Earning Early Release
Punishment for The Past, Training for The Future
Draft Paper 29.06.2012 download here
Prisoners expressed that they felt helpless awaiting the end of their sentence, suggesting remission as an incentive for self-improvement and to successfully re-enter the community.
2. What is Remission?
3. Psychology of Remission
4. History of Remission: Maconochie’s “Marks System”
5. Other forms of Remission
6. Benefits of Remission
7. Problems with Remission
9. Intenational Examples
- United States
- United Kingdom
- Northern Ireland
- Republic of Ireland
It is part of human existence to have the opportunity to strive towards a goal that will provide benefits in return. The prospect of earning freedom provides an important incentive for individuals who have lost their liberty to improve themselves and also to cooperate with the system. To remove that opportunity is inhumane and leaves them demoralised, passive and liable to be institutionalised. This boredom and passivity often leaves prisoners with nothing for stimulation but violence and drugs, and does nothing to prepare them for life on the outside. Unfortunately, political attempts to appear tough on crime have led to a political agenda that resonates with the dark ages.
“Remissions”, "earned release” and “good time credits” refer to the structured system that aims to encourage self-improvement and positive behaviour in prisoners. This brings hope and a positive outlook to prisoners before and after release, allowing them to better adapt and equip for life outside of prison. It gives them a sense of responsibility and direction in life, thus converting them from passive recipients of punishment to active participants in their own lives. Earned release also benefits the system by giving it greater control over the prisoner, saving money and preventing prison over-population.
This research paper discusses the benefits and problems surrounding remissions within the prison system, particularly the wide array of benefits in reducing recidivism and improving prison management. It also presents historical, local and international experiences of earned release. Also, a psychological explanation of why remission systems within prisons work will be presented.
The use of remissions has fluctuated over recent years, sometimes resulting in the disillusionment and loss of public faith in it. An historically significant example was the experience of the Norfolk Island penal colony in the 1830s, where penal reformer Alexander Maconochie used the first remission system in Australia. This colony housed the worst of the worst reoffenders from both the United Kingdom and Australia’s penal colony. Interestingly, the recidivism rate among this group after progressing through the remission system was just 2%, significantly lower than today’s 40%. Mental and physical improvements in inmates were an undeniable effect of the system.
International earned release programs have been expanded successfully in recent years through legislation. In Canada, the system is heavily focused on rehabilitation and community reintegration, which has benefits for both the former prisoner and safety of the community. The United States operates on a credit point system that provides specific goals prisoners can work towards. Australia, on the other hand, has reduced opportunities for earned release.
Consideration of prior evidence shows that earned release programs are highly useful in addressing overcrowding, high costs, low morale and recidivism. Because it aids in improving the psychological mindset of prisoners, it produces a compelling incentive for prisoners to behave cooperatively and positively while in prison. It effectively allows them the opportunity to take their future into their own hands with the prospect of freedom as the reward.
2. What is Remission?
Remission is the reduction of the term of a prison sentence, usually due to good behaviour or conduct. It refers to a structured system with criteria for prisoners to meet in order to encourage good behaviour, rehabilitation and self-improvement, with the ultimate benefit being the release of the prisoner.
3. Psychology of Remission
The motivation for a penal system involving remission arises from the belief that a prisoner’s desire for self-improvement would be significantly increased if their conduct directly affected their prison-term, effectively placing their fate into their own hands. Operant conditioning is a model of learning that has received extensive application and empirical scrutiny. This model is based on over 50 years of empirical science, which has demonstrated that virtually all voluntary and most emotional overt behaviors are significantly influenced by their contingent consequences and the surrounding environmental context in which they occur.“
Operant conditioning is a term coined in psychology that refers to a method of behavioural modification.  Operant conditioning techniques utilise the introduction or removal of reinforcement or punishment stimulus. Reinforcement and punishment can be applied either positively (addition) or negatively (subtraction). Positive reinforcement is when a desired behaviour results in the introduction of a positive stimulus, whereas negative reinforcement refers to the removal of an aversive stimulus. Conversely, positive punishment is when a non-desired behaviour receives an aversive stimulus, whereas negative punishment is where a positive stimulus is removed. This form of behavioural therapy has proven successful across a range of behavioural problems and disorders.
