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| Michael Crowley |
In her correspondence, Ms. Campbell mentioned two names that resonate in Canadian criminal justice history: David Milgaard and Robert Latimer. In the case of Milgaard, he had been wrongfully convicted in 1970 of the first degree murder of Gail Miller, a nursing student, that had occurred in 1969. Latimer was convicted in 1994 of murdering his severely disabled daughter, Tracy Lynn, who was 12 at the time.
Milgaard always maintained his innocence, but his appeal was not considered until 1991. The government of Saskatchewan, after considering all available information, determined that he should be released from prison in 1992. While the federal government had recommended that a new trial commence, the provincial government chose to enter a “stay of proceedings” instead. In 1997 DNA evidence was obtained that exonerated Milgaard and another person was arrested and ultimately convicted.
Although he made numerous attempts at gaining day parole during his lengthy incarceration, the board never granted any form of conditional release in Milgaard’s case. And made it very clear that his refusal to admit guilt or refusing to accept responsibility for the murder was the ongoing and critical factor that led to negative decisions. It should also be noted that his institutional behaviour, especially in the early years, was seen negatively and understandably so.
After he was finally exonerated, Milgaard became an outspoken advocate for the rights of the wrongfully convicted and was seen as a positive role model in the community and gifted speaker.
In Latimer’s case, his daughter Tracy Lynn was extremely disabled from her birth, following interruption to her oxygen supply, which caused severe cerebral palsy. This resulted in her having violent seizures that were partially controlled through medication. She was unable to walk or talk and was in constant pain.
There had been a recommendation that she undergo yet another operation that would have caused her significant pain with no anticipation of an improvement in the quality or length of her life. Latimer, a farmer at the time, agonized over his choices but in the end determined that she should not be made to endure this further, invasive procedure and decided that ending Tracy’s life was the humane thing to do. He was then arrested, convicted of second-degree murder and sentenced to life in prison.
Although he had no record for violence and had been well-regarded in the community, it appears that the National Parole Board (now the Parole Board of Canada) assessed his lack of remorse as a relevant factor with respect to conditional release and made a number of negative decisions in his case. Latimer appealed and the board’s appeal division took the very unusual step in 2008 of reversing the decision taken in the prairies division and granting day parole directly. It took two more years before the board granted full parole, but in the meantime appeared to make restrictive decisions regarding the nature of his release that were successfully appealed. It seems likely that his apparent lack of remorse contributed to these restrictive actions.
These cases are two of the better-known examples of instances in which the board had to make decisions in which individuals either refused to acknowledge their guilt in committing a murder, or appeared to show no evidence of remorse (or regret) in having done so.
The board does not have a policy that would indicate that members should not grant any form of conditional release to someone who does not admit their guilt regarding a crime or series of crimes. Rather, in the board’s structured decision-making framework, this refusal would be seen as an aggravating factor in analyzing the likelihood of re-offending. Members would also be aware of mitigating factors to weigh and consider.
In my many years as a board member I did not see many individuals serving life sentences who denied their guilt, although there were a few. In some cases they believed that they should not answer any questions about their offences while an appeal was pending and those hearings were rather fruitless.
However, if someone was prepared to answer questions related to their lifestyle, behaviour, associates and criminal history in the time leading to the index offence, then the board could take those factors and the demonstrable changes they had made since then that could be seen as mitigating factors.
As an example, I chaired a hearing that involved an inmate who had been convicted of a murder that he denied committing. This took place north of North Bay, Ont. The victim was a young woman who had been stabbed to death. The man charged and convicted had known her, and had a history of alcohol abuse, coupled with a bad temper and criminally oriented associates. Although he admitted knowing the victim and drinking with her, he denied assaulting or harming her. His downfall, apparently, was that he allegedly confessed to an undercover police officer who had been placed in his cell, in order to obtain an admission of guilt.
At his hearing he continued to deny the crime and deny confessing to his cellmate.
File information had indicated that his institutional behaviour had been problem-free with no evidence of anger or loss of his temper. He not only avoided any alcohol or drugs, but appeared to benefit from the programming that he completed. He was hard-working, something he had not achieved in the community and had the support of his Case Management Team and that of a halfway house in the community that was not in his home community where his negative friends remained. Finally, the most recent psychological assessments supported a conditional release, assessing his risk as low-moderate.
The board is always tasked to determine whether an offender’s risk for future offending is undue, or not.
In the end, we accepted the verdict of the court but did not give undue weight to his continuing claims of innocence. Instead, we looked at the evident changes that he had made in his attitude and behaviour, and concluded that he posed a manageable risk. If he were to change again, and return to alcohol or drug use, or to return to having criminal associates his risk would escalate, but those supervising him would be, in our view, immediately aware of those changes and suspend his release. So we granted day parole.
Alternatively, there was the case of the individual in Hamilton who was convicted of murdering his wife and two children in 1976. Over the years I participated in five hearings with him, and with the exception of one escorted temporary absence, denied his application for day parole.
In his case his continuing denial of the crime was an aggravating factor that I found to be critical. In the community his background and demeanour, at least on the surface, was seen positively. He was a professional who worked for the city, had a good income and appeared to be a devoted husband. For me, then, positive institutional behaviour was not a significant mitigating factor as it mirrored his behaviour prior to the murders. He was not required to take any programs, and always derided the notion that he might benefit from domestic violence programming or counselling.
The overriding issue was that in the absence of knowing why he had committed these murders it was impossible for me to state that his risk would not be undue, particularly if he were in another domestic or marital relationship. And each time I saw him, he was in such a relationship.
Without question the continuing denials for a release were frustrating and on more than one occasion he stated, rather forcefully, that if he needed to admit to something he did not do, then he would never be released. And my response, each time, was that his risk would be difficult to accurately assess if we did not know why he killed his wife and children. Therefore, it was not the denial of the crimes, but the reasons for the crimes that was the critical factor.
This is the first installment of a two-part series.
Michael Crowley has a BA from Syracuse University. He spent more than 40 years in various positions within the criminal justice system in Canada. Before retiring Crowley had been a member of the Parole Board of Canada for 21 years. Contact him via CrowleyMichael167@gmail.com
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