CRIMINOLOGICAL CHARACTERISTICS OF PARDONED INDIVIDUALS

Bukalov O. P. Head of the Department for Pardons of the Presidential Administration of Ukraine; Rudnytskykh M. I. Candidate of Legal Sciences, Associate Professor at the Department of Criminology and Criminal Executive Law of the Institute of the State Penitentiary Service

Scientific and Practical Journal ‘SOCIOLOGY OF LAW’, No. 1-2 (24-25), 2018

Abstract: the article contains the results of a study on the criminological characteristics of individuals pardoned in 2009. In total, the case files of 290 persons were examined – representing 50.1% of all those pardoned in 2009. The subject of the study included key criminological indicators of the pardoned individuals, such as the crimes they committed, character references and recommendations provided by the administrations of correctional institutions, as well as age, gender, marital status, education level, pre-conviction employment status, and other factors.

The Constitution of Ukraine establishes the right of the President of Ukraine to grant pardons. It is considered a manifestation of mercy and humanism towards individuals serving sentences. This right has long-standing traditions and is inherent to many countries worldwide.

It must be recognised that a pardon is an exceptional type of release from serving a sentence, as it is not linked to objective legal circumstances and does not depend on the functioning of the bodies and institutions executing the sentences. At the same time, the pardoning process is not rigidly defined, as it depends to a certain extent on the personality of the President of Ukraine and the policy pursued in this area.

Currently, a number of issues related to pardons deserve consideration: what social consequences the act of pardoning entails; what the risk is of a person reoffending; how dangerous it is to pardon individuals who have committed grave and especially grave crimes; which characteristics of a convict contribute most to a positive decision on a pardon; what determines the likelihood of a person committing a crime again after being pardoned, and what the state’s responsibility is in this regard; how to ensure social justice when granting a pardon.

These issues are actively debated, yet there is almost always a noticeable lack of serious research into the consequences of applying pardons. Furthermore, decrees on pardons are not published in full due to the presence of personal data in them, and the statistical data made public are generally of a generic nature, allowing trends in the number of pardoned persons to be traced but lacking sufficient information to conduct any comprehensive criminological research.

The purpose of this article is to define the criminological characteristics of individuals who were pardoned during a specific period.

The empirical basis of the study consists of statistical data obtained with the facilitation of the Department for Pardons of the Presidential Administration of Ukraine.

This study provides the first comprehensive analysis of the criminological characteristics of individuals pardoned in 2009. This period was selected because it allows for the analysis of the situation regarding the commission of new crimes by individuals pardoned during this timeframe over the subsequent eight years, the study of the quantitative and qualitative indicators of such crimes, and the characteristics of the individuals who committed them, as well as due to the traditionally large number of pardoned individuals in those years.

In total, 573 individuals were pardoned by the President of Ukraine in 2009. Over the eight years following their pardon, 137 of them (or 23.9% of the total number of pardoned persons) committed a new offence.

To conduct a comparative analysis and identify common and distinct characteristics of individuals who committed a new crime after being pardoned, and those who did not, a comparative group of 153 individuals was selected, who were pardoned in the same year and did not commit any crimes after their release. In total, 290 case files of pardoned individuals were studied – representing 50.1% of the total number of those pardoned in 2009.

The analysis of key criminological indicators, such as the number and types of crimes committed, the duration of the period between the pardon and the commission of a new crime, the recommendations of the administrations of correctional institutions regarding the feasibility of pardoning the convicts, the character references provided, as well as age, gender, marital status, education level, and pre-conviction employment status, made it possible, based on the statistical method of data analysis, to determine the patterns in granting pardons in 2009 and to reach conclusions that are appropriate to consider when reviewing petitions from convicted persons.

