Preventing Parole
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PREVENTING PAROLE THE EFFECT OF INNOCENCE CLAIMS ON PAROLE ELIGIBILITY Rachel Barsky & Adam J. E. Blanchard Presented by the Criminal DeFence Advocacy Society (CDAS) in October 2018. CDAS thanks the Law Foundation of British Columbia, which funded research for this report. TABLE OF CONTENTS I. EXECUTIVE SUMMARY…………………………………………………………………….1 II. THE WRONGFUL CONVICTION/PAROLE DILEMMA IN CANADA AND BEYOND…………………………………………………………………………………. 6 A. United States 7 B. United Kingdom 8 C. Canada 9 III. THE CORRECTIONAL AND PAROLE SYSTEMS IN CANADA…………………….11 A. Role of the Correctional Service Canada 11 B. Purpose of the Correctional System 12 C. The Parole Board of Canada 13 D. The Parole Hearing Process 14 E. Parole Considerations 17 F: Legislative History: Inmate Accountability and Parole 21 G: Commissioner’s Directives 27 H. CSC Programs: Entry and Completion 30 IV. THE DIFFICULT TASK OF ASSESSING RISK……………………………………….39 V. VIOLENCE RISK ASSESSMENTS………………………………………………………44 A. Core Principles of Comprehensive Risk Assessments 48 VI. METHODS OF ASSESSING VIOLENCE RISK……………………………………….53 A. Unstructured Clinical Judgment 53 B. Actuarial Approach 55 C. Structured Professional Judgment 65 D. Comparative Empirical Research 75 E. The Longstanding Clinical Versus Actuarial Debate 75 F. Meta-Analytic Evidence on Violence Risk Assessment 77 G. Select Research on the SPJ Approach 78 VII. DENIAL……………………………………………………………………………………80 A. Innocence Claims and Categorical Denial 87 B. Incidence of Categorical Denial 93 C. The Purpose Behind and Interpretations of Denial 97 D. Denial and Risk for Sexual, Violent and General OfFending 109 VIII. METHODOLOGY TO UTILIZE IN THE CONTEXT OF DENIAL: SPJ…………..118 A. Key Themes of a Comprehensive Risk Assessment 118 B. Comparing Actuarial Versus SPJ Approaches 128 C. SPJ Utilized in Preventing Parole 135 IX. TREATMENT AND ACCESS TO PROGRAMS FOR INMATES WHO MAINTAIN INNOCENCE…………………………………………………………….151 A. Approaches to Treatment With Deniers 155 B. Treatments That Exclude Deniers 155 C. Treatments That Attempt to Overcome Denial 157 D. Treatments That Disregard Denial 161 E. Claims of Innocence in OfFender Treatment 164 F. Risk-Need-Responsivity Model of Correctional Intervention 166 X. RECENT DEVELOPMENTS…………………………………………………………….172 XI. JURISPRUDENCE………………………………………………………………………176 XII. RECOMMENDATIONS…………………………………………………………………178 APPENDIX I: THE 60-YEAR CLINICAL-ACTUARIAL DEBATE……………………..181 APPENDIX II: VIOLENCE RISK ASSESSMENT META-ANALYSES………………...183 APPENDIX III: TABLES 6 & 7……………………………………………………………..192 APPENDIX IV: SELECT RESEARCH ON THE STRUCTURED PROFESSIONAL JUDGMENT APPROACH…………………………………………………………………..194 BIBLIOGRAPHY……………………………………………………………………………..199 PREVENTING PAROLE The EfFect of Innocence Claims on Parole Eligibility Rachel Barsky1 & Adam J.E. Blanchard2 I. EXECUTIVE SUMMARY At the time of his murder trial in 1983, Phillip Tallio was 17 years old. No physical evidence implicated Mr. Tallio in the crime—the murder of his two-year-old cousin on the remote Nuxalk reserve in Bella Coola, British Columbia. No direct, or valid circumstantial evidence existed. Mr. Tallio professed that he was innocent. Yet, a guilty plea was entered on his behalf, and he was convicted of second-degree murder. He received a life sentence with parole eligibility set at 10 years, when he would have been 27 years old. It is now more than 35 years later, more than 25 years past his parole eligibility date, and Mr. Tallio remains incarcerated in a federal prison in B.C. Mr. Tallio has missed the birth of his daughter, his granddaughters, a life with his family, and the passing of beloved relatives. In 2015, Mr. Tallio wrote a letter to his counsel asking if he would be free before his 50th birthday that December. There was no favourable way to respond. Mr. Tallio knows that unless his lawyers, Rachel Barsky and Thomas Arbogast, are successful in his application to the Court of Appeal of British Columbia to withdraw the guilty plea that was entered 35 years ago, he may spend every birthday for the rest of his life in prison. Canada’s parole process has failed Mr. Tallio, because Mr. Tallio claims to be innocent. 1 Rachel Barsky is a criminal defence lawyer practicing in Vancouver. She is a founding member and Director (Secretary) of the Criminal Defence Advocacy Society (CDAS https://www.cdasociety.com/). Ms. Barsky has worked on cases involving claims of factual innocence since April, 2011, both through the UBC Innocence Project and Innocence Canada. She is a graduate of the University of British Columbia’s Peter A. Allard School of Law (J.D.) and the School of Journalism at Ryerson University (B.Journ, Hons.). 2 Adam Blanchard is currently completing his Ph.D. in the Experimental Psychology and Law Program at Simon Fraser University. His research interests include risk assessment and risk management, as well as the perpetration of crime and violence. He completed both his B.A. (Hons.) and his M.A. under the supervision of Dr. Kevin S. Douglas in SFU’s Clinical Forensic Psychology program. 