Minor-Offense Parole Revocation Project

The parole system allows inmates to be released from prison early before completing their full sentence, provided they meet certain conditions. If they behave well after release and their parole is not revoked, the remainder of the sentence is deemed fully served. The original intent of this system is to encourage inmates to reform while in prison and to hope that they can successfully reintegrate into society upon release.

Recently, many inmates who committed serious crimes in their youth have been working hard to reintegrate into society, striving diligently, and regularly reporting to their probation officers after being paroled, only to have their parole revoked due to committing a minor offense in a moment of poor judgment. Current Article 78 of the Criminal Code stipulates that parole must be revoked without exception, no matter how minor the offense.

The JRF has continuously received letters from inmates. Among them, many whose prior conviction was life imprisonment find that even though their subsequent conviction results in a short prison sentence of 2 or 3 months, under the current law, their parole must be revoked without exception. They are forced to return to correctional institutions to serve the remaining 25 years of their sentence, rendering their previous efforts at social reintegration completely in vain.

This disproportionate situation has even led some judges handling subsequent offenses to sentence defendants to exemption from punishment, adjusting the assessment of the subsequent offense to avoid the result where the defendant must serve a remaining sentence of up to 25 years upon revocation, thus sparking controversy.

In response to such laws that risk violating the principle of proportionality, the JRF has undertaken the following legal and advocacy actions:

1. The JRF proposed a draft amendment to the parole revocation system

   The Executive Yuan also agreed that current Article 78 of the Criminal Code suffers from a problem of disproportionate severity. Therefore, in June of this year, it proposed a draft amendment to Article 78 of the Criminal Code, hoping to revise the provision to state: "Where a person is sentenced to a determinate fixed-term imprisonment of less than six months, and it is deemed sufficient to recognize that it is difficult to maintain the legal order, the parole 'may' be revoked."

   However, this draft does not contain a retroactive clause, meaning that inmates whose parole was revoked prior to the amendment and who are currently serving their remaining 25-year sentences in correctional institutions will not be eligible. If passed, this version of the draft will widen the gap in the remaining sentences required to be served between past cases and future cases, creating even greater unfairness for those already serving time. In response, we have proposed a civil-society version of the draft that includes a retroactive clause.

2. The JRF assisted a total of 73 current cases across Taiwan in exhausting legal remedies and applying for constitutional interpretation

   Currently, with the assistance of eight pro bono lawyers from the JRF's Prison Group, efforts are being made to retrieve old records from prosecutors' offices throughout Taiwan and to file objections with various courts. Following the implementation of the new Prison Act on July 15 this year, remedies are now being pursued through administrative litigation to exhaust legal remedies. However, many cases date back a long time. Since September of last year, retrieving documents, waiting for data, and handling procedural issues alone have consumed more than half a year, and most cases have not yet exhausted all remedies.

   Nevertheless, through the efforts of the legal team, two cases have been appealed to the Supreme Court, which adopted our arguments, suspended the trials, and petitioned the Grand Justices for constitutional interpretation.

   • Chiang Chin-hui Case, Ruling Number: Supreme Court Criminal Ruling 109-Tai-Sheng-Tzu No. 127
   • Lo Min-yao Case, Ruling Number: Supreme Court Criminal Ruling 109-Tai-Kang-Tzu No. 928

   In another case, the First Criminal Division of the Supreme Court considered that there was a legal dispute over "whether the court has the authority to make a constitutionality interpretation of Article 78 of the Criminal Code," and thus referred the matter to the Grand Chamber. It was initially thought this would significantly impact how pending criminal cases related to Article 78 are handled, but before the Grand Chamber's ruling could be issued, Interpretation No. 796 was announced.

   • Hsieh Ho-ping Case
     • Grand Chamber Referral Ruling: Supreme Court Criminal Referral Ruling 109-Tai-Kang-Da-Tzu No. 724
     • Grand Chamber Ruling: Supreme Court Criminal Grand Chamber Ruling 109-Tai-Kang-Da-Tzu No. 724
     • Ruling on This Case: Supreme Court Criminal Ruling 109-Tai-Kang-Tzu No. 724
     • Intern Court Observation: SHIH Jung-hsuan, NTU Law Volunteer, 2020/7/16 Court Observation

3. The JRF convened volunteers and partner organizations to interview 7 individual cases, hoping to let more people understand the lives affected behind the legal system

Individual Stories

1. Hsiao Ma's Story

   Hsiao Ma's case was the first minor-offense parole revocation case to reach the JRF. It is also a classic case where the prior conviction was life imprisonment, the subsequent conviction was for drunk driving resulting in a 2-month sentence, and parole revocation required serving 25 years of the remaining sentence. Having to stay in prison until age 83 to complete his sentence, Hsiao Ma's only remaining wishes in life are to be able to undergo euthanasia and to donate his organs to benefit others.