Criminal-legal characteristics of pardoned individuals. One of the important factors characterising convicted persons and influencing the decision to pardon them is their criminal history (criminal experience) – namely, the number of prior convictions at the time their petition is reviewed. For the majority of the 290 pardoned individuals selected for the study, this was their first conviction: in total, 188 persons (64.8%) were convicted for the first time. However, these two-thirds are not distributed proportionally between the two study groups: among the pardoned individuals who did not commit crimes after being pardoned, 116 persons (or 75.8%) were serving a sentence for the first time; among those who had no convictions prior to being pardoned, 72 persons (or 52.5%) committed a new crime after being pardoned. Accordingly, at the time of their pardon, a total of 102 persons (or 35.2%) in the two study groups had prior convictions, including 37 persons from the group of those who did not commit crimes after being pardoned (or 24.2%), and 65 persons from the group of those who committed new crimes after their pardon (47.5%). It is obvious that the share of the latter within their group is twice as large as the share of those with prior convictions among those who did not commit crimes after being pardoned. These data are presented in Table 1 (Here and hereinafter, percentages are given of the total number of persons in the corresponding group: in the first column, % of the number 137, and in the second – of the number 153 – Author’s note).

Table 1

Correlation Between Prior Convictions and Reoffending

In view of the provided data, it can be assumed that a person who has prior convictions is more likely to commit a new crime, even if they were previously pardoned. A possible explanation for this situation among individuals who have repeatedly served sentences may be the weakening of social ties or their complete disappearance, as well as the criminalisation of the personality, for whom serving a sentence is no longer an unfamiliar procedure, and therefore the risk of receiving a new sentence is no longer as daunting. It is also possible that individuals who received a suspended sentence perceived it as an absence of real punishment, and it did not serve as a deterrent for them. Therefore, when considering the application of a pardon to a person who already has prior convictions, it is advisable to pay more attention to other important factors that may compete with the fact of its existence.

Among both study groups, the share of individuals who served sentences in the form of deprivation of liberty is over 90%, while the remainder served sentences in the form of restriction of liberty. This factor has virtually no noticeable impact on the characteristics studied.

When analysing the types of crimes for which pardoned individuals served sentences in 2009, based on the results of the study of 290 cases, four groups can be identified: first, individuals convicted of offences against life and health of the person – 22%; second, individuals convicted of offences against property – 45%; third, individuals convicted of offences in the sphere of trafficking of narcotic drugs, psychotropic substances, their analogues, or precursors, and other crimes against public health – 16.5%. The remaining 16.5% of individuals served sentences for other types of crimes and constitute the fourth group.

Analysing the first group, we can see that the share of individuals who served sentences for offences against life and health of the person before being pardoned and committed a new crime after being pardoned is only 13.7%.

In contrast, among the group of those who did not commit crimes after being pardoned, the share is 30.7%. This means that individuals who served sentences for offences against life and health of the person are nearly 2.5 times more likely to refrain from returning to criminal behavior after being pardoned than they are to repeat it. The distribution under specific articles of the Criminal Code of Ukraine is shown in Table 2. 

Table 2

Offences against life and health of the person for which individuals were convicted at the time of pardon

It can be stated that among individuals who were convicted of offences against life and health of the person, there is a relatively low risk of reoffending. Even if a pardoned person did commit a new crime, it was of a lesser degree of gravity and of a different type than the previous one. In other words, a person who committed a grave crime and was pardoned is highly unlikely to commit a new crime of the same degree of gravity after being pardoned. This supports the assumption that the severity of the crime is only very indirectly linked to the risk of committing a new crime.

A rather specific situation arises: in cases where the crime itself has severe social consequences, the risk of recidivism among individuals who commit such crimes is quite low. This may indicate that when considering the issue of a pardon for this category of convicts, it is appropriate to pay attention both to the circumstances and substance of the crime committed, and to an equal extent to other factors, in particular, the existence of socially useful ties and behavior during sentence execution.

Most frequently, after being pardoned, individuals convicted of offences against property committed new crimes – 52.3% (Table 3).

Table 3

Offences against property for which individuals were convicted at the time of pardon

It is worth noting that these are the most common types of crimes for which sentences of deprivation of liberty are served. For such pardoned individuals, the complexity of assessing the risk of reoffending lies in the fact that these new crimes are mostly of minor or medium gravity, causing less harm compared to offences against life and health of the person. Thus, a misleading impression may be formed that individuals who commit them are less dangerous to society in the event of a pardon than those who committed grave crimes. However, this analysis shows that the risk of recidivism among those pardoned in 2009 turned out to be quite high.