Remission systems utilise operant conditioning principles. The desired behaviour, in this case good behaviour, is reinforced through negative reinforcement, i.e. the reduction of one’s sentence. The success operant conditioning has had on behavioural modification suggests that remission systems could play a pivotal role in prisons.
4. History of Remission: Maconochie’s ‘marks system’
Captain Alexander Maconochie, a notable Norfolk Island Prison Governor and penal reformer, first proposed a system of remission in the nineteenth century based on the principle that prisoners’ liberation should be dependent on their own efforts, not solely upon the lapse of time, and that prison sentences should be reformative in order to prepare prisoners to re-enter into society. When men’s minds are raised to the idea that their daily or even hourly conduct may have an influence on their ultimate liberation, they are in a much more improvable state – they have a stronger motive to resist temptation, and stronger inducements to regular exertion. Maconochie’s system was extremely successful with less than 2% of the 920 prisoners discharged under his supervision found to reoffend, and his principles were so revolutionary that Canberra’s newest prison, built to reform not punish, and labelled as Australia’s first human rights prison, has been named the Alexander Maconochie Centre.
Maconochie introduced a ‘mark system’ where prisoners’ respective sentences, conduct, and character were factored in to award, fine or deny marks, which could be traded for indulgences and ultimately, one’s release. Prisoners also formed themselves into messes of six where they were responsible for each other’s conduct, with the group gaining or losing marks according to the behaviour of each. Through Maconochie’s remission system, punishment for crime became less vindictive, and greater emphasis was placed on strengthening a prisoner’s desire and capacity to observe social constraints. The system of earning marks and trading them for indulgences and ultimately a prisoner’s release also encouraged the development of good practices, such as nurturing industrious habits and frugality. Thus, Maconochie’s system was tailored to ensure that prisoners were ‘trained for the future’, so that they would be able to contribute to society in a positive way upon release.
The uniqueness of Maconochie’s system has been summarised into five distinct characteristics as it:
- Placed individual reform of prisoner over deterrent or retributive objectives
- Advocated task sentences rather than time sentences
- Introduced a marks system where prisoners were awarded for achievements, fined for misconduct, and rations an indulgences could be purchased
- Encompassed a two stage sentence: punitive stage and reformative or moral training stage
- Introduced a new object and spirit to whole penal system.
5. Other Forms of Remission
Remission has been granted for external factors in the past, such as strikes by prison wardens or royal visits. Strikes by prison wardens saw prisoners neglected and mistreated, and as such, their sentences were shortened in compensation. Prisoners were also granted remissions by monarchs, who could exercise the Royal prerogative of mercy. This was seen as a symbol and exampled by the State of mercy and generosity. Prisoners were granted remissions as a result of visits by Her Majesty the Queen to New South Wales in 1970, 1973 and 1977.
6. Benefits with Remissions
The Nagle Royal Commission Report 1978 stated, “the object of the remissions system is to provide an incentive to good behaviour by the inmates and a rehabilitative effect on prisoners working towards a goal”. Remissions give prisoners a chance to change and hope, rebuilding their family. It is a recommendation of encouraging prisoners to take on co-operative behaviour. In societal perspective, remissions can solve overcrowding in prison and break down the cycle of recidivism for long-term good. It also provides prison management with an additional tool - to reduce the number of conflicts they can exercise of granting and removing time left on the prisoner’s sentence.
Introducing a remissions system can also be seen as a cost-saving mechanism. In the United States, remissions work under a system called “good time” credits, which operate both at the Federal and State levels. With respect to good-time credits, the US Department of Justice’s fiscal 2012 strategy paper explains:
“The Administration will transmit legislative proposals to amend the statutes governing federal inmate good conduct time credit. The proposed legislation will continue providing inmates with incentives for good behavior as well as to participate in programming that is proven to reduce the likelihood of recidivism. The proposed sentencing reforms include (1) an increase in the amount of credit an inmate can earn for good behavior, and (2) a new sentence reduction credit, which inmates can earn for participation in education and vocational programming. If enacted before FY 2012, these changes could result in significant cost avoidance, potentially up to (US)$41.0 million in FY 2012, by slowing the rate of the federal inmate prison population growth.”
