess that’s the downfall for Territory, is that it’s not servicing all parolees. It’s not possible for all.
She added that ‘we would never encourage [parolees] to stay in major centres just for COMMIT’ and the best thing for them would be ‘to get them back to country’. PBM35 felt it
would be nice if we could apply it to more people, but the problem is it has to be able to be supported by the police force, who [are] not capable of supporting it in the smaller communities, because of the issue of putting people in jail. You can’t lock somebody up ... if it’s a two-day sanction, it’s not worth taking them to town.
To address this issue, he suggested that Indigenous community members should be empowered to act as casual custodians in remote communities. This option should be explored further to ensure equal access to the program, regardless of location.[230]
While only tentative conclusions can be made at this time, we believe there is reason to be cautiously optimistic about managing parolees under the COMMIT program. By closely adapting the swift, certain and fair sanctions model from HOPE, the NT is undoubtedly responding more proportionately to low-level parole violations, which we argue should best be understood as ‘fuck it moments’.
The adoption of such a sanctions model has been shown internationally to be more effective than the standard model, in which there is an arbitrary response to processing breaches and the sanction for such breaches are less than predictable. In this context, however, it is worth acknowledging the fraught history of mandatory sentencing in the NT. Against this background, Goldflam observed that ‘COMMIT’s penalty-by-matrix is a kind of mandatory sentencing’, with the accompanying risk that this ‘embeds and entrenches the sense that [parolees] are units being processed by an automated process. That reduces the risk that they will feel they are being picked on or victimised by a cranky judge, but in the long run it may be alienating’.[231] Research with HOPE participants indicated that they ‘consistently [saw the HOPE] process as fair’,[232] due in part to its promotion of procedural justice, but mandatory sentencing models may be regarded as anti-therapeutic and therefore TJ-unfriendly. To better understand this issue, it would be of value to undertake research to ascertain the views of parolees subject to COMMIT to determine their perceptions of COMMIT’s ‘penalty-by-matrix’ model, especially with reference to its mandatory sentencing implications.
Goldflam advised that he was not aware whether COMMIT is available to all parolees and, if not, what the entry criteria are.[233] In his experience, ‘COMMIT sentences are imposed almost exclusively on drug offenders [and] the matrix focusses strongly on substance abuse’.[234] He suggested that a very high proportion of prisoners in the NT are serving sentences for alcohol-fuelled violence and such offenders ‘are never (or hardly ever) put on a COMMIT sentence’.[235] He therefore expressed concern that if COMMIT parole is only available to ‘the same select group as those who go on COMMIT when sentenced, then its [effects] will be limited, as this cohort is a relatively small (and relatively non-Aboriginal) segment of the total prison population in the NT’.[236] As clarified above, the program is in fact available to medium-to-high risk offenders who would otherwise normally have difficulties complying with parole, such as those with a history of drug or alcohol-related offending or history of non-compliance. The eligibility would appear to be broader in scope than for COMMIT as a sentencing option.
As noted above, Goldflam expressed concern about the limited extent to which COMMIT is used for Indigenous offenders. More comprehensive data are required to shed light on this issue, as well as taking into account the NTPB comments above. However, it is reassuring to see that the COMMIT Steering Committee is made up of a broad range of relevant stakeholders,[237] including representatives from NAAJA. This suggests that effort is being made to ensure the program is culturally appropriate.[238] Relevantly, NAAJA also manages the Throughcare program available to Aboriginal and Torres Strait Islander people leaving custody, which has been shown to be effective in reducing recidivism.[239]
COMMIT is informed by attention to evidence-based research. In the second reading speech for the introduction of the Bill which implemented COMMIT, Fyles acknowledged that the NT’s previous approaches to parole were not working and that new measures must ‘ensure people are supported when they reintegrate into the community’.[240] In addition, Alm met with the NTPB in 2015 and the NT Government subsequently sent a delegation including a representative of the NTPB to Hawaii to see HOPE in action and developed their program with advice from Alm and other relevant stakeholders.
In its current form, though, we suggest that COMMIT is not quite maximising its TJ-friendly potential; the COMMIT bottle does not adopt as TJ-oriented a shape as it could. First, there is no legal obligation for the NTPB or any judicial body to engage directly with offenders. This makes it difficult to ensure the principles of procedural justice are being upheld. We also note that although the legislation requires that the sanctions model be explained to offenders, questions remain about the adequacy of how this is delivered. This is particularly an issue in a context where many Indigenous offenders have hearing issues[241] and/or English is not their first language.
There is also no clear evidence yet that support services are effectively integrated into the program and the legal requirements of PPOs are not explicitly TJ – or desistance – oriented.[242] Unfortunately, these issues potentially relegate COMMIT alongside other initiatives overseas that have failed to successfully translate the full HOPE philosophy. Alm has observed that some policy-makers have a ‘basic misunderstanding of the HOPE strategy’ and thus ‘believe that HOPE is simply a sanctions-only program that is solely concerned with imposing jail sanctions on probationers with no interest in their rehabilitation’.[243] Indeed, this was the original tenor of the pronouncement by the then NT Attorney-General, John Elferink, in his ‘calls for US HOPE program of swift and certain sanctions to deter “knuckleheads” from reoffending’.[244] Fortunately, it is clear from the foregoing discussion and the direct involvement of Alm in developing COMMIT that a more nuanced program eventuated and there is anecdotal evidence that funding for a range of services, including those delivered by Aboriginal-led organisations, is expected to commence soon. NAAJA’s involvement is also likely to increase integration of support services. Nevertheless, the program does appear to have emphasised the swift, certain and fair aspects of HOPE, while omitting some of its important TJ features. To address recidivism effectively, it is essential that COMMIT is as committed to the program’s TJ components as it is to its sanctions regime.
As at June 2019, there were 17,744 people on parole in Australia.[245] With rates of both incarceration and recidivism steadily increasing, the deficiencies of Australia’s parole compliance laws cannot be ignored. In light of the evidence that parole works best if it is focused on rehabilitation, rather than compliance, the punitive approach to parole compliance in most Australian jurisdictions is concerning.