Individuals convicted of offences against property, after being released by pardon, most frequently committed new crimes, and usually the very same ones for which they had been convicted previously. When considering petitions for the pardon of such individuals, it would be appropriate to pay close attention not only to the circumstances of the crime, but also to the character reference of the person during sentence execution, their education, marital status, and the presence of children – namely, those factors that can facilitate adaptation after release and reduce the risk of returning to committing criminal offences.

The third group of individuals consists of those convicted of offences in the sphere of trafficking of narcotic drugs, psychotropic substances, their analogues, or precursors, and other crimes against public health (hereinafter – ‘offences in the sphere of trafficking of narcotic drugs’).

Table 4

Offences in the sphere of trafficking of narcotic drugs for which individuals were convicted at the time of pardon

As the data in Table 4 show, the share of individuals who served sentences for offences in the sphere of trafficking of narcotic drugs and committed criminal crimes again after being pardoned is approximately the same (15.2%) as the share of individuals who, having served sentences for such crimes, did not commit new crimes over the subsequent eight years (18.3%).

Out of 21 individuals convicted of offences in the sphere of trafficking of narcotic drugs, 10 persons (or 47.6%) committed the same type of crime after being pardoned.

It is worth taking into account that in criminology, this group of crimes is identified as having a high rate of recidivism. For this very reason, when considering materials for the pardon of such individuals, it is crucial to establish whether the person’s drug addiction persists, whether it has been overcome, whether the person received appropriate treatment or assistance, whether they participated in preventive measures, whether there is evidence of their effectiveness, and what socially useful ties the person maintains.

The number of individuals convicted of crimes in this area who petition for a pardon is gradually declining due to the relatively short sentences of deprivation of liberty imposed, and because they are increasingly receiving non-custodial alternative sentences.

Social characteristics of pardoned individuals. The social indicators studied were age, education, marital status, and pre-conviction employment status. When comparing age limits, the following differences and features were established (see Table 5).

Table 5

Age of convicts at the time of pardon

A correlation is observed between the age of convicts and the risk of reoffending. According to the data in Table 5, it can be seen that the risk of committing a new crime decreases with age and is minimal for individuals over 50 years old, whereas it is highest in the 18–35 age group – 78.1%.

Among individuals who did not commit new crimes, the share of those over 36 years of age was 45.8%. The conclusion seems justified that the older the person petitioning for a pardon, the more likely they are not to commit a new crime after release. The situation regarding this indicator has likely not changed significantly since 2009, especially since this state of affairs is generally characteristic of recidivist crime. Criminological studies indicate its ‘rejuvenation’: while in 2002 the percentage of individuals aged 18 to 25 who committed a repeated crime was 40%, in 2012 their share had already reached 42.3% [1].

The education level of the convicts in the two study groups does not differ significantly: in both groups, the main share consists of individuals with secondary education, and only a very small share consists of individuals with higher education (see Table 6).

Table 6

Education level of pardoned convicts

From a criminological standpoint, a low level of education is one of the characteristic features of individuals who commit crimes: the majority of convicts serving sentences have a low level of education (general secondary, incomplete secondary, or have only completed a few grades). This factor correlates with the risk of a person committing repeated crimes and, in combination with other factors, increases it. Naturally, having an education provides a person with the opportunity to acquire a profession and a job – meaning earning a living by lawful means, being part of a community, and having a positive social environment. Although in this study the education level of individuals from the two groups does not differ significantly, a stable correlation with the criminal orientation of the person is evident.

In this aspect, when considering petitions for pardons, it is important to take into account the attitude of convicts towards acquiring an education or a profession during sentence execution.

Another important factor is whether the person was employed prior to sentencing. The absence of employment at the time of conviction is an all too typical situation among convicts. However, among those who committed a crime after being pardoned, 18.9% had been employed prior to sentencing, compared to 28.8% among those who did not commit a crime. Thus, the presence of employment expectedly emerges as a factor that reduces the risk of recidivism.

Table 7

Number of convicts who were employed prior to sentencing

The marital status of convicts is a factor that plays a noticeable role in a person’s adaptation after release and in deterring them from committing new crimes. Although no significant differences are observed between the two categories of individuals, it is visible that the existence of marital relations and children slightly reduces the risk of committing new crimes (see Table 8).

