EDWARD L. GREENSPAN, QC, is one of Canada's foremost criminal lawyers.
ANDREW MATHESON practises criminal law with Mr Greenspan in Toronto.
RONALD DAVIS is an assistant professor in the Department of French, University of Toronto. He is also a writer and lawyer.
One should try to locate power at the extreme points of its exercise where it is always less legal in its character.
THE French parole translates into "word" in English, in both the sense of "lexical unit" and "promise." Je vous donne ma parole becomes "I give you my word."
In return for "giving their word," persons convicted of crimes in Canada are released from prison before the completion of their sentences. Prisoners promise to observe certain conditions, such as remaining within designated geographic boundaries or refraining from specified activities. If they break their word, they return to prison. This is the "parole system." It is an integral part of criminal justice in Canada today. A huge bureaucracy administers it, and prisoners grovel for it.
The ostensible purpose of the parole system is to reintegrate offenders back into the community. In this paper we argue that the parole system not only fails to serve its purpose, it positively subverts it. Parole hardens those it should rehabilitate; it expands, not reduces, criminality. Society is damaged through the perpetuation of the falsehood of parole. Yet the concept of parole has deep ideological roots, and it will not be easy, though we shall try, to make the case for its abolition.
Michel Foucault's Discipline and Punish: The Birth of the Prison (1979) provides a starting point from which we can begin to understand the resilience and insidiousness of the parole system. Discipline and Punish describes the origin of the prison system in France as part of the emergence of a new way of thinking about crime and punishment. Although Discipline and Punish does not deal with parole per se, it dissects the penal practices and theories from which the parole system emerges and inspires us to ask the right questions about our contemporary parole system.
Foucault challenges us to look for subtle forms of tyranny behind apparently lenient penal practices. Parole appears lenient in comparison to prison, just as the prison system appeared lenient in comparison to the torture and public executions which preceded it. Discipline and Punish addresses the questions "What is the real purpose of the prison system?" and "Why do we tolerate the prison system's utter failure to accomplish its stated purpose?" For Foucault, the answers to these questions lie in understanding how the prison system reinforces certain power relations in society. Anyone who respects Foucault's work, even if they (like the authors) do not agree with everything he has to say, should ask the same questions of our parole system and look for answers in the same place, in the power relations created and replicated by the institution. (1)
A reading of Discipline and Punish and our practical experience with the parole system lead us to conclude that, despite its stated purpose of reintegrating offenders into society, parole actually encourages recidivism through its hypocrisy and uncertainty. Furthermore, parole legitimizes the extension of state power beyond the walls of prison and promotes the new and totalitarian idea of self-surveillance.
Foucault on Prisons
In order to look at our contemporary parole system through Foucault's lens, we must understand the intellectual framework in which his study of the prison system is located.
Foucault was interested in how power relations in society are created, maintained, and transformed. In Foucault's eyes, knowledge was integral to these processes. In fact, Foucault viewed knowledge and power as being so intimately connected that he referred to them as a single force: …