In Halsey’s illuminating chapter ‘Prisoner (Dis)Integration in Australia: Three Stories of Parole and Community Supervision’,[246] parole officers were described by parolees as little more than ‘compliance officers’.[247] One of Halsey’s interviewees, Shane, suggested his parole officer was primarily focused on finding ‘slip-ups’, rather than acknowledging and encouraging his small successes,[248] which are so critical to the desistance process.[249] Most illustrative was the experience of ‘Luck of the Draw’ Penny,[250] which revealed how variable the service provided by parole officers can be. For most of Penny’s experience in dealing with these officers, little genuine support was offered. Then, in what emerged as a crucial shift, Penny was paired with an engaged and responsive officer, Julie, and for the first time completed her parole period successfully.[251] Penny described these contrasting experiences as follows:
[S]he actually tries to help you. ... a lot of them, it seems like they’re just waiting to pounce and fuck you up and send you back ... They don’t offer any help or solutions when something is going wrong. ... They don’t give a shit, they don’t. ... You don’t have a case worker any more, you just have a compliance officer and that’s it. We’re not here to help you ...[252]
Halsey added that a ‘disturbing dimension’ to this story is that it appeared that ‘[t]he good work of this community corrections officer was only possible because she was prepared to go beyond (and for all intents and purposes, ignore) her official remit as someone who should be compliance oriented’.[253] Halsey noted that Julie ‘had been lauded by many (ex)prisoners ... over the years’ and ‘treated clients as people in need of help instead of “just another file” to be managed’.[254] However, this was clearly construed as undesirable, as she ‘got in ... trouble with Corrections [for approaching things a bit differently]’,[255] an outcome that Penny in turn found unsurprising. This is deeply concerning. Genuine support and engagement, as opposed to inappropriately brief ‘[tick] and [flick]’ meetings,[256] should not be regarded as troublesome. Further, as Halsey asserted, the successful completion of parole should not come down to the ‘“luck of the draw”’.[257]
While Halsey’s paper relates to offenders in South Australia, there is other evidence demonstrating that these issues are not isolated. For example, Sullivan found that Indigenous offenders in NSW commonly viewed parole officers as useless; this is unsurprising, given ‘nothing happened’ at meetings.[258] Consequently, participants in Sullivan’s study considered that parole ‘had not contributed to their desistance’.[259] In Queensland, parole officers and the system are more likely to focus on compliance than the ‘more resource-intensive and time-consuming tasks of supervision and support needed to successfully reintegrate high needs parolees into the community’.[260] The reasons for this include ‘huge caseloads’,[261] limited timeframes, high turnover, the competing demands of rehabilitation versus deterrence and the tendency of agencies to emphasise ‘pragmatism and risk management ... over corrective intervention’.[262] These issues have contributed to what Schaefer and Williamson have described as an ‘atmosphere in which community corrections practices are largely atheoretical’, in the sense that there is little grasp of supervision as a desistance tool.[263]
There are many strategies that could be undertaken to respond to these issues. Higher qualification standards, better training, increased resourcing, and organisational change come to mind. However, we argue that a higher legislative bar should be prioritised; in TJ terms, this would require a reformation of the parole bottle, requiring greater attention to desistance and support. If governments place more rehabilitation-focused expectations on their corrections staff, strategies to promote desistance are more likely to be implemented.
We argue that TJ offers a promising perspective for examining and reforming the parole process. To this end, this article has examined the NT’s COMMIT program through the TJ lens, drawing on comments from key stakeholders, including members of the NTPB. Our preliminary analysis suggests that COMMIT presents an encouraging path forwards, with several TJ-friendly aspects, although there is clearly also scope to extend this. It is important to note that, in Hawaii, HOPE consists of a deterrent structure coupled with a very important ingredient of therapeutic application of the law, and both the letter of the law and the therapeutic application should be part of any transplantation of the model. We acknowledge that it is early days in the delivery of COMMIT. The NTPB has suggested that ‘anecdotally this regime appears to be working well’,[264] but its unequal availability across the NT requires further consideration. Furthermore, the ongoing commitment to the policy of not crediting street time when parole is revoked potentially muddies the overall impact of the program. Much about the COMMIT program still remains unknown, including the provision of support services and compliance/breach rates for program participants. Independent quantitative and qualitative research are clearly required. In addition, as Australia’s first HOPE-based program, research is warranted to determine how appropriate the model is here,[265] although PBM40’s observation that ‘we’re a pretty unique jurisdiction, we can’t be judged to the rest of Australia’ should also be borne in mind.
Quite reasonably, Australians expect that governments will uphold public safety. To this end, as Herzog-Evans has noted, ‘the community, has a right to see that everything possible is done to make sure offenders or ex offenders have all the necessary tools at their disposal to desist from crime’.[266] If safety is a definitive goal, then desistance and preventing recidivism are crucial components of realising that goal. This is by no means a simple task. Desisting from crime is a difficult and lengthy process, as is law reform. However, it is time for this challenge to be met on a genuinely systemic level, with the incorporation of evidence-based practice across Australia. Freiberg et al[267] have recently reiterated the need for increased funding for prison rehabilitation, education programs and re-entry services, as well as adequate funding for housing and support for people with mental illness and substance abuse issues. COMMIT may also play a role in better supporting parolees, especially through their inevitable ‘fuck it moments’. Beyond this, more TJ-oriented initiatives are required if Australia hopes to finally stop the revolving prison door.
* Graduate-at-law, HWL Ebsworth Lawyers.
** Professor of Criminology, Australian National University; Adjunct Professor of Law, University of Canberra and University of Tasmania. Contact author: lorana.bartels@anu.edu.au.
*** Senior Lecturer, Australian National University, and Barrister-at-Law.
This article draws on research undertaken by Henshaw for his Honours thesis at the Australian National University, supervised by Hopkins. The authors are indebted to Thomas Quayle, Throughcare Manager, North Australian Aboriginal Justice Agency, Russell Goldflam, Barrister and Solicitor, Northern Territory Legal Aid Commission, as well as the anonymous reviewers, for their incisive comments on earlier drafts of this article. This project has ethics approval from the University of Canberra and University of Queensland Human Research Ethics Committees and is supported by funding from the Australian Research Council (DP150100569).
[1] Arie Freiberg et al, ‘Parole, Politics and Penal Policy’ (2018) 18(1) Queensland University of Technology Law Review 191, 191.
[2] Robin Fitzgerald et al, ‘How Does the Australian Public View Parole? Results from a National Survey on Public Attitudes Towards Parole and Re-entry’ (2016) 40 Criminal Law Journal 307. In this context, we recognise the importance of the availability heuristic and the vividness with which high-profile breaches of parole are recalled. See generally, Amos Tversky and Daniel Kahneman, ‘Judgment under Uncertainty: Heuristics and Biases’ (1974) 185(4157) Science 1124. For discussion in the context of public opinion on sentencing, see Nigel Stobbs, Lisa Kleinau and Shelley Kolstad, ‘“Structuring” Judicial Sentencing Discretion: Consistency, Guidance or Pandering to the Punitive?’ (2014) 39(3) Alternative Law Journal 156; Kate Warner, ‘Are Courts Soft on Crime? Lessons from the Victorian Jury Sentencing Study’ (Law Oration, Victoria Law Foundation, 21 August 2018).
