Faint hope reporting malfunction

The federal government wants to abolish the faint hope clause, a measure in the Criminal Code that allows imprisoned killers to ask to have their parole ineligibility reduced. The Tory government announced the get-tough measure today. It’s a fix for a perceived problem that affects a small percentage of murderers, as the government’s own graphic (above) reveals: It shows that less than two in every 10 jailed killers who is eligible to ask for an earlier parole date has had a decision rendered since the first faint hope hearing in 1987. The table above is excerpted from the Corrections and Conditional Release Statistical Overview, Annual Report 2008, published by the federal government. After the jump, a look at the important detail in the faint hope process that’s missing from many media reports.

Here are other key facts about faint hope from the 2008 report:
• Since the first judicial review hearing in 1987, there have been a total of 169 court decisions.
• Of these cases, 83.4% of the court decisions resulted in a reduction of the period that must be served before parole eligibility.
• Of offenders eligible to apply for a judicial review, 18.3% have had decisions rendered by the courts.
• Of the 141 offenders who have had their parole eligibility date moved closer, 135 have reached their revised eligibility date. Of these offenders, 125 have been released on parole, and 95 are currently being actively supervised in the community*.
• A higher percentage of second degree (86%) than first degree (83%) murder cases have resulted in a reduction of the period required to be served before parole eligibility.

*Of the 125 offenders who have been released on parole, 15 offenders have been returned to custody, 11 offenders are deceased, one is unlawfully at large and three offenders have been deported. Judicial review is an application by an offender convicted of murder to the Court for a reduction in the time required to be served before being eligible for parole. Offenders can apply when they have served at least 15 years of their sentence. Judicial review procedures apply to offenders convicted of first degree murder, who are required to serve 25 years prior to being eligible for parole, and to offenders who have been sentenced to life imprisonment for second degree murder, with parole eligibility set at 15 years or more.

Here’s Ottawa’s explanation of what they’re doing in eliminating faint hope.

Many media reports about today’s Tory announcement leave out a key bit of information that’s vital to understanding the process that’s being changed.

Global news provides a backgrounder that could easily leave a reader confused. It includes this troublesome passage:

The application is reviewed by a judge and then a jury, taking into account factors including the offence itself, character of the applicant, behaviour in prison, and information provided by victims. The jury must unanimously accept the application to grant parole.

Note the words, “the application to grant parole,” which leaves the impression the jury makes the decision to release the killer early. Even the Toronto Star, normally pretty good with the mechanics of criminal justice, misleads:

The murderer must pass a two-step test and convince a judge and a jury to let him or her out early.

It’s actually a three-step process.

The killer must apply first to a judge, who decides if there is a reasonable prospect the application will succeed, on the balance of probabilities. If the answer is yes, a jury is selected to hear the killer’s application. If the jury decides the murderer’s parole ineligibility should be reduced, the convict still has to get past another gatekeeper.

The National Parole Board (step three) has final say on whether the killer gets early parole:

A favourable decision by the Court only advances the eligibility date. It allows the offender to apply to the Board at an earlier date for parole. Whether the offender is released, and when, is decided solely by NPB on the basis of a thorough assessment of risk with protection of the public as the first and foremost consideration.

Eliminating the faint hope provision is another one of those politically motivated justice system revisions that also is likely to breed more anxiety among staff who work in federal prisons. Without the faint hope measure, imprisoned killers will have one more reason to be cranky and perhaps violent while behind bars.

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