More specifically, the Oregon Secretary of State Audit Report estimated that for inmates released in fiscal year 2009, earned time saved at least (US)$25 million based on the average daily cost per inmate.
7. Problems with Remission
The principle of ‘Truth in Sentencing’ was raised in 1989 in NSW as the main concern regarding a system of remission, as it was described as deceptive to the layperson. Most people would assume that when a judge sentenced a prisoner to a term of imprisonment that would be the amount of time the prisoner would serve. However, with remission, prisoners understood the reduced sentence to be their maximum sentence, as any loss of remission would only result from disciplinary action an extra punishment. Therefore, the ‘Truth in Sentencing’ movement sought to ensure prisoners served the full amount of time they were sentenced to, rather than a mere portion, and then being released on parole or remission.
A remission system also raised issues of favoritism and inconsistency in individual approaches as prison officers would be heavily relied upon for reports and feedback on the behaviour and performance of prisoners.
Lastly, there is the issue of corruption regarding remission. In 1987, NSW Minister for Corrective Services Rex Jackson was sentenced for taking bribes to secure the early-release of prisoners. He was sentenced to seven and a half years in prison, and served 3 years until being released early.
In 2006, the Law Council of Australia expressed its support of a system of earned remission in its submission to the Australian Law Reform Commission discussion paper, stating that where a prisoner behaved particularly well in prison and demonstrated real rehabilitation, then there should be a mechanism available to reduce the non-parole period. A 2006 report by the Australian Law Reform Commission supported in principle a system of earned remissions, but conceded that it would be difficult to implement on a federal level due to differing state laws. The report quoted a federal offender as saying:
“Remissions must be re-implemented to assist the rehabilitative process and to encourage good behaviour. It also allows the offender to be released without being imprisoned for longer than absolutely necessary. One must consider the point in time in an offender’s sentence where the sentence stops being rehabilitative and starts to become detrimental to a person’s psychological wellbeing. It would be in interest of society to release a rehabilitated offender from prison rather than an offender who has been profoundly affected by an excessively long sentence.”
The Nagle Royal Commission conducted in 1976-1978 recommended that NSW adopt a remission system where all remissions should be earned, and any remissions should be taken off both head sentence and the non-parole period. It considered that the system introduced in Victoria in 1975 should be adopted in New South Wales, suggesting further that it is based on the system that Alexander Maconochie introduced on Norfolk Island. The Commission considered that the system was worthwhile, but more emphasis should be placed on providing a proper incentive to the prisoner. This recommendation was adopted and provided prisoners proper incentive to work hard, behave well, and strive towards self-improvement, until it was repealed in 1989. One effect of the elimination of all forms of remission is that sentences have become longer and overcrowding in prisons has worsened since, in removing remissions, the Government has severely limited its options for managing the size of the prison population.
9. International Examples
Although Australia does not currently have its own remissions system, they are widespread throughout the world. Under labels such as earned remission, early release, supervised release or reduction credits, similar schemes have been implemented in common law countries including Canada, the United Sates and the United Kingdom.
Earned Remission is available to all provincial offenders in Canada. Essentially, prisoners may ‘earn’ early release at a rate of up to 15 days each month of good behaviour. Emphasis is placed on community reintegration as the Prisons and Reformatories Act defines good behaviour as ‘obeying prison rules and conditions governing temporary absence and by actively participating in programs…designed to promote prisoners’ rehabilitation and reintegration.’ This was shaped by the Corrections Planning Committee’s classification system, which significantly influence hierarchical standards, depending on security threat in statutory remissions and earned remissions.
