Parole chances Slim For Innocent Prisoners
Prisoners' chances of parole often depend on their taking part in 'offending behaviour' courses. To enrol, inmates must acknowledge their guilt. But, asks David Wilson, what about those who are innocent?
Seven years ago, while training staff to work at the soon-to-be-opened HMP Woodhill in Milton Keynes, I attended a course run by an eminent Canadian psychologist. He had been flown over to run the two-week event, based on his theory that prisoners had some form of "faulty reasoning", lacked "thinking skills" and had become caught "in a cycle of thinking errors", and that here lay the clue to their rehabilitation.
In short, after decades of believing that "nothing worked" in penal regimes, psychologists and others working for the correctional service of Canada were suggesting that they had stumbled across the solution to offending - offenders "thought" differently to me and you and as long as we corrected these "cognitive distortions" then they could be released with less risk of them reoffending.
The psychologist truly seemed to understand how offenders thought, and although I remained unconvinced that offenders were in any way "different" to you or me, the money invested in flying him over seemed well spent. Unfortunately, the next time I heard anything about him he was about to be arrested back in Canada for various sexual offences.
Despite this, "cognitive skills", "thinking skills", "reasoning and rehabilitation" and various other such "offending behaviour" courses have come to dominate regimes within our prisons, especially at the expense of education. They are all almost universally based on many of the premises of the original Canadian research: not only do offenders think differently from you and me, but they also need to learn not to put "the fault for their actions on to other people".
This was, of course, music to the ears of politicians who wanted to blame offenders for the rises in the reported crime rate and absolve themselves from any responsibility, despite the fact that during this period political choices ensured that the gap between richer and poorer got much wider.
Prisoners had to learn to "acknowledge their guilt" before any therapeutic work could begin, and if prisoners denied their guilt then they could not enrol on the course. These courses are now part of the prison service's business plan and a key performance target for the year has been set to ensure that there are at least 3,600 course completions by prisoners, and that 700 of these should be completions of the sex offender treatment programme (SOTP).
A sense of what all of this means in practice can be seen in some detail by looking more closely at the SOTP, which was introduced into the prison service in the early 1990s and has a "core" and "extended" programme. Eddie Guy, the civil servant in charge of introducing SOTP, told the Prison Reform Trust at the time that the core programme "would tackle offenders' distorted beliefs ... and seek to get prisoners to take responsibility for, and face up to, the consequences of their own offending behaviour".
This was no small matter, for, as Guy went on to explain, sex offenders are "particularly prone to cognitive distortions", which allows them to "rationalise" their offending, so "the extent to which their offending behaviour has been addressed in prison is likely to be an important factor in reaching [a] parole decision".
All of this might seem fair enough, and I have certainly worked with several sex offenders who did indeed struggle to understand that while they may have been victims of sexual abuse themselves in the past, that did not permit them to create further victims or absolve them from the reality of their crimes. And, of course, other offenders, such as armed robbers, fraudsters, murderers and rapists, were equally adept when they wanted to create the impression that somehow they had been offended against.
However, there is a problem here: what about those prisoners who cannot "acknowledge their guilt" for the simple reason that they are innocent? The criminal cases review commission, which can only investigate a prisoner's claim that there has been a miscarriage of justice when he or she has exhausted the appeals procedure, receives new cases at the rate of five a day and has a backlog of more than 1,000 such cases.
How are these prisoners expected to get parole when the basis for being released is their attendance on an offending behaviour course that requires them to"acknowledge" an offence that they have in fact not committed?
All of this comes very close to what political philosophers describe as a "throffer" - the combination of an offer or promise of a reward if a course of action is pursued, with a threat or penalty if this course of action is refused. The prisoner is offered incentives to follow a course of action desired by the prison - go on the offender behaviour course to ensure that our key performance target is met - while making that choice appear rational, especially as it will be the basis for ensuring parole. If he does not go on the course, the threat of continued incarceration hangs over the head of the prisoner, who will be deemed to be too much of a "risk" for release.
Glimpses of "throffers" rarely surface, as the voices of prisoners are only occasionally heard. Yet on a weekly basis I get letters from prisoners in the position that I have just described. One who is serving a sentence for "alleged rape" wrote to say that not only was the question of parole an issue, but also his transfer to open conditions. "I am advised," he writes, "that ... the prison system will not consider me for Category D status without addressing my alleged 'offending behaviour' ... obviously I am of the opinion that this constitutes a rather vulgar form of blackmail, in that refusing to lie, by taking part in the 'core programme' and pretending that I did commit the offence, even though I didn't - which they would like me to do - gives them the right to say that I have no chance of getting parole."
His letter reminded me of another incident from my past as a prison governor. Around 1988 a concerned principal officer on the acute psychiatric unit at HMP Grendon asked me if I could "have a quiet word" with a prisoner he was anxious about.