[3] ‘Man Charged with Rape, Murder of Jill Meagher’, ABC News (online, 28 September 2012) <http://www.abc.net.au/news/2012-09-27/man-charged-with-rape-murder-of-jill-meagher/4284826> . For discussion, see Lorana Bartels, ‘Parole and Parole Authorities in Australia: A System in Crisis?’ (2013) 37 Criminal Law Journal 357 (‘Parole and Parole Authorities in Australia’).
[4] Ben Doherty, ‘Yacqub Khayre: Melbourne Siege Gunman’s History of Violent Crime and Drugs’, The Guardian (online, 6 June 2017) <https://www.theguardian.com/australia-news/2017/jun/06/yacqub-khayre-melbourne-siege-gunmans-history-of-violent-and-drugs>.
[5] Australian Bureau of Statistics, Corrective Services, Australia, June Quarter 2019 (Catalogue No 4512.0, 12 September 2019) (‘Corrective Services’).
[6] Ibid; Lorana Bartels, ‘Criminal Justice Law Reform Challenges for the Future: It’s Time to Curb Australia’s Prison Addiction’ in Ron Levy et al (eds), New Directions for Law in Australia: Essays in Contemporary Law Reform (ANU Press, 2017) 119, 121.
[7] Australian Bureau of Statistics, Corrective Services (n 5).
[8] See attachment table CA.4: Productivity Commission, Report on Government Services 2019 (Report, 24 January 2019) pt C <https://www.pc.gov.au/research/ongoing/report-on-government-services/2019/justice> (‘2019 Report’). Return due to the cancellation or revocation of parole orders is included in this measurement.
[9] Comparison made against table C.5: Productivity Commission, Report on Government Services 2014 (Report, 29 January 2014) C.23 <https://www.pc.gov.au/research/ongoing/report-on-government-services/2014/justice/download-the-volume/rogs-2014-volumec-justice.pdf>.
[10] For a thorough examination, see Bartels, ‘Parole and Parole Authorities in Australia’ (n 3).
[11] See, eg, Rick Sarre and Lorana Bartels, ‘Tougher National Parole Laws Won’t End the Violence’, The Conversation (online, 7 June 2017) <https://theconversation.com/tougher-national-parole-laws-wont-end-the-violence-78985>; Freiberg et al (n 1); Arie Freiberg and Lorana Bartels, ‘Serial Killers’ Fates Are in Politicians’ Hands: Here’s Why That’s a Worry’, The Conversation (online, 20 December 2018) <https://theconversation.com/serial-killers-fates-are-in-politicians-hands-heres-why-thats-a-worry-108825>.
[12] Sarre and Bartels (n 11).
[13] Bartels, ‘Parole and Parole Authorities in Australia’ (n 3) 376.
[14] See, eg, Walter Sofronoff, Queensland: Parole System Review (Final Report, 30 November 2016). All but two of the 91 recommendations of this Report were adopted by the Queensland Government: Queensland Government, Response to Queensland Parole System Review Recommendations (Report, 2017). For discussion generally, see Freiberg et al (n 1).
[15] David B Wexler, ‘New Wine in New Bottles: The Need to Sketch a Therapeutic Jurisprudence “Code” of Proposed Criminal Processes and Practices’ (2014) 7(3) Arizona Summit Law Review 463, 463 (‘New Wine in New Bottles’).
[16] Michael S King, ‘Restorative Justice, Therapeutic Jurisprudence and the Rise of Emotionally Intelligent Justice’ [2008] MelbULawRw 34; (2008) 32(3) Melbourne University Law Review 1096, 1114 (‘Restorative Justice’).
[17] Institute of Behavior and Health, State of the Art of HOPE Probation (Report, 2015). For discussion, see Lorana Bartels, ‘Looking at Hawaii’s Opportunity Probation with Enforcement (HOPE) Program through a Therapeutic Jurisprudence Lens’ (2016) 16(3) Queensland University of Technology Law Review 30 (‘HOPE Program’); Lorana Bartels, Swift, Certain and Fair: Does Project HOPE Provide a Therapeutic Paradigm for Managing Offenders? (Palgrave Macmillan, 2017) ch 3 (‘Swift, Certain and Fair’).
[18] See Crimes (Sentence Administration) Act 2005 (ACT) ss 137, 138A; Crimes (Administration of Sentences) Act 1999 (NSW) ss 128–128C; Parole Act 1971 (NT) s 5A (‘Parole Act’); Corrective Services Act 2006 (Qld) s 200; Correctional Services Act 1982 (SA) s 68; Corrections Act 1997 (Tas) s 72(5); Corrections Regulation 2009 (Vic) sch 4; Sentence Administration Act 2003 (WA) ss 29, 76.
[19] NSW Law Reform Commission, Parole (Report No 142, June 2015) 50.
[20] Crimes (Administration of Sentences) Act 1999 (NSW) s 2A; Corrective Services Act 2006 (Qld) s 3(1); Corrections Act 1997 (Tas) ss 4(d)–(e); Sentencing Act 1997 (Tas) s 3(e)(ii).
[21] Crimes (Sentence Administration) Act 2005 (ACT) s 6; Correctional Services Act 1982 (SA) s 67(3a); Corrections Act 1986 (Vic) ss 1, 73A; Sentence Administration Act 2003 (WA) s 5B.
[22] Malcolm M Feeley and Jonathan Simon, ‘The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications’ (1992) 30(4) Criminology 449.
[23] Ibid 452.
[24] Freiberg et al (n 1) 194. See also Robin Fitzgerald, Arie Freiberg and Lorana Bartels, ‘Redemption or Forfeiture? Understanding Diversity in Australians’ Attitudes to Parole’ (2018) Criminology and Criminal Justice (advance).
[25] See attachment table CA.4: Productivity Commission, 2019 Report (n 8).
[26] Freiberg et al (n 1) 191.
[27] Productivity Commission, 2019 Report (n 8) 8.3 <https://www.pc.gov.au/research/ongoing/report-on-government-services/2019/justice/corrective-services/rogs-2019-partc-chapter8.pdf>.