Canada has one of the most effective remissions programs in the world. It strikes a considerable balance between the need to encourage better behaviour for prisoners while at the same time ensuring protection where needed for members in society. For example, courts ensured that forfeiture of remissions would depend on civil and criminal misconduct, especially when repeating offences. This includes lack of adherence to internal prison rules. This is in contrast to merely disobeying external regulations. In R v Casserly, the Ontario Province Court stated that unless the Prisons and Reformatories Act does not explicitly indicate that failure to comply with external fines while serving sentence will suspend eligibility for remissions, one is still entitled if well behaved or better, reformed. It follows that whoever is able to comply with standards set forth in legislation while in prison; they are able to earn remissions.
Canada has very recently pushed to emphasise public safety, while at the same time stressing the need for earned remissions rather than statutory remissions in the Corrections and Conditional Release Act. Earned remissions have been found to ensure greater public safety, by reforming and reintegrating prisoners back into society, and in doing so, maintains rights of the individual. In order to stimulate greater success in reintegration, in its report: ‘A Roadmap to Strengthening Public Safety,’ it recommended improving physical infrastructure to ensure a more sensitive, nurturing prison environment, and developing employability, employment skills through social skills training, improve problem solving and comprehension.
This is to be supplemented by adequate safeguards such as increasing the monitoring of prisoners in their progress, raising their accountability, and providing more communication with victim. Such an Earned Remissions approach not only ensures relatively greater public safety by encouraging the perpetrator to participate in reintegration, it involves the victim and enhances the individual’s right to liberty and life.
A system based on reduction credit points operates in the United States. Federal prisoners sentenced to more than one year of imprisonment (excluding those with terms of life imprisonment) can receive credit of up to 54 days for each year served. Credits are awarded on the basis of fulfilling desired behaviour including work attendance, program participation, cooperation, personal hygiene and education/vocational training. However, in October 2003, the Literacy, Education and Rehabilitation Bill was introduced in attempts of increasing the credit days up to 180 per year. The purpose of the bill was to promote public safety by offering constructive incentives for exemplary institutional adjustment while at the same time increasing educational standards and decreasing the overall cost of corrections. Unfortunately however, this bill was not passed.
Most states also have sentence credit policies applicable to inmates in state prisons. There are two types of credits – earned time and “good time.” Earned time is a credit against an inmate’s sentence that the inmate earns for participation in or completion of productive activities. Good time credits are given to inmates for following prison rules and required participation in activities. At least 38 states offer earned time credits. Education and work provide the most common opportunity for earned time. At least 32 states give good time credits.
According to the Vera Institute of Justice, the trend nationwide is toward increasing the availability of sentence credits. Between 2001 and 2010, at least five states expanded good time credits. This is arguably due to the promising results found from existing merit programs through various states. For example, in New York, between October 1997 and December 2005, the 21,200 inmates released due to Merit Time approval had a return to custody rate that was the next to lowest rate of all of the comparison groups. Specifically, inmates with a merit approval that were released prior to their Parole Eligibility date returned at a rate of 11 % within the first year. All other releases returned at a rate of 18% within the first year. The Washington State Institute for Public Policy also found that a 2003 legislature increasing earned release time (for eligible non-violent property and drug offenders) from a maximum of 33% of the total sentence to a maximum 50%, saw a 3.5% decrease in recidivism over a three-year follow up of early release offenders.
In 2007 Kansas adopted a package of measures designed to control the growth of incarceration while keeping communities safe. This included a 60-day earned credit for offenders for the successful completion of one of four programs: substance abuse treatment; a general education diploma; a technical or vocational training program; or any program the secretary of corrections believes will reduce a given inmate’s risk of violating the conditions governing his/her eventual release. Since these reforms took effect, a 35% decrease in crime among parolees who participated in these programs became apparent. Along with this came a 45% reduction in parole revocations.
On April 9, 2008 President Bush had signed the Second Chance Act of 2007, which related to Omnibus’s Crime Control and Street Safety Act of 1968.  Although it does not have description on remission, it suggested that providing an opportunity for prisoners to learn (eduction) and use their time productively (computer uses in cells and job training) could actually help to reduce recidivism (10% reduction in the rate of recidivism over a two years period)  and long-term solution for prison population.
