Prison law — the branch of law that regulates the execution of sentences — has a technical and jurisprudential complexity that few people outside the system are aware of. The sentence calculation, classification by degree, release permits, the third degree, conditional release, the accumulation of sentences, appeals before the Penitentiary Surveillance Judge: all of these figures have specific rules, precise timeframes, and particular legal arguments that only a lawyer with experience in sentence execution can handle with the effectiveness the case demands.
In this article we explain exactly what a criminal lawyer can do during the sentence execution phase, at what points their involvement is most relevant, and how their work can concretely change the amount of time a convicted person spends in prison.
Reviewing and, Where Appropriate, Challenging the Sentence Calculation
The first act of penitentiary significance that occurs after a sentence becomes final is the sentence calculation: the document establishing how long the convicted person must serve, which sentences are to be accumulated, what period of pre-trial detention is to be credited, and what the expected date of definitive release is. The calculation may contain errors, and those errors may result in the convicted person spending longer in prison than necessary.
A lawyer specialising in execution can review the sentence calculation with a technical eye to detect potential errors: an incorrect application of the accumulation limits, a miscalculated credit for pre-trial detention, the omission of a sentence that should have been included, or an arithmetic error in the calculation. Any of these errors may be challenged before the Penitentiary Surveillance Judge, who has jurisdiction to order their correction.
In many cases, this preventive work — reviewing the calculation before the sentence begins to be served — can save the convicted person months or even years of unnecessary imprisonment. And yet it is work that is rarely carried out, because many convicted people and their families do not know that it is possible or that it is necessary.
Requesting the Accumulation of Sentences
When the convicted person has several sentences arising from different criminal proceedings, there may be grounds for requesting the accumulation of sentences under Article 76 of the Criminal Code, which sets a maximum term of imprisonment for the combined sentences. If that limit is lower than the total sum of the sentences, the convicted person serves only up to the limit and the remainder is extinguished.
The application for accumulation must be addressed to the court that handed down the most serious sentence and requires a technical analysis of the file to determine whether the temporal requirements are met — that the offences were committed before the commencement of the sentence — which sentences must be included, and what the applicable maximum limit is. A specialist lawyer can carry out that analysis, submit the application correctly, and, if the accumulation is refused, appeal the decision with robust arguments.
It is one of the most impactful areas of work in criminal execution: an accumulation that is correctly applied for and granted can reduce the period of imprisonment by years. And yet many convicted people who would be entitled to it do not apply because no one has explained to them that it exists.
Defending the Inmate's Interests in the Classification Procedure
Penitentiary classification — into first, second, or third degree — determines the conditions under which the convicted person serves their sentence and their access to penitentiary benefits. This classification is neither an automatic nor a neutral procedure: it is a decision of the Treatment Board that may be incorrect, may apply the wrong criteria, or may be based on outdated or insufficient technical reports.
The lawyer may intervene in the classification process in several ways:
- By submitting to the Treatment Board external expert reports — psychological, social, risk assessment — that complement or add nuance to those prepared by the facility's specialists.
- By advising the inmate on how to prepare the life plan they must present in order to access the third degree.
- By challenging before the PSJ the initial classification or reclassifications that the inmate considers incorrect.
- By contesting unjustified regressions in degree that may occur during the sentence.
The difference between being in the second degree and the third degree can mean the difference between living in the penitentiary facility and being able to leave during the day to work and be with family. It is an enormous difference in the quality of life of the inmate and in the pace of their reintegration process, and fully justifies the active involvement of a lawyer.
Managing and Appealing Release Permits
Release permits are the inmate's first real contact with life outside the facility and a fundamental element of the reintegration process. The lawyer may intervene in the management of permits in several ways.
They can prepare the application for the first permit in a way that maximises the chances of it being granted: identifying the most appropriate moment to apply, constructing a detailed and verifiable permit plan, providing documentation of ties to the community, and, if necessary, submitting expert reports that reinforce the favourable prognosis for return.
They can challenge before the PSJ the denial of a permit when they consider that the decision is insufficiently reasoned or that the criteria have been applied incorrectly. The PSJ's case law on permits is very extensive and offers specific arguments that a specialist lawyer knows and knows how to use.
And they can advise the inmate on how to make the most of permits to build the record of good compliance that will allow them to access the third degree and conditional release: what activities to carry out during the permit, how to document them, and how to report any incidents that may arise to the facility.
Requesting and Defending the Third Degree
The third degree — the open regime — is the phase in which the inmate leaves the facility during the day to work or undertake training and returns to sleep there at night. It is a radical change in living conditions and the step prior to conditional release. The lawyer can play a decisive role in obtaining it.
They can assess when the right moment has come to apply for the third degree based on the time served, the progress of the treatment, and the availability of a viable life plan. Submitting the application too early or without the appropriate documentation can prove counterproductive.
They can build the application file with all the necessary documentation: a report on participation in programmes, a detailed life plan, evidence of family and work ties, and external expert reports where necessary.
And they can appeal a denial before the PSJ and, if necessary, before the Provincial Court, with legal and technical arguments demonstrating that the refusal is not sufficiently justified.