2. Hsiao Yeh's Story

   Hsiao Yeh is a typical case among minor-offense parole revocation cases. His prior conviction under the Act for the Punishment of Banditry resulted in a heavy sentence, while his subsequent conviction was for inadvertently committing drunk driving after drinking Paulareis energy drink while working. One drink of Paulareis traded for 25 years and 2 months in prison—the judge reviewing the objection could not bear it in their heart and suspended the trial to petition for a constitutional interpretation.

3. Hsiao Chiang's Story

   Hsiao Chiang's prior conviction was under the Banditry Punishment Act, which has already been declared unconstitutional. During his parole period, as rehabilitated persons find it difficult to secure employment, Hsiao Chiang posted sexually explicit small advertisements in order to earn a 300 NT dollar wage. This was deemed a violation of the Child and Youth Sexual Exploitation Prevention Act, resulting in the revocation of his parole and requiring him to serve 25 years of his remaining sentence. Gathering his story was extremely difficult; oral cancer leaves him unable to express himself clearly, making him one of our most concerning cases.

4. Hsiao Cheng's Story

   The subsequent conviction Hsiao Cheng received during his parole period was a miscarriage of justice. After two years of hard work, his case has now been exonerated. Hsiao Cheng's case is not typical, but rather the most extreme scenario regarding a subsequent offense. While the fundamental issue in this case lies in the prevention of miscarriages of justice, had the evaluation of parole revocation included discretionary space, these two years of imprisonment and regret would not necessarily have occurred.

5. Hsiao Tsai's Story

   Hsiao Tsai was not a case involving a prior life sentence and was not originally within the scope of our organization's special assistance project. However, for a case involving someone holding a moderate disability certificate whose subsequent offense was stealing discarded iron window frames worth 1,000 NT dollars, we could not simply look away. This article was written personally by the lawyer assisting him, expressing deep sorrow over the systemic issues.

6. Hsiao Sun's Story

   Hsiao Sun was also not a life-imprisonment case and was not originally within the scope of our project's assistance. However, his subsequent offense was getting into a verbal dispute with a doctor while taking his 93-year-old father to see a physician, leading to a conviction for violating the Medical Care Act. What we see is his effort, as the primary caregiver for elderly parents, in reintegrating into society and caring for his family. Parole revocation instead caused him, who was striving to reform, to begin giving up on himself.

7. Hsiao Ting's Story

   Hsiao Ting is a case of a prior life sentence and a subsequent drunk driving conviction. His subsequent blood alcohol concentration was 0.34, the lowest among all minor-offense parole revocation cases. Hsiao Ting suffers from severe depression behind iron bars. After his family sought help, the JRF asked Tzu-ting from the Taiwan Association for Human Rights' Southern Office to assist. After visiting and understanding his correctional treatment in prison and his efforts to reintegrate into society after release, Tzu-ting wrote this piece.

Announcement of Judicial Yuan Interpretation No. 796

On November 6, 2020, Interpretation No. 796 was announced:

The main text of Paragraph 1, Article 78 of the Criminal Code provides: "Where a person intentionally commits a further crime during parole and is sentenced to imprisonment for a determinate term or heavier, their parole shall be revoked within 6 months after the judgment becomes final." Without regard to whether the parolee has received a suspended sentence or a sentence of imprisonment of six months or less, and regardless of the specific circumstances of whether there is a necessity based on special prevention considerations to have them re-enter prison to serve the remaining sentence, simply because they are sentenced to imprisonment for a determinate term or heavier for such further crime, their parole is revoked without exception. This results in paroled individuals who receive a suspended sentence or imprisonment of six months or less, and who have no necessity for special prevention considerations, being sent back to prison to serve their remaining sentences. To this extent, the means adopted, in terms of achieving the objective, are not yet necessary, conflicting with the principle of proportionality under Article 23 of the Constitution and violating the intent of Article 8 of the Constitution to protect personal freedom. These provisions shall cease to be effective from the date of announcement of this Interpretation. Prior to the amendment of the above provisions, relevant authorities shall, regarding persons who intentionally commit a further crime during parole and receive a suspended sentence or imprisonment of six months or less, exercise individual discretion on whether to revoke their parole in accordance with the intent of this Interpretation.

Further Reading

CHOU Yu-hsiu | Exemption from Punishment for Minor Offenses Should Not Rely on Luck: The Disproportionate Revocation of Parole
LIN Chun-hung | Flaws in the Parole Revocation System—Punishing Minor Crimes Severely or Not Punishing Minor Crimes at Least
CHEN Huei-min | Revocation of Parole for Minor Offenses: Are Evidence of Remorse Still There?
Follaw | Drunk Driving After Parole Exempted from Punishment? Parole Regulations Urgently Need Amendment

Project Afterword

Ssuse Newsletter Issue 6 | Quid Pro Quo: Afterword on the Minor-Offense Parole Revocation Project