Can a therapeutic jurisprudence approach improve Australian parole systems?

Nearly half (46%) of adults released from prison in Australia will return within two years. Coupled with growing, and disproportionate, prisoner numbers, Australia is failing to reduce recidivism and facilitate desistance from crime.

This situation serves to entrench an already deeply engrained criminal underclass that is debilitated by severe economic and social marginalisation. It is in response to these circumstances that we consider the relationship between parole compliance, desistance and recidivism, noting that recidivism is too often seen as a failing of the ‘individual’ offender, rather than a complex ‘collective’ phenomenon. Relatedly, Halsey, Armstrong and Wright have suggested that reoffending and breaches of parole frequently happen ‘where people subjected to criminal justice supervision reach a critical limit and simply decide “f*%$ it”’.

From this foundation, we examine Australia’s parole compliance regime through the lens of therapeutic jurisprudence (TJ), which we argue provides a valuable perspective for understanding how these laws can operate to break or, alternatively, further entrench the cycle of recidivism.

Our analysis indicates that these laws are not currently ‘TJ-friendly’, as parole boards have little engagement with offenders, breaches of parole conditions are often subject to disproportionate responses and there is no legislative obligation for jurisdictions to integrate support services for parolees.

In response to these findings, some of the recommendations canvassed include:

• genuine attempts to incorporate ‘in-person’ decision-maker engagement and supervision into parole management, with corresponding research to test the impact of this on recidivism and desistance;
• restructuring formal responses to parole breaches to better respond to the realities of desistance, noting the sanction regime that the Northern Territory has adopted as part of its ‘Compliance Management or Incarceration in the Territory’ (COMMIT) parole program, in an attempt to impose a ‘fairer’ approach;
• legislating for more robust provision and coordination of support services for parolees, and persons returning from incarceration more generally; and
• greater rehabilitative, desistance-aware training and expectations on community corrections officers.

For a full exploration of this topic read Max Henshaw, Lorana Bartels and Anthony Hopkins:

Set up to fail? Examining Australian parole compliance through a Therapeutic Jurisprudence lens, University of Western Australia Law Review

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