The marital status of a person must certainly be taken into account when reviewing materials on pardons. However, it is also worth considering the possible excessive formality of this indicator, as the mere existence of a family in the absence of contact with them may not have a positive impact on the convict. Therefore, it is important that the materials prepared by the administrations of correctional institutions specify with which relatives and by what means the convict maintains socially useful ties.

Table 8

Marital status of convicts

Criminological characteristics of pardoned individuals. Women accounted for 24% of the total number of those pardoned in 2009; among those who committed crimes after being pardoned, 24 were women (17.5%) and 113 were men (82.5%). Clearly, women are more likely than men to refrain from committing new crimes after being pardoned.

Data regarding the period of time that elapsed between the release of pardoned individuals and their criminal prosecution for committing a new crime are presented in Table 9. This interval of time (until the commission of a new crime) is a highly specific and interesting indicator of a person's attitude towards criminal behaviour. It can be interpreted as the degree of stability of a person’s inclination towards criminal behaviour, and their readiness to violate the law. This indicator may testify, on the one hand, to the lack of readiness of such individuals for adaptation and lawful behaviour after release, and on the other hand – to the absence of conditions in freedom that would allow and help such individuals arrange their lives without violating the law. This likely reflects some degree of responsibility on the part of the state, whose social policy towards individuals released after serving sentences is insufficiently balanced.

Table 9

Time period between the person’s release by pardon and their subsequent criminal prosecution

At the same time, this indicator supports the view that a significant portion of pardoned individuals perceive the act of mercy by the head of state merely as a form of parole granted by the President – simply as a way to get out from behind bars, without feeling any personal obligation to comply with the law in the future. In other words, the person does not feel the moral component inherent in the act of pardon.

In our view, this outcome stems not only from the characteristics of the personality and their attitude towards society and the need to respect the law. To a certain extent, responsibility also lies with the members of the Commission, who should have more carefully analysed the information about the person when considering the issue of applying a pardon and sought not to make positive decisions regarding such petitioners, refraining from recommending their pardon to the President.

The high rate of reoffending by pardoned individuals in the first three years – 44.4% – draws attention.

In contrast, 55.6% of pardoned individuals managed to go three years or more without committing crimes, yet ultimately failed to refrain from returning to unlawful actions. This may indicate that the primary inclination towards unlawful behaviour that led to the commission of the first crime can persist in a person for a very long time. While studying the mechanisms of influencing such an inclination and its correction lies outside the scope of this study, it is nevertheless deemed highly relevant.

Following their pardon, 73 out of 137 individuals (53.3%) committed a new crime provided for by the same section of the Criminal Code of Ukraine, or even the exact same crime for which they had served a sentence prior to being pardoned.

This situation is observed primarily among individuals convicted of offences against property: out of 71 individuals convicted of such a crime, 53 again committed the same type of crime. This represents 74.6% of the offences against property recommitted by pardoned individuals.

At the same time, individuals who, prior to being pardoned, were convicted of intentional homicide generally committed crimes of lesser gravity (theft, etc.) after their release.

Criminal-executive characteristics of pardoned individuals. Information that has a noticeable impact on making a decision regarding a pardon includes data about the convict's behaviour during sentence execution, reflected in the character reference provided by the administration of the correctional institution, as well as its conclusions or recommendations regarding the feasibility and appropriateness of applying a pardon to the person. Table 10 presents information on recommendations regarding pardoned individuals, which shows that in 32.6% of cases, the administration considered the person undeserving of a pardon, or considered the application of a pardon inappropriate or premature. Nevertheless, the person was pardoned and subsequently committed a new crime after release.

Table 10

Recommendations of the institutional administrations regarding the possibility of pardon

It is of concern that in the other 67.4% of cases where the person committed a crime again after release, the administration considered the pardon appropriate, possible, or even believed that the person deserved it. When processing information about pardoned individuals, a somewhat formal approach in formulating recommendations is striking: for the most part, they lack any justification for the conclusion of prematurity or inappropriateness of applying a pardon. Formulations of the position of the correctional institution’s administration such as ‘petitions for pardon’ appear questionable. Neither currently nor at that time does the administration have the authority to ‘petition for a pardon’. Since information about behaviour in correctional institutions is provided by the administration of the institutions, it is crucial that such information is as reliable, complete, and timely as possible. For the administration to express its positive attitude towards pardoning a person, it would be better to select other, more appropriate and fitting formulations. This situation convincingly demonstrates the feasibility of certain official guidelines for employees of correctional institutions who prepare materials on the pardon of convicts. Such guidelines (methodological recommendations) could help standardise the use of terminology in matters of pardons. 

