A Reference Point for Reform: The Light and Shadow of the Minor-Offense Parole Revocation Project

On Friday afternoon, November 6, 2020, Judicial Yuan Interpretation No. 796 was issued. It held unconstitutional the mandatory operation of Criminal Code Article 78, under which parole was revoked once a person committed a later offense resulting in imprisonment, without adequately distinguishing cases involving a suspended sentence or a sentence of six months or less, and without asking whether special-prevention concerns actually made renewed incarceration necessary. Four of the five petitioners for constitutional interpretation had received assistance from JRF. That should have been good news. Yet that afternoon, JRF staff were anxious and rushing around the office. What had happened? Leave the camera on that scene for a moment while we trace how the reform campaign reached that point.

A Legal Campaign Moving Inch by Inch: Strategy Between the Grand Chamber and Constitutional Review

The campaign can be traced to October 2016, when JRF received a complaint from a man who had spent 13 years in prison before being released on parole. A later offense resulted in a two-month sentence commutable to a fine, yet his parole was revoked and he was required to serve the remaining 25 years of his earlier life sentence in addition to those two months. He was 58 at the time; if he served the full remainder, he would not leave prison until age 83. JRF began advocating legislative reform, but made little progress. By September 2019, after similar complaints had accumulated, JRF's Correctional Institutions Group and Constitutional Interpretation Group decided jointly to contact the Agency of Corrections for a nationwide list of people whose parole had been revoked because of a later offense carrying six months or less, identify those whose original sentence had been life imprisonment, organize a pro bono legal team, and exhaust available remedies in order to create opportunities for constitutional review.

The Minor-Offense Parole Revocation Task Force took cases across Taiwan, but progress was difficult. The cases were old; communication with incarcerated clients was slow; prosecutors offices sometimes refused to retrieve records; and in many cases it was difficult even to identify the court that had pronounced the original sentence. Cases were repeatedly dismissed on procedural grounds because the wrong court had been identified. At the same time, amendments to the Prison Act were about to shift the remedy from a criminal objection to execution into administrative litigation. The team therefore had to file older cases before the new law took effect while also bringing administrative actions in newer cases. In parallel, the Constitutional Interpretation Group organized attorneys to prepare constitutional petitions. The litigation and constitutional-review tracks moved forward together.

Photo / Task-force members outside the Supreme Court (click to enlarge)

While the constitutional petitions were pending, the Supreme Court also began confronting the issue. In July 2020, the Supreme Court's Third and Fourth Criminal Divisions stayed proceedings and sought constitutional interpretation. In October, the First Criminal Division referred the Article 78 issue to the Grand Chamber, and the legal team prepared for oral argument there as well. Some individual cases had exhausted their remedies while others had not, so the procedural landscape was extremely complicated. Interpretation No. 796 was announced on the Friday immediately after the Grand Chamber oral argument. Although the Interpretation appeared to resolve the constitutional question, it also created immediate anxiety that some clients who had not yet filed their own constitutional petitions might miss the "constitutional-review train."

While the legal effect remained uncertain, JRF also lobbied the Legislative Yuan to amend the relevant provisions so that people beyond the direct reach of the constitutional proceedings would not be left behind. After a period of confusion, a common approach eventually emerged: cases already pending before courts would be handled by the courts, while the Ministry of Justice would review cases not then pending and decide individually whether release was appropriate. Only then could the team finally breathe. It moved into legal consultation, follow-up on releases, and referrals to reentry resources, bringing this phase of the reform campaign temporarily to a close.

A Reference Point for Reform: Developing a Methodology

Campaigns against irrational incarceration rules are not unique to Taiwan. In the United States, reforms of life without parole and three-strikes laws have been pursued through many strategies. Organizations including the American Civil Liberties Union, Open Society Foundations, and The Sentencing Project have published policy papers and research reports, collected individual stories, sponsored ballot initiatives, and partnered with law schools. California, for example, adopted Proposition 36 in November 2012 with 69.8 percent support, allowing people serving three-strikes sentences for non-serious, nonviolent felonies to petition for resentencing unless a court found that resentencing would pose an unreasonable risk to public safety.

Whether viewed alongside foreign experience or as one example in the continuing debate over three-strikes reform, JRF's Minor-Offense Parole Revocation Project can serve as a reference point for future study of judicial, political, and legal reform. Legislative and judicial strategies intersected and reinforced one another. When legislative advocacy initially stalled, litigation created pressure and opened a path toward constitutional review. When the reach of judicial relief later threatened to leave some people behind, the campaign returned to legislative advocacy to protect the reform's gains. The Correctional Institutions Group and Constitutional Interpretation Group likewise worked in tandem: attorneys litigated cases across Taiwan while constitutional petitions supplied a common doctrinal foundation. When the Supreme Court's Grand Chamber and the Grand Justices moved on parallel tracks, the team had to adjust quickly while keeping the broader principles of the issue in view.

Those legal strategies could create pressure only because they were supported by organizational coordination and public advocacy. Staff had to convene meetings, stay in constant contact with the pro bono team, track dozens of individual cases, and respond to new developments in the courts. That work depended on careful executive secretaries and cooperation across organizations. At the same time, advocacy staff organized writers and interns around Taiwan to interview clients and turn dense case materials into stories the public could understand. Releasing those stories alongside litigation developments helped expand attention and bring more people into the reform effort. The public-advocacy work and the courtroom work strengthened one another, producing a broader and more creative reform strategy.

Afterword: What Lies Behind the Optimistic Rhythm

I have told this story as a campaign in which different strands moved together and ended on an optimistic note. That does not mean everything became peaceful or easy, and it is not meant to hide the setbacks and suffering along the way. The choice of tone is partly about making the story easier to communicate. More importantly, it is an attempt to leave a record of the people who threw themselves into the work and of the methods that may be useful to future reformers-so that when those who come next encounter painful experiences of their own, they may still be able to imagine something better and find the strength to keep walking together.