Set Up to Fail? Examining Australia’s Approach to Parole Compliance Through a Therapeutic Jurisprudence Lens

Fairness of Response to Non-compliance
Offenders’ ability to comply with the conditions of community supervision has been found 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. The pivotal role of fairness here has caused Herzog-Evans to describe it as a ‘powerful criminological tool’. Indeed, Boldt has contended that ‘when a judge responds…with a proportional sanction, he or she is helping to provide treatment’. Accordingly, this paper 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’.
Fairness, a fundamentally vague notion, will be assessed by reference to evidence of practice that effectively facilitates compliance and desistance. Initiatives such as Hawaii’s Opportunity Probation with Enforcement (HOPE) program are instructive in this regard. HOPE commenced in 2004 and has generated encouraging results with respect to probation compliance and recidivism. 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. That is, HOPE provides ‘swift, certain and fair’ sanctions for detected breaches of probation. It is acknowledged that this approach includes (very) short terms of imprisonment, which in the criminological literature is often considered to have merely detrimental effects. However, the sanctions are only one component of HOPE, which also adopts evidence-based supervision practices and a patient and caring judge. In addition, through its sanctioning approach, the HOPE model delivers proportionate sanctions in response to breaches that can be best understood as ‘fuck it moments’. As Alm has stated: ‘I believe HOPE is procedural justice in action. In HOPE, we strive to be clear, transparent and predictable’. He has also suggested that ‘one of the chief reasons HOPE works as well as it does, is that the probationers feel they are being treated fairly … the rules are being enforced consistently and proportionately’.
Though HOPE is not exclusively TJ-based, observations of the program confirm its therapeutic components. 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 multi-disciplinary teams, regular engagement between the offender and the court, an interventionist judge and a range of community-based treatment programs.
At the time of writing, parole programs based on HOPE were reportedly in operation on four states in the US. As discussed further below, the Northern Territory recently introduced COMMIT, a parole sanctions model based on HOPE. This represents the first program based on HOPE adopted in Australia and may represent a promising new direction in managing parole compliance.