1 Preventing Parole stemmed from the recognition of a pattern in UBC Innocence Project3 applicants’ experiences with the Parole Board of Canada (PBC), in that they are being denied parole seemingly due to their innocence claims. These claims also seem to make it exceptionally difficult to obtain temporary releases, such as Escorted Temporary Absences (ETAs) and Unescorted Temporary Absences (UTAs).4 Even entry into, or completion of, Correctional Service Canada (CSC) programs, which are necessary for inmates to complete in order to obtain the support of their CSC Case Management Team (CMT), has been denied because the individuals maintain factual innocence. The UBC Innocence Project (the Project) began working on Mr. Tallio’s case in December, 2009, with Ms. Barsky becoming involved in April, 2011. Mr. Tallio has always maintained innocence. With his case currently before the Court of Appeal for B.C., he may soon join the unenviable ranks of Canada’s recognized wrongly convicted individuals, now numbering more than 50. In the meantime, Mr. Tallio has now been unable to obtain parole for 25 years past the date that he was otherwise eligible. Inmates who are actually guilty of equal crimes were released decades earlier. 3 The UBC Innocence Project (the Project) reviews potential wrongful convictions in British Columbia. Mostly student-run, under the leadership of a part-time Project Director and the pro bono assistance of supervising lawyers, the Project reviews claims of factual innocence, like Phillip Tallio’s. The Project is reviewing more than 20 active cases of men and women who claim to be factually innocent—that they did not commit the crime for which they are incarcerated. The Project’s roster consists overwhelmingly of murder cases. Sometimes the Project decides to close a case, finding that the claim lacks merit, or that there is unfortunately insufficient new evidence to support the claim of innocence. 4 ETAs are a first step towards community integration for inmates. The Conservative government mandated that inmates serving certain life sentences (“lifers” as they refer to themselves) must be approved by the PBC for ETAs (except for medical and judicial ETAs), whereas they used to require only the warden’s consent. If inmates are successful in obtaining ETAs, they are allowed to leave prison with CSC or other trained staff escorting them for a limited duration. Inmates may attend medical treatment on ETAs, visit critically ill relatives, or engage in community service, for instance. In cases of a life-sentence where the inmate was an adult at the time of the offence, they are eligible for UTAs after they have served the portion of the sentence to reach their full parole eligibility date, less three years. For indeterminate sentences, an inmate is eligible to apply for UTAs after serving the portion of his or her sentence to reach their full parole eligibility date less three years, and for other cases, inmates must serve half the period required to be served before their full parole eligibility, or six months (whichever is greater). If they obtain UTAs, inmates are released into the community for short-term durations without escort, and for work release programs. See, Correctional Service Canada, Commissioner’s Directive 710-3: Temporary Absences, (Last modified June 1, 2016) http://www.csc-scc.gc.ca/lois-et-reglements/710-3-cd-eng.shtml 2 The phenomenon is not something seen very often by the PBC. With regards to Mr. Tallio’s specific situation, former Vice Chair of the PBC (Pacific Region) Stuart Whitley5 commented in an interview with Ms. Barsky: “I’ve never seen anything like this and I’ve seen everything.” Patrick Storey, a former PBC member who at the time of his interview with Ms. Barsky was Regional Manager, Community Relations and Training (PBC, Pacific Region)6, estimated that out of 100 inmates at parole hearings, perhaps five per cent maintain innocence. He stated that this rate would be even lower once an inmate’s parole eligibility date has passed. However, the repercussions for the inmates who do continue to maintain innocence can be devastating. Mr. Tallio’s continued expression of innocence has, over the years, prevented him from successfully completing prison programming, from obtaining prison absences and from gaining the support of his case managers, all of which are necessary milestones to obtaining parole under the current system. In this report, we have attempted to explore some of the reasons why this is so by setting out the current legislative scheme and considering the current tools used by the system to review parole eligibility. Mr. Tallio’s case will be utilized throughout to demonstrate the catch-22 problem inmates claiming innocence face in obtaining parole. To advance research and analysis on the pattern viewed by the Project, the Criminal Defence Advocacy Society (CDAS)7 obtained a Large Project Grant from the Law Foundation of B.C. Ms. Barsky, with the consent of Project applicants who wished to be involved in the study, filed requests under the Access to Information Act (RSC, 1985, c A-1) to obtain their complete CSC records.