A stated reason for the use of remission as set under the California and Washington Early Release Programs is reducing problems of overcrowding and budget constraints. Remissions do naturally play a role in decreasing prison populations, especially when there is a given quota set under a law, hence statutory remissions. Such an approach has been subject to great controversy, as it is a quantity based, rather than a behavioural approach. The California Penal Code s 4019 and Washington Senate Bill 5990 indicates that working in prisons enables one to pay off fines and as part of the credit reduction scheme, reduce sentences. This would apply to most state prisoners. A very basic criterion applies in terms of earned remissions, as it focuses on the labour of the individual rather than their reformation.
Earned Release Programs (ERP) on the other hand, enable much greater flexibility for the prisoners to enhance themselves and become less of a societal threat. Alcohol, drug treatment, dependency, addiction, relapse prevention, rational behaviour training, responsible decision making and restorative justice concepts are all catered for as part of earned release training. These programs have recently been introduced in Wisconsin and Mississippi, whereby the Bureau of Offender Classification and Movement select eligible offenders. Excluded offenders include: life imprisoned, habitual, sexual, escapee or attempted escapee, and those that have not served their mandatory time in prison. Even though these schemes do not incorporate all prisoners, it nonetheless serves as a developed means to improving the outlook for prisoners and crime reduction.
In England and Wales, traditional good-time remission was replaced with the Early Prisoner Release Scheme in 2007 when there were barely 100 beds available across the entire prison system. Put simply, the Scheme was essentially based on necessity due to prison overcrowding rather than reform and rehabilitation. In fact, the UK was so reliant on early release to the point where two men convicted of terrorism were released early in 2008 in order to address prison over crowding. Politicians have not independently expressed any humanitarian principles for the early release of prisoners because when 2500 spare beds were present in February 2010, prisoners lost entitlement to the scheme and the scheme was abolished. Such a demand based approach lacks incentives for better behaviour, and could explain the relatively greater rates of recidivism in the UK.
However, even though the remissions and Early Prisoner Release Schemes have been abolished, the parole system has expanded significantly with conditional release available to prisoners once they have served half of their sentence. Those serving sentences of more than one year may be released early on license, where an offender is able to serve the remainder of their sentence while living in the community and adhering to specific guidelines. Early release is capped at 20% of the original sentence and is earned through cooperation and positive good behaviour in prison. 
Evidently, it can be said that prison is inefficient for less serious offences as it is very costly, and clearly there is an overcrowding issue that needs to be addressed. Early release programs based on good behaviour would cost less, and give the offender the opportunity for growth and reform in prison as opposed to merely serving their time. Overcrowding is one of the underlying factors precipitating violence within prisons. We should adopt a humanitarian approach and aim to reform and rehabilitate low-risk prisoners, especially juveniles. This can be achieved with the aid of remissions programs.
Prisoners in Northern Ireland are entitled to remission at a rate of 50%. Remission is accessed based on principles of good behaviour, and is in fact attained by the vast majority. Former Security Minister Paul Goggin did however suggest a tightening of rules regarding those released earlier, in making releases conditional.
Even though under the Criminal Justice Order 2008, the 50% requirement still exists, those serving sentences of 12 months or more, as well as dangerous/sexual offences are treated differently. If released earlier, under s 23(1) of the order, the court is able to make recommendations of conditional release, subject to treatment, restrictions and supervision for those sentenced greater than 12 months or greater for any offence in prison.
This is to the exclusion of those who are serving life sentences or who have been convicted for sex offences.Under the Criminal Justice Order 2008, s14 (3), a sex offender aged above 21 is to be kept in prison throughout their sentence or equivalent and maybe subject to an extended period as well. For those serving indeterminate period or an extended period, as per section 18(1), the parole commission is unable to consider remission, unless the secretary of state has made a recommendation after the prisoner has served the required minimum sentence under s13.