[28] Judy Trevena and Don Weatherburn, ‘Does the First Prison Sentence Reduce the Risk of Further Offending?’ (Crime and Justice Bulletin No 187, BOCSAR, October 2015) 11; Don Weatherburn, ‘The Effect of Prison on Adult Re-offending’ (Crime and Justice Bulletin No 143, BOCSAR, August 2010) 10; Joanna JJ Wang and Suzanne Poynton, ‘Intensive Correction Orders Versus Short Prison Sentence: A Comparison of Re-offending’ (Crime and Justice Bulletin No 207, BOCSAR, October 2017) 10.
[29] Don Weatherburn and Clare Ringland, ‘Re-offending on Parole’ (Crime and Justice Bulletin No 178, BOCSAR, August 2014) 12. Variables associated with reoffending included being male; Indigenous; young or imprisoned for less than six months and having prior imprisonment experience and/or a higher risk assessment score: at 5, 8, 12.
[30] Ibid 5.
[31] Ibid 5, 12.
[32] Mark Halsey, ‘Imprisonment and Prisoner Re-entry in Australia’ (2010) 34(4) Dialectical Anthropology 545, 548.
[33] Ruth Armstrong and Ioan Durnescu, ‘Editors Afterword: Ground Level Listening and Learning’ in Ruth Armstrong and Ioan Durnescu (eds), Parole and Beyond: International Experiences of Life After Prison (Palgrave Macmillan, 2016) 303, 304.
[34] Halsey, ‘Imprisonment and Prisoner Re-entry in Australia’ (n 32) 548.
[35] Paul Havemann, ‘Denial, Modernity and Exclusion: Indigenous Placelessness in Australia’ [2005] MqLawJl 4; (2005) 5 Macquarie Law Journal 57, 57.
[36] Mark Halsey, ‘Assembling Recidivism: The Promise and Contingencies of Post-release Life’ (2007) 97(4) Journal of Criminal Law and Criminology 1209, 1245 (‘Assembling Recidivism’).
[37] Ibid (emphasis omitted).
[38] Stephen Farrall and Benjamin Bowling, ‘Structuration, Human Development and Desistance from Crime’ (1999) 39(2) British Journal of Criminology 253, 261, quoted in Halsey, ‘Assembling Recidivism’ (n 36) 1245–6 (emphasis omitted).
[39] For discussion, see Beth Weaver, ‘The Relational Context of Desistance: Some Implications and Opportunities for Social Policy’ (2012) 46(4) Social Policy and Administration 395, 396.
[40] Fergus McNeill, ‘What Works and What’s Just?’ (2009) 1(1) European Journal of Probation 21, 24.
[41] Martine Herzog-Evans, ‘Release and Supervision: Relationships and Support from Classic and Holistic Attorneys’ (2016) 1 International Journal of Therapeutic Jurisprudence 23, 24.
[42] Mark Halsey, Ruth Armstrong and Serena Wright, ‘“F*ck It!”: Matza and the Mood of Fatalism in the Desistance Process’ (2017) 57(5) British Journal of Criminology 1041, 1047.
[43] Ibid. See generally Shadd Maruna, Making Good: How Ex-convicts Reform and Rebuild Their Lives (American Psychological Association, 2001).
[44] Halsey, Armstrong and Wright (n 42) 1042.
[45] Armstrong and Durnescu (n 33) 305.
[46] David Matza, Delinquency and Drift (Transaction Publishers, rev ed, 1990), quoted in Halsey, Armstrong and Wright (n 42) 1042.
[47] Halsey, Armstrong and Wright (n 42) 1041.
[48] Armstrong and Durnescu (n 33) 306.
[49] Halsey, ‘Assembling Recidivism’ (n 36) 1256.
[50] Brianna L Best, Eric J Wodahl and Malcolm D Holmes, ‘Waiving Away the Chance of Freedom: Exploring Why Prisoners Decide Against Applying for Parole’ (2014) 58(3) International Journal of Offender Therapy and Comparative Criminology 320.
[51] Josie Taylor, ‘Victorian Prisoners “Maxing Out” Jail Sentences to Avoid Strict Parole Laws, Experts Warn of Risk to Community’, ABC News (online, 9 September 2016) <http://www.abc.net.au/news/2016-09-09/victoria-parole-laws-backfiring-more-prisoners-max-out-sentence/7826940> .
[52] Mark Halsey, ‘Prisoner (Dis)Integration in Australia: Three Stories of Parole and Community Supervision’ in Ruth Armstrong and Ioan Durnescu (eds), Parole and Beyond: International Experiences of Life After Prison (Palgrave Macmillan, 2016) 171, 175 (‘Prisoner (Dis)Integration in Australia’).
[53] Halsey, Armstrong and Wright (n 42) 1047–8.
[54] Ibid 1047.
[55] Ibid 1042.
[56] Shadd Maruna, ‘Desistance and Restorative Justice: It’s Now or Never’ (2016) 4(3) Restorative Justice 289, 291–2.
[57] David B Wexler, ‘From Theory to Practice and Back Again in Therapeutic Jurisprudence: Now Comes the Hard Part’ [2011] MonashULawRw 2; (2011) 37(1) Monash University Law Review 33, 33 (‘From Theory to Practice and Back Again’).
[58] Bruce J Winick and David B Wexler (eds), Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts (Carolina Academic Press, 2003) 7 (‘Judging in a Therapeutic Key’).
[59] E Richardson, P Spencer and D Wexler, ‘The International Framework for Court Excellence and Therapeutic Jurisprudence: Creating Excellent Courts and Enhancing Wellbeing’ (2016) 25 Journal of Judicial Administration 148, 153.
[60] See David B Wexler, Therapeutic Jurisprudence: The Law as a Therapeutic Agent (Carolina University Press, 1990).
[61] David B Wexler and Bruce J Winick, Essays in Therapeutic Jurisprudence (Carolina Academic Press, 1991) 17 (emphasis omitted).
[62] Bruce J Winick, ‘Foreword: Therapeutic Jurisprudence Perspectives on Dealing with Victims of Crime’ (2009) 33(3) Nova Law Review 535, 535.
[63] Pauline Spencer, ‘From Alternative to the New Normal: Therapeutic Jurisprudence in the Mainstream’ (2014) 39(4) Alternative Law Journal 222, 222.
[64] Ibid.
[65] Wexler, ‘New Wine in New Bottles’ (n 15) 479.
[66] Spencer (n 63) 222.
[67] See the launch of the International Journal of Therapeutic Jurisprudence in 2015 and the convention of international TJ scholars in Prague for the launch of the ‘International Society of Therapeutic Jurisprudence’ in July 2017. See also Nigel Stobbs, Lorana Bartels and Michel Vols (eds), The Methodology and Practice of Therapeutic Jurisprudence (Carolina Academic Press, 2019).
