Maximum Security, Open Institution or Supervised Probationary Freedom: Prison Authorities’ Discretion in Prisoner Placement
Abstract
Prison authorities’ discretion has been a neglected topic in Finnish research on administrative law. However, the prison authorities possess powers to make decisions which have a substantial impact on the factual severity of a prison sentence. The most central decisions in this respect are those concerning the classification and placement of prisoners. Whether the prisoner is allocated to a closed prison or an open institution makes quite a difference to him. Since the total reform of Finnish prison enforcement legislation came into force in the end of 2006, it has been possible for prisoners to serve part of the term totally outside the institution. The prisoner can be placed in supervised probationary freedom (SPF), at the earliest, at six months before the regular conditional release.
In Finland, the courts have no power to decide in which kind of prison the convicted will serve his sentence and whether he will be placed in SPF. These decisions are left in the discretion of prison authorities and are governed by rather flexible rules. According to the Finnish Prison Act, the prisoner can be placed in an open institution if the placement furthers the sentence plan objectives and if the prisoner is deemed trustworthy and suitable for open conditions. Third, the prisoner is required to submit to random drug screen testing to monitor the abstinence policy. The same preconditions
apply to SPF.
The provisions on prisoner placement, especially those referring to sentence plan and the prisoner’s suitability, leave considerable room for interpretation. In the present article, different interpretations are offered. Some of the interpretations are deduced from the abuse of power doctrine (detournement de pouvoir), which is now codified as a legal principle of administration in § 6 of the Finnish Administrative Procedure Act.
Placement decisions should be proportionate to the prisoner’s criminogenic risk and needs. If there is no need for maximum-security confinement and if the sentence plan can be followed as well in more open settings, it can be regarded as disproportionate and unnecessary to place the prisoner in a closed institution. But the consideration as to whether the placement furthers the sentence plan objectives and whether the prisoner poses a security risk is a matter of extralegal expertise like social work and correctional psychology. However, also the consideration of suitability and trustworthiness
may invoke the issue of proportionality. For example, the authority should not give too much weight on very minor misbehaviors the prisoner may have committed during (earlier) prison term(s). On the other hand, if some forms of behavior, however harmless per se, have been proven to have some predictive utility as to later conduct, the authority does not exceed its powers by leaning on such behavior in considering open prison or SPF eligibility.
The meaning of the principle of objectivity in the context of prisoner placement could be interpreted so that placement decisions should be grounded on evidence-based risk assessment and classification practices.
It follows from the prohibition of exercise of power for an improper purpose that the prisoner should not be “doubly sanctioned” for his crime with restrictive placement. When considering the placement, the prison authority should not give too much face value to the prisoner’s recidivism status or on the type of crime which the prisoner has been convicted for. These are factors the court has already considered in the measurement of punishment.
Accommodation and personnel resources may limit the possibility to place every eligible prisoner in an open institution or SPF. TK: In this case, the authorities must place into order of priority those prisoners who satisfy the statutory preconditions, based on who will benefit the most from serving their sentence in less restrictive conditions. The prisoner’s personal safety and other individual special needs may also make it impossible to place him in an open institution or SPF even if he satisfies the statutory preconditions. Unequal treatment of prisoners who satisfy the statutory preconditions must be based on criteria that are acceptable from the point of view of both legislation and fundamental rights if the principle of equality is to be upheld.
The exact juridical status of the sentence plan is discussed. Although the plan as such does not constitute an administrative decision with formal legal effects, it may follow from the principle of legitimate expectation that the authority should not retroactively change the plan to the prisoner’s disadvantage if the prisoner has followed the plan for his part.
The practical relevance of determining the limits of discretion in prisoner placement is undermined by the lack of effective remedies. The opportunity for judicial review of placement decisions is provided only in cases where the prisoner is sent back from an open institution to a closed prison or where the SPF is cancelled. But the decisions as to whether the prisoner gets placed to an open institution or SPF in the first place are not subject to appeal. The lack of remedies emphasizes the importance of oversight exercised by the Parliamentary Ombudsman.