Paul Goggins, the Northern Ireland Security Minister, stipulated that the provisions are mainly intended for violent, dangerous and/or sexual offenders. In an interview with BBC, he stated that those who commit minor offences, although would likely have conditioned releases, will largely be free, except to serve re-integrative roles in the community: “Viable alternatives such as unpaid work.”
Such conditional releases proportional to the quantity and nature of offences is a reflection of Northern Ireland being a small, close-knit community. In the journal ‘Remission Revision’, Northern Ireland legal researcher Rosemary Craig highlights how the numbers of prisons are declining from 5 in the 1970s with Northern Ireland’s population being under 1.5 million people to three with 1.75 million people, implying this is unsustainable. Craig failed to regard the fact that crimes have declined since then, in which remissions, as a recidivism-reducing tool, has played a positively correlated.
Craig used two examples in which sex offenders had been released earlier. One isn’t noted to have repeated an offence, while the other went on to commit murder. This produced a massive public outcry, which reflected the subsequent amendments made under Criminal Justice Order 2008. However, these examples appear to be exceptions and as indicated above, provisions have been made for serious offenders to have more restrictions and monitoring imposed on them. The Journal does not refute the correlation between remissions and lower recidivism. Notwithstanding, it conveys the most fundamental barrier to greater remissions, concern for public morale. Combining this with views of Paul Goggin, it does highlight the link between the mass public pressure and political servitude as well.
Republic of Ireland:
In Ireland remission is viewed as a right accessible to all prisoners, to the exclusion of those with sentences of life or of less than one month. A sentence may be reduced by as much as a quarter, depending on ‘good conduct’ whilst in prison. In certain circumstances, where a prisoner has undergone specially approved activities that are seen to have the effect of reducing the prisoner’s likelihood of re-offending, the remission rate may be increased to one third. Alternatively, remission may be cancelled in part as disciplinary punishment. 
Remissions in Ireland serve an economic purpose. They provide jobs for many teachers, security officers and researchers, while alleviating excess prison crowding. Researchers are especially able to observe the general trend of training practices and rules and their success in reforming prisoners. Barrister Paul Anthony McDermott conveyed that prisoners’ remissions entitlement is an economic decision built upon addressing the need to reduce prison crowding. He expressed criticism on the issue that lack of funding is occurring in rehabilitative practices. This means that many offenders, such as sex offenders, who may still be subject to remission by good behaviour, may be released earlier without access to rehabilitative practices.
Promising signs have been shown for further reform to incorporate such rehabilitative practices. A significant need is expressed that for or both prisoners and social members, there is to be greater assurance made for public safety via application of re-integrative practices. Minister for Justice and Law Reform Dermot Ahern displayed willingness for a follow up report that thoroughly addresses need to stimulate funding in rehabilitation programs for the sake of ensuring public safety. Hence, Public safety and Individual rights are integrated. 
It is inhumane to remove all control from a prisoner’s life. By allowing them a chance at affecting their own fates, remission brings hope to the lives of vulnerable and will make it easier for prisoners to adapt when they are released. The option of remission encourages building required skills for such adaptation, progress and prosperity in life, all core factors that will enable a free and just life to be lived.
The legacy of Alexander of Maconochie can only be built upon in transforming remission systems locally, state wide, nationally, and internationally. The concept of revenge via retribution in society may perhaps be changed in its very nature into being more nurturing, rehabilitative, and understanding of the root causes of why prisoners are the way they are.
Significant recognition has been made by the Law Council of Australia regarding the importance of remissions as a tool to reform prisoner lives. This has been preceded by the Nagle Royal Commission that illustrated need to encourage productivity among prisoners to work towards goals rather than merely being patient and affording lack of effort in reforms.
In implementing a wide ranging remissions system in all states and federally, Australia will be accompanied by similar movements among fellow Anglophonic nations including Canada, Ireland, Northern Ireland and the United States. This will help to ensure Australia is amongst the leading and influential nations in the field of prisoner reforms.
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