A few minutes later my office door opened and a large, shuffling, broken man edged into the room. He had been convicted of the rape and murder of a schoolgirl 12 years earlier, and now sat before me seemingly quite mad and, in soft sentences, denying any part of the offence. It was clear from his file that this was something he had told other governors in other prisons. The man was Stefan Kiszko, who was later cleared of all charges against him, having spent 16 years inside. Recently I wrote about Kiszko, who has since sadly died, and Campbell Malone, his solicitor, told me that he had been seen by a prison psychologist about his habit of denying his offending. This, I am informed, was put down to his "delusions of innocence".
So what do we know? We know that prison rarely rehabilitates - it stigmatises and further exacerbates the social exclusion of an already socially excluded group. We know that prisoners are very much like you and me and that successive attempts to isolate some difference between an offender and a non-offender have failed time after time throughout criminological history. Finally, we know that power in prison is in the hands of the staff, and that as a consequence they have the ability to make the lives of prisoners either miserable or just about tolerable. Given all of this, do staff really also need the power over how prisoners think?
David Wilson is a professor of criminal justice at UCE in Birmingham. A former prison governor, he has worked at HMPs Wormwood Scrubs, Grendon and Woodhill, among others.
THE PAROLE DEAL
The case of Stephen Downing, who served 27 years for a murder he did not commit, and who refused the 'parole deal' 12 years ago, highlights the pressure certain innocent prisoners come under to participate in a system which rewards admitting guilt.
THERE has been much publicity about the problem of prisoners convicted of serious crimes who claim they are victims of miscarriages of justice and are not able to obtain parole because the authorities demand that they must confess before they can enter the parole process. It seems clear that the Government knows about this 'parole deal' and has no current intention of changing the situation. Despair at treatment such as this prompts people to think the unthinkable. There is now a danger that prisoners caught in this situation may try to point up the lack of morality in the 'parole deal' by making false confessions in a manner akin to the custom of crossing fingers when telling a white lie.
Obtaining a parole hearing is not as simple as most people believe. The process is lengthy, with several sections. A prerequisite of entering the parole process is that the prisoner should be on Category C. Most prisoners who claim serious miscarriage of justice do not go into prison on that category. At best they find themselves in Category B. Some prisons - high-security establishments in particular - do not have Category C prisoners at all. To get onto Category C, prisoners must first attend courses and demonstrate a readiness for Category C. The main requirement is that they address the enormity of the offence for which they are imprisoned - and show contrition for having committed the crime. In practice, this means that those who protest their innocence must confess.
There is an earlier stage. Prisoners on Category B must show a sign of contrition before they are moved to prisons where such courses are taking place. After all, if they will not show contrition, there is little point in them taking the courses. So prisoners in Category B prisons must make a confession in order to get into a prison where they may apply to get on such a course.
If all the people in jail were truly guilty this might not be cause for concern. But the work of the Criminal Cases Review Commission (CCRC) during the past three years has produced, so far, more than 100 cases where the Commission has believed a prisoner has probably suffered from a wrongful conviction. The Court of Appeal has released prisoners in most of the cases submitted by the CCRC which the Court has been able to process.
The CCRC has a backlog of some 2,000 cases. If only 10% of them are worthy cases (and the present work would indicate a higher proportion) then at least 200 persons are currently in our jails as a result of a miscarriage of justice. Those 200 persons are currently in the position of having to confess to get any chance of parole.
Stephen Downing was recently released on bail and will appear before the Court of Appeal within a few months. He has already served 27 years for the murder of Wendy Sewell in Bakewell. He was offered the 'parole deal' 12 years go, but refused it. His resistance to the pressure may prove worthwhile. Soon, it seems, his conviction will be quashed and the stain on his character lifted. However whilst he stayed in jail he saw many others go free - prisoners who had genuinely been guilty and who happily confessed that they had committed atrocious crimes.
Others, however are less strong. Ernie Clark went into jail five years after Stephen Downing, convicted of the murder of a girl in South Shields. In 1986 the Court of Appeal admitted that a TV reinvestigation completely destroyed the force of the forensic evidence against him. Nevertheless, Clarke's appeal was dismissed - one of the worst of the Court of Appeal's many poor judgements of the mid-80s. Faced with the impossibility of ever getting out of jail, and offered the 'parole deal', Clarke decided to admit that he had known more about the crime than he had told the court. It was not a confession. It did not provide any 'special knowledge' nor any other form of corroboration of his guilt. But it was the end of his chance to clear his name. His solicitor applied successfully for parole and Clarke was freed. Penniless, a convicted murderer he was left to rue the wisdom of his decision. There was little point in anyone carrying on the reinvestigation of the case.