[68] See, eg, Kathleen Daly and Elena Marchetti, ‘Innovative Justice Processes: Restorative Justice, Indigenous Justice, and Therapeutic Jurisprudence’ in Marinella Marmo, Willem de Lint and Darren Palmer (eds), Crime and Justice: A Guide to Criminology (Lawbook, 2012) 455, 471.
[69] See, eg, Douglas Johnson, ‘Mainstreaming Therapeutic Jurisprudence in Criminal Courts with a Focus on Behavioral Contracting, Prevention Planning, and Reinforcing Law-Abiding Behaviour’ (2016) 1 International Journal of Therapeutic Jurisprudence 313.
[70] David B Wexler et al, ‘Guest Editorial: Current Issues in Therapeutic Jurisprudence’ (2016) 16(3) Queensland University of Technology Law Review 1, 1 (‘Current Issues in Therapeutic Jurisprudence’).
[71] See, eg, Stobbs, Bartels and Vols (n 67).
[72] Christopher Slobogin, ‘Therapeutic Jurisprudence: Five Dilemmas to Ponder’ (1995) 1(1) Psychology, Public Policy, and Law 193, 193 (emphasis omitted). Some of these issues are addressed in Stobbs, Bartels and Vols (n 67).
[73] Wexler and Winick, Essays in Therapeutic Jurisprudence (n 61).
[74] John Petrila, ‘Book Review: Paternalism and the Unrealized Promise of Essays in Therapeutic Jurisprudence’ (1993) 10(3) New York Law School Journal of Human Rights 877.
[75] Jennifer Oriel, ‘Courts Must Dispense Justice, Not Therapy’, The Australian (Sydney, 30 January 2017) 14.
[76] Ann-Claire Larsen and Peter Milnes, ‘A Cautionary Note on Therapeutic Jurisprudence for Aboriginal Offenders’ (2011) 18(1) eLaw Journal: Murdoch University Electronic Journal of Law 1, 1.
[77] Harry Blagg, ‘Problem-Oriented Courts’ (Research Paper Project No 96, Law Reform Commission of Western Australia, March 2008) 28.
[78] Valmaine Toki, ‘Therapeutic Jurisprudence and Mental Health Courts for Maori’ (2010) 33(5– 6) International Journal of Law and Psychiatry 440, 443. For discussion, see Erin S Mackay, ‘Therapeutic Jurisprudence: A Just Framework for Indigenous Victim/Survivors of Sexual Violence?’ (PhD Thesis, University of New South Wales, 2013). See also Elena Marchetti and Janet Ransley, ‘Applying the Critical Lens to Judicial Officers and Legal Practitioners Involved in Sentencing Indigenous Offenders: Will Anyone or Anything Do?’ [2014] UNSWLawJl 1; (2014) 37(1) University of New South Wales Law Journal 1.
[79] See, eg, Julie Stewart, ‘Specialist Domestic/Family Violence Courts within the Australian Context’ (Issues Paper No 10, Australian Domestic and Family Violence Clearinghouse, University of New South Wales, 2005); Robyn Holder, ‘The Emperor’s New Clothes: Court and Justice Initiatives to Address Family Violence’ (2006) 16 Journal of Judicial Administration 30; Andrew Cannon, ‘Therapeutic Jurisprudence in the Magistrates Court: Some Issues of Practice and Principle’ in Greg Reinhardt and Andrew Cannon (eds), Transforming Legal Processes in Court and Beyond (Australasian Institute of Judicial Administration, 2007) 129.
[80] For discussion, see Mackay (n 78).
[81] See, eg, King, ‘Restorative Justice’ (n 16) 1117; Michael L Perlin, ‘“Justice’s Beautiful Face”: Bob Sadoff and the Redemptive Promise of Therapeutic Jurisprudence’ (2012) 40(2) Journal of Psychiatry and Law 265.
[82] Wexler, Therapeutic Jurisprudence: The Law as a Therapeutic Agent (n 60) 4.
[83] Johnson (n 69) 315.
[84] Spencer (n 63) 222.
[85] Wexler et al, ‘Current Issues in Therapeutic Jurisprudence’ (n 70) 1.
[86] Wexler, ‘New Wine in New Bottles’ (n 15) 464.
[87] Ibid.
[88] Ibid.
[89] Richardson, Spencer and Wexler (n 59) 155.
[90] Ibid.
[91] See, eg, Paula O’Byrne, ‘Therapeutic Jurisprudence and the Sentencing of Family Violence Offenders: Does the Sentencing “Bottle” in Victoria Need to Change?’ (2016) 1 International Journal of Therapeutic Jurisprudence 147.
[92] See, eg, Lorana Bartels, ‘HOPE-ful Bottles: Examining the Potential for Hawaii’s Opportunity Probation with Enforcement (HOPE) to Help Mainstream Therapeutic Jurisprudence’ (2019) 63 International Journal of Law and Psychiatry 26 (‘HOPE-ful Bottles’).
[93] King, ‘Restorative Justice’ (n 16) 1114; David B Wexler, ‘Guiding Court Conversation Along Pathways Conductive to Rehabilitation: Integrating Procedural Justice and Therapeutic Jurisprudence’ (2016) 1 International Journal of Therapeutic Jurisprudence 367.
[94] Michael S King, ‘The Therapeutic Dimension of Judging: The Example of Sentencing’ (2006) 16 Journal of Judicial Administration 92, 95 (‘The Therapeutic Dimension of Judging’).
[95] King, ‘Restorative Justice’ (n 16) 1116.
[96] King, ‘The Therapeutic Dimension of Judging’ (n 94) 95. See also Martine Herzog-Evans, ‘Law as an Extrinsic Responsivity Factor: What’s Just is What Works!’ (2016) 8(3) European Journal of Probation 146, 149 (‘Law as an Extrinsic Responsivity Factor’).
[97] King, ‘Restorative Justice’ (n 16) 1114. See also Tom Tyler, ‘The Psychological Consequences of Judicial Procedures: Implications for Civil Commitment Hearings’ in David B Wexler and Bruce J Winick (eds), Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Carolina Academic Press, 1996) 3. See also Ronner’s work on ‘[t]he [t]hree “Vs”: [v]oice, [v]alidation [a]nd [v]oluntary [p]articipation’: Amy D Ronner, ‘Songs of Validation, Voice, and Voluntary Participation: Therapeutic Jurisprudence, Miranda and Juveniles’ (2002) 71(1) University of Cincinnati Law Review 89, 93–6.
