Possibilities of compliance after the Organic Law 1/2015
When a prison sentence is received, it is often thought that everything is already done. There is no need to worry about what will happen afterwards, since the guarantees of the system have already been applied in the criminal process and the infringement of rights will not go beyond what is necessary for the fulfillment of the sentence. Only those who have experienced prison know how wrong this view is and how much can be done during the time of compliance from a legal standpoint. Something similar happens when one reaches open regime. We think everything is already done. However, as before, nothing could be further from the truth. From a social perspective, this is a key moment where having support and accompaniment is of radical importance. From a legal perspective, the reform of parole in 2015 makes its application and request a relevant aspect to consider.
According to article 72.1 of the General Penitentiary Law: “Prison sentences shall be executed according to the system of scientific individualization, divided into degrees, the last of which shall be parole, as determined by the Penal Code”. In this sense, talking about parole from a penitentiary perspective is equivalent to talking about a way of fulfilling the prison sentence, with the time spent in it being effective fulfillment. With Organic Law 1/2015, amending the Penal Code, the situation changes radically, as it not only regulates as a suspension modality what was previously sentence substitution, but also parole itself. With regard to the latter, and in accordance with article 90.1 of the Penal Code: “The judge of penitentiary surveillance shall order the suspension of the execution of the rest of the prison sentence and grant parole to the inmate who meets the following requirements: […]”.
The introduced change aligns our regulations with those of other legal systems that consider the latter part of the sentence as an alternative measure to fulfillment. Back-end programs, that is, those that shorten the last period of imprisonment, are considered as alternatives to it. Thus, the use of the term alternative measure is admitted not only for sentences that replace imprisonment, but also for those that mitigate it. This is the result of combining Punitive Populism and Decarceration, and their eagerness to find alternative measures that are sufficiently harsh to appease public opinion. Hence, despite parole being configured as a sort of alternative to the prison sentence in the form of sentence suspension, it may still involve a prior period of effective internment. Paradoxically, its regime as an alternative measure is stricter than that resulting from its consideration as a fulfillment period.
Let us not forget that, in accordance with its regulation as a suspension mechanism, and unlike before the reform, the revocation of parole results in the loss of the time spent in compliance with it. The practical result is that a significant number of inmates, once they reach third degree, reject access to parole due to the highly negative consequences of its revocation, not only for committing a new crime, but for mere non-compliance with the imposed obligations. Particularly if we consider long sentences, where compliance tribulations can be multiple. In the described regulatory context, it is preferable to access more open modalities of third degree — for example, article 86.4 — than to parole itself. Finally, as a final note, it is essential to consider that this new modality of parole should only be applied if the criminal acts are committed after the entry into force of the 2015 reform. Otherwise, what should be applied is parole according to its previous version which, as mentioned, is more beneficial than the current one.