When faced with these two alternatives, it is not surprising that some may look for a third way No feasible third way has yet emerged, but desperate situations tend to produce desperate ideas.
The weakest element of the case for the 'parole deal' is its moral base. The Court of Appeal is the final authority with the duty to preserve the morality of the system of justice, so it is likely to be that Court which finds itself faced with finding a solution to the problem. But it is the Courts that initially cause the problem. Most of the parole procedure is determined by the desire of the judicial system to provide finality to cases. All prisoners are guilty as a matter of fact in law There is no legal possibility that they may be innocent. There is no allowance for the possibility that some of the prisoners in our jails are actually completely innocent.
Most prisoners who are victims of miscarriages of justice regard the 'legal fact' of their guilt as nothing more than an opinion. After all, much of the evidence at trial was opinion, particularly from scientific experts. The jury formed an opinion on what they saw in the courtroom. The judge recorded that opinion as a 'legal fact' - but the prevalence of 'biased' summing up in miscarriage of justice cases strengthens the prisoner's view that 'legal facts' are nothing more than prejudiced, even ignorant, opinions.
In most cases there is only one person in the courtroom who knows whether the accused is guilty or innocent. That is the accused - the person perhaps least likely to be believed. However when a miscarriage of justice has actually occurred, it is perhaps not surprising that such convicts consider themselves more knowledgeable than the judge and jury. It follows that victims of miscarriage of justice consider the trial process to be essentially arrogant. It enforces a falsity in place of truth. Such prisoners may well already have had two experiences of might overruling right, for many miscarriage cases are the result of false confessions or admissions forced on suspects by unscrupulous police officers. So when such a victim is presented with further pursuance of such a 'might is right' policy - the 'parole deal' - there is a natural reluctance to go along with the idea.
The morality of the 'parole deal' is exactly that of 'plea bargaining'. Both are essentially a deal in which the authorities say: 'We say you are guilty. Admit it and you will get something in return'. Most lawyers disapprove of pre-trial plea bargaining and would refuse to condone a plea of guilty when they fully believe their client to be innocent. The finality of the trial process persuades them that the morality of the 'parole deal' is somehow different.
Nevertheless, it is clear that the 'parole deal' is extortionate. It attempts to make prisoners conform not only in physical form, but also in mind. If such were done in an attempt to stop prisoners having antisocial attitudes and opinions, it might be condoned. However, it is used here to make the prisoner accept a particular version of history even if it is at total variance to what the prisoner knows was the truth, or even what the Court of Appeal may ultimately decide was the truth.
When we use the law to determine the narrative of history in the minds of individuals, we are approaching tyranny. That is clearly not in the public interest.
If neither the Home Office nor the Court of Appeal will do anything to support the moral foundation of the system of justice in this area, then others of high moral integrity may feel the need to step in to help the victims of this injustice. Such a tactic has already been used in some of the high-profile miscarriage of justice cases when leading religious personalities and other such persons became involved. The campaigns which used such personalities produced a change in the thinking of the Court of Appeal. The Court of Appeal proved reluctant to doubt the word and sincerity of a person of obvious great moral integrity.
Judges always used to believe that no one confesses to a crime unless they are truly guilty. Culpatory statements always carried more weight than subsequent exculpatory ones. It has never helped an accused to say: 'I only confessed so that I could get a solicitor so now I retract the confession'. This belief in inherent guilt, has largely been destroyed in the past two decades. The Court of Appeal is now fully aware that pressure, such as the 'parole deal', can produce false confessions - for a variety of reasons. This change of attitude may provide the way forward in dealing with the present problem of the 'parole deal'.
If a convict being subjected to such pressure were to contact an independent person of unquestionable integrity and affirm, perhaps in writing, that he or she was going to make a false confession as a means of entering the parole procedure, the Court of Appeal might find it difficult to accept such a confession as being the truth. As in other miscarriage of justice cases, the false confession could be considered as unsafe because it was obtained by the use of undue pressure.
The Court of Appeal might disapprove of such prisoners telling lies in order to gain advantage in the parole procedure. But as the guardian of the moral foundation of the system of justice, it might find itself in a moral dilemma if it supported the idea that potentially innocent prisoners should have fewer privileges than genuinely guilty ones.
* Peter Hill is an investigative TV journalist specialising in miscarriages of justice. He created the TV series 'Rough Justice' in the early 1980s and is currently working on a film about 'The Parole Deal'.
INSIDE TIME is the national newspaper for prisoners and is published by The New Bridge - a charity founded in 1956 - which recruits and trains volunteers to visit prisoners and provides an employment service for ex-offenders. (It also contains the best cartoons ever. Ed.)
The New Bridge
27A Medway Street
London SW1P 2BD
Tel: 020 7976 0779