[98] King, ‘The Therapeutic Dimension of Judging’ (n 94) 95.
[99] King, ‘Restorative Justice’ (n 16) 1115.
[100] Ibid.
[101] See, eg, Larissa Behrendt, Miriam Jorgensen and Alison Vivian, ‘Self-Determination: Background Concepts’ (Scoping Paper No 1, Jumbunna Indigenous House of Learning, University of Technology Sydney, 15 December 2017). See also Mackay (n 78).
[102] James Duffy, ‘Problem-Solving Courts, Therapeutic Jurisprudence and the Constitution: If Two Is Company, Is Three a Crowd?’ [2011] MelbULawRw 14; (2011) 35(2) Melbourne University Law Review 394, 395.
[103] Ibid 394; King, ‘Restorative Justice’ (n 16) 1119.
[104] Jamey Hueston and Kevin Burke, ‘Exporting Drug-Court Concepts to Traditional Courts: A Roadmap to an Effective Therapeutic Court’ (2016) 52(1) Court Review 44, 47.
[105] See, eg, Craig Jones, ‘Intensive Judicial Supervision and Drug Court Outcomes: Interim Findings from a Randomised Controlled Trial’ (Crime and Justice Bulletin No 152, BOCSAR, November 2011); Craig GA Jones and Richard I Kemp, ‘The Strength of the Participant-Judge Relationship Predicts Better Drug Court Outcomes’ (2014) 21(2) Psychiatry, Psychology and Law 165.
[106] Andrew Cannon, ‘Therapeutic Jurisprudence in Courts: Some Issues of Practice and Principle’ (2007) 16(4) Journal of Judicial Administration 256, 261.
[107] Lacey Schaefer and Mary Beriman, ‘Problem-Solving Courts in Australia: A Review of Problems and Solutions’ (2019) 14(3) Victims and Offenders 344, 352–3.
[108] Herzog-Evans, ‘Law as an Extrinsic Responsivity Factor’ (n 96) 150.
[109] Kimberly A Kaiser and Kristy Holtfreter, ‘An Integrated Theory of Specialized Court Programs: Using Procedural Justice and Therapeutic Jurisprudence to Promote Offender Compliance and Rehabilitation’ (2016) 43(1) Criminal Justice and Behavior 45, 49.
[110] Martine Herzog-Evans, ‘Setting the Stage: Defining Concepts?’ in Martine Herzog-Evans (ed), Offender Release and Supervision: The Role of Courts and the Use of Discretion (Wolf Legal Publishers, 2014) 5, 16.
[111] Richard C Boldt, ‘The Adversary System and Attorney Role in the Drug Treatment Court Movement’ in James Nolan (ed), Drug Court: In Theory and In Practice (Aldine De Gruyter, 2002) 115, 124.
[112] Lorana L Bartels, ‘HOPE Probation: A New Path to Desistance?’ (2017) 9(3) European Journal of Probation 248, 258 (‘HOPE Probation’). See generally Tom R Tyler, Why People Obey the Law (Princeton University Press, 2nd ed, 2006).
[113] See Lorana Bartels, ‘Swift and Certain Sanctions: Is it Time for Australia to Bring Some HOPE into the Criminal Justice System?’ (2015) 39 Criminal Law Journal 53, 55–8 (‘Swift and Certain Sanctions’); Bartels, Swift, Certain and Fair (n 17) ch 4.
[114] Bartels, Swift, Certain and Fair (n 17) 29–31.
[115] Ibid 249.
[116] Ibid 29.
[117] Bartels, Swift, Certain and Fair (n 17) ch 3. See also Bartels, ‘HOPE Program’ (n 17); Bartels, ‘HOPE-ful Bottles’ (n 92).
[118] These aspects have been overlooked by several commentators on HOPE who have not observed it in practice and have considered the model purely through a deterrence framework. For discussion, see Bartels, Swift, Certain and Fair (n 17) ch 6; Bartels, ‘HOPE-ful Bottles’ (n 92) 30.
[119] Winick and Wexler, Judging in a Therapeutic Key (n 58) 8; David B Wexler, ‘A Tripartite Framework for Incorporating Therapeutic Jurisprudence in Criminal Law Education, Research, and Practice’ (2005) 7(1) Florida Coastal Law Review 95, 100.
[120] Halsey, Armstrong and Wright (n 42) 1041.
[121] Australian Law Reform Commission, Pathways to Justice: An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Final Report No 133, December 2017) 314 [9.124].
[122] Naomi M Weinstein and Michael L Perlin, ‘“Who’s Pretending to Care for Him?” How the Endless Jail-to-Hospital-to-Street-Repeat Cycle Deprives Persons with Mental Disabilities the Right to Continuity of Care’ (2018) 8(2) Wake Forest Journal of Law and Policy 455, 462, quoting Henry A Dlugacz, ‘Community Re-entry Preparation/Coordination’ in Robert L Trestman, Kenneth L Appelbaum and Jeffrey L Metzner (eds), Oxford Textbook of Correctional Psychiatry (Oxford University Press, 2015) 76–7 (citations omitted).
[123] Michael S King, ‘Judging, Judicial Values and Judicial Conduct in Problem-Solving Courts, Indigenous Sentencing Courts and Mainstream Courts’ (2010) 19(3) Journal of Judicial Administration 133, 146.
[124] ‘Supervision’, Australian Capital Territory (ACT) Corrective Services, (Web Page, 30 September 2010) <http://www.cs.act.gov.au/page/view/888/title/supervision> ‘Correctional Officer’, Careers in Justice NSW (Web Page, 5 September, 2016) <http://www.careers.justice.nsw.gov.au/Pages/our-roles/corrections-careers/correctional-officer.aspx> ‘Probation and Parole Officers’, NT.GOV.AU (Web Page, 13 April 2016) <https://nt.gov.au/law/prisons/probation-and-parole-officers>; ‘Probation’, Queensland Government, (Web Page, 8 June 2018) <https://www.qld.gov.au/law/sentencing-prisons-and-probation/sentencing-probation-and-parole/probation>; ‘Community Corrections Officers’, Government of South Australia: Department for Correctional Services (Web Page) <http://www.corrections.sa.gov.au/community-corrections/community-corrections-officers> Tasmania Department of Justice, ‘What Does Parole Order Supervision Involve?’, Community Corrections Service (Web Page, 23 April 2014) <http://www.justice.tas.gov.au/communitycorrections/parole_order/ what_is_involved> Deputy Commissioner of Corrections, Prisons & Parole (Vic), Case Management: Parole (DCI No 8.2, September 2017); ‘Parole’, Government of Western Australia: Department of Justice (Web Page, 17 October 2016) <https://www.correctiveservices.wa.gov.au/probation-parole/parole.aspx>.