Requesting Conditional Release
Conditional release is the last major milestone of the execution phase: the possibility of serving the remaining sentence in freedom, subject to conditions, rather than continuing in prison. The lawyer can:
Determine at what point the convicted person meets the requirements — classification at the third degree, time served, good conduct, a favourable prognosis — and act immediately to submit the application.
Prepare a complete conditional release file that includes all the necessary documents and presents the PSJ with a clear and convincing picture that the convicted person is in a position to reintegrate into society.
Challenge the denial of conditional release when it is not sufficiently justified, and appeal before the Provincial Court if the PSJ dismisses the initial appeal.
Defending the Inmate's Rights Against Actions by the Prison Administration
An inmate serving a sentence does not lose all of their rights. The lawyer can actively defend those rights against actions by the prison administration that violate them:
- Challenging disciplinary sanctions that are not sufficiently proven, whose procedure did not respect the inmate's guarantees, or that are disproportionate to the infraction committed.
- Contesting transfers to facilities far from the family home that are not justified and that hinder the inmate's ability to maintain family ties.
- Demanding adequate healthcare when the inmate is not receiving the medical care their state of health requires.
- Defending the inmate's right to communicate with their family and their lawyer when those communications are unduly restricted.
- Contesting inadequate accommodation conditions — overcrowding, lack of hygiene, facilities in poor condition — that violate the right to dignified treatment.
All of these actions are channelled primarily through the Penitentiary Surveillance Judge, before whom the lawyer may submit complaints, appeals, and requests for intervention within the specific timeframes and forms that a specialist in prison law is familiar with.
Supervising the Reintegration Process from the Outside
The lawyer who accompanies an inmate throughout the entire execution phase does not only intervene on a case-by-case basis when the administration makes decisions: they can also exercise a function of continuous supervision of the reintegration process that helps the inmate orient their behaviour within the facility towards the objectives that will allow them to access penitentiary benefits.
This preventive function — which consists of identifying which aspects of the inmate's situation need to be improved before the moment of each application arrives — can be as valuable as, or more valuable than, the reactive function of challenging denials. An inmate who is well advised throughout the entire sentence arrives at each review in a much stronger position than one who only turns to a lawyer when things have gone wrong.
Specifically, the lawyer can advise on:
- Which treatment programmes it is most important to complete before each classification review.
- How to manage conflicts within the module in order to avoid sanctions that could hinder progression.
- What documentation needs to be accumulated so that each application is well supported from the outset.
- When the most appropriate moment is to submit each application, avoiding doing so too early or without sufficient preparation.
Frequently Asked Questions
Is it mandatory to have a lawyer during the sentence execution phase?
It is not legally mandatory, but it is strongly advisable. The convicted person may act on their own behalf before the Penitentiary Surveillance Judge, submitting complaints and appeals without the need for a lawyer. However, the technical complexity of penitentiary matters, the brevity of the timeframes for appeal, and the importance of the consequences mean that acting without specialist legal advice is a significant risk that may cost months or years of unnecessary deprivation of liberty.
Can the lawyer visit the inmate at the penitentiary facility?
Yes. The inmate has the right to communicate with their lawyer confidentially and without restrictions, and the lawyer may visit the inmate at the facility to prepare the necessary procedural actions. These communications are confidential: facility officers may not be present during them or monitor their content. Fluid communication between the lawyer and the inmate during the sentence is fundamental to the effective defence of their prison rights and interests.
How much does a lawyer specialising in sentence execution cost?
Fees vary depending on the complexity of the case, the specific actions requested, and the experience of the lawyer. There is no fixed mandatory scale. However, if the convicted person does not have the financial resources to pay for a private lawyer, they may apply for free legal aid, which the system also guarantees for the execution phase. The quality of free legal aid in penitentiary matters can vary, so in the most significant cases it is advisable to engage a private specialist lawyer if economically possible.
Can the lawyer act even if the convicted person did not have them during the trial?
Yes. The lawyer who intervenes during the execution phase does not have to be the same one who represented the convicted person during the criminal proceedings. A lawyer specialising in sentence execution can be engaged at any point during the sentence, even if the convicted person has already spent years in prison. In many cases, the convicted person's family contacts a penitentiary lawyer when a third-degree application is refused or a permit is denied, without the convicted person having had specialist legal advice during the preceding years. It is late, but never too late to act.
Can the lawyer get the sentence imposed in the final judgment reduced?
Not directly. A final judgment imposing a sentence can only be modified through very limited extraordinary remedies — the appeal for revision, the pardon — which have very strict requirements and whose success is exceptional. What the lawyer can do is work to ensure that the convicted person leaves prison earlier through the mechanisms provided by prison law: the accumulation of sentences, which reduces the effective period of imprisonment; the third degree, which allows the inmate to leave during the day; permits, which maintain contact with the outside world; and conditional release, which suspends the serving of the remaining time. In practice, the impact can be enormous even if the nominal sentence does not change.
A very widespread — and very mistaken — belief is that the lawyer's role ends when the conviction is handed down. That once the trial has concluded and the sentence has been fixed, there is nothing left to do but wait for time to pass. Nothing could be further from the truth. The sentence execution phase is one of the areas in which the involvement of a specialist criminal lawyer can have the greatest practical impact on the life of the convicted person — and, in many cases, can mean the difference between serving the sentence in full or leaving prison years earlier.