Frequently, when justifying their opinion, the administration noted: ‘due to the gravity of the crime and the circumstances of its commission’. However, assessing the circumstances and type of crime is not quite what is expected of the administration of correctional institutions, as their role primarily consists in providing the most adequate information and assessing the convict's serving of the sentence in the institution, noting the presence of disciplinary penalties, rewards, providing data on relationships with the family and other convicts, and reporting on their state of health. By the way, it is precisely the state of health of the convict in individual cases that can be of significant, and sometimes even decisive, importance when making a decision on a pardon.

The conclusion of the administration regarding the appropriateness of a pardon must be based precisely on this set of factors, whereas the circumstances and conditions of the crime are presented in the court verdict, and information about them is presented by the Department for Pardons to the Presidential Pardon Commission of Ukraine.

Conclusions. This study is aimed at defining the criminological and other characteristics of pardoned individuals, and comparing these indicators for individuals who committed new crimes after being pardoned and those who did not commit crimes after being pardoned.

The study covers the year 2009. The analysis of the consequences of pardons eight years later provides an opportunity to assess the effectiveness of various factors that were taken into account when applying pardons, and their connection with the subsequent fate of the pardoned individuals.

If one attempts, taking into account the results of the study, to predict the qualities of individuals who in 2009 stood the greatest chance of having their petitions for pardon granted, these would be women over 40 years of age who had committed a crime of medium gravity against the life and health of citizens for the first time, had children, had an education level of no less than secondary, as well as elderly citizens, also convicted for the first time. The highest risk of committing a new crime after being pardoned was among men under 35 years of age who had no family, primarily those who already had more than one prior conviction, and especially those who had committed crimes against property.

Over the eight years, the number of convicts sentenced to deprivation of liberty significantly decreased from 109,000 individuals in 2009 to 39,500 individuals at the beginning of 2018. Naturally, this led to a significant decrease in the number of petitions for pardons. This factor and several others determine the relatively small number of pardoned individuals annually in recent years – at the level of several dozen. It appears justified that approaches to applying pardons should take these changes into account.

It is indisputable that the criteria applied for granting pardons in 2009 resulted in a recidivism rate of 24%. In view of the obtained results of the study, it can be assumed that when making decisions on applying pardons, the Commission did not pay sufficient attention to the character and circumstances of the crimes committed, the criminal past of the candidates, as well as the existence of social ties.

The results of the study indicate that when considering the possibility of a pardon, the assessment of the risk of reoffending can hardly be considered a priority. In any case, this study provides an opportunity to take into account the experience of applying pardons in 2009.

The extent to which this experience is practically taken into account is evidenced by the results of the work of the Department for Pardons and the Commission in 2015–2017: out of 144 individuals pardoned during this period, as of 1 January 2018, only one person committed a repeated crime – having been pardoned for committing a road traffic accident, they were released only from the principal punishment, while the additional restriction – the right to drive vehicles – was retained. Having violated this restriction, the person was fined.

The pardoning procedure includes not only factors that are easy to formalise, such as age, part of the sentence served, the presence or absence of penalties and rewards, but also factors that are difficult to formalise. Ultimately, the act of pardon must not disrupt the balance of social justice in society or negatively affect the crime rate.

The research conducted establishes an interesting and important foundation for further study of the effectiveness of the application of pardons.

List of Sources Used

Tavolzhanskyi O. V., Deinyka V. S. ‘Criminological Aspect of Recidivist Crime’. Actual Problems of State and Law: Collection of Scientific Papers / Editorial Board: V. V. Zavalniuk (Editor-in-Chief) [et al.]. Odessa: Helvetika Publishing House, 2016. Issue 77. 228 pp. URL: http://www.apdp.in.ua/v77/28.pdf (Accessed: 28.08.2018).