[125] See Wexler, ‘From Theory to Practice and Back Again’ (n 57).
[126] Wai-Yin Wan et al, ‘Parole Supervision and Re-offending’ (Trends and Issues in Crime and Criminal Justice No 485, Australian Institute of Criminology, 2014) 6. See also Christopher T Lowenkamp et al, ‘Intensive Supervision Programs: Does Program Philosophy and the Principles of Effective Intervention Matter?’ (2010) 38(4) Journal of Criminal Justice 368.
[127] Wan et al (n 126) 2.
[128] Ibid.
[129] See table 3: Australian Bureau of Statistics, Corrective Services (n 5). See also attachment table CA.4: Productivity Commission, 2019 Report (n 8).
[130] Caro Meldrum-Hanna and Elise Worthington, ‘Evidence of “Torture” of Children Held in Don Dale Detention Centre Uncovered by Four Corners’, ABC News (online, 26 July 2016) <http://www.abc.net.au/news/2016-07-25/four-corners-evidence-of-kids-tear-gas-in-don-dale-prison/7656128> Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Final Report, November 2017).
[131] Cf Bartels, Swift, Certain and Fair (n 17) 174–5; Bartels, ‘HOPE-ful Bottles’ (n 92).
[132] Northern Territory Government, ‘The COMMIT Program Overview’ (Overview, Department of the Attorney-General and Justice, 2017) 3 <https://justice.nt.gov.au/__data/assets/pdf_file/0003/458760/commit-overview.pdf>.
[133] Ibid.
[134] Georgia Hitch, ‘NT Parole Laws Relaxed in Bid to Reduce Cycle of Incarceration’, ABC News (online, 23 August 2017) <http://www.abc.net.au/news/2017-08-23/nt-parole-laws-relaxed-in-bid-to-reduce-incarceration-cycle/8832686> . See also Parole Amendment Bill 2017 (NT); Natasha Fyles, ‘Breaking the Cycle of Crime’ (Media Release, Attorney-General and Minister for Justice (NT), 11 May 2017).
[135] ‘Breaches of Parole Conditions’, Parole Board of the Northern Territory (Web Page) <http://www.paroleboard.nt.gov.au/Understanding-Parole/Breaches-of-Parole-Conditions> (‘Breaches of Parole Conditions’).
[136] ‘The COMMIT Program Overview’ (n 132) 1.
[137] Ibid 1–2.
[138] Ibid 2.
[139] See Parole Act s 3(1) (definition of ‘sanction’).
[140] Chairperson of the Parole Board of the Northern Territory, ‘Determination of Sanctions Matrix’ in Northern Territory, Northern Territory Government Gazette, No G39, 27 September 2017, 7, 8–16 (‘Sanctions Matrix’).
[141] ‘The COMMIT Program Overview’ (n 132) 2.
[143] Parole Act s 5F(3)(a), (d).
[144] ‘The COMMIT Program Overview’ (n 132) 1.
[145] ‘Sanctions Matrix’ (n 140) 10–12.
[146] ‘Breaches of Parole Conditions’ (n 135).
[147] Fyles (n 134).
[148] ‘Breaches of Parole Conditions’ (n 135).
[149] Ibid.
[150] Ibid.
[151] Hitch (n 134); Parole Board of the Northern Territory, Annual Report 2017 (Report, 2018) 5.
[152] Fyles (n 134).
[153] Email from Thomas Quayle to Lorana Bartels, 16 July 2018.
[154] Parole Board of the Northern Territory, Annual Report 2017 (n 151) 5.
[155] Ibid 5–6.
[156] See Bartels, Swift, Certain and Fair (n 17) 19–20; Parole Board of the Northern Territory, Annual Report 2017 (n 151) 6.
[157] ‘The COMMIT Program Overview’ (n 132) 2; Parole Board of Northern Territory, Annual Report 2017 (n 151) 6.
[158] Parole Board of the Northern Territory, Annual Report 2017 (n 151) 8.
[159] Parole Act s 3(1) (definition of ‘sanctions regime’).
[160] Ibid s 5E(2)(a)–(b).
[164] Ibid s 5A(1)(a).
[165] Ibid s 5A(1)(b).
[166] See generally Bartels, ‘Parole and Parole Authorities in Australia’ (n 3).
[169] Ibid.
[173] ‘Sanctions Matrix’ (n 140).
[175] Ibid s 5F(6)(a).
[176] Ibid s 5F(6)(b).
[185] Ibid s 13B(3)(a)–(b).
[186] Explanatory Statement, Parole Amendment Bill 2017 (NT) 2.
[187] See Bartels, ‘HOPE Program’ (n 17); Bartels, Swift, Certain and Fair (n 17).
[188] For completeness, the ‘Swift and Certain’ program in Washington State in the United States should also be noted. Although this program does not appear to have been expressly designed with TJ principles in mind, it is also based on HOPE. Importantly, it is used for everyone in the Washington State subject to community supervision, including all parolees and has demonstrated favourable evaluation results, including fewer sanctioned incarceration days after a violation, reduced odds of recidivism and violations over time, greater treatment program utilisation and lower correctional and associated costs: see Zachary Hamilton et al, ‘Impact of Swift and Certain Sanctions: Evaluation of Washington State’s Policy for Offenders on Community Supervision’ (2016) 15(4) Criminology and Public Policy 1009, 1009–10 (‘Impact of Swift and Certain Sanctions’). See also Zachary Hamilton et al, Evaluation of Washington State Department of Corrections (WADOC) Swift and Certain (SAC) Policy: Process, Outcome and Cost-Benefit Evaluation (Report, 31 August 2015) (‘Evaluation of WADOC SAC Policy’).
[189] Parole Act s 4. Anecdotally, it is rare for prisoners to appear before the Parole Board of the Northern Territory: Email from Russell Goldflam to Lorana Bartels, 16 July 2018.
[193] Goldflam (n 189).
[194] Bartels, ‘HOPE Probation’ (n 112) 251.
[196] Bartels, Swift, Certain and Fair (n 17) 52.
[197] Ibid.
[198] Ibid 54.
[199] Ibid 53.
[200] Ibid 55.
[201] Ibid.
[202] Ibid 56–60.
[203] Bartels, ‘HOPE Probation’ (n 112) 254.
[204] Parole Board of the Northern Territory, Annual Report 2017 (n 151) 8.
[205] The resource implications of this are acknowledged. An efficient model may be to conduct a group warning hearing by teleconference for COMMIT participants about to be released from prison.
[206] Hamilton et al, Evaluation of WADOC SAC Policy (n 188) 7–8; Hamilton et al, ‘Impact of Swift and Certain Sanctions’ (n 188) 1036.
[207] See Bartels, ‘HOPE Probation’ (n 112).
[210] Australian Law Reform Commission (n 121) Recommendation 9-2.
[211] Institute of Behavior and Health (n 17) 5.
[212] Bartels, Swift, Certain and Fair (n 17) 22.
[213] Ibid 12.
[214] Institute of Behavior and Health (n 17) 5.
[215] Steven S Alm ‘HOPE Probation: Fair Sanctions, Evidence-Based Principles, and Therapeutic Alliances’ (2016) 15(4) Criminology and Public Policy 1195, 1197. We note that if an approach requiring everyone involved with implementing COMMIT to have university qualifications were adopted in the Northern Territory, this would exclude Indigenous people with the necessary skills to work effectively as motivational change agents but who lack the relevant formal qualifications.
[216] Institute of Behavior and Health (n 17) 5, 27.
[217] Ibid 23.
[218] ‘The COMMIT Program Overview’ (n 132) 1.
[219] Ibid 3.
[220] Parole Act s 3R(a)–(f).
[221] Quayle (n 153).
[222] Parole Board of the Northern Territory, Annual Report 2017 (n 151) 9.
[223] Ibid 7.
[224] Ibid.
[225] Ibid.
[226] Quayle (n 153).
[227] Goldflam (n 189).
[228] Email from Thomas Quayle to Lorana Bartels, 19 July 2018.
[229] This part of the project has ethics approval from the University of Queensland.
[230] For discussion of issues relating to location and access to justice, see Richard Coverdale, ‘Postcode Justice: Rural and Regional Disadvantage in the Administration of the Law’ [2011] DeakinLawRw 9; (2011) 16(1) Deakin Law Review 155; Australian Law Reform Commission (n 121).
[231] Goldflam (n 189).
[232] Angela Hawken and Mark Kleiman, ‘Managing Drug Involved Probationers with Swift and Certain Sanctions: Evaluating Hawaii’s HOPE’ (Research Report No 229023, National Institute of Justice, 2 December 2009) 38.
[233] Goldflam (n 189).
[234] Ibid.
[235] Ibid.
[236] Ibid.
[237] ‘The COMMIT Program Overview’ (n 132) 3.
[238] For discussion of the extent to which the HOPE model may be appropriate for Indigenous peoples, see Bartels, ‘Swift and Certain Sanctions’ (n 113); Bartels, ‘Swift, Certain and Fair’ (n 17) 174–5; Don Weatherburn, Arresting Incarceration: Pathways Out of Indigenous Imprisonment (Aboriginal Studies Press, 2014) 111. The Victorian Sentencing Advisory Council, by contrast, expressed concern that swift, certain and fair sanctions models would have an adverse effect on Indigenous people: Sentencing Advisory Council Victoria, Swift, Certain and Fair Approaches to Sentencing Family Violence Offenders (Report, 2017) 34–6. Given the composition of the NT population, this aspect of COMMIT is of particular relevance.
[239] Thomas Quayle, Statement to the Royal Commission into the Protection and Detention of Children in the Northern Territory (21 April 2017) 6 [30].
[240] Northern Territory, Parliamentary Debates, Legislative Assembly, 11 May 2017, 1812 (Natalie Fyles).
[241] Belinda Lopez, ‘Is Hearing Loss the Biggest Aboriginal Justice Issue in the Top End?’, ABC News (online, 1 July 2017) <http://www.abc.net.au/news/2017-07-01/is-hearing-loss-the-biggest-aboriginal-justice-issue-in-top-end/8663102> .
[243] Alm (n 215) 1195.
[244] Katherine Gregory, ‘NT Attorney-General Calls for US HOPE Program of Swift and Certain Sanctions to Deter “Knuckleheads” from Reoffending’, ABC News (online, 17 August 2015) <http://www.abc.net.au/news/2015-08-17/john-elferink-calls-for-us-hope-program-to-deter-offenders/6703492> .
[245] Australian Bureau of Statistics, Corrective Services (n 5).
[246] Halsey, ‘Prisoner (Dis)Integration in Australia’ (n 52).
[247] Ibid 171–2.
[248] Ibid 179.
[249] Halsey, Armstrong and Wright (n 42) 1047.
[250] Halsey, ‘Prisoner (Dis)Integration in Australia’ (n 52) 180.
[251] Ibid 181.
[252] Ibid 182.
[253] Ibid 182–3.
[254] Ibid 182.
[255] Ibid 183.
[256] Ibid 189.
[257] Ibid 186.
[258] Katherine Maree Sullivan, ‘Motivating and Maintaining Desistance from Crime: Male Aboriginal Serial Offenders’ Experience of “Going Good”’ (PhD Thesis, Australian National University, 2012) 135. See also Heather Harker and Anne Worral, ‘From “Community Corrections” to “Probation and Parole” in Western Australia’ (2011) 58(4) Probation Journal 364.
[259] Sullivan (n 258) 135.
[260] Kerry Carrington, Russell Hogg and Kelly Richards, Submission to Queensland Government, Parole System Review (20 October 2016) 8. Cf the recent assertion by the Deputy President of the Queensland Parole Board that parole ‘conditions are as much aimed at protection as at assisting the person to overcome the problems that saw them going to prison in the first place’: ‘Parole: Closing the Loop in the Sentencing Process’, Sentencing Matters (Queensland Sentencing Advisory Council, 12 June 2018) <http://www.sentencingcouncil.qld.gov.au/education-and-resources/sentencing-matters> .
[261] Carrington, Hogg and Richards (n 260) 8.
[262] Lacey Schaefer and Harley Williamson, ‘Probation and Parole Case Management as Opportunity-Reduction Supervision’ (2017) 56(7) Journal of Offender Rehabilitation 452, 453.
[263] Ibid 454.
[264] Parole Board of the Northern Territory, Annual Report 2017 (n 151) 9.
[265] See Bartels, ‘Swift and Certain Sanctions’ (n 113).
[266] Martine Herzog-Evans, ‘Judicial Rehabilitation in France: Helping with the Desisting Process and Acknowledging Achieved Desistance (2011) 3(1) European Journal of Probation 4, 5.
[267] Freiberg et al (n 1) 215.
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